(1.) APPELLANTS No. 1 Shankar s/o Budhaji Moundekar, No. 2 Raju s/o Shankar Moundekar, No. 3 Ramrao s/o Kashinath Moundekar and No. 4 Prabhakar s/o Kashinath Moundekar have preferred the instant appeal against the order of conviction and sentence passed against them by the learned Additional Sessions Judge, Nagpur, on 12.1.1996 in Sessions Trial No. 260 of 1989. The offences with which the appellants were charged and convicted are under Section 307 read with Section 149, Section 147 and Section 148 I. P. C. and each of them was sentenced to suffer R. I. for ten years and to pay a fine of Rs. 300/-, or in default to suffer R. I. for three months more for the offence under Section 307 read with Section 149 I. P. C. , to suffer R. I. for one year and to pay a fine of Rs. 100/-, or in default to suffer R. I. for one month more for the offence under Section 147 I. P. C. and again to suffer R. I. for one year and to pay a fine of Rs. 100/-, or in default to suffer R. I. for one month more for the offence under Section 148 I. P. C. The substantive sentences of imprisonment were directed to run concurrently.
(2.) THE case of the prosecution is as under : (a) Victim Nilkanth Ganpatrao Parate is the resident of Zade Chowk, Lalganj, Nagpur. He resides there with his wife complainant Laxmibai. Appellants No. 1 to 4, who are the original accused No. 1 to 4 respectively, are also the residents of the same locality and they reside in the neighbourhood, that is just adjacent to the house of victim Nilkanth. THEy all are the members of the joint family. One of the accused in this case, namely Kashinath Budhaji Moundekar, who died on 12.6.1990, was also the member of the joint family of the accused-appellants. Victim Nilkanth was running a pan stall. Accused Prabhakar was engaged in the business of selling illicit liquor and accused Ramrao used to help him in that business. Victim Nilkanth and all the accused persons including deceased Kashinath were on inimical terms with each other since prior to the incident and there used to be quarrels between them. THE reason behind the quarrels was that accused Prabhakar and Ramrao used to hide liquor bottles near the wall on the rear side of the house of Nilkanth and Nilkanth used to object to the same. At the time of Pola festival just preceding the incident in this case, such quarrel had taken place between the accused persons and Nilkanth. THE quarrels used to occur between the womenfolk also of these two families on the count of filling water from the common public water tap situated near their houses. THEse quarrels between the ladies were also taken up by the male members of these two families. (b) On 23.2.1989 at about7. 30 to 745 p. m. , Nilkanth was sitting on a bench in front of his house in the courtyard. Complainant Laxmibai was working in the house. That time, accused Prabhakar and Raju rushed towards Nilkanth. THEre was an exchange of words between Nilkanth and these two accused. THE accused questioned as to why Nilkanth was objecting to the concealment of liquor bottles by them and was destroying their business. Nilkanth strongly opposed. THEreafter accused Prabhakar and Raju caught hold of both the arms of Nilkanth. Accused Shankar, who was armed with a Ballya spear, rushed towards Nilkanth. At the same time, accused Ramrao rushed with a wooden stick on the person of Nilkanth and gave a blow thereof on his head. Accused Shankar hit Nilkanth with spear on his abdomen on left side. Nilkanth managed to rescue himself from the clutches of the accused persons and rushed towards the Chhapari of neighbour named Lanjewar in order to save himself. All the accused pulled Nilkanth out of the Chhapari in the courtyard. THEreafter accused Shankar again dealt a blow of spear to Nilkanth and accused Ramrao gave a stick blow on Nilkanth's shoulder. Complainant Laxmibai, who was working in the house, heard the shouts of Nilkanth and rushed to the spot. She noticed that the accused persons were attacking her husband. She saw accused Shankar giving a blow of spear to Nilkanth and accused Prabhakar and Ramrao catching hold of the arms of Nilkanth. She also saw accused Raju giving a stick blow to Nilkanth. Laxmibai tried to intervene, but the accused persons pushed her and in that process, she also sustained injuries on her left hand between thumb and index finger. Similarly, the father of Nilkanth named Ganpat also ran down there and tried to rescue Nilkanth, but the accused persons pulled him and he also sustained an injury on his right leg. (c) Nilkanth fell unconscious in the courtyard of his house with bleeding injuries. THE accused persons fled. Complainant Laxmibai removed Nilkanth to Mayo Hospital, Nagpur. Nilkanth was admitted in the hospital. While complainant Laxmibai was in the hospital itself, A. S. I. Ramadhar Pande recorded her report. A. S. I. Pande gave a requisition to the House Officer of the hospital seeking permission to record the statement of Nilkanth. However, the permission was refused to him on the ground that the patient was unfit. A. S. I. Ramadhar Pande also issued a letter to the Special Executive Magistrate, Nagpur, for recording the dying declaration of Nilkanth. On the basis of the oral report of complainant Laxmibai, that was recorded in the hospital, A. S. I. Ramadhar Pande registered the crime at Serial No. 116/89 under Section 307 read with Section 34 I. P. C. A requisition was also given by A. S. I. Ramadhar Pande to the Casualty, Mayo Hospital, Nagpur, for the medical examination of complainant Laxmibai and the father of Nilkanth named Ganpat. (d) During the same night, i. e. the night intervening on 23.2.1989 and 24.2.1989, at about1. 