Point of Law: Failure on the part of the prosecution to explain or disclose the genesis of the offence is also an additional factor which renders the prosecution story a bit doubtful.

JUDGMENT :

Prithviraj K. Chavan, J.

1. This is an appeal by the State, challenging the judgment and order of the acquittal passed by the II Ad-hoc Additional Sessions Judge, Kolhapur in Sessions Case No.140 of 2004 on 26th May, 2006 thereby acquitting respondent nos. 1 to 10 of the offences punishable under Sections 143, 147, 148, 302, 323, 504 r/w 149 of Indian Penal Code and Section 37(1) r/w Section 135 of the Bombay Police Act.

2. The prosecution story is like this :

3. There were two rival groups in village Shiroli-pulachi, Tal. Hatkanagale, Dist. Kolhapur. On 16th May, 2004 at about 2.00 p.m. Yasin – brother of complainant – PW-2 Chandso Sarjekhan had been to the field of one Kutub Mulla named ‘Katwan’ for bringing rice straws with one Ananda Chougule and Baban Sarjekhan in a tractor. A wordy duel ensued on account of loading more rice straws in the tractor between Imran Fakir and Yasin Sarjekhan. Imran Fakir gave a kick to Yasin Sarjerao. On the same day, at around 6.30 p.m. Yasin reported about the said incident to some of the accused.

4. Having learnt about the same, PW-2 Chandso Sarjekhan along with Amjad and Yasin Sarjekhan had approached the house of accused no.1 – Jahangir Fakir at about 9.00 p.m. to discuss the issue. While returning after discussion, accused nos. 1 to 10 suddenly approached them and started abusing. Accused no.5 -Shafiq Fakir and A-7 Ikbal Sanade were armed with swords and rest of the accused were armed with sticks and iron bars. In the meanwhile, PW-9 Samir Sarjekhan, PW-10 Amin Sarjekhan and PW-12 Bhola Sarjekhan also came over there. They too were assaulted by the accused persons resulting into injuries.

5. The complainant PW-2 Chandso Sarjekhan and PW-9 Samir Sarjekhan were assaulted with sticks and iron bars whereas PW-12 Bhola Sarjekhan, PW-10 Amin Sarjekhan and deceased Amjad Sarjekhan were assaulted by means of swords, sticks and iron bars.

6. All the injured came to C.P.R. Hospital, Kolhapur for treatment and subsequently an First Information Report came to be lodged in the intervening night of 16th May, 2004 and 17th May, 2004 on the basis of which Crime No.34 of 2004 under Sections 143, 147, 148, 149, 307, 323, 504 of the Indian Penal Code came to be registered against the accused persons. Amjad Sarjekhan succumbed to the injuries while under treatment. As such, Section 302 of the Indian Penal Code had been added.

7. The Investigating Officer noticed that the accused had also committed breach of Notification of District Magistrate, Kolhapur, promulgated under Section 37(1) and 3 of the Bombay Police Act. After completion of investigation, a charge-sheet came to be filed against the accused persons for the offences as stated above.

8. After committal of the case, the learned II Ad-hoc Additional Sessions Judge, Kolhapur framed a charge in terms of Exh.42, which was read over and explained to the accused. They pleaded not guilty and claimed to be tried.

9. The defence of the accused as emerged from the line of cross-examination as well as from their statements under Section 313 of the Criminal Procedure Code is that they did not commit any offence and have been falsely implicated. It was their contention that the complainant and witnesses were the aggressors, who approached their house well prepared and armed in order to cause hurt and consequently mounted the assault in view of the incident, which had occurred on the same day in the afternoon qua Yasin Sarjekhan.

10. Admittedly, there was a counter case filed against the complainant and others, which was bearing Sessions Case No.141 of 2004. The respondents/accused have also raised an alternative plea of private defence.

11. During trial, the prosecution examined as many as 18 witnesses coupled with documentary evidence in the form of medical certificates, report of chemical analyzer, panchanamas, discovery panchanama under Section 27 of the Evidence Act etc.

12. Having considered the evidence of the prosecution witnesses and after hearing the resp