Somling Ramanna Patrigida v. The State of Maharahstra

Judgment

(Per V.M. Kanade, J.)

1. Heard the learned Senior Counsel appearing on behalf of the appellants in both these appeals and the learned APP appearing on behalf of the State.

2. Both these appeals can be disposed of by a common judgment since both these appeals are arising out of the judgment by which the appellants have been convicted by the Sessions Court.

3. The appellants in Criminal Appeal No.1314 of 2003 are original accused Nos. 2, 4, 9 and 10 and the appellants in Criminal Appeal No.1321 of 2003 are original accused Nos. 1, 3, 5 and 6. The appellants shall be hereinafter referred to as “original accused”.

4. The original accused/appellants are challenging the judgment and order passed by the 4th Additional Sessions Judge, Solapur who, by his judgment and order dated 4 (APEAL1321.03 WITH APEAL 1314.03) 3/10/2003, was pleased to convict the appellants for the offence punishable under section 302 read with section 149 of the Indian Penal Code and they were sentenced to suffer life imprisonment and were directed to pay fine of Rs 1000/- each and, in default of payment of fine, they were to suffer rigorous imprisonment for six months. They were also convicted for the offence punishable under section 325 read with section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and that they were directed to pay fine of Rs 500/- each and, in default of payment of fine, they were to suffer rigorous imprisonment for two months. They were also convicted for the offence punishable under section 323 read with section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months and that they were directed to pay fine of Rs 400/- each and, in default of payment of fine, they were directed to suffer rigorous imprisonment for one month. Lastly, they were also convicted for the offence punishable under sections 147 and 148 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 5 (APEAL1321.03 WITH APEAL 1314.03) three months and that they were directed to pay fine of Rs 300/- each and, in default of payment of fine, they were directed to suffer rigorous imprisonment for one month on both the counts. These sentences were directed to run concurrently.

5. Brief facts are as under:-

6. In the present case, prosecution has alleged that all accused had demolished a common boundary wall which is known as Bandh in local parlance and it was demolished on 19/4/2002 in the morning at 11.00 a.m and they had threatened P.W.6 – Remesh that they were going to construct a bungalow on the said portion and that they would murder the persons from his family if they obstruct the accused. According to prosecution, P.W.6 was chased away from that site and, later on, in the afternoon, at about

2.00 p.m. to 2.30 p.m., he heard shouts of his uncle Nagappa. When P.W. 3 – Basappa went there, he noticed that all the accused were assaulting Nagappa with lethal 6 (APEAL1321.03 WITH APEAL 1314.03) weapons and the accused No.1 – Somling gave a knife blow to deceased Nagappa and pulled out his intestine and others also assaulted him with swords. The other prosecution witnesses viz P.W.4 and 5 were also assaulted and received injuries. According to prosecution, the injured witnesses, including the deceased Nagappa, were taken to the Civil Hospital where Nagappa was operated. However, he succumbed to the injuries after four days on 24/4/2002. The other injured persons from the complainant’s side were also

treated by the doctor. FIR, initially, was registered at Sadar Bazar Police Station, Solapur at about 9.30 p.m. and, later on, it was transferred to the Akkalkot South Police Station and was registered as FIR No.26 of 2002 at about 11.55 p.m. A cross complaint which was filed on behalf of the original accused was also registered as CR No.25 of 2002.

7. All the accused were arrested in connection with commission of the said offence. Their blood stained clothes were seized. Discovery of the weapons was made at the instance of accused No.1. Charge-sheet was filed. The 7 (APEAL1321.03 WITH APEAL 1314.03) cross-complaint filed by accused was tried by the Magistrate who was pleased to acquit the accused in the said case i.e the complainant and persons from his family. However, Sessions Court convicted the accused in this case.

