INDUBAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present Appeal has been filed under Sec. 372 of the Code of Criminal Procedure by the original informant. Thought it has been wrongly mentioned that it is under Sec. 378(4) of the Code of Criminal Procedure, but in view of the fact that now a statutory right is made available under Sec. 372 of the Code of Criminal Procedure, present Appeal has to be treated under the said Sec. . If it would have been under Sec. 378(4) of the Code of Criminal Procedure, then it ought to have been an application and not the Appeal. When this fact was pointed out to the learned Advocate appearing for the appellant - original informant, he accepted the said position of law. Accordingly, the matter is taken up for an admission. Further, it will not be out of place to mention here that original accused i.e. respondent Nos.2 to 7 have appeared in the matter through learned Advocate Mr. Ghanekar. Criminal Appeal No.373 of 2021 has been filed by original accused Nos. 2, 5 and 6 challenging their conviction under Sec. 302 read with Sec. 34 of the Indian Penal Code. Those accused are also represented by learned Advocate Mr. Ghanekar.

(2.) Original accused Nos. 1 to 6 are the present respondent Nos. 2 to 7 (hereinafter they are referred to as 'accused Nos. 1 to 6' i.e. with their original number before the trial Court). Original accused No.7 in the case was juvenile in conflict with law. All of them stood prosecuted in Crime No.240 of 2016 registered with Sillod (Rural) Police Station, Aurangabad for the offence punishable under Secs. 302, 307, 324, 323, 506 , 120-B, 143, 147, 148 read with Sec. 149 of the Indian Penal Code and under Secs. 3(1)(r), 3(1)(s) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short "the Atrocities Act"). The First Information Report (for short "FIR") was lodged by the present appellant, who is admittedly a member of scheduled caste. The prosecution story, in short, was that the informant was residing with her two sons, Amol and Ravi and married daughter Vaishali. There is an open land adjacent to her house which she claimed that she is using since many years. There was dispute between her and accused Issaq Umar Shaikh in respect of the said open land and civil suit was filed against her in Sillod Civil Court. Even earlier to the incident in question, about a year ago accused Nos.1 to 7 had assaulted the informant and her daughter and abused them in the name of the caste, therefore, offence was registered at that time also. Accused persons were arrested at that time. That is how the accused persons knew that the informant was belonging to a scheduled caste.

(3.) As per the prosecution story, the incident has taken place around 2.30 p.m. on 14/8/2016. Informant's two daughters and two sons as well as informant were present in the house. All the accused persons went in the disputed open land and started constructing a wall. As the dispute was pending in the Civil Court, daughter Vaishali started taking photographs of the said activity of constructing a wall with an intention to produce the said evidence before the Civil Court. Thereupon accused Ahmed picked up a brick and assaulted it on her waist. Son of Farooq Umar Shaikh pulled the hairs of Vaishali and dragged her on the ground. He assaulted her by means of fist and kick blows. Accused persons were abusing her in the name of the caste by saying " ?????? ???? ???? ??? ?? ?? ?? ???? ???? ???? ?? ...?? ?? ????? ?? " ( Dhedani Bahot Masti Aayi Tu Gharke Bahar Nikal Tere Ko Abhi Hum Batate Hai ). After hearing shouts of daughter Vaishali, the blind son Amol rushed to save her from the assault of the accused, however, at that time all the accused pelted stones towards head of Amol causing him injury. Amol was assaulted by the accused persons with stick. When another daughter Usha tried to separate quarrel, she was also assaulted by the fist and kick blows. Then the informant tried to separate them but accused Shaikh Jakir dragged her on the ground by pulling her hairs. Such kind of FIR was then lodged by the first informant and then the investigation was undertaken. Amol was seriously injured and therefore, he was referred to Ghati Hospital, Aurangabad. Though medical treatment was given to him, he succumbed to the injuries on 17 th August 2016. The inquest panchnama was carried out and the postmortem was done. The cause of death was given as head injury and therefore, Sec. 302 of the Indian Penal Code came to be added.