Decided on July 21,2017

Ankush Rangnath Kolekar Respondents


S.M.GAVHANE, J. - (1.) The appellant/State has filed this appeal under Section 378(1) of the Criminal Procedure Code against the judgment and order dated 18.05.1999 in Sessions Case No. 191 of 1995 passed by learned
(2.) nd Additional Session Judge, Ahmednagar thereby acquitting all the four respondents (accused Nos. 1 to 4) of the offences punishable under Sections 302, 324 and 504 individually or r/w Section 34 of the Indian Penal Code (for short the IPC). Respondent No.3/accused No.3- Mahadeo Kolekar is reported dead on 09.03.2015 during pendency of the appeal as stated in the affidavit (Flag-A) dated 18.06.2015 of respondent No.1/accused No.1-Ankush Kolekar and as seen from the copy of the death certificate of accused No.3- Mahadeo Kolekar produced alongwith above affidavit which is not disputed by the appellant/State and therefore the appeal is abated against accused No.3-Mahadeo Kolekar. 2. The prosecution case, in short, is as under: A. The informant/complainant-Ajinath Baban Kolekar (P.W.1) was residing alongwith his father Baban Kolekar (deceased), mother Shantabai and brother Navnath (PW-6) jointly in the field in the limits of village Waki, Tq. Jamkhed, Dist. Ahmednagar. At the time of the incident he was having land in Waki Shivar along the Khairi Dam. All the accused who are brothers interse and cousins of PW-1 were also having the land adjacent to the land of the informant. The informant had obtained sanction to supply water to his land by installing electric motor on Khairi Dam. So also, the accused had installed electric motor on the Khairi Dam prior to eight days of the incident. For installing electric motor accused No.1 Ankush and his brothers had spent Rs.500/- for electric pole and electric wire. And about one month prior to the incident the MSEB had taken the electric line. B. It is alleged that on 07.04.1995 in the morning at about 10.00 a.m. the informant, his brother Navnath (PW-6) and father Baban went to Khairi Dam with material of electric motor to install the same and when they were laying down the cable of the electric motor from the electric pole up to the electric motor, the informant's father was sitting under the shadow of Babhul tree and while informant and his brother Navnath were laying down the cable on the land in the noon at about 01.00 p.m. all four accused came there. Accused No.1 Ankush said that he incurred the expenses of bringing the electric pole and wire from Jamkhed and that said expenses should be given first and then motor should be installed, otherwise they would not allow the informant to install the motor. Thereupon the informant said him that he is ready to give him expenses whatever he has incurred within a day or two. Thereupon accused No.1 started abusing to informant and his brother Navnath and hits stone upon the right shoulder of the informant by throwing. Accused No.2 Shivaji hits stone to Navnath by throwing and accused No. 4Dattatray assaulted Navnath by chain in his hand.At that time Navnath shouted and started running,therefore when the father of the informant i.e. deceased came in to rescue, accused No.3 Mahadeo hit stone to the head of the father of the informant. As a result he fell down on the ground and started shouting loudly. The blood was oozing from his head injury. On hearing commotion Shantabai- mother and Nandabai-Sister of the informant came running there. At that time accused No.2 Shivaji threw stone to Nandabai-sister of the informant. The deceased was unconscious after he fell down on the ground. The above said assailants went away. They (informant and others) tried to stand up the deceased by holding him and he was seen dead. Then dead body was brought at the Vasti. On the same day the informant/complainant went to Police Station, Jamkhed at about 16.05 hours and narrated the incident happened to the PSI Gaikwad (PW-11) who reduced the complaint into writing and treating the same as First Information Report registered the crime No.41/1995 for the offences punishable under Sections 302,323,337,504 r/w 34 of the IPC against the accused and commenced the investigation. C. During the investigation PSI Gaikwad on the same day i.e. on 07.04.1995 prepared inquest panchanama (exh.19) in presence of Panchas Laxman Shrirame (PW-2) and Bapu Kisan Maharnawar and dead body was sent for postmortem