THE STATE OF MAHARASHTRA Vs. KONDIBA S/O GUNDA ASWALE R/O YEDUR (BK.) TQ. DEGLOOR & ORS.
LAWS(BOM)-2017-6-302
HIGH COURT OF BOMBAY
Decided on June 23,2017

THE STATE OF MAHARASHTRA Appellant
VERSUS
Kondiba S/O Gunda Aswale R/O Yedur (Bk.) Tq. Degloor And Ors. Respondents

JUDGEMENT

S.S. Shinde, J. - (1.) Criminal Appeal no. 358 of 1999 is filed by the State challenging the judgment and order of acquittal passed by the Additional Sessions Judge, Biloli, Dist. Nanded in Sessions Case no.61 of 1996, thereby acquitting the respondent nos.1 to 13 i.e. original accused nos. 1 to 13 for the offences punishable under Sections 148, 307 read with section 149, Section 337 read with section 149, Section 323 read with section 149 of Indian Penal Code (for short "I.P.C.") and Section 37(1) read with section 135 of the Bombay Police Act. Criminal Appeal No. 337 of 1999 is filed by original accused nos.1 - Kondiba S/o Gunda Aswale, accused no.4 Pundlik S/o Kondiba Aswale, accused no.6 - Shivaji S/o Bhimrao Patil, accused no.7 - Tanaji S/o Ramchandra Patil and accused no.9 - Vijay S/o Ramchandra Patil, challenging the judgment and order dated 7th August, 1999, passed by the Additional Sessions Judge, Biloli, District Nanded in Sessions Case No.61 of 1996, thereby convicting them for the offences punishable under Sections 143, 147, 325 read with section 149 of I.P.C.
(2.) The prosecution case in nutshell, is as under: (A) Informant Sopanrao (PW1) resides with his wife Inderbai (PW2), daughter Rukminibai (PW3) and two sons, namely, Dhanaji (PW4) and Pundlik (PW5) at village Yedur. All accused nos. 1 to 13 are also residing at village Yedur where an informant is residing. On the previous day of incident, the quarrel took place in between the informant's daughter Rukmini and one woman i.e. relative of accused no.1 Kondiba, at the river side, and therefore, informant Sopanrao had accosted the aforesaid woman, who is relative of accused no.1 Kondiba. (B) On the next day of the aforesaid quarrel i.e. on 27th December, 1993 at 8:00 a.m., the informant came out side his house and proceeded to his field. At that time, accused no.1 Kondiba pelted one stone, which hit on head of informant Sopanrao. The accused no.1 asked the informant as to why he quarrelled with the woman, who is his relative. Thereupon, accused no.1 Kondiba asked other persons to beat the informant. Accused no.6 Shivaji Bhimrao Patil and accused no.7 Tanaji Ramchandra Patil, thereupon beat informant Sopanrao by means of an iron pipes on his legs, head, stomach and back, and therefore, the informant fell down. Rest of the accused assaulted informant Sopanrao by means of stones, iron pipes and sticks. Informant Sopanrao sustained bleeding injuries on his different parts of the body. The informant's wife, daughter and two sons on receiving information of the said incident, rushed to the place of incident and tried to rescue the informant. At that time, the accused persons also assaulted the informant's wife (PW2) and two sons PW4 and PW5. The other persons of the village, namely Bhaurao, Shamrao, Laxman, Vithal, Gyanoba and Arjun Malgonda intervened and pacified the quarrel. (C) Informant Sopanrao was thereafter taken to the Police Station, Markhel and he lodged a report (Exh.31) on 27th December, 1993 at 2 p.m. On the basis of the said report, the crime was registered at Police Station, Markhel. Thereafter, the informant was referred to Civil Hospital at Degloor for medical treatment. The informant's wife (PW2) and two sons (PW4) and (PW5) were also referred to the same Hospital for medical treatment. Dr. Venakt Malshetwar (PW10) examined the aforesaid persons and he found in all 10 injuries over different parts of the body of informant Sopanrao. He also found fracture to the lower end of the left femur with swelling over left knee joint of informant Sopanrao. He thereafter referred the informant to Civil Hospital, Nanded for further treatment. He also found injuries over different parts of the body of informant's wife and two sons. He