JUDGMENT - Dr. PRATIBHA UPASANI, J.:---This criminal appeal for enhancement of sentence is filed by the State of Maharashtra, being aggrieved by the judgment and order dated 2-9-1985, passed by the Assistant Sessions Judge, Thane, in Sessions Case No. 270 of 1984. By the impugned judgment and order, the Assistant Sessions Judge had found the respondent/accused (hereinafter referred to as the respondent) guilty for the offence punishable under section 307 r/w section 34 of the Indian Penal Code. However, instead of sentencing the respondent at once to any punishment, the respondent was directed to be released, on his entering into a bond of Rs. 1,000/- with surety in the like amount for a period of one year. The respondent was also ordered, during this period to maintain peace and be of a good behaviour. The State has felt aggrieved as far as the sentence part of the order is concerned and hence this appeal.

2. The prosecution story can be briefly narrated as follows :

The complainant, one Asfak Ahmed Idris, the present respondent Abdul Majid Abdul Raheman Sayyed, Mohamed Umar Momin, Tanvir and Samsu were doing business of black marketing of cinema tickets at Anand Talkies, Bhiwandi. Initially, all of them were doing this business jointly. However, later on Mohamed Umar, Tanvir and Samsu and the respondent asked the complainant Asfak Ahmed Idris to stop black marketing of cinema tickets at the said theatre. The complainant, however, continued the black marketing of cinema tickets at the said theatre. This gave rise to the incident in question which took place on 6-8-1983 at about 11:30 a.m. at Anand Talkies.

As per the prosecution story, the complainant Asfak went to Anand talkies to purchase cinema tickets and while he was talking to the booking clerk Vilas Gurav (P.W. 5), the absconding accused Umar came there and asked the complainant as to why he was doing black marketing of cinema tickets at Anand Talkies. The said absconding accused Umar was accompanied by the present respondent Abdul, accused Tanvir and Samsu. Umar assaulted the complainant on his chest by means of a gupti. The complainant tried to rescue himself from Umar but the respondent and the other accused caught hold of him. Tanvir then assaulted the complainant by means of a knife on his head. The present respondent and the absconding accused Samsu started beating the complainant by means of wooden sticks. Because of the beating, the complainant fell down on the ground. He was then taken to the Municipal Hospital, Bhiwandi where PI Deshmukh (P.W. 9) recorded his dying declaration. This dying declaration was sent to Bhiwandi Police Station along with the report of PI Deshmukh for registering the offence. Accordingly, offence came to be registered against all the above mentioned accused including the present respondent under section 307 r/w section 34 of the Indian Penal Code and the law was set in motion.

After routine investigation was completed, charge-sheet came to be filed by PI Deshmukh in the Court of the Judicial Magistrate, First Class, Bhiwandi, against the accused including the present respondent under sections 307 and 326 r/w section 34 of the Indian Penal Code. Since the offence was exclusively triable by the Court of Sessions, the trial Court committed the case of the accused to the Court of Sessions, Thane. When charge was framed, read over and explained to the accused, he denied the same and claimed to be tried. His defence was that of total denial.

3. The learned Assistant Sessions Judge, Thane, after recording evidence of all the prosecution witnesses and after hearing both the sides came to the conclusion that the prosecution had succeeded in establishing beyond reasonable doubt that the respondent/accused Abdul Majid Abdul Raheman Sayyed had committed offences punishable under sections 307 and 326 r/w section 34 of the Indian Penal Code but what was proved was only the offence punishable under section 307 r/w section 34 of the Indian Penal Code

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