VISHWAMBHAR RAJARAM TURE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal arises out of an order of conviction and sentence in Sessions Trial No. 105 of 1995 for offences punishable under section 302 read with section 34 (so far as all the appellants are concerned), and section 201 read with section 34 (so far as appellant Nos. 1 to 4 are concerned) of the Indian Penal Code. The impugned order is dated 8th October, 1996 passed by the learned 4th Additional Sessions Judge at Latur, before whom all the appellants, alongwith one more accused i. e. Smt. Kesharbai (accused No. 6), wife of accused No. 1, were arrayed as accused and she has been acquitted by the learned Additional Sessions Judge. On admission of this appeal, bail application of accused Nos. 1, 2 and 4 was rejected and accused Nos. 3 and 5 were enlarged on bail. Thereafter accused No. 4 was also enlarged on bail and the accused Nos. 3 to 5 continued to be on bail even as at present. Before we proceed to deal with the facts of this case, it would be relevant to record the relationship inter se between the accused. Accused Nos. 1 to 3 are real brothers and sons of accused No. 5 and are all residents of village Lambotay in Taluka Nilanga of Latur District, whereas accused No. 4 is the cousin of accused Nos. 1 to 3. Accused Nos. 1 to 3 and 5 have their houses in the same compound but in different blocks. Part of the house of the accused No. 5 was, at the relevant time, occupied by Kamala and Chandar and Kamala is the daughter of accused No. 5s sister. Accused Nos. 1 to 3 were married and they were residing in the respective houses with their spouses. Accused No. 6 is the wife of accused No. 1.

(2.) IT is the case of the prosecution that on 28th of April, 1995 Dhondiram (P. W. 7), an illiterate agricultural labourer, aged about 15 years, had seen deceased Shahaji in a compromising condition with his mother Laxmibai (P. W. 8) at about 9. 30 p. m. when he arrived back to his house and flashed torch light as the power supply to the village was disrupted till the midnight on 28th of April, 1995. Shahaji, having realised that he was seen in the company of Dhondirams mother (P. W. 8), fled away by collecting and wearing his clothes and Dhondiram started abusing his mother as he could not tolerate her behaviour. Dhondirams father Uttam Ture was out of station for the last about one week or so and some people gathered infront of the house of Dhondiram after they heard his abuses being hurled at his mother. Amongst them were Jijabai (P. W. 3), s/o Shetiba (P. W. 9) and the accused Nos. 1 to 5. When these persons asked the reason for Dhondirams abusing his mother he only stated that he had seen Shahaji in her company and when he flashed the torch light he fled away. Accused No. 1 asked accused No. 4 to find out whether Shahaji was present in the house of accused No. 1 and after sometime accused No. 4 came back and confirmed that Shahaji was present there. It is also the case of the prosecution that accused No. 5, when she was told the reason for Dhondiram abusing his mother, she stated that Shahaji was having extramarital relationship with accused No. 6 and nothing was done by accused No. 1 in that regard. Dhondiram was taken to the house of accused No. 1 by accused Nos. 1 to 5 and he was made to stand at the door itself. Shahaji was present in the house of accused No. 1 when all these persons reached there and accused Nos. 1 to 4 consumed liquor, accused No. 4 pressed the mouth of Shahaji and pushed him flat on the ground and sat on his chest. Accused No. 3 stood on one thigh of Shahaji and lifted his other leg, accused Nos. 1 and 2 assaulted Shahaji with sickle and scythe on or around his genital parts. Accused No. 3 lifted a wooden block (Machwa-leg of a wooden cot) and assaulted Shahaji at his genital parts. As a result of this assault, Shahaji died and body was lifted by the accused Nos. 1 to 4 and dumped on Nilanga-Udgir road. While the accused Nos. 1 to 4 were assaulting Shahaji accused No. 5 is alleged to have started to cut him into pieces. On the next day morning the dead-body of Shahaji was noticed by some people, including Dhondiram, and the Police Station at Nilanga received an anonymous call regarding the same. Shri Gangadhar s/o Kondiba Waghmare (P. W. 11), who was attached to the Nilanga Police Station as P. S. I. , on 29th April, 1995, reached the spot immediately after receiving the anonymous call at about 9. 00 a. m. and started inquest panchanama. He had also received further inquiry in A. D. No. 8 of 1995 which was registered under the Nilanga Police Station. He completed the inquest panchanama (Exhibit /p-20) and also drew the spot panchanama (Exhibit-P/21 ). The dead-body was indentified by Tatyarao Ture (P. W. 4), the father of the deceased Shahaji, who registered a complaint with the Nilanga Police Station at about 5. 