- (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.