- (1.)IN Sessions Case No. 308/96 in all 8 accused persons were put on trial before the learned IV Additional Sessions Judge at Jalgaon and by the impugned judgment and order dated February 1999 seven of them i. e. A-1 to A-7 (A=accused) have been convicted and sentenced for different offences. Whereas A-8 has been acquitted from all the offences. Criminal Appeal No. 86/1999 has been filed by accused Jankiram atmaram Patil (A-1) and Jagannath Atmaram Patil (A-3 ). Criminal Appeal No. 87/99 has been filed by Prakash Pundlik Patil (A-2 ). Criminal Appeal No. 96/99 has been filed by Vikas Pundlik Patil (A-5), sudhakar S/o Pundlik Patil (A-6) and Ramchandra @ Gotu Pundlik Patil (A-7 ). Criminal Appeal No. 156/99 has been filed by Bhagwan Baburao Patil (A-4) who has been singled down and convicted for the offence punishable under Section 302 of I. PC. In addition to this conviction for the offence under Section 307 r. w. Section 149 of I. P. C. has also been passed against him. All the accused have been convicted and sentenced under Section 147, 148, 307 and 323 r. w. Section 149 of I. P. C. Whereas accused no. 2 Prakash has been convicted and sentenced for an offence under Section 307 of I. P. C. As the accused except A-4 has been acquitted under Section 302, the State has filed Criminal Appeal No. 222/99 whereas Criminal Appeal No. 224/99 has been filed for enhancement of sentence punishable under Section 307 r. w. section 149 of I. P. C. against accused no. 1 to 7.
(2.)THE prosecution case unfolds as under : complainant Sanjay S/o Sakharam Patil (p. w. 7) was Sarpanch of village panchayat manmodi in taluka Bhusawal of Jalgaon District from 1989 to 1995 and in the fresh elections held in 1995 he came to be elected as up-Sarpanch and in that election Prakash Patil (A-2) had put up his panel but lost. A Shivsena branch was opened one month before the subject incident and Bhagwan (A-4) became the President whereas Vikas (A-5) became the Vice-President. The well belonging to the village panchayat was in dispute and Prakash Patil had drawn water coming from the said well to irrigate his land. The villagers had disconnected the water supply and there was a Court case which came to be decided against Prakash patil who therefore developed animosity against the complainant Sanjay (p. w. 7 ). On 22/7/1996 the accused persons armed with deadly weapons like axe, iron bar and sticks etc. went to the house of Sanjay and gave him a call to come out. His father Sakharam came out and there was commotion. Sanjay was not in his house and had gone to the house of his uncle madhukar (p. w. 8 ). As Sanjay did not come out of his house, the accused barged into the Wada and broke open the room of Sanjay. On noticing that he was not there they went to the room of Raju (deceased, brother of complainant Sanjay), broke open the house door and he was dragged outside in the courtyard. In the meanwhile on hearing this commotion infront of his house Sanjay followed by his uncle Madhukar reached his house and questioned the actions of the accused. Ravindra Patil (p. w. ll)happens to be the cousin of complainant Sanjay and staying in the same wada. His house is adjacent to the house of Raju (deceased ). He was present at the spot right from the time the accused had reached the Wada. When sakharam was trying to question the accused regarding their acts of threats and abuses etc. , he was assualted by Prakash Patil (A-2) on his head with an axe. Sanjay intervened to protect his father and at that juncture he was assaulted by A-2 with an axe on his head. Raju having noticed the attacks on Sakharam and Sanjay intervened and was assaulted by bhagwan (A-4) and Prakash (A-2) with axe held by them separately. Multiple injuries were inflicted on Sakharam, Sanjay and Raju and they had fallen on the ground. Narayan S/o Damu Koli (p. w. 9), a resident of the same village, had come to buy tobacco at a shop