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State of Maharashtra Vs. Shriram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1980CriLJ13
AppellantState of Maharashtra
RespondentShriram and ors.
Excerpt:
- - 1115 of 1971. the learned magistrate proceeded to re-frame the charge as is available at exhibit-2 containing allegations of unlawful assembly against the accused and their committing the offences as the members thereof within the meaning of section 148 as well section 326 read with section 34 of the i. 3 sukhdeo and one annapurnabai mother of jagannath were defeated. by the language of the provisions of section 354 (1)' it is commanded that both for the purpose of conviction as well (as) for the-purpose of acquittal, the judgment has; no doubt the case before the privy council as well (as) the one before this court was dealing with the offences of similar kind having difference of culpable degree, but that would not affect the principle that the judgment of this court as well (as).....masodkar, j.1. all these three matters have been filed by the state and they arise out of a trial of six respondents-accused upon the allegation that at village kanfodi on september 2, 1969 these accused were the members of the unlawful assembly and in prosecution of the common object voluntarily caused grievous hurts with-dangerous weapons to p.w. 1 ramdas and his brother p. w. 2 jagannath,. both sons of p. w. 8 tukaram.2. that case .which was registered as criminal case no. 442 of 1970 had a very chequered course. the magistrate concerned framed a charge against all these respondents mentioning therein that they caused hurt to one tukaram bokade and omitting to mention the names of ramdas and jagannath. the offences with which these respondents were charged were under section 148 and.....
Judgment:

Masodkar, J.

1. All these three matters have been filed by the State and they arise out of a trial of six respondents-accused upon the allegation that at village Kanfodi on September 2, 1969 these accused were the members of the unlawful assembly and in prosecution of the common object voluntarily caused grievous hurts with-dangerous weapons to P.W. 1 Ramdas and his brother P. W. 2 Jagannath,. both sons of P. W. 8 Tukaram.

2. That case .which was registered as Criminal Case No. 442 of 1970 had a very chequered course. The Magistrate concerned framed a charge against all these respondents mentioning therein that they caused hurt to one Tukaram Bokade and omitting to mention the names of Ramdas and Jagannath. The offences with which these respondents were charged were under Section 148 and Section 326 read with Section 34 of the Indian Penal Code. After hearing the prosecution evidence, by the judgment of December 22, 1970 the learned Magistrate recorded conviction under Section 326 read with Section 34 and Section 324 read with Section 34, Indian P. C. and passed different sentences against the different accused. No finding as to the offences under Section 148 was in terms recorded-Even the judgment rendered by the learned Magistrate appreciates the evidence on the basis of the charge having reference to Section 34 and observes that it was shown that accused Nos. 1 to 6 had the common intention of assaulting Jagannath and Ramdas. That judgment, therefore, did not reflect specifically any point of determination with regard to the offence under Section 148, Indian Penal Code. The State did not question that judgment. The convicted accused filed an appeal being Criminal Appeal No. 366 of 1970 before the Sessions Judge, Amravati. By the judgment of April 28, 197i the said appeal was allowed, the appellate Court taking the view that the mention of the name of Tukaram in the charge instead of Ramdas and Jagannath has rendered the trial illegal and this was a case for de novo trial. In view of that, the case, was remanded back to the Magistrate for retrial, with a direction that the trial Court would frame proper charges and giving opportunity to both sides to lead their evidence proceed to decide the same. This de novo trial was registered as Criminal Case No. 1115 of 1971. The learned Magistrate proceeded to re-frame the charge as is available at Exhibit-2 containing allegations of unlawful assembly against the accused and their committing the offences as the members thereof within the meaning of Section 148 as well Section 326 read with Section 34 of the I. P. C.