accordingly issued certificate (Exh. Nos. 63 to 66) in respect of the informant and the aforesaid three persons. He received X-ray plates, as regard the fracture found by him over the femur of the informant. On examination of that X-ray plate, he found that, there was a fracture of the lower end of left femur of informant Sopanrao. He accordingly issued second certificate Exh.67 as regard to the said injury. (D) Mirza Rahamutula Baig, the Police Sub-Inspector (PW11) prepared spot panchnama Exh. 49, seized the blood stained clothes of informant Sopanrao, arrested the accused and seized weapons used by them, namely sticks and pipes in commission of the aforesaid crime. He also prepared seizure panchnama in respect of seizure of the cloths and weapons. He also recorded statements of other witnesses from 27th December, 1993 to 29th December, 1993. He on completion of an investigation filed charge sheet against accused nos. 1 to 13 for the offences punishable under sections 143, 147, 148, 337, 325, 323 r/w Section 149 of I.P.C. and under section 37(1) r/w Section 135 of the Bombay Police Act in the Court of Judicial Magistrate, First Class, Degloor. (E) Thereafter, the application (Exh.81) was made by the A.P.P. before Judicial Magistrate, First Class, Degloor for addition of offence punishable under Section 307 of I.P.C. in the charge sheet and for committal of case to the Court of Sessions. The Judicial Magistrate, First Class, Degloor rejected the said application. However, a revision petition No.32 of 1995 filed by the learned APP against the rejection of the said application, came to be allowed by the High Court on 8th May, 1996, and the High Court directed in the said revision petition that the offence under Section 307 of I.P.C. be added in the charge sheet, and the Magistrate shall proceed with the case in accordance with the provisions of Code of Criminal Procedure. Accordingly, section 307 of I.P.C. was added in the charge sheet. As the case was exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class, Degloor committed the case to the Court of Sessions. (F) The Sessions Court framed charge at Exh.13 against accused nos. 1 to 13 for the offences punishable under sections 143, 147, 148, 307 read with section 149 I.P.C., section 337 read with section 149 of I.P.C., section 323 read with section 149 of I.P.C. and under Section 37(1) r/w Section 135 of the Bombay Police Act. The charges were read over and explained to each of the accused in vernacular, to which they pleaded guilty and claimed to be tried. The defence of the accused is of total denial. (G) The statements of the accused persons under section 313 of the Code of Criminal Procedure, 1973 were also recorded and the suggestions were given by the defence counsel to informant Sopanrao during the cross examination and the defence of the accused was that informant Sopanraro and his family members were proceeding on a Bullock Cart, and at that time, the said Bullock Cart was overturned, and the informant and his family members sustained injuries, however, the false case is filed against them due to politics in the village.
(3.) After recording the evidence and conducting full fledged trial, the trial Court convicted accused nos.1, 4, 6, 7 and 9 for the offences punishable under sections 143, 147, 325 read with section 149 of I.P.C. The trial Court then acquitted all the accused persons for the offences punishable under sections 148, 307 read section 149, section 337 read with section 149, section 323 read with section 149 of the I.P.C. And section 37(1) read with section 135 of the Bombay Police Act. So also the trial Court acquitted accused nos. 2, 3, 5, 8 and 10 to 13 for the offences punishable under sections 143 and 147 of the I.P.C. Hence Criminal Appeal No. 358 of 1999 is filed by the State against the judgment and order of acquittal and Criminal Appeal No.337/1999 is filed by the original accused nos.1, 4, 6, 7 and 9 against the judgment and order of conviction.;


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