SAHEBRAO DHONDIBA PATEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE three Appeals arise from the common judgment and order dated 19th August, 1996 delivered by the learned IInd Additional Sessions Judge, Ahmednagar in Sessions Case No. 411 of 1996, whereby the two accused were convicted, inter alia, for offence of murder under Section 302 of the Indian Penal Code. Criminal Appeal No. 456 of 1996 is filed by the Appellant, original accused No. 2, challenging the judgment and order of conviction and sentence recorded against her for various offences under the provisions of the Indian Penal Code and the Indian Arms Act. Criminal Appeal No. 533 of 1996 has been filed by the Appellant, original accused No. 1, impugning the order of conviction and sentence recorded against him under the provisions of the Indian Penal Code. Criminal Appeal No. 559 of 1996 has been filed by the State for enhancement of sentence against both the accused for offence under Section 307 of the Indian Penal Code. The last appeal does not appear to have been admitted and the only order passed in the said Appeal on 6th December, 1996 is as follows :

(2.) SINCE the above Appeals arise from the judgment and order delivered by the Sessions Court on 19th August, 1996 in Sessions Case No. 411 of 1996 these Appeals were heard together and are being disposed of by this common Judgment.

(3.) THE incident in question had taken place in the afternoon of 24.7.1994 in the agricultural field of the complainant and the deceased, namely, Gut No. 24, situated in village Malkapur, taluka Shevgaon, district Ahmednagar. The Appellant, original accused No. 1, is the first cousin of complainant Bapusaheb Patekar P.W. 5, and his brother, deceased Suresh. There was dispute between the two families in respect of their agricultural properties since 1980. While a criminal case between the parties was ultimately compromised in the year 1988 in the High Court, the civil case between the two sides was pending on the date of the incident. Both the sides were owning the adjoining lands in the said village. While the family of the accused was the owner of Gut No. 23, the family of the complainant was the owner of agricultural lands bearing Gut Nos. 24 and 129, which were situated in Malkapur shivar. There was a dispute between the parties over a well, which has situated in land, Gut No. 129, belonging to the complainant. The complainant's side had filed civil proceedings in the Civil Court and obtained injunction against accused No. 1 and his father from using the well water. Against the said order of injunction, the complainant's father had preferred an appeal in the District Court, which was pending on the date of the incident. In that appeal, the application moved by the complainant's side for stay of the order of injunction passed by the Trial Court in civil case was dismissed. It is the prosecution case that on the date of the incident, P.W. 6 Kusumbai, mother of the deceased Suresh, was removing grass, which was standing near the central water outlet, when accused No. 1 Sahebrao came there and questioned Kusumbai as to why she was removing the grass and started abusing her in filthy language. Though Kusumbai did not react and kept quiet, accused No. 1 continued to abuse her. Hearing the abuses. Suresh, who was standing near the bandh at a little distance from there along with his brother, complainant Bapusaheb, P.W. 5, went towards his mother and asked accused No. 1 as to why he was abusing his mother. Thereafter, accused No. 1 started abusing Suresh also and threatening that though the Court had given decision in favour of the complainant's side, by granting injunction order against the family of accused No. 1, he will not allow the complainant's side to use the well water. Bapusaheb, the complainant, P.W. 5, hearing the threats and abuses from accused No. 1. called his mother, Kusumbai, and brother, Suresh. In the meantime, accused No. 2, Chandrabhagabai, mother of accused No. 1, came there from their farm house and went towards accused No. 1, concealing something in her saree. When she reached near accused No. 1, she handed over gun to accused No. 1 and asked him to finish whole family of Suresh, i.e. the deceased. Accused No, 1 took the gun from accused No. 2 and told Suresh that he would not leave him alive and fried a shot at Suresh. Injured by the gun shot, Suresh fell on the spot in the sugarcane crop. After the first shot was fired from the gun by accused No. 1, accused No. 2, Chandrabhagabai, told accused No. 1, that Suresh must not have died and, therefore, he should fire again. Accused No. 1 immediately removed the empty cartridge from the barrel of his gun and reloaded it with another cartridge, Suresh, noticing that accused No. 1 aimed another shot at him, entreated him to desist from doing so. But, accused No. 1 immediately fired second shot with his gun towards Suresh, which missed his target, i.e., Suresh, as Suresh had fallen down on the ground. Apart from Suresh, his brother Bapusaheb, the complainant, and mother Kusumbai, their servant, Karbhari Khose was also near the place of the incident. As the second shot was missed, accused No. 1 told Suresh that he was saved because he had only two cartridges, obviously carrying an impression that the first shot was not fatal. Accused No. 1 and his mother immediately left the place and went towards their farm house. Complainant Bapusaheb and his mother, Kusumbai went to Suresh who was lying in the mud in the crops in unconscious condition. They saw that he was bleeding from his thigh and private part. They lifted Suresh and took him towards the motor cycle which was kept on the adjoining road, near their sugarcane crop. Suresh, who was profusely bleeding, was carried on the motor cycle to their residential house. Bapusaheb arranged for a jeep in the evening from village called Maka. Suresh was taken to Shevgaon in that jeep. First, they went to Shevgaon Police Station, where they secured a Note (Yadi) from the Police Station and took the injured to Rural Hospital at Shevgaon, where P.W. 9, Dr. Ashok Dhaktode gave first aid.