3. Prosecution examined afresh as many as 8 witnesses and after examination of the accused by agreement of parties, that is ; both the Prosecution and the defence, the accused tendered, the earlier record of the defence evidence as a parti of this trial. Thus the accused examined four witnesses in support of the defence. By its judgment of April 30, 1973 the trial Court found accused No. 1 Shriram guilty of the offence under .Section 326, Indian Penal Code and convicted him accordingly. Shriram and all other accused were acquitted of the charges under Section; 148 and as far as other accused are concerned they too were acquitted' . under Section 326 read with Section 34 of the Indian Penal Code. The sentence imposed against Shriram was of; rigorous imprisonment for one month and fine of Rs. 300/- or rigorous imprisonment for one month in default. Against that sentence the State preferred Criminal Revision Application No. 187 of 1973, while against the acquittal of all the six accused under Section 148 and of all the five accused : under Section 326 read with Section 34, Indian Penal Code the State has preferred Criminal Appeal No. 168 of 1973. Both these matters were admitted, by this Court. Meanwhile the convicted accused Shriram filed an appeal being Criminal Appeal No. 72 of 1973 before the Sessions Judge, Amravati and by order dated 17-8-1973 that Court allowed that appeal and acquitted Shriram. Shriram's acquittal in this manner was, therefore, subjected to independent appeal by the State in-this Court being Criminal Appeal No. 235 of 1973. That is how these three matters are before this Court arising; out of the same trial.

4. As stated above, the prosecution-case is that at village Kanfodi on the date of) the incident while one Jagannath (P. W. 2) was going by road from, in front of the house of one Vishwas Patil the party of the accused being more than five had altercation with Jagannath and they assaulted Jagannath. Out of them accused No. 6 Trimbak assaulted Jagannath by means of knife and caused him injuries. Seeing the row, his brother Ramdas came on the scene, but was assaulted by the-assembly and particularly he was subjected to injuries by accused No. 1 Shriram.

5. The defence of these six accused was one of denial and as far as Shriram, accused No. 1 and Mahadeo accused No. 5 were concerned, was that of an assertion that the party of the -complainant and particularly Ramdas and Jagannath had come to assault accused Mahadeo and while Mahadeo was being subjected to beating, accused Shriram had rushed to the scene by taking the knife which was lying by Ms side in his hand with a view to protect the person of Mahadeo and deter further Ramdas and Jagannath tie had caused injuries to them. Shri-.ram specifically pleaded the defence of the person of Mahadeo. Mahadeo stated that while he was sitting on the Ota 10-15 persons had come from the other side and they started beating him because in the election he had helped Trimbak. They caught his neck and -delivered him from 2-3 stick blows and ;as he shouted Shriram came and rescued him and he did lodge a report to the police. That report is at Ex. 51 as proved 'by D, W. 1 police constable Narayan to the effect that about 14 named accused under the influence of liquor had assaulted this accused with spears, knives, axes and stones and had attacked the house of Mahadeo and indulged in pelting of the stones. They were also abusing Mahadeo filthily, As soon as Mahadeo came in the door, he was pulled out and stoned and, therefore, he received the injuries. As far as accused Trimbak is concerned he appears to be the nephew of Shriram. His defence is of false implication because of the party factions in the election time in which P. W. 3 Sukhdeo and one Annapurnabai mother of Jagannath were defeated. According to him, Mahadeo made canvassing in the election and, therefore, the complainant's party was annoyed with him and that is why Shriram who is uncle and others were falsely implicated. He stated that he was not even present at the spot of the occurrence. As to the nature of the incident the defence examined one Dr. Gaikwad to prove the injuries on the person of Mahadeo. Two witnesses were sought to be examined as eye-witnesses, one being D. W. 3 Maroti and another Ismail examined as D. W. 4. It appears from the Appellate Court judgment acquitting Shriram that the Appellate Court did think that there was a right of private defence and further that Shriram inflicted the blows on the person of Ramdas and Jagannath in exercise of that right. As far as the trial Court judgment is concerned, for acquittal of the five accused excepting Shriram the main reason appears to be that the prosecution evidence showed that there was only one knife in the whole incident and, therefore, the other part of the prosecution evidence was highly improbable. On that assumption, the learned Magistrate recorded the acquittal of the other party. The private defence was ruled out by the learned Magistrate because in his view it was not so specifically pleaded, the evidence about Shriram's coming out of the house and hiding him was totally unwarranted, unreasonable and unjustified. In other words, the finding is that no right of private defence was available to Shriram.