examination. Thereafter, he visited the spot of incident along the Khairi Dam in presence of Panch Ashok Sorte (PW-4) and Gangaram Shrirame and prepared the panchanama of spot of incident (Exh.23) and got prepared map (Exh.21) from the Circle Nath Bade (PW-3). On that day only he seized the clothes having blood stains on the person of informant Ajinath Kolekar (PW-1), Navnath Kolekar (PW-6) and their sister Nanda Karande and prepared panchanama (Exh.25). On 08.04.1995 Dr. Sanjay Mundhe (PW-7) conducted the postmortem examination and opined that death was caused due to head injury and accordingly issued postmortem report (Exh.30) and provisional certificate of cause of death (Exh.31). On that day Head Constable Kakade (PW-9) seized the clothes on the person of the deceased as per the panchanama (Exh.26) in presence of Panchas Nagnath Shinde (PW-5) and Gangaram Shrirame. So also, on the same day in presence of the same Panchas PSI Gaikwad arrested accused Nos. 1 to 3 and seized the clothes on their person and prepared Panchanama (Exh.27). The injured Navnath Kolekar, Ajinath Kolekar and their sister Nanda were examined by Dr. Goyal (PW-10) the Medical Officer, Primary Health Center, Kharde and he issued their injury certificates respectively Exh.36 to 38. Accused No.4 was arrested on 13.04.1995. PSI Gaikwad recorded the statements of witnesses who were knowing the incident. He sent the seized articles to the Chemical Analyzer for analysis. Then he was transferred and hence further investigation was carried out by PSI Nemade. D. After completion of the investigation the Investigating Officer PSI Nemade submitted the charge- sheet in the Court of JMFC, Ahmednagar who then committed the case to the Court of Sessions as the offence under Section 302 of the IPC was exclusively trial by the Court of Sessions. The case was made over to the 2nd Additional Sessions Judge, Ahmednagar. E. The charge was framed against the accused for the offences punishable under Sections 302,324 and 504 of the IPC individually or r/w section 34 of the IPC to which the accused pleaded not guilty and claimed to be tried. Their defence is denial. Accused No.2 Shivaji and Accused No.3 Mahadeo Kolekar in their written say Exh. 42 amd 43 filed at the time of statement under Section 313 of Criminal Procedure Code stated that on the day of incident at about 12.00 p.m.the informant and Navnath (PW-6) started laying down the wire near the pole which was brought by them (accused) in their field to install the electric motor to take the water from the Khairi Dam. Therefore, they went there and said them that they have incurred the expenses to bring the electric pole and that they should pay half of the expenses. Thereupon, PW-1 and PW-6 were annoyed and they have started abusing, pushing and threatening them and said that they would see them and then they (accused Nos. 2 and 3) started going to their Vasti. PWs-1 and 6 went running to their Vasti and then they alongwith their sister Nanda came armed with sticks to assault them. At that time they all three were throwing stones upon them. But they (accused Nos. 2 and 3) in their defence to protect themselves started throwing the stones. At that time they proceeded towards their Vasti from behind the Vasti of PWs. 1 and 6. At that time the deceased Baban was grazing the cattle. On hearing the shouts of the quarrel he came running by the road of small pieces and he was fallen as his Dhoti was entangled in his leg and he fell on the head and sustained injury. Accused No.1 Ankush and accused No.4 Dattatray were not present at the spot of incident and they have been falsely involved in the case. Due to head injury and due to fall the deceased died. Thus according to accused Nos.2 and 3 they have not committed any offence.
(3.) To prove the charge against the accused, prosecution has examined in all 11 witnesses and relied upon the Panchanamas, postmortem report and other documents i.e. injury certificates of eye witnesses etc. Learned Additional Sessions Judge held that the prosecution has failed to prove the aforesaid offences against the accused individually or in furtherance of their common intention and acquitted all the accused of the said offences by the judgment and order dated 18.05.1999. Therefore this appeal by the State challenging the said judgment and order of acquittal.;

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