NITIN ANANT UPADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) All these appeals arise from the order of conviction and sentence as well as acquittal passed by the learned Additional Sessions Judge, Sindhudurg-Oros on 30th April, 2002 in Sessions Case No.44 of 1999 for the offences punishable under Section 147, 148, 149, 452, 324, 323, 504, 506, 307 and 302 of I.P.C. and Section 3 read with Section 25 of the Arms Act. In the said case in all 11 accused were put on trial and accused No.1 has been convicted for the offences punishable under Section 307, 323, 324 of I.P.C. and Section 3 read with Section 25 of the Arms Act. He has been sentenced to suffer R.I. for life for the offence under Section 307 of I.P.C. Hence he has filed Criminal Appeal No.650 of 2002. Accused No.5 has been convicted for the offences punishable under Section 302 and 307 of I.P.C. and has been sentenced to suffer R.I. for life. Hence he has filed Criminal Appeal No.659 of 2002. Accused Nos.1,4,5 and 6 have been convicted for the offences punishable under Section 452 of I.P.C., and sentenced to suffer R.I. for six months each and hence accused No.6 has filed Appeal No.646 of 2002 whereas the accused No.4 did not prefer an appeal and has undergone the sentence of six months. Criminal Appeal No.691 of 2002 has been filed by the State Government against all the accused. Except the Appellant (Accused No.5) in Appeal No.651 of 2002 all the other appellants in the Appeals have been released on bail pending the appeals.

(2.) As per the prosecution case there was a rivalry in two political groups in village Upale. One group was headed by accused No.1-Anant Shantaram Upade whereas the other group was headed by Bhaskar Upade. Accused No.5 is the younger brother of accused No.1 and accused No.1 normally resided at Mumbai and had visited Upale about 10 days prior to the date of incident. Six months before the incident the elections to the village Panchayat were held and accused No.5 and Bhaskar Shantaram Upade had contested for the post of Sarpanch and on that count there was a rivalry between the two groups. It appears that Bhaskar Upade was assaulted by the group of accused No.1 and the party of the accused No.1 was prosecuted. P.W.14-Shankar Pandurang Upade is the cousin of Bhaskar Upade and he resided with his wife and children. On 20th May, 1998 there was a programme of "Pachpartavana" in the house of Dnyaneshwar Upade on account of his daughter 's marriage and while P.W.14 Shankar and his family members had attended the said programme and while he was in his house at about 10.15 p.m., the accused Nos. 1,2,4,5 and 6, entered his house. Accused No.5 caught hold of the sister of P.W.14, Accused No.1 was armed with chopper in his right hand and a revolver in his left hand. He gave threats to kill P.W.14 and asked about his son Santosh. Accused No.1 used the handle of chopper and inflicted injuries on the person of P.W.14 and, therefore, he raised hue and cry. His nephew Jaidas Upade, P.W.18, reached the spot and while he was trying to enquire, accused No.1 stabbed P.W.18 with chopper on his back. He escaped and ran away to the house of Dnyaneshwar Upade and gave message to Santosh. While Santosh was rushing towards the house, accused No.5 shot him and he was lying at about 25 ft. away from the house. Anant Gangaram Upade, Bhikaji Dhondu Upade (PW 20), Nitin Manohar Upade (PW 21), Jaishri Anant Upade and Sambbha Kokate had also received bullet injuries. They were rushed to Umbarde hospital. It is further alleged that accused No.1, accused No.2 and 5 had opened fire. Santosh and Jaishri were also taken to the hospital at Umbarde. Santosh was declared dead. P.W.22 Dr. Marchant examined and found Santosh, Jaishri and Nitin in serious conditions and hence they were immediately shifted to the Rural Hospital at Kankavali. Other injured witnesses were treated at Umbarde hospital and were discharged, whereas Nitin and Jaishri were shifted to Kankavali and then referred to the Government Hospital, Goa for further treatment, but while under treatment Jaishri died on 22/5/1998 at 12.15 hrs. P.W.14 registered his complaint (F.I.R. at Exhibit 118) with the Vaibhavwadi Police Station on the next day i.e. on 21st May, 1998 at about 12.30 p.m. for the offence punishable under Sections 307, 452, 324, 323, 143, 147, 148, 149, 504 and 506 of IPC and Sections 3 and 25 of the Arms Act. P.W. 16-Ramesh Janardan Upade after seeing the firing rushed to the house of P.W.17-Anant Sitaram Mandavkar, who was the Up-Sarpanch of village Upale and both of them went to Vaibhavwadi Police Station and met P.W.19-Madhukar Rajaram Desai, Police Sub Inspector. P.W.29- Madhukar Rajaram Desai rushed to the spot and shifted the injured to the Umbarde Primary Health Centre where P.W.22 Dr.Najakat Mehabub Marchant, Medical Officer found that the conditions of Santosh, Jaishri and Nitin, P.W.21 were serious. P.W.29 recorded the statement of P.W. 24 at Umbarde past midnight on the basis of which the F.I.R., came to be registered. The investigation was then handed over to Circle Police Inspector-Madhukar Yashvant Kadam P.W.32 by the District Superintendent of Police late in the night on 21st May, 1998. P.W.28-Dr.Shashikant Shamrao Bhise conducted Postmortem on the body of Santosh and P.W.23 Dr. Edemundo Josef Rodrigues conducted the postmortem on the body of Jaishri. P.W.32-Madhukar Yashvant Kadam, during the course of investigation arrested the accused persons and at their instance purportedly recovered the weapons. On completion of investigation he filed a charge sheet in the Court of the learned Judicial Magistrate, Kankavali, who committed the case to the Court of Sessions.

(3.) The prosecution examined in all 32 witnesses and the accused examined one witness Shankar Ramchandra Narkar, D.W.1. The accused in their statement recorded under Section 313 of the Cr.P.C. stated that on account of group rivalry they were roped in a false case by the party Ramesh Upade. Accused No.1 took an additional plea that he was not present in the village when the incident had taken place and in support of his plea of alibi D.W.1 came to be examined.