SHAMRAO MAHADU KHOKALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY the judgment delivered on 21-1-1995, the Additional Sessions Judge, Hingoli, has convicted the three appellants-accused. Accused no. 2 is convicted for offences punishable u/ss. 302 and 323 of Indian Penal Code and he is sentenced to suffer life imprisonment and fine of Rs. 500/- on the first count and rigorous imprisonment for six months and fine of Rs. 500/- on the second. Accused nos. 1 & 3 are acquitted as far as offence punishable u/s 323 r/w 34 of Indian Penal Code is concerned. However, they are convicted for the offence punishable u/s. 302 r/w 34 of Indian Penal Code and sentenced to suffer life imprisonment and fine of Rs. 500/ -.

(2.) DECEASED Bhima Khokale was husband of complainant Parwatabai. Accused nos. 1 & 2 are cousins of deceased Bhima. Accused no. 3 is wife of accused no.2Agricultural lands of deceased and the accused are adjacent to each other and the relations between the parties were strained since 5/6 years prior to alleged incident dated 6-5-1993. On the day of incident, deceased Bhima had been to his land at about6 a. m. and complainant Parwatabai arrived there with breakfast for the deceased at about8. 30 a. m. On her arrival, deceased unyoked the bullocks from the plough and he went to the well belonging to accused no. 1 Shamrao for feeding water to the bullocks. Accused No. 3 Sunderabai, who was present near the well, challenged the deceased as to why he had brought his bullocks at their well. At this juncture, accused nos. 1 and 2 were inside their hut situated near the well. While deceased was returning with the bullocks after feeding water, accused nos. 1 & 2 came out from the hut and they rushed towards the deceased. Accused no. 2 Deorao was armed with harrow handle. Sunderabai also followed them. Deorao-accused no. 2 started dealing deceased with harrow handle. Sunderabai-accused no. 3 caught head of the deceased and compelled him to bend. Accused no. 1 Shamrao caught hold of testicles of the deceased. The three accused dragged the deceased to their land. DECEASED fainted and fell down. Accused no. 2-Deorao thereafter dealt a stone on the head of the deceased, as a result of which the brain substance came out through cracked skull. Prosecution witness Chandrakala was present there and she was washing clothes at the well. Parasharam Laxam Khokale was present. Parasharam and complainant Parwatabai tried to intervene and Parwatabai was recipient of blow of harrow handle on her left finger. Bhima died on the spot. After this, all departed from the scene and nephew of complainant namely Vithal and Baburao reached there after some time. Parwatabai lodged complaint with Police Station, Balapur, at 12.15 hours on the same day which set the criminal law into motion.

(3.) IN paragraphs 26 to 42 of the impugned judgment, the learned trial Judge had discussed the evidence of eye-witnesses, and believed the prosecution story of accused no. 2 having dealt a blow of harrow handle on the head of the deceased, accused nos. 1 & 3 having dragged the deceased and thereafter accused no. 2 again having dealt stones on the head of the deceased. He has also accepted the story that a blow of harrow handle was received by Parwatabai on her hand and consequently she received the injury and her bangles were broken. The Judge has referred to inconsistencies, contradictions and improvements in the evidence of all three eye witnesses as pointed out by the defence counsel. However, he observed that the inconsistencies between the oral evidence of these three witnesses are minor and evidence is consistent to the extent discussed in paragraph above. He has made allowance as far as Parawatabai is concerned, because she is a rustic village woman and she had lost her husband just before lodging of FIR. The learned trial Judge felt evidence of Parasaram and Sunderabai to be safely reliable in the absence of any mala-fide intention or ill-will on their part against the accused. He found them reliable also because of reference to their presence in the FIR, lodged immediately after the incident. On reference to paragraphs 51 to 53 of the judgment, the learned Judge claims to have excluded inconsistent, contradictory and improved part of version of these witnesses and accepted the balance as reliable. The learned Judge feels the ocular evidence to be aptly corroborated by medical evidence and reports from Forensic Laboratory (although blood group of accused is not determined.) The defence theory, is rejected on the probability because according to learned Judge, the time and place did not favour an inference that deceased could have had any intentions to rape or molest accused no. 3-Sunderabai as suggested by the defence. He has also laid emphasis on the fact that no medical evidence of injury to Sunderabai is produced. IN fact, the trial Judge has also gone to the extent of saying that there is no cogent, independent and convincing evidence to make the defence story acceptable. Having rejected the defence theory, it is held that accused no. 2 Deorao had intentions to commit murder and accused nos. 1 & 3, by physical participation, are guilty of common intention to commit the murder.