ARJUN RAGHU PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE five appellants have been convicted under Section 148, I. P. Code, Section 302 read with Section 149, I. P. C. , and under Section 324 read with Section 149, I. P. C. Of them, accused Nos. 1 and 2 have been sentenced to rigorous imprisonment for 18 months under Section 148, I. P. C. , to transportation for life under Section 302 read with Section 149, I. P. C. , and to rigorous imprisonment for two years under Section 324 read With Section 149, I. P. C. Accused Nos. 3, 4 and 6 have been ordered to be detained in the Borstal School at Dharwar or any other suitable place of a like nature for a period of four years. It is this order of conviction and sentence that has been strenuously challenged before us by Mr. Bhasme.

(2.) THE offence took place in a field outside the village of Kokil on 27-5-1954, about mid-day. The prosecution case against the five appellants and two others at the trial was that they had committed the offence in question in pursuance of the common intention of an unlawful assembly which they had formed. Seven persons were charged at the trial and it was alleged that these seven persons had been assisted in the commission of this offence by some others who were absconding at the day of the trial. The charge was that on the date in question between 11 and 12-30 A. M. those accused pea-sons were members of an unlawful assembly in a field called Nhavyache shet at Kogil. They were armed with axes spears and sticks and their common object was to cause the death of Shankar Hanmant Jadhav and to cause injuries to his father Hanma Hari Jadhav. The prosecution further alleged that as mem-bers of an unlawful assembly all the accused committed rioting and in prosecution of the said com-mon object accused Nos. 2, 3, 6 and 7 inten-tionally caused injuries to the said Shankar by means of axes, spears and sticks which injuries were in the ordinary course of nature likely to cause the death of Shankar and in fact Shankar died as a result of these injuries. In consequence all the members of the unlawful assembly were guilty of the offence under Section 148. I. P. C. and Section 302 read with Section 149 of the Penal Code. A similar charge was framed under Section 324 read with Section 149, Penal Code in respect of the injuries caused by accused Nos. 1, 3 and 6 to Hanma Hari Jadhav father of Shankar; that is the nature of the charge framed against the appellants at that trial. The accused had denied the charge. The case against them was tried with the aid of Assessors. All the assessors were unanimously of the opinion that all the charges framed had been proved against all the accused by the prosecution. The learned Judge, however, differed from the opinion of the Assessors in respect of accused Nos. 5 and 7 and so he acquitted them of the offence charged. In regard to accused Nos. 1, 2, 3, 4 and 6, he agreed with the opinion of the Assessors and so convicted them of the offence charged. It is against this order of conviction and the sentence imposed by the learned Judge that these five accused have come to this Court in appeal.

(3.) THE case for the prosecution is based upon an alleged enmity between Shankar and some of the accused. Evidences have been led about the motive in that behalf. Zaryache shet which is an agricultural piece of land has caused this enmity. Accused Nos. 1 and 2 laid a claim to this field whereas Sakharam had succeeded in obtaining a decree in his favour in respect of this field. Shankar, the deceased, was the son of Sakha-ram's sister and was working as a clerk with a pleader at Kolhapur and Shankar assisted Sakha-ram in the litigation in respect of this field. That is why accused Nos. 1 and 2 and their friends bore a grudge against Shankar. The learned Sessions Judge has found that the background of motive relied upon by the prosecution in the present case has been proved. Mr. Bhasme does not seriously dispute the fact that the litigation has been commenced by Sakharam in respect of Zaryache Shet and that it may have led to bitterness between the accused Nos. 1 and 2 on the one hand and Shankar who was assisting Sakharam on the other. But the proof of motive must be assigned a minor place in a criminal trial and its importance should not be exaggerated. It was near this Zaryache Shet that the offence appears to have been committed according to the prosecution case. Shankar had dug a well in his field called Nhavyache Shet and the offence actually took place on this Nhavyache Shet. The well which had been dug by Shankar had not struck water and on 27-5-1954, in the morning, Shankar had proceeded to this field accompanied by Hasham who was a water finder and his friends Allabux Bargin and Hindurao Kelaskar. Shankar normally resided at Kolhapur and he left Kolhapur for Kogil that morning accompanied by these friends. When the party reached Kogil, Allabux, Hasham and Hindurao sat on a hillock near the village and Shankar went to his house. There he met Ambubai who was living with Sakharam as his wife. Shankar wanted to receive some money for the medical treatment of his wife and so he decided to see his father. He was told that his father Hanma had gone to the field early in the morning. So Shankar accompanied by his friends went to the fields and showed them the well, Hasham told Shankar that he should dig the well about 5 ft. deep and then he would be able to get water. Thereafter the party went and sat under the shade of a banian tree. Hanma, the father of Shankar was also with them. After some time one Yeshwant came there in search of his buffalo. Seeing them resting under the banian, tree, accused Nos. 1 to 7 with 4 other absconding per sons, who were lying in wait in Zaryache Shet nearby, rushed to Nhavyache Shet armed with axes, spears and sticks. The assailants encircled Shankar and his father. They first caused injuries to Hanma with sticks and spears and then inflicted a large number of injuries on Shankar by means of deadly weapons as a result of which Shankar died. When the assault commenced, Allabux, Hasham and Hindurao and Yeshwant naturally fled away. They were, however, chased by some of the accused and according to the prosecution case Allabux and Yeshwant received stick blows on their hands. As a result of the beating received by him Hanma fell down unconscious. The accused then dragged the body of Shankar from Nhavyache Shet into the Zaryache Shet. By this time some people from the village collected near the field. Ambubai apparently heard about this incident and she came to the field and saw the dead body of Shankar lying in Zaryache Shet and Hanma lying unconscious in Nhavyache Shet. According to Ambubai, she also saw the assailants armed with sticks. She then ran to the village and informed the Police Patil about the occurrence. That brought the Police Patil to the scene of offence. The Police Patil saw Shankar lying dead and he found Hanma unconscious. Then he wrote a Vardi report and despatched it with a Sanadi to the Karvir Taluka Police Station. When Hanma regained consciousness the Police Patil recorded his dying declaration in the presence of Panchas. He arranged for a watch over the dead body and then awaited the arrival of the Sub-Inspector. When the Sub-Inspector arrived, investigation commenced as a result of which all the seven accused were charged-sheeted and some others were shown as absconding. That In brief is the prosecution case.