BABURAO SHANKAR KATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present common Appeal has been preferred by the appellant Nos. 1, 2 and 3 who were the original accused Nos. 1, 2 and 4, against the judgment and order dated 6th August, 1999, passed by the Additional Sessions Judge, Nasik, whereby, appellant No. 2, Eknath, has been convicted for the offence punishable under Section 302 of the IPC and sentenced to suffer rigorous imprisonment for life. He has also been convicted under section 325 of the IPC and sentenced to suffer rigorous imprisonment for four years along with appellant No. 1-accused No. 1 Baburao and both were sentenced to suffer rigorous imprisonment for four years, and to pay fine as imposed. Appellant No. 1, however, has been acquitted under Section 325 and 404 and 506 of the IPC. Appellant No. 3-accused No. 4 Sudam, has been convicted under Section 323 of the IPC and sentenced to suffer simple imprisonment for six months and to pay fine, as ordered. The accused No. 3- Kusum has been acquitted from all the charges. Therefore, this Appeal against the order of conviction.

(2.) IT has been held by the learned Additional Sessions Judge that the appellant No. 2 has committed the murder of the deceased Shrihari Kate. The appellant No. 1 and appellant No. 2 had assaulted the complainant Bapu kate, his wife Gitabai and the deceased Shrihari Kate by means of a wooden rod and an axe in furtherance of their common intention. It has been held against the appellant No. 3 that he had voluntarily caused grievous hurt to the complainant, his wife and his mother.

(3.) THE prosecution's case, in a nutshell, is as follows. On account of the common "bandk" (fence), The dispute between the appellant's family and the complainant's family have been going on since more than 30 to 40 years. There are criminal complaints pending between the parties. On 19th june, 1997, PWl-complainant Bapu Kate lodged a complaint in Vavi Police station Taluka Sinnar and alleged therein that appellant No. 1 and 2 while ploughing their field, came near the "bandh" in question, therefore, the complainant objected and went near the bandh. This was at about 12 noon, when his mother PW2-Smt. Gitabai and his father deceased Shrihari were also working in their field. The deceased Shrihari Kate also came near the bandk. The quarrel erupted. The Appellant No. 1 after abusing, suddenly, started beating the deceased with the wooden handle of plough. Appellant no. 2, came there with an axe and assaulted the deceased on his head. PW2-Gitabai came to rescue him, but she was also beaten on the head and legs. P. W-Laxmibai was also beaten by appellant no. 3/accused no. 4, One kusum Kate and the appellant No. 3 who were near the place of the incident, had also beaten, abused and threatened the complainant. Immediately, after the above complaint was lodged by the complainant, appellant No. 2 had also lodged a complaint in the same Police Station against PW1, PW2 and the deceased Shrihari Kate, alleging therein that on 19th June, 1997, at about 12. 00 noon, when the appellant No. 2 and his father, appellant No. 1, were ploughing their lands, the deceased Shrihari kate and his son PW1, Bapu Kate Gitabai - PW2 and Laxmibai PW3 came there. The deceased was holding an iron bar in his hand. The complainant pw1 was holding koyta (sickle) in his hand. PW2 was holding a stick. The deceased Shrihari Kate assaulted appellant No. 1 on his head with the iron bar. When appellant No. 2 tried to rescue him, the complainant PW1 caught him and hit on the left side of his breast with the koyta The ladies were abusing them saying that this was a right opportunity to Anish and bury them, then and there only. The complaint was registered under C. R. No. 36 of 1997 against PW1, PW2 and the deceased for the offence puniahable under Section 324, 447, 504, 506 read with Section 34 of IPC