STATE OF MAHARASHTRA Vs. CHANGDEO NIVRUTTI KAMATHE

JUDGEMENT

(1.) BY this appeal under section378 of the Code of Criminal Procedure 1973, the State of Maharashtra has impugned the judgment and order dated16th May 1996 passed by the Additional Sessions Judge, Pune in Sessions Case No. 60 of 1986 acquitting all the accused persons of the offence under sections 302, 326, 324, 353, 332, 337, 149, 147 and 148 of the Indian Penal Code 1860 (I. P. C. for short) with which they were charged. The said judgment and order of acquittal is based inter alia on the following ground, viz. , that the witnesses are interested persons and that they have deposed against the accused persons on account of enmity with the accused: that the prosecution case is discredited by the medical evidence and the evidence of Police Officer: that the evidence of carrying Gupti in necked condition is doubtful and that the statement of P.W.2 the complainant is not the F. I. R.

(2.) BRIEFLY, the prosecution case is that : There are two factions in village Shivari, Taluka Purandhar, District Pune, one headed by accused No. 3 Shankar Mugut Kamathe and other headed by Sarpanch Baban Dashrath Kamathe to which the complainant belongs. An annual festival and fair used to be held in the Yamai Temple in the village and these two factions used to perform religious ceremonies and Chabinas in the temple separately. On 12th April 1985, there was the usual annual fair and Kavad procession. A quarrel took place as to who should give shoulder to the Kavad but the Police present at Bandobast duty settled the dispute and the procession was completed at the temple at about7 or 8 p. m. Later, at night, 'chabina' was held and both the rival groups started performing their ceremonies separately. There were loud speakers put by both the sides. At about4. 30 a. m. , one Suresh Kaluram Kamathe climbed up on the shop outside the temple premises for adjusting the loud speaker. Immediately, accused Nos. 1 and 2 pulled him closely and started assaulting him with fists and kicks blows. Seeing this Suresh's father Kaluram and brother Sudhakar went to his rescue: Kaluram bent over Suresh who was on the ground to save him from the beating. At that moment, accused No. 1 took out the Gupti from under his pant near the waist and struck a blow on the back of Kaluram. Kaluram fell down on the ground and started bleeding. At the same time, accused Nos. 3 and 4 were assaulting Sudhakar with sticks. Sudhakar also fell down. One Dnyaneshwar, who came to the rescue of Sudhakar was also given a Gupti blow by accused No.2. It is alleged that Sudhakar also received a Gupti blow on his back from accused No.2. This was followed by stone throwing. Kaluram was taken inside the temple. All the 19 accused are alleged to have thrown stones on the witnesses who received injuries. Even some of the police constables who were on Bandobast duty appear to have sustained injuries. After the stone throwing subsided Kaluram was taken in a truck to the Government Dispensary at Saswad. However, Kaluram expired in the truck before reaching the hospital. The Medical Officer examined Kaluram in the Government Dispensary and declared him dead. Shortly thereafter police arrived and statement of P.W.2 Madhukar, son of deceased Kaluram was recorded, which is treated as F. I. R. and offence registered. Police took charge of blood lying on the spot. Panchanama (Exh. 58) was drawn and statements of 17 witnesses including Suresh and Baban were recorded. Some of the accused persons had gone to Jejuri. Accordingly, Police went there and arrested accused Nos. 1, 2, 5, 6, 12, 13 and 19. The Gupti (Article No. 18) was recovered at the instance from accused No. 1 under panchanama and subsequently accused Nos. 2 and 3 also produced sticks after making discovery statements. The Gupti and the blood stained clothes were sent to Chemical Analyser. The Gupti was found stained with blood of Group 'a' which was of deceased Kaluram. The blood stains on clothes of the accused were of the human blood of Group 'a'. The pyjama of accused No. 6 was blood stained which was seized under panchanama. The clothes of the injured persons were also attached under panchanama. Inquest panchanama was also drawn on the dead body of Kaluram and dead body was referred for post-mortem examination.

(3.) ALL the accused persons pleaded not guilty to the charges. The defence of accused No. 1 is one of total denial. He denies having committed the alleged offence and claims that on account of poor response to the complainant's party for the Chabina ceremony, the complainant's party were upset and started throwing stones at the crowd gathered as a result and there was confusion and people started running helter-skelter. It is suggested that some miscreants in the crowd might have struck a blow with knife on the deceased Kaluram and other persons and the complainant and other witnesses have falsely implicated accused persons on account of their enmity with the complainant's party.