6. Before the evidence is scrutinised, the initial legal aspect has to be taken into account, for as stated above in the first judgment which was the judgment of conviction and which was set aside by the Appellate Court, there was no specific finding with regard to the offences under Section 148, I. P. C. Undoubtedly in the appeal taken up by the accused the eventual judgment rendered by the learned Appellate Court directed de novo trial from the stage of charge. It is thereafter once again the charge under Section 148 is framed along with Section 326 read with Section 34 of the I. P. C. If the earlier judgment can be construed as the judgment of acquittal, as far as charge under Section 148, I. P. C. is concerned, then it follows that in de novo trial framing of the charge on that count without there being any appeal by the State against the earlier acquittal would be entirely untenable. The construction that can reasonably be placed on the appellate judgment in the appeal taken by the accused against their conviction cannot help the prosecution in this regard, for the Appellate Court was not entitled in law to entertain appeal against acquittal, nor could, therefore, give any direction if there be acquittal with regard to the charge for which the accused were expressly or impliedly acquitted. The direction for retrial by such an order would merely mean direction with regard to the offences for which the accused were found guilty and could be-properly tried.

7. The relevant portion of the appellate judgment (Exhibit-62) reads;

The case is remanded back to the lower Court for retrial. It is directed that the learned Magistrate of the lower Court shall frame proper charges -against the six accused persons and when give a chance to both the sides to lead evidence for support or against the charge.

These directions are to be understood Kin the context of the allegation that was in issue before the Appellate Court and in the context of the facts would mean a direction to re-try the accused for the offences on the basis of which their conviction was brought before the Appellate Court. That appears to be the reasonable construction to be placed on such appellate exercise of power on the assumption that' the trial Court had recorded the judgment of Implied acquittal with regard to the charge under Section 148, I. P. C. Directions in the appellate judgment made by the Sessions Judge in the appeal when that Court cannot interfere with the orders of acquittal cannot further ensure for the benefit of the prosecution for setting aside the judgment of acquittal. In an appeal against conviction for various reasons re-trial may be ordered including the one where the accused was charged in a manner that' caused prejudice to his defence. But if the acquittal is not in issue or could not' be in issue it is not further possible to imply in the orders made by the Appellate Court of the kind while dealing with the appeals from conviction that' the de novo trial is also ordered with regard to the charges from which the accused had been exonerated. If such a construction is possible, that is likely ;o lead to some unwholesome results, it would also be contrary to the contemplation of the provisions in that regard available in the Cr. P. C.

8. The scheme of providing appeals is the part enacted by Chap. XXIX of the Code. Section 374 deals with appeals from convictions and provides the forum therefor. Sub-section (3) provides an appeal from the judgment of conviction by Magistrate to the Court of Session. Appeals in the cases of acquittal is the subject of Section 378 and from all judgments of acquittal rendered by the Courts subordinate to the High Court the appeal lies to the High Court. Both the State arid the complainant who seeks to question the acquittal is required to obtain leave of the High Court for the purposes of such appeal. It is only with such leave of the High Court that the acquittal of an accused person can be put in jeopardy by the process of appeal, Thus these are two different kinds of appeals contemplated and provided for by the Code and it does not confer any appeal jurisdiction over the Court' of Session with regard to the acquittal of the accused. It follows that the Court of Session cannot directly or indirectly affect the judgment of acquittal that might' be recorded by the Magistrate subordinate to it while deciding appeal against conviction. The result which is impermissible cannot be achieved by reason of the power to direct re-trial in an appeal that lies against conviction.

