STATE OF MAHARASHTRA Vs. BABAN CHATURBHUJ CHAVAN

JUDGEMENT

(1.) This is an appeal by the State for enhancement of the sentence imposed upon the respondents (hereinafter referred to as accused Nos. 1 and 2) in Criminal Case No. 1 57 of 1974. In that case there were four accused and they faced charges for offences punishableundersections 325, 324, 323 and 448 read with section 34 of the Indian Penal Code. According to the prosecution at about 6.0 in the morning on 6th June 1974 accused Nos. 1 and 2 went near the house of one Vasant & assaulted his brother Arjun. Evidence discloses that the first blow was given by accused No. 1 with a stick on the head of Arjun which resulted in the fracture of his skull to the extent of 1 and 1/2" from the top of the head down wards on the left side of the parietal region. This Arjun received three more injuries which, however, can be characterised as simple injuries. After hearing the assault on Arjun, his brother Vasant went to his rescue but he was also assaulted by accused No. 2. Both of them had sticks in their hands. Despite the fact that Vasant had been felled down in this attack and was sought to be protected by his wife Sushilabai and daughter-in-law Chaturabai, there were further blows administered by accused Nos. 1 and

(2.) The prosecution further alleged that accused No. 3 threw a stone on the body of Arjun and accused No. 4 gave an axe blow to Arjun on his head. Thereafter the injured were taken to the dispensary and Arjun was treated as an indoor patient for one month. It is now in evidence which is clear- cut that Arjun had a fracture in the parietal region of his head. After the usual investigation, the accused were prosecuted as mentioned above in Criminal Case No. 157 of 1974. 2. In support of its case the prose cution examined all the three injured persons and the Doctor who examined all the three injured persons. The learned trial Magistrate accepted the prosecution case and by his judgment and order dated 20th May 1976 convicted all the accused as follows ; Accused Nos. 1 to 4 were convicted under section 323 read with section 34 of the Indian Penal Code and sentenced to three month's rigorous imprisonment and to pay a fine of Rs. 100-. In default of the payment of fine further rigorous imprisonment for 15 days was imposed. Accused Nos. 1 and 2 were convicted of the offence punishable under section 448 read with section 34 of the Indian Penal Code and sentenced to 15 days' rigorous imorisonment and to pay a fine of Rs. 50- each. In default of the payment of fine 7days rigorous imprisonment was awarded. Accused No. 1 was convicted of the offence punishable under section 325 of the Indian Penal Code and sentenced to six moths rigorous imprisonment and to pay a fine of Rs. 200-. In default of the payment of fine further rigorous imprisonment for one month was awarded. Accused No, 4 was further convicted of the offence punishable under section 324 of the Indian Penal Code and sentenced to six months rigorous imprisonment and to pay a fine of Rs. 200-Rigorous imprisonment for an additional period of one month was awarded in default of the payment of fine. Accused No. 3, however, was released under the Probation of Offenedrs Act.

(3.) The State has preferred the present appeal against only accused Nos 1 and 2 asking for enhancement of the sentences awarded to them, Mr, Patil, the learned Public Prosecutor appearing in support of this appeal, has complained that the learned trial Magistrate has shown leni-ncy unwarranted by the facts of the case.The prosecution evidence which was accepted by the learned trial Magistrate clearly showed that the attack on Arjun was p e-planned & pre-meditated & took p ace in the early hours of the morning when even some inmates of the house ofArjun had not got up. Accused Nos. 1 & 2 came without any provocation at least at that moment and a serious view ought to have been taken by the learned trial Magistrate of such an assault which had no justification whatsoever. In particular, says Mr. Patil, accused No. 1 from all accounts was in-charge of this operation and gave the blow that caused grievous hurt to Arjun and he should be treated a little bit more seriously than has been done by the learned trial Magistrate.