BALARAM SHANJI PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is preferred against the order of conviction and sentence dated 28th December 1989 passed by the learned Additional Sessions Judge, Raigad-Alibag, in Sessions Case No.86 of 1987, whereby the learned Judge has convicted the appellants-accused for offence punishable under section 307 read with section 34 I.P.C. and sentenced to suffer R.I. for 3 years and to pay a fine of Rs.300/-, in default to suffer R.I. for one month each.

(2.) THE prosecution case, in brief, is that on 17th October 1985 at about 5.30 p.m. the accused persons, numbering in all twenty four, went to the house of deceased Namdeo of village Vaghivali, Taluka Panvel, District Raigad, with dangerous weapons viz., swords, pharshis and spears, in their hands and assaulted him and his brother Tukaram. According to the prosecution, F.I.R. (Exhibit 34) was lodged at Panvel Police Station on the same day by Posha Patil (P.W.2), the brother of the victim, the eye-witness to the incident. It reveals from the record that there were three F.I.Rs alleged to have been filed by different persons setting out story regarding the genesis of the offence. However, the F.I.A. lodged by P.W.2 Patil has been treated as the complaint and on the basis of that, the investigation commenced. Investigating Officer Ramdas Patil (P.W.12) carried out the investigation. After recording the statements of witnesses and completing the investigation, charge-sheet was filed against the accused persons, numbering in all twenty four, before the learned Magistrate who committed the case to the Court of Sessions, Raigad, for its trial.

(3.) HEARD Mr. Rajendra Shirodkar, learned Counsel for the appellants-accused. He has vehemently submitted that the prosecution story is a concocted story and is untenable in law. He has taken me through the evidence of the eye-witness Posha Mahadeo Patil (P.W.2), the brother of deceased Namdeo and injured Tukaram, and pointed out that in his complaint he has mentioned names of 15 persons as the assailants, while in his evidence he has stated names of 24 accused persons. This is an infirmity which is fatal to the prosecution. According to P.W.2, the incident occurred at 5.30 p.m. on 17th October 1985 and he immediately reported the same to the police at 7.00 p.m., while according to the evidence of the Investigating Officer Ramdas Patil (P.W.12), the complaint was recorded on the next day i.e 18th October 1985 at 6 p.m. According to P.W.2, he immediately informed the police and came back to village Vaghivali in a police jeep. However, the Investigating Officer (P.W.12) did not support this version of P.W.2. On the contrary, the Investigating Officer has stated that he reached village Vaghivali, saw the injured person Namdeo in unconscious condition and Tukaram in injured on 18th morning. According to P.W.2, because of high tide, the injured persons were not removed to hospital on the previous night, but no explanation is coming forth from the Investigating Officer, though he had rushed to the scene of offence immediately in a police jeep. Mr. Shirodkar has submitted that the prosecution has failed to give the genesis of the offence. No motive has been attributed. According to the prosecution, in all 25 persons were there with deadly weapons in their hands. Therefore, it is difficult to identify as to which assailant from amongst 24 assailants caused spear blow to Namdeo and who cause pharshi blow on Tukaram from the names given by P.W.2 and the other prosecution witnesses. The role played by each of the assailants as attributed by P.W.2 is unbelievable. Learned Counsel for the appellants has vehemently submitted that the incident must have been occurred in the night at about 11.30 p.m. or so and as it was a dark night, no assailants could have been identified by any prosecution witnesses. Further, it is submitted that the improvement made by P.W.2 in evidence is a fatal blow to the prosecution. He tried to involve as many persons as possible. In the F.I.R. (Exhibit 34) P.W.2 names only 15 accused persons while in his evidence before the Court he named 24 persons and the learned Judge out of the 24 persons held guilty only three persons for the offence by attributing common intention of committing murder. The view taken by the learned Judge is unsustainable. Once the accused persons have been charge-sheeted for the offences punishable under sections 302, 307 and 337 read with section 149 I.P.C. and on appreciation of evidence it is found that the prosecution has failed to bring the case under section 149 I.P.C., it is not open to the learned Judge to hold only three accused persons out of 24 accused guilty for the offence punishable under section 34 I.P.C. There is no evidence of common intention and, therefore, they cannot be convicted for the offence punishable under section 34 I.P.C.