Rama Abaji Jadhav vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 1172

IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH
VIBHA KANKANWADI, ABHAY S. WAGHWASE, JJ.
Rama Abaji Jadhav – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal Nos. 572, 581 of 2016, Criminal Appeal Nos. 124, 125 of 2017, Criminal Application No. 5645 of 2016
Decided On : 10-08-2023

Advocates:
Advocate Appeared:
For the Appellants : Joydeep Chatterji, S.J. Salunke.
For the Respondent: S.J. Salgare.

Headnote:
Code of Criminal Procedure, 1973 - Section 374, 235(2), 428, 437-A, 313 – Indian Penal Code, 1860 – Section 302, 323, 143, 147, 148, 323, 504, 149 - Arms Act, 1959 - Section 4, 7, 25, (1)(A), 32 - Maharashtra Police Act, 1951 - Section 135 - Murder offence - Order of acquittal - Challenging order of acquittal of accused nos.1, 2, 4 and 5 from charge under Section 302 of Indian Penal Code by preferring Criminal Appeal – No fault can be found in appreciation and analysis and conclusion reached at by learned trial Judge - Para 35.
Finding of the Court: Arms are only with accused Rushi and accused Rama – Court have already raised doubt about recovery of sword - Only knife is proved to be recovered - Nothing has been brought on record to show that they had formed an unlawful assembly with common object to commit crime - Proper sequence is not narrated by PW3 and therefore, in court considered opinion, ingredients of Section 149 of IPC being patently missing from testimony of PW3 Vilas and even PW4 and PW5, Court is afraid whether said provision could at all be brought into play - After settlement on initial quarrel and after visit of accused, deceased seems to have himself gone to their house - Incident has taken place in front of house of accused - This being fact, which is not disputed, even it cannot be said that presence of accused in front of their house was an unlawful assembly - No fault can be found in appreciation and analysis and conclusion reached at by learned trial Judge - In appeal, learned APP could not point out that learned trial court erred in appreciating available evidence and eared in acquitting accused no. 2 from all charges and in acquitting accused no. 1, accused no. 4 and accused no. 5 from charges under Sections 143, 147, 148, 302, 504 and 149 of IPC, Sections 4/25 and 7/25(1)(A) of Arms Act and Section 135 of Maharashtra Police Act.
Result: Appeals dismissed.

JUDGMENT :

VIBHA KANKANWADI, J.

1. Original accused nos. 1, 3 and 4 [appellants in Criminal Appeal No. 572 of 2016] and original accused no. 5 [appellant in Criminal Appeal No. 581 of 2016] are hereby invoking Section 374 of the Code of Criminal Procedure [Cr.P.C.] thereby taking exception to the judgment and order of conviction passed by learned Additional Sessions Judge-1, Jalna dated 17.08.2016 in Session Case No. 66 of 2014, convicting them as under:

(1) Accused No. 3) Chagan alias Rushi Rama Jadhav is hereby held guilty under Section 235(2) of Cr.P.C. for commission of offence u.s. 302 of IP Code, and he is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- I.D. of payment of fine to suffer simple imprisonment for Six months.

(2) Accused No. 1) Rama S/o Abaji Jadhav, No. 4) Jyoti Rama Jadhav and No. 5) Rani W/o Chagan @ Rushi Jadhav, are hereby held guilty under Section 235(2) of Cr.P.C. for commission of offence u.s. 323 of I.P. Code and they are sentenced to suffer Simple Imprisonment for One year and to pay fine of Rs.500/- each I.D. of payment of fine to suffer Simple Imprisonment for three months. They shall surrender their bail bonds.

(3) Accused No. 3 Chagan @ Rushi Rama Jadhav, is hereby acquitted under section 235(1) of Cr.P.C. for commission of offence u.s. 143, 147, 148, 323, 504 r.w. 149 of IPC, u/sec. 4/25, 7/25(1)(A) of the Arms Act and Sec. 135 of the Bombay Police Act.

(4) Accused no. 2 Digamber Narayan Gaike is hereby acquitted u/sec.235(1) of Cr.P.C. for commission of offence u.s. 143, 147, 148, 302, 323, 504 r.w. 149 of IPC, 4/25, of the Arms Act and U/Sec. 135 of the Bombay Police Act. His bail bonds stand cancelled.

(5) Accused nos.1) Rama s/o Abaji Jadhav, No. 4) Jyoti Rama Jadhav and No. 5) Rani w/o Chagan @ Rushi Jadhav, are hereby acquitted under section 235(1) of Cr.P.C. for commission of offence u.s. 143, 147, 148, 302, 504 r.w. 149 of IPC, U/Sec. 4/25, 7/25(1)(A) of the Arms Act and u/sec. 135 of the Bombay Police Act.

(6) Set off under Section 428 of Cr.P.C. be given to accused nos. 1) Rama S/o Abaji Jadhav, No. 3) Chagan @ Rushi Rama Jadhav, No. 4) Jyoti Rama Jadhav and No. 5) Rani W/o Chagan @ Rushi Jadhav.

(7) Muddemal properties article no. 9 Knife (Khanzir) and Article No. 11 Sword be sent to District Magistrate, Jalna, as provided u/sec. 32 of Arms Act, for its disposal and rest of the Muddemal property being worthless be destroyed after appeal period is over.

(8) Accused no. 2 Digambar Narayan Gaike is directed to furnish P.R. and S.B. of Rs.5,000/- as per Section 437-A of Cr.P.C. for appearing before appellate court.

(9) Copy of the Judgment be given to accused nos. 1, 3 to 5 free of costs.

(10) Dictated and pronounced in open Court.

2. Here, even State is challenging the order of acquittal of accused nos.1 Rama, 2 Digambar, 4 Jyoti and 5 Rani from charge under Section 302 of the Indian Penal Code [IPC] by preferring Criminal Appeal No. 125 of 2017 and simultaneously, father of deceased is also challenging the order of acquittal from charge under Section 302 of IPC to the extent of accused nos.1 Rama, 4 Jyoti and 5 Rani.

PROSECUTION CASE IN TRIAL COURT

3. An event of celebration of Devi festival was organized at Morandi Mohalla on 29.11.2013. According to prosecution, sound system for the festival was arranged but there was dispute as to who should pay rent towards the amplifier and in such backdrop, there was quarrel between deceased and accused no. 3 Chagan @ Rushi [hereinafter referred to as “Rushi”]. The issue and quarrel was resolved and deceased Ganesh was taken back by his family members in the house. After a short while, accused no. 4 Jyoti, [mother of accused no. 3 Rushi], and accused no. 2 Digambar [brother in law of accused no. 3 Rushi] again visited house of deceased Ganesh and it is the case of prosecution that, he was allegedly abused by accused no. 4 Jyoti challenging him to come to their house. So, around 7.00 p.m. Ganesh went to the house of accused. The