STATE OF MAHARASHTRA Vs. HARIBHAU MAHADU TALWADE

JUDGEMENT

(1.) Both these appeals are directed against the order dated 31/8/1990 passed by the learned 5 th Additional Sessions Judge at Pune in Sessions Case No. 431 of 1989. In the said case four accused were tried for the offences punishable under Sections 302 and 506 (II) read with Section 34 of IPC and by judgment and order impugned in these appeals, the learned Additional Sessions Judge was pleased to acquit all the accused for the offences punishable under Sections 302 and 506 (II) read with Section 34 of IPC. However, accused no.1 came to be convicted for the offence punishable under Section 325 of IPC and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.5000/-, in default to undergo RI for one year. Hence, Criminal Appeal No. 892 of 1990 has been filed against the order of acquittal under Sections 302 and 506 (II) read with Section 34 of IPC against all the accused and Criminal Appeal No. 893 of 1990 has been filed for enhancement of sentence against accused no.1. Accused no.3 Nivrutti Haribhau Talwade died during the pendency of these appeals hence Criminal Appeal No.892 of 1990 stands abated against him.

(2.) As per the prosecution case, the second wife of accused no.1 did not have a brother and on the demise of her father, her mother adopted one Tukaram son of Sitaram Kharsule of the same village i.e. Karanjale, Taluka Junnar, District Pune. It appears Tukaram was already married, having two children and within short time of his adoption, his adopting mother died and thus the property which could have gone to the wife of accused no.1 became the property of Tukaram son of Sitaram Kharsule. Accused No.1 is the father of accused nos.2 to 4 and his house is in the neighbourhood of the house of Sitaram Kharsule. On 22/4/1989 between 7.30 to 8.00 p.m., Sitaram Kharsule heard the abuses being hurled on him by accused no.1 and accused no.1 was sitting in his house. Sitaram, therefore, went to him and questioned him and in that there was a quarrel between the two. Accused Nos.2 to 4 were also present in the house, but in the cow-shed. Accused No.1 picked up a wooden stick and started assaulting Sitaram just outside his house and in the courtyard of the house of Shivram. This was seen by PW 7 Yeshwant Janardhan Kharsule and when he saw Sitaram collapsed with bleeding injuries on his head he raised alarm. His parents i.e. Janaradhan Kharsule and Smt.Savitri Kharsule (PW 3) rushed to the spot which was just about 10 ft. away from the house of accused no.1. Both of them tried to intervene when the accused was assaulting Sitaram, who had already collapsed and at that stage accused no.1 gave a stick blow around the head of Janardhan causing bleeding injury. The incident was also claimed to have been seen by other neighbours like Ramu Sonu Kharsule (PW 4), Daulat Ananda Talwade (PW 5) and Yeshwant Kharsule (PW 7). In the incident accused no.1 was also injured and, therefore, Sitaram, Janardhan were rushed to the hospital at Primary Health Centre at Madh. Accused No.1 was also taken to the same hospital. The Medical Officer on duty (Dr.Mahendra Ahiwale PW 8) examined all the three and noticed that Sitaram was unconscious and, therefore, he was directed to be taken to the hospital at Junnar. Janardhan, Savitribai, Yeshwant and accused no.1 were treated at Primary Health Centre at Madh, and except accused no.1 all the three were discharged and they went home. When Sitaram was taken to the hospital at Junnar he was declared dead. On the next date i.e. 23/4/1989, Janaradhan s health also deteriorated and, therefore, he was taken to Sassoon Hospital at Pune but while under treatment, he died around the mid-night. The accused nos.2 to 4 were taken in custody on 23/4/1989 and accused no.1, on his discharge from the hospital, was arrested on 24/4/1989 by Babasaheb Shaikh, PSI (PW 9). From 27/4/1989, the investigation was taken over by Sahaji Salunkhe (PW 10). After drawing the inquest panchanama, the dead body of Sitaram was sent for post mortem and Dr. Gulab Ekahande (PW 13), Medical Officer at Cottage Hospital at Junnar, conducted the post mortem and signed the report at Exh. 61. Whereas Dr. Sudhir Nanandkar (PW 12) conducted the post mortem of the dead body of Janardhan and signed the post mortem report at Exh. 59. The clothes on the person of the deceased as well as the accused no.1 along with the stick which was used by accused no.1 and collected from the spot were sent for chemical analysis and PW 11 Shankarrao Deshmukh, PSI, received the C.A. Reports. On completion of investigation, charge-sheet was filed on 16/8/1989 and on committal of the case, the charge was framed by the learned Additional Sessions Judge on 11/1/1990 (Exh.2).

(3.) The prosecution examined in all 13 witnesses and as noted earlier, PW 9, PW 10 and PW 11 were the police officers, PW 8, PW 12 and PW 13 were the Medical Officers and PW 1 and PW 2 were the panch witnesses. The prosecution claimed that PW 3 Savitri Kharsule, PW 4 Ramu Kharsule, PW 5 Daulat Talwade, PW 6 Ramdas Kharsule and PW 7 Yeshwant Kharsule were the eye witnesses. However, PW 6 Ramdas Kharsule turned hostile and did not support the case of the prosecution. However, in his cross-examination, he admitted before the trial court that around 7.30 p.m. on the date of the incident he had heard accused no.1 hurling abuses to the deceased Sitaram. The trial court, on assessment of the evidence, so adduced, held that the prosecution failed to prove the charge of murder as well as the threat to cause murder of Sitaram Vitthal Kharsule as well as Janaradhan Bhawant Kharsule against the accused. However, the trial court held that the offence punishable under Section 325 of IPC was proved against accused no.1 for causing injuries to deceased Sitaram as well as Janardhan during the incident on 22/4/1989 at 8.00 p.m. and therefore, he was sentenced to suffer imprisonment till rising of the court. The trial court also held that the prosecution failed to prove the charge of criminal intimidation against the accused by threatening PW 3 Savitri Kharsule and PW 7 Yeshwant Kharsule. Surprisingly, the trial court did not frame the main and basic issue as to whether Sitaram and Janardhan died a homicidal death and when the post mortem reports were not admitted by the defence. The defence had admitted the inquest panchanama (Exh.14) and the inquest panchanama (Exh.18) as well as the recovery panchanamas at Exhs. 15 to 17 drawn on 23/5/1989.