1 CR.A.NOS.145/1994 & 146/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.145 OF 1994 The State of Maharashtra. ...APPELLANT (Ori.Complainant) VS. 1. Ajinath s/o Yeshwanta Aute, Age 31 yrs., Occu.Agril. r/o Nanda Tal.Ashti, Dist. Beed. 2. Baban s/o Yeshwanta Aute, Age 23 yrs., occu. & r/o as above. 3. Mandabai w/o Navanath Aute, Age 25 yrs., occu. & r/o as above. 4. Ashabai w/o Ajinath Aute, age 22 yrs., occu. & r/o. as above. 5. Mangalbai d/o Yeshwanta Aute, age 20 yrs., occu. & r/o as above. 6. Indrabai w/o Yeshwanta Aute, age 70 years occu. & r/o as above. ...RESPONDENTS (Ori.Accused) ... Mr.N.R.Shaikh, APP for appellant. Mrs.C.E.Gaikwad, Adv., for R.Nos. 1 & 2, absent. Mrs.Sangeeta Sonpethkar, Adv., for R.Nos. 3 to 6, absent. 2 CR.A.NOS.145/1994 & 146/1994 WITH CRIMINAL APPEAL NO.146 OF 1994 The State of Maharashtra. ...APPELLANT (Ori. complainant) VERSUS 1. Ajinath s/o Yeshwanta Aute, Age 31 yrs., occu. agril., r/o. Nanda Tq. Ashti, Dist. Beed. 2. Baban s/o Yeshwanta Aute, Age 23 years, occu. & r/o. as above. ...RESPONDENTS (Ori.accused nos. 1 & 2) .... Mr.N.R.Shaikh, APP for appellant. Mrs. C.E.Gaikwad, Adv., for Respondent nos. 1 and 2, absent. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: SEPT.,21st, 2011 *** JUDGMENT: (Per A.H.Joshi, J.) 1. Criminal Appeal No.145/1994 is a State appeal against acquittal, where the State/ prosecution wants that the accused be convicted as charged in Sessions Case No.20/1989. 2. Criminal Appeal No.146/1994 is a State 3 CR.A.NOS.145/1994 & 146/1994 appeal in which the accused persons were charged under Sections 147, 148, 149 and 307 of IPC and were acquitted of various charges, except charge under Section 323 of IPC. 3. In Sessions Trial No.20/1989, the prosecution has examined various witnesses amongst whom are PW No.4 Raosaheb Bhikaji Aute ( Exh.76), PW No.5 Kalyan Raosaheb Aute (Exh.78), PW No.6 Pandurang Abasaheb Aute ( Exh.79) and PW No.7 Narendra Raosaheb Aute (Exh.80) are cited as eye witnesses. 4. PW No.1 Kashinath Baba Awate (Exh.19) and PW No.2 Mohan Vithoba Khaire (Exh.21) are Panch witnesses, while PW No.3 Dr.Somnath Vishwanath Tekale (Exh.53) is a medical witness and PW No.8 Nivrutti Dashrath Khedkar ( Exh.87) is investigating officer. 5. Admittedly, the prosecution witnesses have suffered injuries, which are described by PW No.3 Dr.Somnath Vishwanath Tekale in his testimony, in paragraph nos.2, 3, 4, 5, 6, 7, 8, 9, 10, as to Vithal, Ambadas, Kalyan, Raosaheb and Harubai, Hirabai, Narendra, Pandurang and Urmila, respectively. 6. Perusal of the injuries suffered by these victims reveals that Ambadas, Kalyan and Raosaheb 4 CR.A.NOS.145/1994 & 146/1994 have suffered injuries, which are described as fracture. All the injuries suffered by all other witnesses are either contusion or abrasions and are simple injuries. 7. In the background that it is a case where there was free fight between two groups, in absence of specific intention to kill, the injury suffered on parietal bone by two accused persons would not, ipso facto, be liable to be held as injury caused with intention to cause murder. Moreover, the accused persons had also suffered some injuries. 8. In this background, the finding of the learned trial Court that accused no.1 Ajinath was found guilty of the offence under Section 323 of IPC, seems to be proper. 9. In view of the fact that fractures were found on the person of some accused, the sentence could have gone up to any higher offence, such as under Section 324 or under Section 327 of IPC, however, in absence of proof of fact that a particular accused has caused any particular injury, and in absence of proof of any unlawful assembly, it would be a difficult proposition to convert the conviction under 5 CR.A.NOS.145/1994 & 146/1994 Section 323 of IPC, into a conviction under any other higher offence. 10. In the result, the State appeal against acquittal, as well as appeal for enhancement, fail and are dismissed. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/145&146-94crapeal