The court upheld the conviction under Section 324 IPC based on consistent eyewitness accounts, while acquitting one appellant due to evidence of his absence during the incident.

JUDGMENT :

1. In this appeal, there is challenge to judgment and order of conviction dated 07-02-2004 passed by 2nd Adhoc Additional Sessions Judge, Nanded in Sessions Case No.28 of 2002 recording guilt of the appellants for offence under Section 324 of the Indian Penal Code (IPC).

FACTS LEADING TO THE TRIAL

2. On report lodged by PW3 Sanjay, Tamsa Police Station registered Crime No.25 of 2000 for offence under Sections 147, 148, 323, 324, 326 307 read with 149 of the IPC against in all eleven accused on the premise that on 29-04-2000, there was quarrel between informant PW3 Sanjay and accused persons as an application was tendered with Gram Panchayat for removing debris from a well. Said quarrel had taken place at 07:30 p.m. On next day i.e. on 30-04-2000 at around 06:30 a.m., accused Vijaykumar Waghmare getting armed with sword came in the vicinity of informants’ resident and questioned as to who gave application against him in Gram Panchayat. That PW3 Sanjay tried to reason him with. It is alleged that Vijaykumar, Yeshwant Pradhan, Ajay Waghmare, Sahebrao Waghmare, Pratap Pradhan came armed with articles like lathies, axes, sword and kathis and assault was mounted on informant as well as Jalba Vithal Kamble, Madhav Waghmare, Uttam Kishan Kamble, Laxmibai Waghmare, Sakhubai Kachru Waghmare. That injured were taken to hospital where PW3 lodged report exh.35, on the basis of which Police registered crime.

PW14 Kumbhar (PSI), who conducted investigation, after gathering sufficient evidence, chargesheeted accused for above offence.

Learned trial Judge, who conducted trial vide Sessions Case No.28 of 2002, appreciated oral evidence of in all sixteen witnesses examined by prosecution and documentary evidence like medical certificates, FIR, panchanama, recovery panchanama etc. and by judgment and order dated 07-02-2004, all eleven accused were acquitted from offence under Sections 147, 148, 307 read with 149 of the IPC and Section 135 of the Bombay Police Act. However, prosecution case was accepted for commission of offence under Section 324 of the IPC against all accused and they were held guilty and directed them to execute bond of Rs.10,000/- for good behaviour for a period of three years on condition that the accused shall not indulge in deviational conduct and shall keep peace at the village.

It is the above judgment which is now taken exception to, by way of filing instant appeal.

SUBMISSIONS

On behalf of appellants :

3. Learned Counsel for the appellants pointed out that during pendency of appeal, appellant no.4 - Shilratan Ramrao Waghmare has expired on 29-05-2006. Copy of death certificate of accused no.4 - Shilratan Ramrao Waghmare is placed on record and it is prayed that the appeal be abated against appellant no.4.

4. Learned Counsel for the appellants pointed out that eleven accused were tried and chargesheeted, but prosecution could not define or specify role of appellants. He pointed out that though there are allegations of use of sword, the same is not recovered. He pointed out that even injuries are not proved to be due to iron rod. He pointed out that indiscriminately names are given. That there was previous quarrel and cross cases. Learned Counsel pointed out that appellant no.1 Sahebrao was at his work place, but still he is named. It is pointed out that it has come in the cross-examination of PW2 Madhav that at the relevant time, appellant no.1 Sahebrao was at Nanded, however, still learned trial Court convicted him also. Thus, according to him, there is incorrect appreciation of evidence by the learned trial Court. He pointed out that on one hand, learned trial Court has held that recovery is not proved, but still conviction has been recorded for offence under Section 324 of the IPC. Therefore, according to him, learned trial Court has not considered evidence in its entirety and findings are not in consonance with the evidence and hence, according to him, such judgment cannot be allowed to be sustained.

On behalf of Stat