R. Vs. Raveendran, J. - (1.) This appeal by the accused 2 to 6 is against the judgment dated 29/30.3.2005 of the Bombay High Court allowing the Criminal Appeal No.193 of 1995 filed by the State of Maharashtra and reversing the judgment of acquittal dated 30.1.1995 passed by the IV Additional Sessions Judge, Satara in Sessions Case No.123 of 1989. For convenience, appellants 1 to 5 will be referred to as accused Nos. 2, 3, 4, 5 and 6 respectively.
(2.) The case of the prosecution in brief is as under : 2. 1 The family of Ganpat consisting of himself, his wife Putlabai and sons Shivaji, Vilas and Ananda, were residents of Kusur village. Ganpat and his sons belonged to the group of one Adhikrao Kadam and had canvassed against Sambhaji (accused No. 2) and his group in the Gram Panchayat Elections. Though A2 got elected, his group has defeated. Further Ganpat allegedly refused to transfer three Guntas of land in the village belonging to his family, as demanded by A2 Sambhaji. Consequently A2 and his Supplorters had a grudge against Ganpat and his family. A2 Sambhaji, as Chairman of the local co-operative society had withheld the issue of no-due certificate to Ganpat and caused hardship to him. Prabhakar (accused No. 1 who died during the pendency of appeal) and Mohan (Accused No.4) were brothers of Sambhaji (Accused No.2). Appasaheb (Accused No.3) was the cousin, and Prahalad and Mahadev (Accused Nos. 6 and 7) were the friends of Sambhaji. Shankar (Accused No.5) was the servant of A1 Prabhakar. All the accused were also residents of the same village. There was simmering differences between the two groups. 2. 2 At about 8 p.m. on 18.5.1988, Ganpats son Shivaji was assaulted by the accused by catching hold of him and tearing his Banian near Jotiba temple. Putlabai, mother of Shivaji, rushed from her house which was nearby and took Shivaji back home. That night at about 10 p.m., when Shivaji and other family members were inside the house, A6 Prahlad called Shivaji to come out. When Shivaji came into the courtyard in front of the house, the accused armed with sword, axes, sticks and stones assaulted Shivaji. Shivajis parents Ganpat and Putlabai and Ananda came out of the house, one after the other. They were also assaulted by the accused and were injured. Lastly, Vilas another son of Ganpat, came home, when the others were being attacked, and he was also assaulted by the accused. By then Adhikrao Kadam (for whom Ganpats family worked during the Gram Panchayat Elections) came in his Jeep. Seeing him, all the accused ran away. Adhikrao Kadam took Ganpat and his son Vilas, who were injured to Krishna Hospital at Karad where they were treated around 11.00 p.m. 2. 3 On being informed about the fight in Kusur village and two injured being admitted to the hospital, the I.O. (V.G.Chougule, PSI - PW17) went to the hospital accompanied by police staff. He recorded the statement of Vilas (FIR - Ex.71) at about 1 A.M. on 19.5.1988 to the effect that when he reached home, he saw a crowd in front of his house and learnt from them that there was a dispute between A1, A2 and A3 with his father Ganpat; that when he was entering the house, A1 gave him two blows with a sword, and A2 hit him with a stick and he fell unconscious; and that he and his father were brought to the Hospital for treatment. On the basis of the said FIR, CR No.150/1988 was registered in the Karad Taluk Police Station. 2. 4 Immediately thereafter, the IO went to Kusur village (around 1.30 A.M. on the morning of 19.5.1988). He did not find anyone in the house of Ganpat. The accused were also not traced. He returned to the police station around 4.30 A.M. By then Ganpats another son Ananda reached the police station. The IO again went back to the Kusur village with Ananda and drew spot panchanama (Ex.33, under which blood stained stick and earth smeared with blood and some blood stained stones were recovered from the place of incident. While drawing the spot panchnama, the dead body of Shivaji was found in the bathroom in the cattle shed in front of the house. Inquest panchanama was recorded as per Ex.27. The dead body was sent for post mortem through constable More (PW16). Thereafter, the statements of Ganpat, Putlabai, and Ananda (PWs, 12, 13 and 14) were recorded. During the search, IO found one bamboo stick in front of the house of A1 which was seized under Panchnama Ex. 35 in the presence of PWs 3 and 4. The blood-stained clothes of PW12 Ganpat and PW9 Vilas were seized under seizure panchanama Exs.23 and 24. 2. 5 In regard to the earlier incident near Jotiba temple that occurred at 8 P.M, Shivaji More, brother of A6 had lodged a complaint with Kole outpost on 18.5.1988 itself, alleging that Ganpat and his sons namely Vilas, Ananda and Shivaji along with others had caused rioting and assaulted him and his brother Tanaji More. The said complaint was passed on to Karad Police Station and registered as CR No.151/1988. 2. 6 On 26.5.1988, A2 Samabhaji and A3 Appasaheb were arrested in village Tulsan. Accused 5, 6 and 7 (Shankar, Prahlad and Mahadeo) surrendered on 1.6.1988. Accused 1 and 4 (Prabhakar and Mohan) had secured anticipatory bail and they were formally shown as arrested on 7.7.1988 and 16.7.1988 respectively. 2. 7 On 29.5.1988, Sambhaji (A2) offered to give a statement. IO called PW5 and PW6 as witnesses. In their presence A2 made a statement (Memorandum recorded as Ex.37) stating that he had concealed an axe and sword under a Tamarind tree. A2 led the IO and PWs. 5 and 6 to that place and the axe and sword were recovered and seized under Panchnama Ex.37A. Shankar (A5) volunteered on 4.6.1988 to give a statement. IO called PWs. 7 and 8 as witnesses. In their presence A5 stated that he had concealed an axe and stick in the bamboo shrubs and offered to produce the same and his statement was recorded as per Ex.40. A5 led the IO and PWs 7 and 8 to the place where they were hidden and the axe and stick were recovered and seized under Panchanama Ex.40A.
(3.) On completion of investigation, charge-sheet was filed on 3.10.1988 against A1 to A7 and JMFC, Karad committed the matter to the Sessions Court. Charges were framed for offences under sections 143, 147, 148 and Sections 302, 307, 326, 325, 324, and 323 read with section 149 IPC. Alternative charges were framed for offences under sections 302, 307, 326, 325, 324, 323 read with Section 34 IPC. The accused pleaded not guilty. During trial, prosecution examined 17 witnesses and one witness was examined on behalf of the defence. The parents of deceased Shivaji (Ganpat and Putlabai) were examined as PWs. 12 and 13. The brothers of the deceased, Vilas and Ananda, were examined as PWs. 9 and 14. All the four were the injured eye-witnesses. vs. G. Chougule, IO was examined as PW17. Dr. H.R. Tata (who treated Vilas) and Dr. Madukar Salunkhe (who treated Putlabai and Ananda and conducted postmortem of body of Shivaji) Dr. R.B. Gunaki (who treated Ganpat) were examined as PWs 10, 11 and 15. Maruti Desai (PW1) was the panch witness of inquest panchanama. PW2 drew the sketch of the scene of the crime. PW16 took the body of Shivaji for post mortem. PWs.3 and 4 were the Panch witnesses for the spot panchanama (Ex.33) and recovery panchanama (Ex.35). PWs. 5 and 6 were the panch witnesses for the statement of A2 (Ex.37) and recovery panchanama (Ex.37A). PWs. 7 and 8 were the panch witnesses to the statement of A5 (Ex.40) and recovery Panchnama (Ex.40A). One Kalawati, neighbour of Ganpat was examined as DW1.;