Point of Law: Unlawful assembly/ Grievous hurt/Fatal injuries - Allegations of assault causing amputation is attributed only to accused nos. 1, 3, 4,10 and 12 hence the accused nos. 2, 5, 6, 7, 8, 9 and 11 deserves to be acquitted under section 326.

JUDGMENT :

(PER SADHANA S. JADHAV, J.)

1. The appellants in Criminal Appeal No. 136 of 1996 have been convicted by the learned IIIrd Additional Sessions Judge, Solapur in Sessions Case No. 122 of 1996 for the offences punishable under section 147, 148 and 326 read with 149 of Indian Penal Code and under section 135 of the Bombay Police Act and they are sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 1000 (each), in default, to suffer further rigorous imprisonment for 6 months, vide judgment and order dated 26th February 1996. The appellants preferred Criminal Appeal No. 136 of 1996. The substantive sentence of all the appellants was suspended by this Court vide order dated 18th March 1996. The appeal is abated against the respondent nos. 3, 4, 10 and 12.

2. Such of the facts necessary for the decision of both the appeals are as follows:-

a) On 13th December 1996 Subhash Yadavrao Patil, (P.W.1) was taken to primary health centre in an injured condition. There was a brutal assault upon his right leg below the knee and he could not stand. He was admitted in the hospital by his nephew-Ramesh Gaikwad. Since he was seriously injured his statement was purportedly recorded under section 32 of the Indian Evidence Act. He had stated before the police that on 13th December 1993, Bhagwan Gaikwad, Appa Maruti Patil, Mahadeo Gaikwad and Popat Sitaram Gaikwad had mounted assault on him. After the assault Haibat Gaikwad, Mahavir Gaikwad, his brother Anna Gaikwad, Lahu Gaikwad, Bapu Patil and others had also assaulted him. There was previous enmity between them. He was unconscious for sometime. When he regained consciousness, he managed to reach upto the road and raised his voice. Upon hearing his cry, his nephew had reached the spot and had taken him to the police station and then to the hospital. The said statement is at ‘Exhibit- 54’. On the basis of the said statement, Crime No. 23 of 1993 was registered at Tembhurni Police Station for offences punishable under section 147, 148, 149, 307 and 326 of Indian Penal Code. During the course of the treatment, his right forearm and right leg had to be amputated.

3. At the trial PW.7, Subhash Patil has deposed before the Court that he was acquainted with the accused since childhood, as they happen to be his kinsmen. That, there are two political groups in the village. One led by Baban Kirte and another by Bhagwan Gaikwad. In the previous Grampanchyat Election, PW.7 had contested election from Kirte’s Group, which was declared victorious, after defeating the group of the accused no.1 and ever since then the accused were annoyed with him. Even prior to the election, there was a quarrel between Chandrakant Londhe and accused no.1. Criminal Cases were filed against each other and in the said case, PW.7 had stood surety for Chandrakant Londhe. That, prior to the incident dated 13th December 1993, the elections to the Co-operative Society were held. Rival Groups were Kokate’s Group and the Group of the accused no.1. PW.7 had contested the election from Kokate’s Group, which got majority. Whereas, the group of the accused no.1 was defeated. The accused had nurtured grudge against the informant ever since then.

4. PW. 7 has further deposed before the Court that on 13th December 1993 he had been to Tembhurni for personal work. At about 5.30 p.m, he had left Tembhurni for Malegaon on a bicycle. On the way just near the village the accused no.4 i.e. Popat Gaikwad had followed him and had overtaken him. At that juncture, he saw a tractor on the same road coming towards him. He saw accused no. 4 in the light of the tractor and could see that he was holding a stone in his hand, whereas, accused nos. 1 to 3 were on the tractor. Since, PW.7 had threat perception from the accused persons. He left bicycle on the spot and started running, at that time the accused no.4 pelted a stone at him. The stone hit at his back. He then saw that the accused no.3 came from backside and gave blow of satur on