The main legal point established in the judgment is the court's reliance on the evidence presented by the prosecution to uphold the conviction of the appellants under Section 324 and 325 of the IPC.

JUDGMENT

Bharati Dangre, J. - The appellants have filed the present Appeal, being aggrieved by their conviction under the impugned judgment dated 11th February 1998 by the Addl. Sessions Judge, Nashik in Sessions Case No. 6 of 1997, thereby convicting all the three appellants under Section 324 of Indian Penal Code (hereinafter for short 'IPC') and sentencing them to suffer RI for six months and to pay fine of Rs.500/- each, in default to undergo SI for two months. The appellant nos.1 and 2 are also aggrieved by their conviction for the offence punishable under Section 325 of the IPC, and being sentenced to undergo RI for five years and to pay fine of Rs.500/- each, in default to undergo SI for two months.

2 While admitting the Appeal on 26th February 1998. The appellants were ordered to be released on bail and the sentence of Imprisonment came to be suspended till the decision of the Appeal. It is informed that all the Appellants have deposited an amount of fine as ordered and are presently on bail.

3 The appellants came to be charge-sheeted by the Addl. Sessions Judge, Nashik along with four other accused in respect of an incident which is alleged to have taken place on 18th August 1996 at village Ghubadsaka at around 8.30 p.m, when they are alleged to have formed an unlawful assembly, with the common object of committing an offence of rioting with deadly weapons being armed with sticks and wooden logs. All the seven accused persons were also charged for an offence punishable under Section 148 and 149 of IPC and under Section 302 IPC, for causing death of one Sitaram Ramji Tumbade. Further, for assaulting one Namdeo Shivram Gahale and one Sitaram Kashiram Gahale with wooden sticks, they were charged for the offence punishable under Section 324 read with Section 34 of IPC along with the relevant provisions of the Bombay Police Act. In the alternative, accused nos.1 and 2 were charged for committing an offence punishable under Section 302 read with Section 34 of IPC for committing murder of Sitaram Tumbade in furtherance of the common intention on the date of incident, pursuant to which he succumbed to the injuries. Accused nos.4 and 5 came to be charged under Section 324 r/w Section 34 of the IPC for assaulting Namdeo Gahale. Similarly, accused nos.6 and 7 were also charged under Section 324 of the IPC for assaulting Soma Dive with sticks and voluntarily causing hurt to him.

4 All the accused persons pleaded not guilty of the charge and were put to trial.

In order to establish the case of the prosecution against the accused persons, the prosecution examined 13 witnesses which included the complainant being examined as PW 1, along with eye witness and the injured witnesses PW 5 - Soma Dive and PW 6 - Namdeo Gahale. Apart from this, an independent eye witness Shrawan Govinda Gavit came to be examined as PW 10. Janabai - the widow of deceased Sitaram Tumbade is examined as PW 11, whereas his son - Santosh is examined as PW 12. The prosecution also included in its list the concerned Doctors who treated the deceased as well as the injured and they are examined as PW 2, PW 7 and PW 8. Two panch witnesses to the recovery of stick/stones from the spot and dhol are examined as PW 3 and PW 4. PW 9 is another panch witness who was examined to prove the recovery of stick from accused no.1 under the discovery panchnama under Section 27 of Evidence Act.

5 The prosecution rests its case on the evidence of the aforesaid witnesses, apart from the post mortem report, spot panchnama, injury certificates etc. The learned Sessions Court formulated the points for consideration in the following manner :-