NARAYAN GANPATI PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by accused Nos. 8 and 9 against their convictions under Sections 148 and 307 read with Section 149 of the Indian Penal Code and Section 19(e) of the Indian Arms Act and sentences passed upon them for these offences.

(2.) These accused as well as the other eight accused, who were tried along with them, are residents of Kavathe Piran. Witness Tukaram also belonged to this village. About 7/8 years ago there was a quarrel between Tukaram and father of accused No. 5. Since then there was enmity between Tukaram and the accused. Tukaram was also beaten on two occasions. As Tukaram was afraid of living in the village thereafter, he left Kavathe Piran and went to reside at Bhadule in Kolhapur, District. On 5-5-1957 Tukaram returned to his village as he had some work in connection with his lands with the Talathi. In the afternoon of that day, Tukaram went to a cloth shop known as Patil Cloth Stores. The prosecution story is that while he was sitting on a chair in that shop, the 10 accused went there. Some of the accused dragged Tukaram outside the shop and he was then assaulted with a scythe by accused Nos. 1, 2 and 5. Accused Nos. 3, 8 and 9 were armed with rifles. They pointed these rifles at the crowd which had gathered there and prevented anybody from going to the rescue of Tukaram. After Tukaram fell down on the ground, the accused ran away. In the meantime the Manager of the cloth shop telephoned to the Police Station that a 'maramari' was going on in front of his shop and that Tukaram was being beaten with a scythe. A police party was immediately sent to the scene of offence. They found Tukaram lying injured on the ground. Tukaram was then removed to the Civil Hospital. Another Policy Party was returning from a raid about the same tie. They saw accused Nos. 1 to 7 running away. Immediately afterwards shouts were heard from the crowd that the persons, who were running away, had committed a murder. Sub-Inspector Bhosale, who was in charge of this party, rounded up these accused and put them in a police van and took them to the police station. As Tukaram's condition was considered to be serious, arrangements were made for his dying declaration being recorded. It was recorded by witness Thorat, Special Executive Magistrate, Sangli. In that statement Tukaram implicated accused Nos. 1 to 4, 8 and 9. He stated that three of them, accused Nos. 3, 8 and 9, were armed with rifles. Thereafter the Sub-Inspector recorded Tukaram's statement (Exh. 6-B), which has been treated as the first information of the offence. In that statement also Tukaram implicated the same accused and accused No. 10. Attempts were then made to trace the two appellants, accused No. 8 and 9. They could not be found in the village until 17-5-1957, on which date they were arrested. Accused No. 10 was arrested subsequently. thereafter all the accused were sent up for trial for committing offences punishable under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code. The appellants and accused No. 3 were also charged under Section 19(e) of the Indian Arms Act. All the accused pleaded not guilty to these charges. The appellants denied their presence at the scene of offence and stated that they had been falsely involved. The learned trial Judge came to the conclusion that the charges had been satisfactorily proved against the two appellants and accused Nos. 1 to 5. He therefore convicted these accused under Sections 148 and 307 read with Section 149 of the Penal Code. The two appellants were also convicted under Section 19(e) of the Indian Arms Act. the other three accused Nos. 6, 7 and 10 were acquitted by him. (After discussing the evidence, His Lordship proceeded:)

(3.) The next and the most important question to be considered is whether the two appellants, accused Nos. 8 and 9 were members of this unlawful assembly and whether they were armed with rifles at that time. Practically all the material witnesses, including Tukaram himself, turned hostile in the Sessions Court. The prosecution therefore brought on record the evidence of Tukaram given in the Committing Magistrate's Court under Section 288 of the Criminal Procedure Code. In his evidence in that Court Tukaram has stated that accused Nos. 8 and 9 and accused No. 3 were armed with rifles at the time of the offence and that they were intimidating the other persons and preventing them from rescuing him. He has also stated that witness Baburao had gone to his rescue but that he had been pushed aside by these accused. Tukaram resiled from this evidence in the Sessions Court. In his evidence in the Sessions Court he stated that he had been beaten by some unknown persons and that accused Nos. 1 to 5 and thee two appellants had gone to his rescue. Even in his evidence in the Sessions Court, therefore, he stated that the appellants were present at the time of the offence, but his story was that they had gone to rescue him and not in order to assault him. The learned trial Judge did not accept the evidence given by Tukaram in the Sessions Court. He believed the evidence given by him in the Committing Magistrate's Court which, according to him, was corroborated by the first information and the statement of Tukaram recorded by the Executive Magistrate and the evidence of two witnesses Shankarlal and Mangilal. (After dealing with certain points not material for purposes of reporting and discussing evidence, His Lordship proceeded:)