MANOHAR BALARAM KHANAVKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this appeal, the appellants/accused have challenged the judgment and order of conviction dated 29/07/1991, rendered by Ilnd Addl. Sessions Judge, Raigad, Alibag, in Sessions Case No. 201 of 1989. The appellants/accused (for short, "accused" only) along with one Ashok khanavkar, original accused No. 6, were charged and tried for the offences punishable under sections 147, 148, 302 read with sections 149, 302, 307 read with sections 149, 326 read with section 149 of the Indian Penal Code, (for short, "i. P. C. ") and under section 25 (l) (a) of the Indian Arms Act. The original accused no. 6 was acquitted of all the charges, whereas the appellants/accused were acquitted of the charge under section 307 read with section 149 and section 326 read with section 1491. P. C. The accused persons, however, were convicted under section 302 read with section 1491. P. C. and sentenced to suffer imprisonment for life. They were also convicted under section 324 read with section 149 I. P. C. and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/ -. They were further convicted under section 148 I. P. C. and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/ -. No separate sentence was awarded under section 1471. P. C. All the accused were charged on the allegation that they committed murder of Hiraman Ganpat Paul and Vishnu Kanha Patil in the intervening night of 6-9-1989 and 7-9-1989 at about 0. 40 hour to 1. 30 a. m. and voluntarily caused injuries to Vithal Narayan patil (P. W. 2) and Jagannath Shankar Patil (P. W. 3 ).

(2.) THE prosecution case, as unfolded from the evidence of the witnesses, is as follows. The accused persons and the complainant are the residents of village kalamboli, Taluka Panvel, District-Raigad. Accused Nos. 1, 3, 4 and 6 are real brothers. Accused No. 1 Manohar, at the relevant time, was a Sarpanch of the village Kalamboli. The deceased Hiraman was working with accused No. 1 as his driver for 4-5 years prior to the incident. He left the job of accused No. 1 and started independent business of supply of the construction material. Accused No. 1 was also in the same business. They were having extremely good relations. However, their relations gradually became strain after Hiraman started indepen dent business of supply of the construction material. It is alleged that they were in cross terms since 4-5 months prior to the occurrence of incident, (i) On 6-9-1989 Laxman Tukaram Patil, brother of the deceased Hiraman, in the evening had gone to his maternal uncle on the eve of Ganesh festival and while returning home, accused No. 1 allegedly abused and slapped him. Laxman reported the incident to his brother Hiraman. Hiraman and one Ram Patil went to accused No. 1 to ask him why did he do so, when it is alleged that accused No. 1 threatened him by saying that he would see them. On the very day in the night, one Arun Patil, from village Roadpali, had come to the house of Hiraman Patil for ganesh darshan when Vithal Paul (P. W. 2), Hiraman Patil, Vishnu Patil, Jagannath patil (P. W. 3), Ram Patil, Laxman Patil were also there. They all had a dinner in the house of Hiraman. At about 11 p. m. Hiraman in his car had gone to the village roadpali to reach Arun Patil along with Vishnu, Jagannath and Vithal. After leaving Arun Patil at village Roadpali, they returned Kalamboli after midnight. When they reached in front of the house of Vishnu Patil, all the accused persons, who were armed with swords and guptis, assaulted the deceased Hiraman when he was alighting the car from driver's side. Complainant Vithal claims that he threw himself on the body of Hiraman to save him. Accused No. 3 then gave him a blow of sword on his- left arm. At the same time, the deceased Vishnu and witness Jagannath Patil were also assaulted when they were about to get out of the car. Jagannath Patil (P. W. 3) received blow of sword given by accused No. 5 and Vishnu was assaulted with gupti by accused No. 4. It is alleged that all the accused, thereafter, gave blows of sword to the deceased Vishnu. There was a hue and cry and consequently the family members of the deceased and the injured persons reached the scene of offence and seeing them all, the accused persons fled from the place of occurrence. The injured Hiraman was immediately removed to the hospital initially in a car and since it broke down on the way, in a jeep of Fire brigade Station. However, before admission, Hiraman succumbed to the injuries and was declared dead in the hospital. Vithal (P. W. 2), thereafter, lodged first information report before Kalamboli police which was registered as C. R. No. I-105/ 89. The Assistant Commissioner of Police Vijaysingh Jadhav (P. W. 8) carried out the investigation and on completion of the same filed charge-sheet against the appellants-accused along with original accused No. 6 on 16-12-1989. The case was committed to the Sessions Court on 21-12-1989. (ii) The accused entered the plea of not guilty and claimed to be tried. The defence propounded by them was of total denial. According to the accused, they were not on inimical terms with the deceased at any point of time and their relations with them were cordial. Further, according to the defence, vithal Patil (P. W. 2) and Jagannath Patil (P. W. 3) were also dealing in the business of supply of building construction material and since accused No. 1 had same business on a very large scale they falsely implicated him, his brothers and associates. They have specifically denied to have committed the alleged offence. In defence, the accused have further stated that the deceased Hiraman was found injured in the colony road near village Kalamboli and he was brought near the Fire Brigade Office with the help of Ramesh and from there he was taken to the hospital in a jeep of the Fire Brigade Station. So far as Vishnu is concerned, according to the accused, he was not assaulted at the spot, as claimed by the prosecution, inas much as his body was found lying elsewhere.

(3.) THE prosecution in its endeavour to bring home the guilt of the accused examined as many as eight witnesses, mainly consisting of Vithal (P. W. 2), jagannath (P. W. 3) and Dr. Kendre (P. W. 7 ). The prosecution has also examined the Circle Inspector who drew the map of the place of offence, two panchas who witnessed the spot and recovery panchnama. The brother of Hiraman and cousin of Vishnu, Laxman (P. W. 4) was examined by the prosecution to place on record an immediate cause for the occurrence of the incident. On appreciation of the entire evidence placed on record, the learned Hnd Addl. Sessions Judge, Raigad convicted the appellants-accused by the impugned judgment dated 29-7.-1991.