STATE OF MAHARASHTRA Vs. VISHWANATH ALIAS ISHWAR NAIK

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and order dated 28th August, 1984 passed by the learned Addl. Sessions Judge, Ratnagiri in Sessions Case No.2 of 1984. By the impugned order, the respondents-accused have been acquitted of the offences punishable u/s.302, 147, 307, 149, 302 r/w section 34 and under Section 24 of the Indian Arms Act.

(2.) THE prosecution case in short is that; the Respondents-accused were chargesheeted for the offences punishable under sections 302, 147, 307, 149 r/w section 34 of I.P.C. and accused No.1 was also chargesheeted for the offence punishable under section 25 of the Indian Arms Act on the accusation that on 12.7.83 at about 11.30 p.m., all the respondents-accused gathered at Madhaliwadi of Usap village and assaulted one Shankar with Pharshi and sticks. It is the charge that accused No.1 fired a gun shot on the deceased Shankar, accused No.2 inflicted Pharshi blow on deceased and on P.W.3 Arjun and other accused who had sticks in their hands had inflicted blows on the other prosecution witnesses. The alleged quarrel took place in the night of 12.7.83 at about 11.30 p.m. It reveals from the record that it was a heavy rain in the night and there was no light in the village. It is the prosecution story that on the night of the incident at about 9 p.m., the complainant P.W.1 and the other prosecution witnesses had gathered at the house of Sarpanch Shankar for discussing about a room situated at Andheri, Bombay. It is the prosecution case that the Respondent accused belonged to Janata Party and the Sarpanch of the village belonged to Congress Party and he was being elected as Sarpanch for last 30 years and villagers could not dare to oppose him. On the other side, the respondents-accused insisting the supporters of the Sarpanch for joining Janata Party and the supporters of Sarpanch i.e. the complainant side were not agreeable to that. Therefore, the accused party have grievance against the complainant party. On the night of the incident, according to the prosecution, when the complainant and the other prosecution witnesses were returning from the house of Sarpanch and was going for preparing Usal, the respondents-accused persons have attacked with weapons in their hands. The respondent-accused No.1 had attributed gun in his hand, No.2 attributed Pharshi and the other accused had sticks. It reveals that one Shankar who was an agricultural labourer was in the company of the complainant. On seeing the accused in aggressive mood, it is alleged that deceased Shankar questioned the accused what they had to do with him. On that count, the accused persons attacked him. The accused No.2 alleged to have been inflicted two Pharshi blows on his head and he died on the spot. It is the prosecution case, that the accused No.2 also inflicted Pharshi blow on the head and arm of P.W.3 Arjun. At that time, P.W.4 rushed to the spot and he pushed a Pharshi held by accused No.2, due to which, the Pharshi fell down from the hands of accused No.2. Thereafter, all the accused ran away by leaving the Pharshi on the spot. The complaint was lodged at Exhibit 19. Investigation was started and the respondents-accused were arrested and produced before the court on the next day.

(3.) HEARD Mr. Tulpule, learned Public Prosecutor. After going through the record and proceedings, he has fairly conceded that he is not in a position to challenge the order of acquittal. Apart from it, we ourselves have gone through each evidence and the judgment of the learned Judge. Though there is evidence of injured witness P.W.3 who sustained serious injuries, the injuries sustained by this witness at the hands of accused No.2 and the injuries found by the doctor on his person do not corroborate the prosecution case. In his evidence, he has specifically deposed that he received only two blows inflicted by Respondent No.2 with pharshi while medical evidence speaks about the stick injuries. Likewise, the injuries noted in the postmortem note of the deceased Shankar do not corroborate with the evidence of prosecution witness. The prosecution witness speaks about the two Pharshi blows inflicted on the head of the deceased while in the postmortem note, six injuries were found. This is a contradiction in the prosecution evidence and the medical evidence. Further, there is one more serious infirmity regarding the opportunity of identifying the accused persons in the night time. Admittedly, there was no light. According to the prosecution witnesses, it was heavily raining. However, P.W.1 complainant speaks that he had a torch with two cells and with the light of the torch, he identified the accused. On the other hand, P.W.3 speaks that as it was night time, the accused persons had two torches and with the help of the torch as they threw light on them, he could identify the assailants in the night. Further, the complaint first disclosed the gun fire to the deceased and deceased Shankar died by gun shot. The medical evidence speaks otherwise that no gun shot was found and no gun fire was proved. Therefore, the learned Judge has rightly held that the prosecution has tried to improve the prosecution story and falsely implicated the accused persons for the reasons best known to them.