BHAGWAN BABURAO BACHATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction and sentence dated 30-9-1983, passed by the learned Addl. Sessions Judge, Kolhapur in Sessions Case No. 98 of 1982, convicting the appellants-accused for the offences punishable under sections 147, 148, 302 and 307 read with section 149 of I. P. C. Each of the appellants-accused was sentenced to suffer R. I. for one year and to pay fine of Rs. 100/- in default to suffer R. I. for three months for the offence punishable under section 147 of I. P. C. and each of them was also sentenced to suffer R. I. for five years and to pay fine of Rs. 500/-, in default to suffer R. I. for six months. The learned Judge ordered that the substantive sentences to run concurrently.

(2.) THE appellants-accused were chargesheeted for offences punishable under sections 147, 148, 302 and 307 read with section 149 I. P. C. on the accusation that on 4-7-82 at about 10 a. m. at village Bahireshwar, complainant Bajirao and his brother Balu were going towards their house with fodder. At that time, the appellants-accused attacked on the complainant and his deceased brother with axe and spear. The appellant-accused No. 1 (dead) had axe and appellant-accused No. 2 had an axe in their hands, appellants-accused Nos. 3 and 5 had spears in their hands and appellant-accused No. 4 was armed with stick. Appellant-accused No. 1 inflicted axe blow on the left hand arm and appellant-accused No. 2 caught hold the hands of the deceased. The further charge against appellant No. 3 is that, he inflicted spear blow on the front portion of the chest of P. W. 1 Bajirao, the complainant and appellant No. 3 inflicted spear blow on his back side. However, all the accused were chargesheeted under section 149 of I. P. C. for common intention to commit murder of the deceased. It is to be noted here that the appellants-accused Nos. 1 to 4 are real brothers and son of appellant No. 5. Since the appellant No. 1 has died pending this appeal, the appeal abates against him and therefore, we are now concerned to deal with the appeal against appellants Nos. 2 to 5.

(3.) HEARD Mr. Naik, learned Counsel for the appellants. It has been vehemently submitted that the appellants have been wrongly chargesheeted under section 149 of I. P. C. attributing common intention and there is no evidence to establish common intention of committing murder of the deceased or attempt to commit murder. It reveals from the record that the first information conveyed on telephone by some persons at the police station that some maramari was going on and on receiving the telephonic message, police party started to go towards the spot. Police Station is two miles away from the scene of offence. Further, it has been submitted by the learned Counsel Mr. Naik for the appellant that the accused persons had sustained injuries in the same incident and they have filed complaint against the complainant party and the complainant party had also filed complaint against the accused party. The learned Counsel Mr. Naik vehemently submitted that the prosecution has failed to explain the injuries on the person of the accused. The learned Counsel Mr. Naik submitted that there are infirmities and contradictions in the evidence of alleged eye witnesses, particularly, P. W. 1, 2 and 3. Further, it has been submitted by the learned Counsel Mr. Naik that the main appellant-accused No. 1 who attributed axe blow on the deceased is dead and therefore, the gravity of the offence is also lost with the death of one of the main accused. Further, it has been submitted that P. W. 1 Bajirao who is the complainant and the injured witness has deposed in examination-in-chief that the complainant party and the accused party are inter-related and the complainant party has no enmity or any dispute with the accused party. However, he has deposed that the accused party had a dispute regarding some land with the cousins of the complainant party. On the strength of this evidence, the learned Counsel Mr. Naik has submitted that there was no motive behind committing such a serious crime and there was no intention as alleged by the prosecution. The learned Counsel Mr. Naik fairly conceded that if at all, the appellants-accused were found to be responsible for causing serious injuries to the deceased and complainant P. W. 1, they should be held responsible for individual act they have played in commision of this offence. The learned Counsel submitted that in view of the medical evidence regarding the injuries sustained by P. W. 1 caused by spear, both the injuries were incised wounds. The medical evidence fully corroborates the evidence of P. W. 1. Keeping this fact in mind, Mr. Naik has submitted that at the most, appellants Nos. 3 and 5 to be held responsible individually for causing injuries to P. W. 1. They cannot be connected individually with the alleged offence. Further, Mr. Naik submitted that looking to the nature and the gravity of the injuries received at the hands of appellants Nos. 3 and 5, at the most the offence falls under section 324 of I. P. C. As against this, the learned Addl. Public Prosecutor Mr. Borulkar has emphatically submitted in support of the judgment and order of conviction that though appellant No. 1 was responsible for fatal blow of axe by which deceased died, appellant No. 2 cannot escape from his responsibility for taking part in commission of the offence. It has been submitted that P. W. 1, 2 and 3 have categorically deposed that appellant-accused No. 2 had caught hold the hands of the deceased and appellant-accused No. 1 inflicted axe blow to the deceased. The said eye witnesses have also deposed that appellant No. 2 had also an axe in his hand but no overt act was attributed by him. Therefore, the question is what offence appellant No. 2 has been committed. The learned A. P. P. in support of his arguments cited the case reported in (Ch. Pulla Reddy and others v. State of Andhra Pradesh) A. I. R. 1993 S. C. 1899 wherein in Head Note (C) it has been observed that---C) Penal Code (1860), Sections 34 and 300-Murder trial-Common intention-No specific injury caused by one out of six accused persons-His conviction under section 300/34 still justified.