CHANDRAKANT KRISHNA JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard rival arguments at length on all the three appeals. Criminal Appeal No. 433 of 2010 is preferred by all eighteen appellants - original accused challenging the judgment and order dated 7th June, 2010 passed by Additional Sessions Judge, Kolhapur. By the said impugned judgment and order all 18 accused were convicted for the offence punishable under Section 304 Part II, Section 326 and 341, all read with Section 149 and Sections 144, 147, 148 of IPC. For the offence under Section 304 Part II of IPC all the appellants-accused were sentenced to suffer R.I. for five years each. For the offence under Section 326 read with Section 149 of IPC, they were sentenced to suffer RI for three years each and to pay fine of Rs. 1000/- in default to suffer RI for one month each. For the offence under Section 341 read with Section 149 of IPC all the appellants/accused were sentenced to pay a fine of Rs. 500/- each, in default to suffer SI for 15 days each. Though all the appellants/accused were convicted for the offence punishable under Sections 144, 147, and 147 no separate punishment was imposed on them. The substantive sentences were directed to run concurrently. By the same impugned judgment and order all the appellants - accused were acquitted of the offence under section 135 of the Bombay Police Act. This acquittal is challenged by the State in Criminal Appeal No. 832 of 2010. Criminal Appeal No. 752 of 2010 is also preferred by the State for enhancement of the punishment imposed against all the appellants/accused for the offence under Section 304 Part II, read with Section 149 of the IPC. Apparently, it must be construed that by filing the said appeal for enhancement on the aspect of quantum of punishment, admittedly, the State has not prayed for punishment of the appellants accused for the offence punishable under Section 302 of IPC. This is significant as earlier all the accused were charged for the offence punishable under Section 302 read with Section 149 of IPC along with other allied offences. In spite of this at the end of the trial, the trial Court came to the conclusion that offence punishable under Section 302 of IPC has not been established and the offence was diluted to Section 304 Part II of IPC thus holding all the appellants/accused guilty of the offence of culpable homicide not amounting to murder and falling under clutches of Part II of Section 304 of IPC.

(2.) The case of the prosecution in nut-shell is as under: -

(3.) In the year 2004 there was an election to elect the members of one Bhairavnath Vividh Karyakari Sahakari Society at village Kolele, Taluka Panhala, District Kolhapur (Hereinafter called as "Society" for the sake of brevity. In the said election, 16 candidates of the complainant party i.e. party belonging to Vikas Rajaram Patil were elected. The elected members contested the election under the panel of Gadaidevi Vikas Aghadi. According to the prosecution, appellants/accused Nos. 1, 2, 9, 11 and 13 had contested the said election through said Gadaidevi Vikas Aghadi and apparently were the members of the complainant party and they got elected. Thereafter, accused No. 9 was elected as the Chairman for the year 2004. Thereafter, in the year 2005 there was election of Kolhapur District Central Co-operative Bank and accordingly the Member was to be nominated to represent the society for the election of said Bank. A meeting was held on 16th October, 2005 and one Tanaji Dhavle was nominated as the candidate of the complainant party. That time accused No. 1 had proposed the name of one Dinkar Patil but said Patil was not nominated. On this count, there was a rift in Ahgadi members. In the mean time, accused No. 2 was removed from the Directorship of Bhairavnath Society by order of Additional Registrar, Co-operative Societies vide order dated 31st May, 2006. As such there was animosity in the members of the said Society and Aghadi and accused No. 1 and his associates were having grudge against the complainant Vikas PW No. 5. It is also the case of the prosecution that then elected Chairman in the year 2004 i.e. accused No. 9 had not held any general meeting and as such on 17th July, 2006 a meeting was proposed for fixing the date of general body to elect the chairman and vice chairman of the society. Accordingly on 17th July, 2006 at about 9:30 a.m. the complainant Vikas PW No. 5 and his friend Tanaji Dhavle PW No. 6 were proceeding towards the office of Bhairavnath Society and that time they were accosted and obstructed by all the eighteen accused at the door of Bhairavnath society office. Apparently, all the appellants accused had gathered there in front of the office of the society in the chowk and all were armed with sticks, iron rods and axe. When the complainant PW No. 5 and Tanaji PW No. 6 reached near the door of the Society hall, they were manhandled and then assaulted by all eighteen accused and assault was by means of sticks, iron rods and axe. Apparently, the blunt side of the axe was used to assault these witnesses. According to the prosecution, initially accused No. 1 Chandrakant Jadhav, accused No. 2 Sarjerao Jadhav, accused No. 3 Prakash Jadhav and accused No. 4 Vijaykumar Jadhav and also accused No. 5 Sambhaji Jadhav rushed to the entrance door of the hall and they obstructed PW Nos. 5 and 6 from entering and restrained them from opening the door of the hall. There was some altercation amongst these persons in which the complainant was questioned why the name of Tanaji Dhavle i.e. PW No. 6 was decided as a member during the election of Kolhapur District Central Cooperative Bank and why the name suggested by accused No. 1 was not accepted. The altercation was also on account of the removal of accused No. 2 Sarjerao. On this the complainant indicated that such grievances can be made in the meeting to be conducted and tried to enter the meeting hall. On this there was manhandling of the complainant PW No. 5 and his associate PW No. 6. Accused No. 1 Chandrakant Jadhav inflicted blow of iron rod on the head of the complainant Vikas Patil. Accused No. 5 Sambhaji Jadhav inflicted blow with iron rod on the back of the complainant, so also accused No. 6 Ashok Jadhav assaulted the complainant with the help of stick. PW No. 6 Tanaji Dhavle was also assaulted by the accused persons in the mob and specifically accused Nos. 5, 11, 12 and 15 assaulted said PW No. 6 with iron rod and stick. Due to this assault there was a great commotion and hearing the noise the complainant's father, his uncle and his brother rushed to the spot. Other people also gathered. The complainant's father Rajaram, his uncle Ananda (now deceased) and his brother Prakash were also assaulted by the accused persons when they tried to rescue the complainant and PW No. 6 Tanaji from the clutches of the accused. Due to the said assault victim Ananda Patil became unconscious and fell on the ground. All the appellants-accused ran away from the spot. In the said commotion and assault, the complainant PW no. 5, Tanaji PW No. 6, Prakash Patil PW No. 7 and PW No. 8 Bajirao and also one Rajaram Patil, father of the complainant sustained injuries. So also the victim Ananda Patil sustained severe injuries on his head. All the injureds were taken in one jeep to Adhar Nursing Home at Kolhapur. Except the victim Ananda Patil, other injured persons were treated at OPD. Ananda Patil was admitted in the hospital and CT scan was done for the injuries he had sustained on his head. In the afternoon of the same day, the complainant PW No. 5 lodged his complaint and accordingly C.R. No. 57 of 2006 was registered against all the appellants-accused for the offence punishable under Sections 326, 324, 341, 323, 143, 144, 147, 148 and 149 of IPC read with section 135 of the Bombay Police Act. PSI Ghadge (PW No. 14) conducted the investigation in the matter. He visited the spot and prepared spot panchnama. Initially, thirteen accused were arrested. Statements of the witnesses were recorded, including the injured witnesses.