located close to the house of Sanjay and on hearing shouts of the crowd and more particularly voice of a lady he reached the spot before Raju, Sakharam and Sanjay were assaulted. Rajendra (p. w. ll), Narayan (p. w. 9) Parvatibai mother of sanjay tried to intervene and they also received injuries with sticks at the hands of the accused and more particularly accused no. 1, 3 and 5 to 8. At this stage, Sopan (p. w. 12) after hearing the commotion reached the spot and noticed that Raju, Sakharam and Sanjay were lying on the ground in the pool of blood and the accused were standing with their weapons. As more persons started coming, the assailants fled with the weapons. The victims were taken to the municipal hospital at Bhusawal by a jeep by Sopan, Madhukar and Ravindra. Dr. Vishnu Zope (p. w. 15) attended them and adviced that all the three to be taken to the civil hospital at jalgaon. Deceased Raju and his father Sakharam were unconscious. On reaching the civil hospital at Jalgaon, the medical officer admitted Sanjay whereas the 2 other victimes i. e. Sakharam and Raju were admitted in a private nursing home of Dr. Sanjay Hazurbazar, Neuro Surgeon (p. w. 17 ). Both of them were operated. But in the night of 23rd July 1996 Raju breathed his last. Sanjay who was admitted in the civil hospital at Jalgaon gained his conciousness in the morning of 23-7-1996 and at about 10 a. m. Satish Patil (p. w. 14) from the Jilha Peth police station at Jalgaon recorded his statement and the same came to be registered as C. R. No. 20/96. It was forwarded to the Bodhwad police station under which village Manmodi falls. Abhay Kadam (p. w. 18) P. I. attached to the police station at Bodhwad on receiving the complaint transmitted by the Jilha Peth police station at jalgaon undertook the investigation after registering Crime No. 20/96 (F. I. R. Exh. 130 ). He recorded the statements of some witnesses on 23rd and 24th july 1996 and arrested Jankiram Atmaram Patil accused no. l in the night of 23rd July 1996. Prakash and Jagannath accused nos. 2 and 3 on the next day. As Shri Kurundkar was deputed for training, Sirsath (p. w. 19)took over the investigation from him and arrested Prakash (A-2), bhagwan (A-4) Sudhakar (A-6) and Vikas (A-5) on 1/8/96 whereas Madhav (A-8) was arrested on 3/8/96 at Bhusawal. Seized clothes of the injured victim as well as the arrested accused, were sent alongwith weapons discovered for chemical analysis and C. A. report (Exh. 166) to 176) was received. The dead body of Raju was sent to the civil hospital at Jalgaon for autopsy and Dr. Badgujar (p. w. 10) conducted post mortem. P. M. note (Exh. 136), spot panchanama (Exh. 83 and 86) and inquest panchanama (Exh. 84) and 88) was prepared which have Heen proved by the evidence of Pundlik Patil (p. w. 1) and Prakash Patil (p. w. 2 ). Sakharam was discharged from the hospital on 31-7-1996 whereas complainant Sanjay was discharged from the civil hospital within a couple of days. During the course of investigation in presence of panch witness Bhagwat Koli (p. w. 4)discovery of axe from accused no. 2 under panchanama at Exh. 94, discovery of another axe, iron bar alongwith 2 sticks at the instance of accused no. 4 was made in presence of Namdeo Patil (p. w. 5) and panchanama (Exh. 90 and 99 ). Charge sheet was filed on 13th September 1996. The charge framed (Exh. 43) on 14th February 1990 was amended by the additional charge on 29th January 1999. We deem it appropriate to reproduce the tharge framed as under:
That you Nos. 1 to 8 (both inclusive) on 22. 7. 1996) at 21. 30 hours at village Manmodi taluka Bhusawal were members of an unlawful assembly in prosecution of common object of said assembly namely to commit murder of complainant sanjay Sakharam Patil and others, committed offence of rioting and thereby committed offence punishable under section 147 of Indian Penal Code and within cognizance of this Court.

