MAHADEO SAUDAGAR GIDDE Vs. THE STATE OF MAHARASHTRA,

JUDGEMENT

(1.) Criminal Appeal No.563 of 2005 is preferred by nine accused i.e. Mahadeo Saudagar Gidde (original accused no.1), Sarjerao Pralhad Raut (original accused no.3), Suresh Rajaram Sarde (original accused no.5), Shantabai Ganpat Gidde, (original accused no.6), Dattatraya Saudagar Gidde (original accused no.9), Hanmant Eknath Laad, (original accused no.10), Suryabhan Bhagwan Ubale (original accused no.11), Tukaram Rajaram Sarde (original accused no.14) and Shobha Yuvraj Raut, (original accused no.15) and Criminal Appeal No.603 of 2005 is preferred by six accused i.e. Kisan Vitthal Raut (original accused no.2), Ganpat Rajaram Sarde (original accused no.4), Hanmant Ganpat Gidde, (original accused no.7), Balaji Ganpat Gidde (original accused no.8), Yuvraj Suresh Raut (original accused no.12) and Bibhishan Vitthal Raut (original accused no.13). Hereinafter, for the sake of convenience, we shall refer to the appellants by their names and numbers i.e. original accused numbers as set out in the Sessions Case.

(2.) The aforesaid two criminal appeals are directed against the Judgment and Order dated 29 th April, 2005, passed by the learned 2nd Additional Sessions Judge, Solapur, in Sessions Case No.58 of 2004, convicting and sentencing the appellants, for the offences stated hereinunder:- - Kisan Vitthal Raut (A2), Ganpat Rajaram Sarde, (A4) Hanmant Ganpat Gidde (A7) and Yuvraj Suresh Raut (A12), for the offence punishable under Section 302 r/w 149 of the Indian Penal Code, to suffer rigorous imprisonment for life and to pay a fine of Rs.500/- each, in default to suffer rigorous imprisonment for fifteen days (for the death of Machindra Mahadeo Garad); - Mahadeo Saudagar Gidde (A1), Sarjerao Pralhad Raut (A3), Suresh Rajaram Sarde (A5), Shantabai Ganpat Gidde, (A6), Balaji Ganpat Gidde (A8), Dattatraya Saudagar Gidde, (A9), Hanmant Eknath Laad (A10), Suryabhan Bhagwan Ubale (A11), Bibhishan Vitthal Raut (A13), Tukaram Rajaram Sarde, (A14) and Shobha Yuvraj Raut, (A15), for the offence punishable under Section 324 r/w 149 of the Indian Penal Code, to suffer rigorous imprisonment for two years (for the assault on Machindra Mahadeo Garad); - Kisan Vitthal Raut (A2), Ganpat Rajaram Sarde (A4), Balaji Ganpat Gidde (A8), Yuvraj Suresh Raut (A12), Bibhishan Vitthal Raut (A13), for the offence punishable under Section 307 r/w 149 of the Indian Penal Code, to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500/- each, in default to suffer rigorous imprisonment for fifteen days (for the assault on Tanaji Mahadeo Garad); - Mahadeo Saudagar Gidde (A.1), Sarjerao Pralhad Raut (A3), Suresh Rajaram Sarde (A5), Shantabai Ganpat Gidde, (A6), Hanmant Ganpat Gidde (A7), Dattatraya Saudagar Gidde, (A.9) Hanmant Eknath Laad (A10), Suryabhan Bhagwan Ubale (A11), Tukaram Rajaram Sarde (A14) and Shobha Yuvraj Raut, (A15) for the offence punishable under Section 324 r/w 149 of the Indian Penal Code, to suffer rigorous imprisonment for one year and to pay fine of Rs.200/- each, in default to suffer rigorous imprisonment for one week (for the assault on Tanaji Mahadeo Garad); All the appellants are convicted for the offences punishable, under Section 147 r/w 149 and under Section 148 r/w 149 of the Indian Penal Code, however, no separate sentence was awarded for the said offences in view of the sentence imposed on them for other offences. - Mahadeo Saudagar Gidde (A1), Sarjerao Pralhad Raut (A3), Suresh Rajaram Sarde (A5), Shantabai Ganpat Gidde, (A6), Dattatraya Saudagar Gidde (A9), Hanmant Eknath Laad (A10), Suryabhan Bhagwan Ubale (A11), Tukaram Rajaram Sarde (A14) and Shobha Yuvraj Raut (A15), for the offence punishable under Section 323 r/w 149 of the Indian Penal Code, to suffer rigorous imprisonment for two months (for the assault on Navnath Mahadeo Garad); - Hanmant Ganpat Gidde (A7), for the offence punishable under Section 504 of the Indian Penal Code, to suffer rigorous imprisonment for one month and to pay a fine of Rs.200/- in default to suffer rigorous imprisonment for one week; (All the sentences were directed to be run concurrently) All the appellants were however acquitted of the offence punishable under Section 135 of the Bombay Police Act.