9. The provisions of Section 386 of the Code further reinforce this position with regard to the appeals from orders from acquittal. It indicates what power can be exercised by Appellate Court. It deals with the powers of the Appellate Court independently in an appeal from a conviction. Clause (b) of Section 386 empowers the Appellate Court in an appeal from conviction to reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction. That shows that the order of retrial could be on the ground that the Court that tried the accused had no competency and, therefore, the conviction itself was rendered without jurisdiction. If the defect of jurisdiction is reached by the Appellate Court, then the judgment itself that is set aside would become in law non est or a nullity irrespective of whether the judgment is of conviction or of acquittal, but when the judgment is rendered with competence and there is no dispute with regard to the jurisdiction of the Court and the Court having tried the accused on different count's of charges has rendered the judgment of conviction on certain counts which are further subjected to appeal at the behest of the accused, it does not follow that the defect in framing proper charge is the defect that affects the jurisdiction or competency of the Court and upon setting aside such a judgment of conviction even the acquittal recorded shall stand set aside. In every order of re-trial it is a matter of construction of the judgment of the Appellate Court, to eventually find out the reason as to why the re-trial was ordered. Want of jurisdiction and Erroneous or wrong exercise of the undoubted jurisdiction and the defects flowing therefrom are not identical in law. The former may render the very process a nullity while the latter may require corrections so as to subserve the ends of justice, and interposition and exercise of the appellate power,

10. Looked from the contemplation of these express provisions of the Code the only reasonable construction on the order made by the Appellate Court is to direct re-trial because of the defect of charge and possible prejudice to the accused; and not setting aside, if at all there was, any judgment of acquittal in favour of the accused. If I this be not the construction by merely appealing against the conviction the accused stands the peril of double jeopardy, for having merited the acquittal on , certain counts because of the necessity to file appeal he would run the risk of being re-tried once again on the same count without there being any appeal competently lodged as contemplated by the Cr. P. C. It is therefore salutary to hold that the order of retrial did operate only with regard to the offences for which the accused were found guilty and the direction to reframe the charge was with regard to [those offences.

11. The next question is, can there be an implied acquittal of the accused in a trial where specific charge for different kinds of offences is framed As far as the provisions of the Code are concerned the relevant provision of law is Section 354 which is the recast of the provisions available in the earlier Code in Section 367 thereof. The repealed Code in identical terms delineates the requirements about the language and contents of the judgment. Sub-section (1) of Section 354 of the present Code in substance reproduces and enacts the provisions of Sub-section (1), Sub-section (2) and Sub-section (4) of Section 367 of the repealed Code. Sub-section (3) of that section is now Sub-section (2) of Section 354, It is significant that Sub-section (4) has been bodily the part of Sub-section (1) and Clause (d) thereof is in identical terms and that requires that if the judgment be a judgment of acquittal, it shall have to state the offence of which the accused is acquitted and has to contain a further direction that he be set at liberty. Clause (c) deals with the conviction of the accused and states that with regard to the conviction the judgment has to specify the offences and the section; either of the Indian Penal Code or any other law for which the accused is convicted and the punishment imposed. Clauses (a) and (d) which are common to both Clauses (c) and (d) require the Court to express its judgment in the language of the Court and require that it has to contain the point or points-. for determination along with the decision and reasons for the same. By the language of the provisions of Section 354 (1)' it is commanded that both for the purpose of conviction as well (as) for the-purpose of acquittal, the judgment has; to satisfy the necessity of specification of offences. When the judgment deals with several offences that are the subject-matter of charge and out of which some only are made out and the accused is convicted, it follows that such a judgment primarily would fall under the category covered by Clause (c) of Sub-section (1) of Section 354, its minimum requirement being that the judgment will have to specify the offences with reference to the provisions of law for which,-the accused is convicted and punishment imposed therefor. Such a judgment would not specifically be the-judgment of acquittal as contemplated by Clause (d) of Sub-section (1) of Section 354 though for the offences which were not proved the accused would stand acquitted. That being the process of one and indivisible judgment contemplated by the provisions of Sections 353 and 354 of the Code taken together, it appears that Clause (d) deals with specific type of judgment by which the accused is fully exonerated. Wherever the accused is found guilty in a trial for offences more than one out of which he is held culpable-for some none-the-less such a judgment will be a judgment of conviction for-the offences that came to be recorded' by the judgment within the meaning of Clause (c) of Sub-section (1) of Section 354 of the-Code notwithstanding acquittal in other Courts. In such a process no doubt there would be implied or express exoneration or acquittal of the accused from other offences with which he-stood charged and was as such tried. Only because with regard to such' offences specifically judgment of acquittal is not rendered by the Court the judgment of conviction does not cease to be so within the meaning of Clause (c). As stated above, presumably Clauses (c) and (d) of Sub-section (1) of Section 354 operate on totally exclusive and independent fields, the former with regard to the judgment of conviction of the accused and the latter when the accused is completely exonerated. To the former type of judgment doctrine of implied acquittal fairly will have to be applied as and when occasion arises and particularly where accused was charged and tried on counts of offences not specifically dealt with by the Court. This is not however intended to relieve the Court of the obligation to specifically render the judgments along with the reason for the acquittal of the accused from each of the offences with which he was charged. Process of law and justice is communicative. Judgment of Court must indicate what it decides. The principles of criminal justice would suffer if unspeaking and implied orders are made, assumed or constructed out of record. It should be the basis that the Court either while acquitting or convicting speaks with reasons and does not leave the matters to be spelt out from results. However when judgments are made in remiss of this clear function, does that mean that the person accused has to suffer for no fault of his Is he not entitled to put reasonable construction on the judgment made so as to bring out the effective intentions of the Court The answer to such salutary question is suggested by the doctrine of 'implied acquittal.'

