BHAGWAN BALIRAM BARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN Sessions Case No. 18/1999, in all four accused were put on trial before the learned IIIrd Additional Sessions Judge at jalgaon. Accused No. 1 Baliram Mitharam Bari is the father of accused No. 2 bhagwan and accused No. 3 Balu. Accused No. 4 is the wife of Baliram. The learned Additional Sessions Judge, by his judgment and order dated 9-12-1999, convicted accused Nos. 2 and 3 for the offence punishable under section 302 read with section 34 of the Indian Penal Code ('the Code' for short), for committing the murder of Madhukar Mitharam Bari, the younger brother of accused No. 1 Baliram, and each of them has been sentenced to imprisonment for life and to pay fine of Rs. 1,000/- each, and in default, to suffer R. I. for six months each. Accused No. 1 Baliram and accused No. 4 Vatsalabai came to be acquitted from the offence punishable under section 302 read with section 34 of the Code. Hence, this appeal by accused Nos. 2 and 3.

(2.) THE accused were in custody from 11-10-1998 and 23-10-1998, respectively, and while admitting this appeal, their plea for bail was turned down by this Court.

(3.) MITHARAM Hanumant Bari had four sons, namely, Baliram (accused no. 1), Shantaram, Pundlik and deceased Madhukar. Pundlik had died before the date of incident, and Shantaram is in service. The joint family had eleven bighas of landed property, including a house at Yawal. A Civil Suit for partition of this property was pending between Baliram and deceased Madhukar, and in Misc. Civil Appeal, injunction order was granted against the deceased. Deceased Madhukar has two sons, namely, Bhaskar (P. W. 1) and Deepak (P. W. 8) and a daughter, namely, Jyoti, who is married. On 10-10-1998. Madhukar, as usual, went to his farm abutting Yawal Satod road and he was followed by his sons. Bhaskar and Deepak-in about twenty minutes' time. He was having banana plantation in his land, and therefore, he advised his sons to water those plants so that, he could go to Parola to bring his daughter jyoti. He, therefore, left his sons to water the banana plantation and started for his journey towards Parola, but within five minutes, both the sons heard shouts of their father from the neighbouring land, and therefore, they rushed in the direct on from where they had heard the shouts, and they saw that the accused were assaulting Madhukar. Accused No. 2 was armed with a stick and accused No. 3 was armed with sun (knife), whereas accused No. 1 Baliram was sitting away at about 50 feet distance and was instigating accused Nos. 2 to 4 to finish Madhukar. Accused No. 4 Vatsalabai had caught hold of madhukar. Accused No. 3 Balu gave stab on temporal region of Madhukar, while accused No. 2 started giving blows with a stick on the head of the deceased Madhukar, who collapsed in a pool of blood. The sons cried for help, but nobody came forward except Dagdu Bari (P. W. 11), who was passing by to somebody else's land for ploughing. The sons-Bhaskar and Deepak-went to him and told him about the incident. He came at the spot, tried to intervene, but was unsuccessful, and he left the place of incident, by stating that, the accused did wrong. After assaulting the deceased, the accused fled and the sons had seen the whole incident from a distance of about 50 feets and were hiding themselves behind the standing crops as they were initially followed by the accused when they had realized that, the sons were coming to the spot. In a manually pulled hand -cart, Madhukar was taken to the hospital, and while under treatment, he died in the said hospital at Yawal. Bhaskar (P. W. 1)lodged his complaint (Exh. 18), which came to be registered as F. I. R. and C. R. No. 129/1998 for and offence punishable under section 302 read with section 34 of the Code came to be registered on the same day at about 9. 00 a. m. Rajaram Mandge. API (P. W. 13) took over the investigation. The dead-body of madhukar was sent for post-mortem, after preparing Inquest panchanama (Exh. 38) and under the memo (Exh. 27 ). Blood stained clothes of the deceased wee seized. The Investigating Officer, arrested the accused Nos. 1 and 2 on 10-10-1998 and accused No. 3 was arrested on 22-10-1998. Blood stained clothes of accused No. 2 were seized under panchanama (Exh. 41 ). Wooden stick used in the assault was discovered under panchanama (Exh. 43) at the instance of accused No. 2. Blood stained clothes of accused No. 3 were seized under panchanama (Exh. 44) and while in police custody, he made disclosure regarding the knife, which was discovered under panchanama (Exh. 46 ). Blood samples of the accused persons were collected and sent for chemical analysis along with the blood stained clothes of the deceased, accused No. 2 and accused No. 3 as well as the weapons. Dr. Talyar Khan Tadvi (P. W. 9) conducted the post-mortem and signed the post-mortem notes at Exh. 28. C. A. report (Exh. 48 to Exh. 51) was received, and on completion of investigation, charge-sheet was filed in the Court of the learned Judicial Magistrate (First Class), yawal. The case being exclusively triable by the Sessions Court, the learned judicial Magistrate (First Class) committed the case under section 209 of the criminal Procedure Code to the Sessions Court at Jalgaon. The learned IIIrd additional Sessions Judge framed charge (Exh. 9) against the accused person for an offence punishable under section 302 read with, section 34 of the Code, and the accused denied the said charge.