00 a. m. (of 24.2.1989) P. S. I. More visited the spot of occurrence and drew the spot panchanama. THE blood stains were noticed at different places on the spot. THE samples of blood-mixed earth as well as simple earth were collected during the preparation of the spot panchanama. (e) Injured Nilkanth was examined medically by Dr. Jiwtode. He was operated upon in the same night. On examination, Dr. Jiwtode noticed the following injuries on the person of Nilkanth : (1)Stab wound, left illiac fossa, 3" x 2" x cavity deep, jejunum part collapsed obliquely placed, bleeding present. (2)Incised wound, multiple on scalp, obliquely placed, parietal occipital region, obliquely placed 1" x 1/4" x 1/4". (i)Left parietal region 1" x 1/2" x 1/4". (ii)Right parietal region 1/2" x 1/2" x 1/4". (3)Incised wound, left leg, medial size medial 1/3rd, 1" x 1/2" x 1" obliquely placed, blood clots present. (4)Incised wound left shoulder 2" x 1/2" x 1/2" obliquely placed, no acute bleeding present. On internal examination, the corresponding damage was noticed as under : THEre was through and through cut in the jejunal loop about1 foot from Diaphragmatic Plexus, several tears present at Diaphragmatic Plexus, minimum haemoperitoneum present. (f) On 24.2.1989, the dying declaration of injured Nilkanth was recorded by the Special Executive Magistrate Shri Gaikwad. On the same day, P. S. I. Patil gave a requisition to the House officer, Mayo Hospital, Nagpur, seeking permission to record the police statement of Nilkanth. On according such permission by the House Officer, the statement of Nilkanth came to be recorded by police. After such statement was recorded, it was revealed that the offence under Sections 147, 148 and 149 was attracted and, therefore, Section 34 was replaced by these Sections in the crime that was registered earlier. THE investigation was then handed over to A. P. I. Gaikwad. (g) On 26.2.1989, deceased-accused Kashinath and accused Shankar, Raju and Ramrao were arrested. On 2.3.1989, accused Shankar, while in the custody of the police, gave an information about the spear that was hidden in his house behind the staircase. THE memorandum of his version came to be recorded in presence of panchas at 11.00 a. m. Soon thereafter, accused Ramrao, who was also in the custody of the police, gave an information about the stick hidden in his house. THE memorandum of his version also came to be recorded in presence of panchas at 11.10 a. m. Both the accused undertook to produce the respective weapons. THEreafter A. P. I. Gaikwad alongwith police staff, panchas and accused proceeded for recovery. Accused Shankar led panchas and police to his house, went inside and produced the spear by taking it out from the place behind the staircase. THE same was seized by A. P. I. Gaikwad and the recovery panchanama was drawn. Similarly, accused Ramrao led the panchas and police to his house, went inside and produced the wooden stick that was hidden behind the sewing machine in the house. THE same was seized by A. P. I. Gaikwad and the recovery panchanama was drawn accordingly. (h) Accused Shankar and Ramrao were thereafter referred to Mayo Hospital for the collection of the samples of their blood. THE blood samples were collected accordingly and were received from the hospital. On 16.5.1989, the clothes of injured Nilkanth brought by the concerned Police Constable from the hospital came to be seized on the production thereof. All the seized articles including the clothes of injured, blood samples of accused Shankar and Ramrao and the weapons, i. e. Ballya spear and wooden stick, were referred to Chemical Analyzer, Nagpur, for examination. THE Chemical Analyzer's report was received. In spite of strenuous efforts, accused Prabhakar, who was absconding, could not be traced. On completion of the investigation, the charge sheet was put up in the Court of Chief Judicial Magistrate, Nagpur, in absence of accused Prabhakar. THE learned Chief Judicial Magistrate, Nagpur, committed the case to the Court of Session for the trial of the accused persons vide order dated 27.6.1989.
(3.) THE defence of accused persons was of denial. From the suggestions made to the prosecution witnesses during their cross-examination and from the answers given by the accused persons to the questions recorded during their examination under Section 313 Cr. P. C. , the defence of the accused persons, as is revealed, was that at the relevant time they were not present at home, they had already gone for work and they were yet to return home. THE further contention of the accused persons was that injured Nilkanth was engaged in the business of selling illicit liquor and on the date of incident, one of his customers assaulted him and ran away, but the accused persons were falsely implicated. THE accused persons also claimed enmity with the family of Nilkanth on the count that there used to be quarrels between the womenfolk of these two families over the question of filling water from the common water tap. In addition to this, accused Shankar also claimed enmity with Nilkanth, contending that Nilkanth was displeased as accused Shankar did not accompany him in gambling.