12. The doctrine of 'implied acquittal' has been applied and has sanction of high authority of the Privy Council. In the case of Kisan Singh v. Emperor AIR 1928 PC 254 where the accused was charged under Section 302 but was convicted under Section 304 and an application was moved for altering the conviction to Section 302, I. P. C., the Privy Council ruled that the accused must be deemed to be acquitted of the charge of murder and thus such an acquittal was not amenable to the revisional jurisdiction of the High Court for the purposes of altering the finding of acquittal into one of conviction. The judgment rendered by the Allahabad High Court in Emperor v. Sheo Darshan AIR 1922 All 487 stating that only the method by which the acquittal could be questioned was to present an appeal against such acquittal was in terms approved. The judgment of this Court rendered in the case of Emperor v. Shivaputraya AIR 1924 Bom 456 to the effect that in an appeal against conviction for the offence under Section 326 when the appeal Court convicts the accused under Section 323, I. P. C. there is implied acquittal of the accused under Section 326 which is not amenable to revisional jurisdiction is also referred to with approval. No doubt the case before the Privy Council as well (as) the one before this Court was dealing with the offences of similar kind having difference of culpable degree, but that would not affect the principle that the judgment of this Court as well (as) of the Privy Council eventually applies the doctrine of 'implied acquittal.'

13. There is further authority wherein the principle underlying this doctrine has been held applicative when the charge was for dissimilar and different offences. In the case of Fateh Mahomed v. Emperor AIR 1934 Sind 139 the principle underlying the doctrine of implied acquittal was held applicable to the judgment arising out of the trial for offences under Section 302 and Section 201, I. P. C. While laying down the imperative necessity that judgment of acquittal should raise the point for decision with regard to the charge in specific terms, the Court found that in the discussion there was a mention that the accused could not be held guilty of murder and could be held guilty for the other offences as indicative that the judgment was one of acquittal with regard to the offence under Section 302, I. P. C. Similarly the Oudh Chief Court in the case of Diwan v. Rajaram AIR 1941 Oudh 575 applying the ratio of the Privy Council decision (supra) held to the effect that the accused was not convicted of the single offence though charged therewith is sufficient to conclude that that amounted to his implied acquittal even without an express order in that regard.

