(1.) This appeal is filed by the State challenging the judgment and order of acquittal dated
17th June, 1999 passed by the Additional Sessions Judge, Hingoli in Sessions Trial No. 28 of 1995, thereby acquitting the respondents i.e. original accused nos. 1 to 3 and 5 to 15 for the offences
punishable under Sections 147, 148, 302, 337, 149 of the Indian Penal Code (for short "I.P.C.").
(2.) The prosecution case in nut-shell, is as under:-
A) The first information report (for short "F.I.R.") against all accused persons Exh.60 dated 23rd May, 1994 was filed by Mokinda Kishan Dhawse, resident of Devthana, Tq. Hingoli with Police Station, Hingoli (Rural). Deceased Bhima was elder brother and Vishwanath is younger brother of the informant. All three brothers were living separately from last ten years. At about five to six months before the incident dated 22 nd May, 1994, Kailash son of Maroti Gavli died in an accident at Dhamni Phata-Kalamnuri road. Accused Maroti and others were thinking that, deceased Bhima has committed murder of Kailash and in said matter, Bhima was arrested for few days and then was released.
B) It is the case of the prosecution that, on 22nd May, 1994, informant Mokinda was sitting infront of his house. His uncle Laxman Dhawse was sitting with witness Shamrao Dhawse, infront of the house of Laxman. House of Laxman and the informant are adjoining to each other and there is open space infront of their house. House of deceased Bhima is also at short distance from their house. Since death of Kailash, accused Dinkar used to go to the house of witness Laxman Dhawse and used to thump arms. At the time of the incident, the accused Dinkar came infront of the house of Laxman and looked at him and thumped arms. Laxman asked him, why he is doing so. In reply accused Dinkar said, he wants to kill somebody today. Immediately, Dinkar rushed with Lathi in his hand towards Mokinda, and gave blow by Lathi on his head. Because of said assault, Mokinda raised shouts. At that time, witness Kausabai Khillare was passing from nearby the said place. She stopped there. Deceased Bhima, his wife Mangal were standing infront of their house. By hearing shouts of Mokinda, they rushed towards Mokinda to help him. Immediately, after reaching there, accused Udhav, Namdeo, Punjaji rushed there. Udhav and Namdeo caught both hands of Bhima and Punjaji caught his legs. Accused Dinkar rushed to Bhima with a knife (Article-12) and stabbed it deep in the chest of Bhima. Accused Natha was present there with Gupti. He stabbed that Gupti (Article-11) in stomach of Bhima. By looking this, witness Shamrao rushed to help Bhima and tried to catch Gupti from Natha. Natha assaulted by that Gupti on the palm of hand of Shamrao and caused him injury. Bhima also tried to catch Gupti by which he got injury on his hand. At that time, other accused rushed there and started throwing stones on Mokinda, Mangal, Kausabai, Shamrao, Laxman and others to restrain them from going to help Bhima. Injuries caused by accused Dinkar and Natha were deep. Due to bleeding, Bhima immediately collapsed on the spot and died. Due to throwing of stones by the accused, the informant, his father - Kausabai, Rukhmini, Shamrao and others sustained injuries and could not help to Bhima. Immediately after stabbing, accused Natha said that, they have killed the person to whom they wanted to kill and now he asked accused persons to disperse from the place of the incident. Then all the accused went towards their houses.
(C) After accused went, Monkinda, Mangal, Kausabai, Shamrao, Laxman and others went to Bhima and found him dead. Bhima was lying there in blood pond. Due to the said incident, Mokinda and the other persons got afraid. There was no vehicle available immediately to go to Police Station. On the next day morning, Mokinda and others went to the Police Station, Hingoli (Rural) at about 6.00 to 6.30 a.m. and lodged the complaint. PSI, Dhere registered the Crime No.64/1994 under sections 302, 337 of the I.P.C. PSI Dhere went along with his staff immediately to the place of incident and found dead body of Bhima lying there. There he found three wooden pieces, Chadar, Shirt, Bangle pieces, Chappal, one blood stained stump of Jawar and blood. He prepared inquest panchanama, spot panchanama and seized articles found at the spot. Immediately after inquest panchanama, he sent dead body of Bhima for the postmortem to the Government Hospital, Hingoli. He recorded the statements of the witnesses. The postmortem of dead body was carried out by Dr. Kamtikar. He found death of Bhima was caused by the stab injuries. He issued postmortem report Exh.71. On the same day, PSI Dhere arrested accused Dhanaji, Parasram, Natha.
On 25th May, 1994, with the help of panch at the instance of accused Natha he recovered Gupti kept hidden in his house.
D) On 27th May, 1994, with the help of panch, PSI Dhere recovered knife at the instance of accused Dinkar kept hidden by him below one stone on bundh of the land of Ramji in village Bhingi. Both articles were seized under panchanama. On 28th May, 1994, viscera of deceased was sent to the Chemical Analyzer for the examination along with blood sample of accused Dinkar. Other articles were also sent to Chemical Analyser. Mokinda, Kausabai, Shamrao and Kishan, who were injured sent for the medical examination to the Rural Hospital, Hingoli. On 23rd May, 1994, they were examined. PSI, Dhere arrested some of the accused, then he was transferred and further investigation was carried out by PSI Bhakre. After investigation was over, PSI Bhakre filed charge sheet against all the accused in the Court of Judicial Magistrate, First Class, Hingoli. On the basis of same, R.C.C. No.303 of 1994 was registered in the Court of Judicial Magistrate, First class under Sections 302, 337, 147, 148, 149 of the I.P.C. E) Charge against all of the accused was framed under Sections 302, 337, 147, 148, 149 of I.P.C. and under Section 135(1) of the Bombay Police Act. The charge was read over to the accused, to which the accused pleaded not guilty and claimed to be tried. The prosecution examined in all 11 witnesses.
(3.) After recording the evidence and conducting full fledged trial, the trial Court acquitted the respondents - original accused nos. 1 to 3 and 5 to 15 for the offences punishable under sections 147,
148, 302, 337, 149 of I.P.C. Hence this Appeal by the State.;