ORAL JUDGMENT

1. The present appeal is filed under Section-374 of the Cr.P.C. challenging the judgment and order dated 28.07.2006 passed by the learned Additional Sessions Judge, Deesa at Banaskantha in Sessions Case No.54 of 2003, whereby, the appellant – original accused no.1 has been convicted for an offence under section-324 of IPC and ordered to undergo sentence of rigorous imprisonment of 04 months with fine of Rs.500/- and in default of, further period of one month of simple imprisonment was ordered.

2. The case of the prosecution is in nutshell as under:-

2.1 That one complaint came to be registered on 19.08.2002 by the complainant viz. Taljabhai Bhurabhai Thakor residing at village – Tervala before the P.S.I., Tharad Police Station alleging that at 4:00 o’clock in evening hours, the complainant and his cousin brothers viz.(1) Govabhai Laghabhai and (2) Rameshbhai Palabhai were returning from the Bhabhar after purchasing the household articles and when they reached to the field of the complainant, the accused no.1 viz. Somabhai Bavaji, who met them on the road and hot altercation started with regard to the incident occurred prior to 10 days where the aunty of the accused was molested by Govabhai Lagabhai and the accused no.1 had reprimanded to the complainant, accused No.1 started abusing to Govaji and when Govaji was instructed not to use the said abusive language, an assault was made with Dhariya on Govaji and Govaji was fallen down. The second blow was also inflicted with dhariya and thereafter, other accused i.e. Harji Bavaji, Valaji Banaji and Bhavaji Manaji were reached to the place of incident having stick and wooden log on their hand. The complainant i.e.Taljabhai and Rameshji ran away from the place and Govaji was beaten by the accused persons. On shouting, the mother of Govaji viz.Pujiben and aunty viz.Vediben intervened and thereafter, the accused persons ran away from the place of incident. With the aforesaid allegations, an FIR came to be registered being C.R. No.I-96 of 2002 before the Tharad Police Station for the offence punishable under Sections-307, 323, 504, 34 of the IPC and Section-135 of the Bombay Police Act.

2.2 That cross FIR was also registered being C.R.No.II-75 of 2002 before the Thara Police Station for the offence punishable under Sections-323, 504, 506(2), 114 of Indian Penal Code and Section-135 of B.P. Act. Both the offences were investigated and after collecting the material, the charge-sheets were submitted before the competent court, wherein, present offence as Criminal Case No.628 of 2002 is triable by the learned Court of Sessions under Section 209 of the Cr.P.C., the same is committed to the learned court of Sessions. Other case was also tried by the same Court and the same was renumbered as Criminal Case No.54 of 2003. That learned Court on being satisfying about receiving chargesheet papers by the respondent – accused, charge was framed below Exh.2 against the accused persons for the offence punishable under Sections-504, 307, 323 r/w.34 of IPC and Section-135 of B.P. Act. The charge was read and explained over to applicant– accused and plea was recorded below Exh.3, wherein, the accused pleaded not guilty and claimed to be tried.

2.3 That to bring home the guilt of the accused, the prosecution had examined 12 witnesses and also produced documentary evidence on record. On filing the closing pursis, the statement under Section-313 of the Cr.P.C. was recorded, whereby, all incriminating material was placed before the accused, and the accused had pleaded false implication and to be innocent in the case, however, accused did not produce any documentary evidence neither examined any witness in defence. After considering all the material place before the learned trial Court and argument advanced by the respective parties, the learned trial Court acquitted all other accused except accused no.1 for Section324 of IPC and the accused no.1 was convicted for the offence punishable under Sect