14. It, therefore, follows that whether there is implied acquittal or not has to be inferred by placing the reasonable and fair construction on the judgment in issue. If so construed, if the judgment indicates that it exonerated the accused though not expressly] stating so by referring to a particular charge, then nonetheless and notwithstanding the non statement in that regard the judgment would be one of acquittal and would have the same force as is attached to a judgment specifically specifying offences of which accused is acquitted. Such approach is necessary to secure the ends of justice and also to subserve the concept of personal liberty under law. But for it, though the person may be specifically prosecuted and faced his trial he would be subject to double vexation only because there is omission in expression of recording acquittal at the end of his trial. The provisions of Section 403 of the old Cr. P. C. and Section 300 of the present Code and further the provisions like that of the one available in Section 26 of the General Clauses Act, 1897 equivalent to Section 27 of the Bombay General Clauses Act, 1904 are clearly meant to protect and safeguard the person accused of an offence from being doubly vexed with regard to trial of the same offence.

15. It is significant that Article 20 (2) of the Constitution confers the right upon the persons protecting them from such double jeopardy. That right is the facet of personal liberty guaranteed by the Constitution. It has its inspirational datum in the Common Law Maxim nemo debet bis vexari. That means, a man shall not be brought into danger for one and the same offence more than once. Autrefois acquit or autrefois convict are enforceable and applicative principles of this Maxim, whereunder the accused person can set up his earlier conviction or acquittal as a complete defence in subsequent trial on the same facts.

16. Now no doubt the words used by Article 20 (2) are narrow in import. But are intended as permitting the defence to the accused person to set up the earlier trial by the competent Court for an offence and his conviction or acquittal therein; (See Assistant Collector of Customs v. Malwani : 1970CriLJ885 and Lalta v. State of U.P. : 1970CriLJ1270 ).

17. That these statutory and constitutional safeguards would be rendered illusory if the principles of implied acquittal are not applied in cases where judgments are silent are matters which were charged and put to trial. The provision of the Code and particularly the provisions like the one available in Section 367 should receive that interpretation which will further the cause of fairness. Salutary safeguards should not be allowed to be frustrated by the mere omission on the part of the Court to make express judgments of acquittal. Moreover Courts can be presumed to be aware of the results that attach to implied acquittals. Though therefore provisions of Section 367 (1) (d) require an express judgment of acquittal to be recorded by the Court at the conclusion of the trial with regard to the offences not made out, in a case when the Court renders a judgment of conviction of the accused on some counts and does not record any specific finding with regard to the other counts, it being a judgment of conviction on the specific counts it is is possible to reasonably read and infer that with regard to other counts of offences for which the accused was charged and tried, the judgment so rendered implied acquitting the accused of those offences.

18. Law so stated, what remains is the construction of the original judgment rendered in Criminal Case No. 442 of 1970. No doubt that judgment is not satisfactory. Even the points for determinations do not exactly reflect the offences with which the accused were charged. The Court appears to have approached the case on the basis of Section 34 rather than Section 148 with which the accused were charged, but nonetheless the entire evidence is taken into account and findings are recorded convicting the accused of the offences under Section 326 read with Section 34 and Section 324 read with Section 34, I. P. C. on the basis that there was evidence to suggest that the accused participated in culpable acts with common intention to assault Jagannath and Ramdas. This clearly implies that the Court did not find material so as to convict the accused for the offence of rioting within the meaning of Section 148 with which the accused stood charged, nor was ready to hold that there was any unlawful assembly of which accused were members. It is, therefore, clear that construction of judgment in its entirety leads to the conclusion that of the charge under Section 148 accused stood impliedly acquitted. The only remedy available to the State to question that acquittal was by filing an appeal under Section 378 of the Code. That having not been done and prosecution having suffered the judgment of such implied acquittal, was not further entitled to seek charge against the accused after the remand by the Appellate Court once again for the offence under Section 148, I. P. C. The trial that survived and revived as a result of the remand was essentially restricted to the offences on the other count being referable to the offence under Section 326 read with Section 34, I. P.C. for causing injuries to Ramdas and Jagannath. The appeal of the State, therefore, with regard to the fresh charge under Section 148, I. P. C. has to be adjudged as untenable.

