BAPURAO AMBADASRAO DALVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THOUGH this appeal, the appellants challenge the judgment and order dated 8th May, 1996 passed by the Additional Sessions Judge, Osmanabad, in Sessions Case No. 80/94, whereby they have been convicted and sentenced in the manner stated hereinafter :--- (1) under section 302 read with section 34 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to suffer R. I. for six months; and (2) under section 447 read with section 34 of the Indian Penal Code, to undergo R. I. for one month and to pay a fine of Rs. 100/- each, in default to undergo 7 days R. I.

(2.) IN short, the prosecution case runs as under. The informant Vijaykumar @ Pintu Venkatrao Dalvi, P. W. 1, is the son of the deceased Venkatrao. At the time of the incident, he along with the deceased and other members of the family was living in village Kandga, taluka and district Osmanabad. The appellant Bapurao is the father of appellant Udhav and Shahaji and the uncle of the appellant Vilas. At the said time, the said appellants were also living in the said village. The appellant Bapurao is the brother of the deceased Venkatrao. The lands of the appellants were adjoining to that of the deceased. They were having common boundaries on account of which relations between the appellants and the deceased were strained. On 10-1-1994, the deceased Venkatrao and Vijaykumar had gone to their agricultural land, wherein jowar crop was standing. At about 7 a. m. , when Vijaykumar was uprooting carrots in the said land and Venkatrao had gone to drive the birds away from the other portion of the land, Vijaykumar heard cries of his father, "dying, dying, run, run". He thereafter heard cries, "hit him, hit him by axe and finish him". Consequently, on the said cries, Vijaykumar rushed to the place from where they were coming. When he reached near his father, he found that appellant Vilas with an axe and the remaining three appellants with sticks were assaulting him and he was lying in a pool of blood. He also saw that Suresh, P. W. 2, and Waman, not examined, had reached there. On seeing Vijaykumar, the appellants shouted that they would also kill him and on account of fear to his life, he ran away. Thereafter, Waman and Suresh drove the appellants from the place of the incident. Thereafter, Vijaykumar went near his father, who told him that since he had received head injury, he would not survive and asked him to take him to the hospital. Thereupon, he brought the bullock cart from the cattle shed and on the same proceeded along with his father to Police Station, Bembli. On the way, he found Ganpat Ingle, P. W. 3, present in his field. He asked him to accompany him. Thereupon, Ganpat Ingle accompanied them in the same bullock cart. On the way, Venkatrao was telling Ganpat Ingle that on account of injuries, he may not survive. The evidence of Vijaykumar @ Pintu shows that the same day at about 9. 30 to 10 a. m. , he along with his father Venkatrao and Ganpat Ingle in a bullock cart reached Police Station, Bembli, which was situated at a distance of 10 to 11 kms. from village Kangda. At that time, H. C. Gunwant Koli P. W. 10, who was on duty there, seeing Venkatrao precariously injured asked Vijaykumar to take him to the hospital, which was located in the immediates proximity of Police Station, Bembli.

(3.) THE evidence of Dr. Dilip Vyavahare, P. W. 9, shows that on 10-1-1994, at about 11. 05 a. m. , the deceased Venkatrao was referred to him by Police Station, Bembli, for medical examination. Consequently, he medically examined him and found on his person the following injuries :-- -. Incised injury with abrasion at edges 2 in number, size 14 cm. x ? cm. and 5 cms. x ? cm. on right parietal region, scalp oblique in direction. 2. Incised wound 4 cms. x ? cm. top and back side of left ear. 3. Contusion 6 cms. x 4 cms. on right forearm below elbow. 4. Contusion around wrist (right wrist ). 5. Contused lacerated wound 4 cms. x 1 cm. on right index finger, at first inter phalangal joint. 6. Contused lacerated wound 3 cms. x ? cm. dorsal surface at base. 7. Contused lacerated wound 2 cms. x ? cm. skin deep planter side at base. 8. Abrasion 1-? cms. x ? cm. on right finger tip. 9. Contusion (swelling) whole arm of left hand and fingers. 10. Contusion (swelling) around mid part left forearm. 11. Punctured wound ? cms. x ? cm. base of mid finger dorsally left hand. 12. Incised wound and abrasion at edges 3 cms. x ? cm. left shin mid part. 13. Contusion 8 cms. x 12 cms. on left leg above ankle. 14. Incised wound with abrasion at edges 4 cms. x ? cm. on right shin. In the opinion of Dr. Vyavahare, injuries Nos. 1, 2, 12 and 14 could be caused by the axe shown to him (Article No. 5) (the axe recovered on the pointing out of appellant Vilas), injury No. 11 by the tip of the said axe and the remaining injuries were attributable to a hard and blunt object. In his statement in the trial Court, Dr. Vyavahare stated that cumulatively, the injuries were sufficient in the ordinary course of nature to cause death.