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CASE NO.: Appeal (crl.)  173 of 2003

PETITIONER: Kishanrao Narayanrao Ghuge & Ors.        

RESPONDENT: Vs. State of Maharashtra                             

DATE OF JUDGMENT: 06/08/2003

BENCH: K.G. Balakrishnan & B.N. Srikrishna.

JUDGMENT: O R D E R

WITH

CRIMINAL APPEAL NO. 187  OF 2003

       Five accused were tried by the Sessions Judge, Hingoli, for the offences  punishable under Sections 302, 307, 147, 148 read with Section 149 of the  Indian Penal Code.   All the five accused were found guilty of offences  punishable under Section 302 read with Section 149 IPC and also other allied  offences by the Sessions Judge.   The accused filed appeal and  by the impugned  judgment, the second accused Shivaji  Kishanrao Ghuge alone was found guilty of  offences under Section 302 IPC and A-1 and A-3 to A-5 were found guilty of  offences under Section 326 read with Section 149 and offences under Section 147  and 148 IPC.   These accused have filed Criminal Appeal No. 173 of 2003 and  second accused Shivaji Kishanrao Ghuge has filed a separate appeal, viz.  Criminal Appeal No. 187 of 2003.

       The incident happened on 25.6.1995 at about 1.30 p.m. in the agricultural  field belonging to PW-1 Tukaram.  Tukaram and his deceased son, Gorakhnath  Ghuge  were in the agricultural field and the latter was engaged in sowing  ’moong’ seeds.   These appellants came there and asked PW-1 as to why  he had  purchased that agricultural land from Balaji.   The appellants claimed  that  they had a right over that property.   The second accused Shivaji Kishanrao  Ghuge started assaulting Tukaram.    Tukaram pleaded with the accused that the  matter could be settled amicably and that he was prepared to return the land,  but the quarrel did not end and the second accused and accused 3 to 5 mounted  an attack on  PW-1 Tukaram and deceased Gorakhnath.  The second accused Shivaji  Kishanrao Ghuge picked up an axe which was lying the field and inflicted three  blows on the head of Gorakhnath.   The other appellants (accused 3 to 5) also  assaulted deceased Gorakhnath with ’lathis’.  Gorakhnath died on the  spot and  PW-1 Tukaram fell down on the ground.  PW-1’s grand daughter, Baby, came  rushing to the field and she was sent to fetch Tukaram’s other son, Haribhau,  from Hingoli.   PW-13 Haribhau came in the evening and sprinkled water on the  face of PW-1, who then got up.   PW-13 took PW-1 and the dead body of  Gorakhnath to his house.   On the next day, PW-1 went to the Police Station and  lodged the First Information Report and PW-14 took over the charge of  investigation.   PW-1 was examined by a Doctor,  who found seven injuries on  his body.   Except injury No. 3, all other injuries were contusions.   PW-7  conducted the post-mortem on the body of the  deceased Gorakhnath, who was  found to have sufered multiple head injuries with fracture of skull.   He had   many other incised injuries also on his body.    

PW-1 Tukaram is the only eye witness to the incident.   Though  prosecution examined one Shantabai, who was  allegedly working in the field,  she turned hostile to the prosecution.   PW-1 in his evidence stated that the  accused came and attacked PW-1 and his deceased son, Gorakhnath.   The evidence

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of PW-1 was discussed in detail both by the Sessions Judge and the High Court.   The High Court held that as the second accused Shivaji Kishanrao Ghuge found an  axe lying in the field, he picked it up and suddenly attacked Gorakhnath and  that it was difficult to assume  that there was unlawful assembly consisting of  all the accused with the common object of causing death of Gorakhnath.   The  High Court rightly came to that conclusion.    We do not find any error with  the finding.

The counsel for the appellants contended before us that the conviction of  the appellants (accused 1 and  accused 3 to 5) under Section 326 read with  Section 149 is not sustainable as these  accused did not cause any injuries  either to PW-1 or deceased Gorakhnath.   This contention is not correct.    Accused  3 to   5 were armed with ’lathis’.   The injuries found on the body of  the deceased Gorakhnath and the injuries found on the body of the PW-1 were   grievous in nature and must have been caused with a weapon like ’lathi’.   However, we find from the evidence of PW-1 that the first accused Kishanrao  Narayanarao Ghuge was not armed with any weapon.   Though his presence there is  not denied, but evidently he had not  caused any injury either on PW-1 or to  deceased Gorakhnath.   Of course, all the accused came to the field, but as  observed by the High Court, it seems that the incident  must have happened all  of a sudden because of the dispute regarding the land in question,  between  these accused on the one hand and the PW-1 and his son on the other.  Having  regard to the circumstances of the case, it is proved that accused 3 to 5   caused grievous hurt and they had common  intention to commit such offence, but  the first accused Kishanrao Narayanrao Ghuge did no participate in this  venture.  It is also pertinent to note that at the relevant time, he was 70  years of age and  he must have accompanied the  accused when the dispute  regarding the property arose.

Therefore, we confirm the conviction and sentence of the second accused   Shivaji Kishanrao Ghuge for the offence under Section 302.  As regards accused  3 to 5, we uphold the punishment imposed on them for offences under Section 326  read with Section 34 IPC.   Accused 3 to 5 are not guilty of offences under  Section 147 and 148.  They are acquitted of the charges under Section 147 and  148.   We do not find any reason to interfere with the sentences imposed on any  of these accused.   Accused 3, 4 and 5 are directed to surrender to their bail  bonds to undergo the remaining part of the sentence.   The first accused  Kishanrao Naarayanrao Ghuge is acquitted of all the charges and his bail bond  shall stand cancelled.

The Criminal Appeals are diposed of  accordingly.