19. Turning to evidence and the judgment of acquittal under challenge, the record clearly shows that there is miscarriage of justice in the present case. As stated above, the Appellate Court judgment has upheld the right of private defence in favour of Shriram on the basis that his uncle Mahadeo was being assaulted and he had a right to inflict injuries on both Ramdas and Jagannath. While the judgment of the trial Court holds that the other accused excepting Shriram cannot be convicted on the basis of the evidence because of the possibility of their implication due to party factions, there is hardly any appreciation of the respective cases on the basis of the evidence in these judgments.

(After scrutinising the evidence in paras 20-28, the judgment' proceeded):

29. Thus the evidence taken together of all these witnesses shows that the witnesses Ramdas, Jagannath, Tukaram and Sukhdeo belong to one party and as such should be received with caution. There is clear corroboration to the say of Ramdas and Jagannath about the assault on them by means of knife coming forth from the medical evidence. Ramdas and Jagannath being the natural witnesses and knowing their assailants and the occurrence having taken place in the broad day light if corroborated even though they belong to a different party in the village, their say as far as the identity of their assailants is concerned can very well be accepted. Their say against the accused Shriram Trimbak cannot be rejected. It is not the law that only because there are factions or the wit-nesses are on inimical terms their evidence has to be rejected in toto. The approach should be to appreciate their evidence on its own merit and accept it with all caution. To the injuries there is independent corroboration and as to occurrence if the natural witnesses could be believed, then there is no impediment in acting upon their evidence.

(His Lordship here scrutinised the evidence in paras 30-34 and proceeded):

35. Therefore, giving all due and circumspect considerations to the evidence of the prosecution witnesses, it has been clearly shown by that evidence that both Ramdas and Jagannath were subjected to knife injuries and their say that they were so assaulted by Shriram and Trimbak respectively is fully corroborated by the medical evidence. Though they have involved the other accused, it does not appear safe to accept their testimony particularly in an appeal against acquittal, and the benefit thereof goes to the other accused including the accused Mahadeo.

36. Turning to the offences made out on the basis of this evidence, it is clear that the accused Shriram would be guilty of the offence of causing injuries on the person of Ramdas while accused Trimbak will be guilty of the offence of causing injuries on the person of Jagannath. No weapon has been produced during the investigation and the evidence is that the knife was used. The nature of the injuries on the person of Ramdas as spoken to by Dr. Munde (P. W. 1) shows that Shriram would be guilty under Section 324, I. P. C. while as far as the injuries on the person of Jagannath by accused No. 6 Trimbak are concerned, the evidence of Dr. Munde and Dr. Kailash shows that the accused Trimbak would be guilty for the offence under Section 325 of the I. P. C. Accordingly accused Shriram is convicted for the offence under Section 324 while accused Trimbak is convicted for the offence under Section 325 of the I. P. C.

37. Mr. Padhye was heard with regard to the sentence. He stated that he has instructions to say on the question of sentence on behalf of all these two accused. He further stated that he does not wish to lead any evidence on the aspect of the sentence and pleaded that looking to the time already consumed, i. e., the accused are facing trial since 1969 involving two appeals before the lower appellate Court and further looking to the fact that the possibility that the incident was an aftermath of the temper that must have been generated by the election that took place just two weeks before, a lenient view with regard to the sentence be taken.

38. It appears true that the accused are facing the trial since 1969 and that the possibility of the assault having some connection with the election is not just ruled out. Looking to the time factor particularly no useful purpose would be swerved by subjecting these accused to any substantive terms of imprisonment.

39. Taking this view about the sentence, accused Shriram for the offence under Section 324, Indian Penal Code is sentenced to pay a fine of Rs. 250/- or to suffer rigorous imprisonment' in default for four months. Accused Trimbak who is found guilty under Section 325, Indian Penal Code is sentenced to simple imprisonment till the rising of the Court; and to pay a fine of Rs. 500/- or to suffer rigorous imprisonment for six months in default. The appeal of the State to this extent is allowed. As a result of this, the appeal against the other accused stands dismissed. There is no necessity of making any separate order in Criminal Revision Application No. 187 of 1973 in view of the appeal against Shriram's acquittal is being allowed.


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