30 p. m. on the same day after the dead body of Shahaji was cremated. F. I. R. was registered on the basis of the said complaint against accused Nos. 4 and 5 on 29th April, 1995. During the course of investigation, statements were recorded of other persons on 29th April, 1995 as well as on 30th of April, 1995 and the accused came to be arrested on 30th April, 1995. Statement of P. W. 2 was recorded on 1st May, 1995 and accused Nos. 1 to 4 were taken to Lambota village on 2nd May, 1995 (the distance between Nilanga town and Lambota village is about 8 Kms. ). The spot of incident was pointed out by P. W. 7 Dhondiram and spot panchanama (Exhibit-P/37) was drawn by P. W. 11. Sample of bloodstained soil as well as soil without bloodstains were collected from the spot of incident. At the spot of incident, the accused Nos. 1 to 4 produced their clothes which they were wearing at the time of the alleged incident of assault and these clothes were attached under panchanama signed by two witnesses by name Vishwambhar Sidram Ture (P. W. 5) and Vasant Vishwanath Ture. The seized articles were marked as Article Nos. 5 to 13 and the attach panchanama was marked Exhibit-P/38. Dr. Shivaji Jyotiba Sawalkar (P. W. 1) conducted the post-mortem of the deceased on 29th April, 1995 between 1. 00 p. m. to 2. 30 p. m. at Rural Hospital, Nilanga and issued a death certificate on the same day. On 5th May, 1995 the post-mortem report was collected and on the same day the statements of P. W. 7 and his mother Laxmibai (P. W. 8) were recorded under section 164 of the Criminal Procedure Code. On 6th May, 1995 the police custody of accused Nos. 1 to 5 was extended and on 10th May, 1995 accused Nos. 1 to 3 were taken to Lambota village. In the presence of witnesses i. e. P. W. 5 and P. W. 6 they showed their willingness to produce the weapons used in the assault on Shahaji. Memorandum regarding the disclosure and readiness of accused No. 1 was drawn at Exhibit-P/39 and from the dung pit in the courtyard of his house scythe was removed by the said accused. The scythe was stained with blood and it was attached under panchanama Exhibit P-30/1. Thereafter, accused No. 2 volunteered to produce the sickle and memorandum at Exhibit 40 to the same effect was drawn in the presence of the same witnesses i. e. P. W. 5 and P. W. 6. Accused No. 2 then lead the team to his house alongwith the Investigating Officer and from the gap of the sheets (on the Varandah of his house) he took out the sickle hidden thereunder and it was stained with blood. He produced the same and handed over to the police which was attached under panchanama Exhibit-P-40/1. Accused No. 3 also showed his readiness to produce the Machwa from his house in the presence of these two witnesses and therefore memorandum at Exhibit-P/41 was drawn. Accused No. 3, thereafter, led the team to his house and on reaching the same place he produced a Machwa which was stained with blood and it was attached under panchanama at Exhibit P/41/1. On 12th May, 1995 the statements of Dhondiram and Laxmibai i. e. P. W. 7 and P. W. 8 were recorded by the Special Judicial Magistrate under section 164 of the Criminal Procedure Code and accused No. 6 came to be arrested on that day. She was brought to Lamota village on 14th May, 1995 and she showed her willingness to produce the mop which was used for cleaning the blood stains at the spot of incidence, from her house. Accordingly, memorandum was drawn at Exhibit-P/43. She, thereafter, led the team to her house and produced the mop which was attached under the panchanama at Exhibit-P-43/1 and it was marked as Article-17. On 21st May, 1995 Article Nos. 1 to 17 were sent for Chemical Analysis. On 2nd June, 1995 the Executive Magistrate was requested to draw the sketch of the spot of incident and further investigation was handed over to P. S. I. Gawali on 17th June, 1995. C. A. report was received on 5th September, 1995 and before that date the charge-sheet came to be filed on 25th July, 1995 in the Court of Judicial Magistrate, First Class at Nilanga who, in turn, committed the case to the Sessions Court for trial.

(3.) THE prosecution has examined in all 11 witnesses and in the defence of accused No. 4 one witness by name Mohan Ghorpade (D. W. 1) came to be examined. He is the real brother of the wife of the accused No. 4. His testimony was only to establish that on the fateful night he was not present at village Lambota and, in fact, he had been to village Kalangi alongwith the witness. This testimony has been discarded by the learned Additional Sessions Judge and rightly so. P. W. 7 Dhondiram is the solitary eye-witness as per the prosecution case and his testimony has been accepted by the trial Court as being natural, cogent and trustworthy. The trial Court has also considered the other evidence viz. the C. A. report regarding the bloodstains found on the clothes of the deceased as well as the clothes which were on the person of the accused at the time of the alleged assault and so also the medical report and the evidence of Medical Officer. P. W. 1, P. W. 5 and P. W. 6 were the panch witnesses for the memorandum drawn regarding the willingness of accused Nos. 1 to 3 for producing the weapons as well as the attachment panchanama drawn after these weapons were searched and seized.