Secondly, at the same date, time and place you were members of an unlawful assembly and did in prosecution of common object of such assembly and did as aforesaid committed the offence of rioting and at that time you No. 2 Prakash Pundlik, and no. 4 Bhagwan Baburao were holding axe, you No. 6 Sudhakar pundlik were holding iron pipe and you Nos. 3, 5, 7 and 8 were holding sticks the deadly weapons and thereby committed offence punishable under Section 148 of the Indian Penal Code and within the cognizance of this Court.

Thirdly, at the same day, date, time and place you were members of an unlawful assembly and in prosecution of the common object of such assembly as aforesaid you No. 2 Prakash and no. 4 Bhagwan attempted to kill Sakharam Kitkul Patil with an axe and actually killed Raju Sakharam Patil and also voluntarily caused hurt to prosecution witnesses No. 17 to 21 i. e. Mohan sakharam Patil, Sau. Parvatibai Sakharam Patil, Narayan Damu koli, Ravindra Kashinath Patil and Madhukar Vedu Patil respectively and thus caused the offence punishable under sections 302, 307, 324, 323 which offences you know likely to be committed in prosecution of comm6n object of the assembly and thereby you committed offence punishable under Section 149 read with Section 302, 307, 324, 323 of the Indian Penal Code and within the cognizance of this Court.

Fourthly, you No. 2 Prakash and No. 4 Bhagwan on the same date, time and place did commit murder of Raju Sakharam patil intentionally or knowingly causing the death of said Raju sakharam and thereby committed offence punishable under section 302 read with Section 34 of the Indian Penal Code. Fifthly, on the same date, time and place you No. 2 Prakash and No. 4 Bhagwan did an act i. e. assaulted Sakharam Kitkul Patil with an axe on his head with such intention or knowledge and under such circumstances, that if by that act you had caused the death of Sakharam, you would have been guilty of murder and thereby commited offence punishable under Section 307 read with section 34 of the Indian Penal Code and within the cognizance of this Court.

Sixthly, you Nos. 3, 5, 6, 7 and 8 on the same date, time and place and in furtherance of common intention of you all voluntarily caused hurt to P. W. 17 to 21 named above with iron pipe, sticks and thereby committed offence punishable under section 324 read with Section 34 of the Indian Penal Code and within the cognizance of this Court.

That you on the abovesaid day, date, time and place were members of an unlawful assembly, and in prosecution of its common object, accused Prakash assaulted complainant Sanjay with an axe on his head and caused him hurt and thereby attempted to commit his murder, which offence you knew likely to be committed in prosecution of common object of the assembly, and thereby you committed an offence punishable under Section 149 r. w. Section 307 of the Indian Penal Code and within the cognizance of this Court. That on the same date, time and place, you Prakash attempted to commit murder of complainant Sanjay by giving blow with an axe on his head, and causing him injuries and thereby committed an offence punishable under Section 302 of the Indian penal Code, and within the cognizance of this Court. And I hereby direct that you all be tried by me on the said Additional charge.

(3.)THE trial Court acquitted all the accused for the offence punishable under Section 307 r. w. Section 149 for the assault on Sakharam as sakharam was not examined by the prosecution. There is no appeal against this order of acquittal. The evidence of seizure of clothes of the accused nos. 4 to 7 has been discarded by the trial Court. The trial Court also held that the evidence regarding recovery of weapons was not satisfactory, as the weapons were recovered from open places accessible to all. The testimony of Sanjay (p. w. 7), Ravindra (p. w. ll) and Sopan (p. w. 12) has been accepted by the trial Court in support of assault on deceased Raju by accused no. 4 alone and therefore, he has been convicted under Section 302 of I. P. C. The testimony of Madhukar (p. w. 8) and Narayan (p. w. 9) has been on the other hand, discarded though the prosecution claimed them to be the injured eye witnesses, while convicting accused no. 4. However, the testimony of these 2 witnesses alongwith the complainant (p. w. 7), ravindra (p. w. ll) and Sopan (p. w. 12) has been accepted while recording conviction against Prakash as well as accused nos. 1, 3 and 5 to 7 under section 307 r. w. Section 149 of I. P. C. and against all the accused for offence punishable under Section 147, 148 and 323 r. w. Section 149 of I. P. C. Relying upon the medical evidence and testimony of injured witness ravindra (p. w. ll) all the accused 1 to 7 have been convicted for the offence punishable under Section 323 r. w. Section 149 of I. P. C.