(3.) The prosecution case in brief is as under:- The complainant-Navnath Mahadeo Garad was residing at village Laul, Taluka Madha, Solapur, with his parents, wife, children and brothers. Out of Navnath's three sisters, one sister?Yashoda was married to Mukunda Sawant, a resident of Sapatane-Bhose, Taluka-Madha, Solapur. Yashoda was residing with her husband and children at Sapatane and was doing agricultural work. Eight days prior to the date of the incident, Yashoda is stated to have come to Navnath's (complainant's) house with her husband-Mukunda and disclosed that Hanmant Ganpat Gidde (A7), Shantabai Ganpat Gidde (A6) and their family members were abusing them and had even assaulted them, for not attending their agricultural work. Yashoda is also stated to have disclosed to the complainant and the family that Hanmant Gidde (A7), and his family members were threatening to kill them. Navnath, his brothers and parents pacified Yashoda and her husband and sent them back to Sapatane. According to the prosecution, on 20th November, 2003, Yashoda again came to Village-Laul and disclosed to Navnath (complainant), that Hanmant Gidde (A7) had assaulted her, pursuant to which Navnath escorted his sister to Sapatane at about 8.00 p.m., and dropped her home. Thereafter, Navnath went to Hanmant Gidde's house and asked why he was ill-treating his sister and brother-in-law and requested him not to ill-treat them. It is alleged that Hanmant Gidde (A7) and his mother Shantabai (A6) abused Navnath, pursuant to which Navnath asked them not to abuse him and told them, that if his sister and brother-in-law had committed any mistake, then he would bring them, and make them tender an apology. Thereafter, Navnath is stated to have gone to Kurduwadi and then returned to Laul at about 9.00 p.m. According to Navnath, while returning to Laul, at Bhosare- Ghatne, Hanmant Gidde (A7), Balaji (A8) and Dattu Gidde (A9) assaulted him. Navnath on his return to Laul, disclosed the said incident to his parents and brothers. On the next day i.e. 21 st November, 2003 at about 7.00 a.m., Navnath lodged a complaint with the Kurduwadi Police Station and returned to Laul at about 10.00 a.m. On the same day i.e. 21st November, 2003 at about 10.30 - 11.00 a.m; Navnath, his brothers?Tanaji and Machindra and brother-in-law - Santosh Bedge left Laul, to attend the marriage ceremony of Satish Krushna Gholap's daughter. On the way, they visited Sapatane, to settle the dispute between Hanmant Gidde (A7) and Yashoda. Navnath and others visited Yashoda's house and thereafter, proceeded to Hanmant Gidde's (A7's) house, situated by the Sapatane-Laul road. According to the prosecution, when Navnath, Tanaji, Machindra and Santosh reached Hanmant Gidde's (A7's) vasti, they saw Hanmant Gidde (A7) and all the other accused coming in their direction. The said persons are stated to have been armed with swords, sickles, iron rods, axes and sticks. It is alleged that Hanmant Gidde (A7) started abusing Navnath (complainant) and his brothers and asked Navnath, whether he had brought his brothers and brother-in-law to assault them. Hanmant Gidde (A7) is thereafter stated to have assaulted Machindra on his head with a sword. Balaji Gidde (A8) is also stated to have assaulted Tanaji with a sickle on his head. When, Navnath and his brother-in-law requested the accused not to assault Tanaji and Machindra, the accused allegedly continued to assault them, pursuant to which, both Tanaji and Machindra fell down. When Navnath and his brother-in-law tried to save Tanaji and Machindra, some of the accused allegedly assaulted Navnath and his brother-in-law- Santosh with sticks and iron rod. Navnath (PW 10) and Tanaji (PW 5) have in detail disclosed the assault. On hearing hue and cry, Yashoda, her