SHIVA PUNJA JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The three petioners were prosecuted in the Court of the Judicial Magistrate, first Class Malegaon, in Criminal case No. 999 of 1975 for an offence punishable under Sec. 325 read with section 34 of the Indian Penal Code. The prosecution was initiated on a complainant made by one Bhiva Jairam Mahale. The complainant who is a resident of Malegaon, alleged that he had given a sum of Rs. 116/ to accused No. 1, who was the chairman of the Co-oprative Society of the Malegaon Municipal Emplyees, to be handed over to one Sukhram Ananda who is now found to be the maternal uncle of the complainant. On 9th June 1975, the said complainant, he had gone to the Bhaji Bazar at Malegaon when he saw all the three accused persons there The complainant says that he demanded the amount of Rs. 116/ from Accused No 1 when all of a sudden all the three accused caught -old of the complainant and subjected him to servere beating In his own words Accused No. 1 gave him the first blow on his head, Accused Nos. 2 and 3 caught hold of him while accused No. 1 caught hold of his right hand. According to the complainant, Accused No. 1 twisted his right hand as a result of which there was fracture. Then all the accused persons lifited him and threw him on the road due to which he sustained injuries. In the complaint, how ever, he has mentioned that only Accused No. 1 had lifted him and thrown him on the road. Thereafter he went to the Police Station and lodged the First Information Report which is at Ex. 17. He was also examined by a doctor who has given evidence in the present case. Five prosecution witnesses apart from the complainant were examined, but none of them has supported the prosecution As usual, the Public Prosecutor asked the liberty of cross examining those prosecution witnesses with referednce to their statements made to the police.

(2.) The learned Trial Magistrate by his judgment and order dated 18th May 1977 accepted the case as put up by the complainant and convicted all the three accused of the offence punishable under Sec. 325 read with section 34 of the Indian penal Code. Each one of them was sentenced to rigorous imprisonment for six months and further to pay a fine of Rs. 100/-In default of the payment of fine rigorous imprisonment for another month was directed. This order of conviction and sentence was confirmed by the learned Additional Sessions Judge of Nasik by bis judgment and order dated 9th December 1977 in Criminal Apptal No. 91 of 1977 perferred by the petitioners who will hereinafter be referred to as the accused. It is this order of the learned Additional Sessions Judge that s challenged in this petition.

(3.) Mr. P S. Nadkarni appearing in support of the petition has urged mainly two points to show why it must be held in the instant case that the prosecution has failed to prove its case beyond reasonable doubt. He has contended that the complainant attributed a particular motive to the accused for making this assault on him and if this is shown to be non-existent, then the origin of the fight remains unexplained According to the complainant his specific case as mentioned in the First. Information Report & as stated by himon oath in exam, in chief in court was that 8 to 9 months prior to the incident accused No. 1 demanded an amount of Rs. 116/ from him for the purpose ol paying the said amount to one Sakharam Ananda who was in need of money for depositing the same with the Society. It was alleged by the complainant that Accused No. 1 had given an assurance that he would return the said amount to the complainant. This is how he explains why in the evening of 9th June 75 he proceeded to ask accused No. 1 return the amount. This demand for the repayment of the amount alleged to have been paid to accused No. 1, according to the complainant, was the provocation for the. assault made by the three accused on the complainant.