Point of Law : When both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on tactics adopted by the rival commanders

JUDGMENT :

Sadhana S. Jadhav, J.

1. The appellants herein seek to challenge the judgment and order dated 19th October 2012 passed by the Additional Sessions Judge, Kolhapur in Sessions Case No. 21 of 2004. The appellants are original accused nos. 1 to 8 and 16. The original accused nos. 4, 6, 8 and 10 have died. The appellants are convicted for the offence punishable under sections 302, 307, 326, 324, 323, 147 and 148 read with 149 of Indian Penal Code and are sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 25,000/-(Rupees Twenty Five Thousand Only), in default of payment of fine, to undergo Simple Imprisonment for six months.

2. Such of the facts necessary for the decision of this appeal are as follows :-

(a) That there was a civil dispute between the accused and the deceased in respect of land situated in Gat Nos. 96 of Padali Burduk. One Shree Krishna Prayag Datta Temple is situated in Gut No. 96. The administration of the said temple and the adjacent land is done by the trust of the temple. Ramgiri was the common ancestor of Yashwant Ananda Girigosavi (the first informant) and the accused Nanda Kedari Buwa @ Girigosavi (acquitted accused). Ramgiri was survived by three sons namely Dattatraya, Mahadev and Ananda.

(b) Mahadev had no legal heir therefore he executed a Will in favour of Babasaheb whereby his share would devolve upon Babasaheb. Dattatraya had 5 daughters. Dattatraya adopted his grandson-Nilesh and therefore Nilesh along with his parents was staying at Village Padali. The first wife of Dattatraya namely Hirabai was also residing with 4 brothers. Nilesh was the son of Nanda Kedari Girigosavi therefore Dattatraya had filed a civil suit seeking partition which were pending. whereas Ananda had 4 sons namely Shivaji, Ashok, Yashwant and Sambhaji. The temple was being managed by 4 sons of Ananda. There was a oral partition amongst themselves. Dattatraya had filed a suit for partition. There were 2 sheds in the property each one managed the shares during their tenure. In May 2003 the temple was being managed by Ashok by rotation. Babasaheb expired on 15th May 2003. Mahadev had renounced the world and executed a Will in favour of Babasaheb who was the elder son of Ananda Girigosavi. Therefore, the property was devolved upon Babasaheb, the son of Shivaji i.e. grandson of Ananda. Accused Nos. 1, 2 and 7 are the sons of the brother-in-law of Nanda. It is the case of the prosecution that on 11th May 2003, in the morning at about 10.00a.m. Sarita and Supriya were cutting the grass in the agricultural land. Ashok has restrained them from cutting the grass. Hence there was a verbal altercation between Sarita and Supriya on one hand and Ashok on the other hand. Thereafter, Ashok narrated the incident to his brother Shivaji who is alleged to have approached the police station and lodged a report in respect of the said altercation. On the basis of the said report a non-cognizable case was registered.

(c) On 11th May 2003 at about 12.30 p.m. Shivaji returned from the police station after lodging a N.C. report in respect of the quarrel which took place at about 10.00 a.m. At about 3.30 p.m. all the accused reached the land in a Trax vehicle. Vehicle was parked on the road. All the male accused were armed with weapons like sticks, axes and iron rods. There was an altercation between both the groups. Accused Sanjay had given a blow of weapon stick on the head of Shivaji. Immediately Shivaji collapsed on the ground, thereafter, he was assaulted by Namdev. In the said altercation the complainant was also assaulted. Soon thereafter, the female members of the family brought the injured to CPR hospital at Kolhapur. While in transit Shivaji had succumbed to the injuries. Ashok and Babasaheb were shifted to Dr. Prabhu’s Hospital. The P.I. attached to Karveer Police Station visited CPR hospital and recorded the statement of PW.7-Yashwant Girigosavi. On the basis of which, Crime No. 107 of 2003 was registered against th