family members and other villagers came to the spot, pursuant to which the accused left the spot. Navnath with the help of others, took his brothers i.e. Tanaji and Machindra for medical treatment to Kurduwadi. Machindra was first taken to Dr.Wagle's Hospital and then to S.P. Institute of Neurosciences, Solapur, as Dr.Wagle had expressed his inability to give treatment. Both, Tanaji and Machindra were taken to S.P. Institute of Neurosciences, Solapur, in an unconscious condition. Tanaji is alleged to have regained consciousness only on 24th November, 2003. In the meantime, on the basis of the complaint lodged by Navnath on 21st November, 2003, investigation commenced. The police visited the spot, prepared the spot panchanama (Exhibit ? 26), seized the soil mixed with blood from the spot and arrested the accused. The clothes of some of the accused were seized. The police also seized the clothes of the complainant- Navnath, injured-Tanaji and Machindra (deceased). Whilst in custody, some of the appellant - accused showed their willingness to produce weapons which were concealed by them, pursuant to which weapons were recovered. On 29th November, 2003, Machindra expired at S.P. Institute of Neurosciences, Solapur, and hence Section 302 was added. Accordingly, the police drew the inquest panchanama. The said inquest panchanama is at Exhibit ? 24. The dead body of Machindra was sent to the Civil Hospital, Solapur for postmortem alongwith the inquest panchanama. On 30 th November, 2003, Dr.Kamble (PW 8) performed the postmortem on deceased Machindra. The probable cause of death was stated to be 'Head Injury". The postmortem report, is at Exhibit ? 46. The Investigating Officer sent the seized articles to the Chemical Analyser, Pune. After completion of the investigation, charge sheet was filed in the Court of the learned Judicial Magistrate First Class, Madha, as against the appellants alleging offences punishable under Sections 147, 148, 149, 302, 307, 324, 504, 506 of the Indian Penal Code (for short 'I.P.C.') and under Section 135 of the Bombay Police Act. As the offences were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Solapur. The appellants pleaded not guilty and claimed to be tried. Their defence was that of total denial and false implication. The prosecution in support of its case examined 13 witnesses. PW 1?Suresh Bajrang Salve, panch to the inquest panchanama (Exhibit ? 24), PW 2- Laxman Tayappa Raut, panch to the spot panchanama (Exhibit-26), PW 3-Shiwaji Govind Sathe and PW 4-Bhiva Mahadu Gadde, Panchas to the seizure of weapons and clothes at the instance of some of the accused were declared hostile; PW 5-Tanaji Mahadeo Garad, an injured eye witness; PW 6-Ashok Bhagwan Gavali, panch to the seizure of clothes of the injured and the deceased was also declared hostile; PW 7-Dr.Anwar Moulali Shaikh, the Resident Medical Officer of S.P. Institute of Neurosciences, Solapur, who examined Machindra (deceased) on 21st November, 2003 and treated him; PW 8-Dr.Suryakant Baburao Kamble, the Medical Officer, Civil Hospital, Solapur who conducted the postmortem on deceased Machindra; PW 9-Dr.Pravin Vishnupanth Ingale, the Resident Medical Officer of S.P. Institute of Neurosciences, Solapur, who examined Tanaji Garad on 21st November, 2003 and issued the injury certificate, which is at Exhibit ? 49; PW 10-Navnath Mahadeo Garad, complainant and injured eye witness, who lodged the FIR dated 22nd November, 2003, which is at Exhibit ? 53; PW 11 - Maqbool Dastagir Tamboli, the police constable Madha Police Station, who carried the articles to the Chemical Analyser; PW 12 ? Ramhari Balu Bhosale, Police Head Constable, Madha Police Station; and PW 13 ? P.I. Yeshwant Anna Matkar, the investigating officer in the said case.