8. On the one hand, the version of the prosecution in this case is that the original accused assaulted the complainant, deceased Nagappa and other members of his family with an intention to commit murder and all of them attacked persons from the complainant’s family and the incident took place near Bandh and the place where Bandh was demolished by the accused. On the other hand, it is the defence of the accused that the complainant and his family members came near Wasti of the accused and questioned them about demolition of the Bandh and there was an altercation and the accused were assaulted initially by the other side and in self defence they retaliated and, in that free fight, one of the persons from the complainant’s side died and six persons from the side of the accused received grievous injuries. 8 (APEAL1321.03 WITH APEAL 1314.03)

9. It was submitted by the learned Senior Counsel appearing on behalf of the original accused that genesis of the offence has been suppressed by the prosecution and that no satisfactory explanation has been given by them regarding injuries which were caused to the accused. It was, therefore, submitted that the entire prosecution version was false and could not be relied upon and that this was a fit case where all the accused were liable to be acquitted. It was contended that the prosecution witnesses had made number of improvements in their evidence and omissions and contradictions had been brought on record by the accused which clearly established that the original accused were not the real aggressors in the said incident and that they had only acted in self-defence. Alternatively, it was submitted that there was sudden free fight between the two groups and, therefore, the offence under section 302 was not made out and that the case of the accused would fall under exception 4 to section 300 IPC and, therefore, at the highest, they could be convicted for the offence punishable under section 304, Part-II of the IPC. Our attention was 9 (APEAL1321.03 WITH APEAL 1314.03) invited to the charge framed by the Court, panchanama at Exhibit-38 and also to the contradictions and improvements made by the witnesses which established that the prosecution witnesses in their statement before the police had clearly stated that the incident had taken place near the place of residence of the accused. It was then submitted that the prosecution had suppressed the FIR which was registered at their behest at Akkalkot Police Station being C.R. No.25 of 2002. It was also submitted that the defence had brought on record the injury certificates in the cross-examination of the doctor who was examined by the prosecution. It was submitted that the Investigating Officer had deliberately not produced the said Certificates in the examination-in-chief of the said doctor. It was submitted that the prosecution had suppressed the vardi which was sent by Akkalkot Police Station to the Civil Hospital, Solapur where the deceased and other prosecution witnesses were examined. Reliance was placed on the judgments of the Supreme Court in support of the said submission in Lakshmi Singh and others vs. State of Bihar1 and in Babu Ram and 1 (1976) 4 SCC 394 10 (APEAL1321.03 WITH APEAL 1314.03) others vs. State of Punjab1

10. Mr. Chitnis, the learned Senior Counsel appearing on behalf of accused No.1 also submitted that no reliance could be placed on the recovery of the weapons at the instance of accused No.1 and, therefore, the said recovery could not be used as corroborative piece of evidence in favour of the prosecution. It was submitted that accused No.1 had clearly stated that he had shown his willingness to show the place where weapons were concealed by all the accused. It was submitted that since the authorship of concealment was not restricted to accused No.1 alone, no reliance could be placed on the said recovery under section 27 of the Evidence Act. Reliance was also placed on the judgment of the Apex Court in Pohalya Motya Valvi vs. State of Maharashtra2.

11. On the other hand, the learned APP appearing on behalf of the State has taken us through the judgment and order passed by the Trial Court and submitted that the Trial Court ORDER (i) So far as the conviction of the Original Accused No.1- Somling Ramanna Patrigida is concerned, his conviction is altered. The Accused Nos.1 to 6, 9 and 10 are acquitted of the offences punishable under sections 147, 148, 302, 323,325 r/w. 149 of the Indian Penal Code. 57 (APEAL1321.03 WITH APEAL 1314.03) (ii) The conviction of accused No.1 is converted from section 302 to section 304 Part-I of the Indian Penal Code and he is sentenced to suffer R.I. for 10 years. The Accused No.1 shall pay fine which is quantified at Rs.2500/-and, in default, he shall further suffer R.I. for six months. However, he shall be entitled for set off under section 428 of Cr.P.C. (iii) Accused Nos.2, 3, 5 and 6 are convicted for the offences punishable under section 324 of the Indian Penal Code and they are sentenced to suffer R.I. for 3 years and they are also liable to pay fine of Rs.2,500/- each and, in default, they shall further suffer R.I. for six months. However, they shall be entitled for set off under section 428 of Cr.P.C. (iv) Accused Nos.4, 9 and 10 are acquitted of all the offences for which they were charged. Their bail bonds are cancelled. (A.M.THIPSAY J.) (V.M. KANADE J.) 58 (APEAL1321.03 WITH APEAL 1314.03)