VITHAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal under Section 2-A of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act. The sole accused in the case Vithal is the appellant. He was tried for offences punishable under Section 302 Indian Penal Code and also under S. 326 and 323 Indian Penal Code for causing the death of Smt Kusum (deceased 1) wife of his own brother and her son Bandu, a boy aged about seven years (deceased 2. The trial court acquitted the accused. The State preferred an appeal and the High court set aside the acquittal and convicted the accused under Section 302 Indian Penal Code and sentenced him to death. The appellant is further convicted for other minor offences but no sentence is awarded. Hence the present appeal.

(2.) The prosecution case is as follows. Namdeo, Public Witness 7, an agriculturist owned 16 acres of land at Village Shivan Khurd. Ramesh, Public Witness 6 and Vithal, the accused are his two sons. Few months before the present occurrence there was partition between the brothers and the accused Vithal and his brother Public Witness 6 were each allotted four acres of land. The remaining eight acres was kept in the name of their father Public Witness 7. The house was also divided into two portions. Northern portion of the house was given to the accused Vithal and southern portion to Ramesh, Public Witness 6. As per the terms of the partition, Public Witness 7 used to reside with Public Witness 6 while the wife of Public Witness 7 used to reside with the accused Vithal. It is alleged that the accused wanted that the land which he was cultivating for the maintenance of his mother should be mutated in his name but Public Witness 7 did not agree. Therefore there used to be some bickering between the accused and his father and it is alleged that he also assaulted his father once or twice. A few days before the present occurrence, the accused sent his mother to Akola and his wife and children to his father-in-law's house.

(3.) On the intervening night of December 8 and 9, 1987 Public Witness 6 and his another son Vijay slept on one wooden cot. His wife, deceased 1 slept on another cot with Bandu, deceased 2 and the third cot was occupied by Public Witness 7 and the child Mamta, his granddaughter. The door of the room was locked from inside and the room was supplied with electricity. On that night the electricity supply was not available. Therefore Public Witness 6 lighted a kerosene lamp in the room. In front of the residential portions of the accused and Public Witness 6 there was a courtyard and at the entrance of the Wada, there was a gate which was also latched from inside. Southern side of the compound wall of the house was dilapidated. On the fateful night at about 3 a. m. when all the occupants in the room of Public Witness 6 were asleep, it is alleged that the accused entered his house by removing the latch from outside and assaulted Public Witness 6, deceased 1, Public Witness 7 and the children Mamta and Vijay by means of a crowbar (sabbal) Exh. 23. The injured Public Witness 6 woke up after getting a blow on left ear and had seen the accused but because of the injury he could not get up. It is further alleged that the accused had by then assaulted deceased 1 and he also dealt another blow on Public Witness 6 who became unconscious. Public Witness 7 also woke up after hearing the cry when he also saw the accused, who dealt blows on his head and other parts of the body. Bhimrao, Public Witness 3 who is a neighbour, was woken up by his mother. Hearing the shouts Public Witness 3 gave call to the neighbours and thereafter he rushed towards the entrance door of the Wada and found that it was latched from inside. He shouted and the accused, a little later, opened the door. Thereafter Public Witness 3 and others went inside the Wada. The accused told them that the door of the house of Ramesh was latched from outside. The accused removed the latch and came out and reported that there was a pool of blood inside. Public Witness 6 responded to the calls given by the visitors from inside. Therefore the visitors went out of the Wada. By that time, Bandu, deceased 2 came out from the room as he was feeling cold and went near the fire which was kept burning in the courtyard. Then it is alleged that the accused took deceased 2 saying that he would warm him up and he took him inside his house. Then after some time he came out of the house and told them that Bandu has died. The other injured namely Public Witness 7 was warming himself near the fire and his clothes also were stained with blood. Among the people who had assembled there, Rambharti, Public Witness 8 asked Public Witness 7 as to who had hit him. Public Witness 7 told him that he was assaulted by his son Vithal. Then they went inside thehouse of Ramesh and found deceased 1 and 2 dead on two different cots and on the third cot Public Witness 6 was lying in semi-conscious state. They found that a kerosene lamp was burning inside the room. Then a report Exh. 8 was lodged by Public Witness 2 Maroti. In that report he expressed his suspicion against Vithal. The ASI registered the crime and went to the scene of occurrence and sent the injured to the hospital and arrested the accused and at his instance a crowbar Exh. 23 was recovered. Injured PWs 6 and 7 were referred to the Main Hospital, Akola. He held the inquest over the dead bodies and sent the same for post-mortem. The Doctor, who conducted the post-mortem, found on Smt Kusum, deceased 1, four lacerated wounds and some contusions on the head and on the hands. The head injury proved fatal and he opined that all the injuries could have been caused by a blunt weapon. The Doctor, who examined Public Witness 6, found on him an incised injury near the left ear and a contusion on the intercostal space and tenderness over clavicle present and he opined that injury No. 1 was caused by a sharp object and that other by blunt object. Likewise on Public Witness 7 he found two incised wounds and two contusions and on the two children Vijay and Mamta, he found one contusion each. The Doctor, who conducted the post-mortem on the dead body of deceased 2, found that pupils were dilated, lips were blue, tongue protruding and swollen and on internal examination he found that the lungs were congested and he opined that the death was as a result of asphyxia due to strangulation. After completion of the investigation, the charge-sheet was laid.