YUSUF ALAMASH DARYAVARDI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants/ original accused Nos. 1 and 2 have preferred this appeal against the judgment and order passed by the Sessions Court, Sangli, dated 4- 5-1989 whereby appellant No. 1 was convicted for commission of the offence punishable under section 302 of the Indian Penal Code, hereinafter referred to as "the IPC", and was sentenced to suffer imprisonment for life, whereas appellant No. 2 was convicted for commission of the offence punishable under section 325 r/w Section 34 of the IPC and was sentenced to suffer R. I. for two years and to pay a fine of Rs. 500/-, in default to suffer R. 1. for one-and-half month. This was inspite of the fact that appellant No. 2 was originally charged for the offence punishable under section 302 r/w Section 34 of the IPC. However, since no appeal is preferred by the prosecution against appellant No. 2, we do not purpose to go into that aspect.

(2.) The facts giving rise to the present case, in brief, are thus :- the appellant Nos. 1 and 2 are the residents of Miraj and Kognoli respectively. The deceased Parashuram Babu Koli was the resident of village Waddi. PW-1 Maruti Koli is the nephew of the deceased Parashuram. As the parents of PW-1 Maruti Koli expired during his childhood, he was looked after by deceased parashuram. Besides Parashuram he has got two more uncles, namely, Gajanan and Vijay. Both Gajanan and Vijay reside separately with their families. The mother of Parashuram and his brothers are alive. The land of appellant no. 1 Daryavardi is adjacent to the land of deceased Parashuram in village Waddi. The deceased Parashuram had taken the land of one shanta Kunjire for cultivation purpose and he was serving as a Patkari. As a Patkari he was required to supply water under the irrigation scheme to the respective farmers. Vijay was also serving as a Patkari in the Irrigation department of the sugar factory. In February, 1988 there was sugarcane crop in the land of appellant No. 1. There was one water chamber in the land which was taken by deceased parashuram from Shanta Kunjire and there was another water chamber on the boundary of the land of appellant No. 1 and one Pawar. The incident in question occurred at about 5:30 p. m. on 8-2-1988 at which time deceased Parashuram and PW-1 Maruti had gone to their land to bring fodder. At that time there was Jawar crop in their land. The deceased Parashuram had then gone near the chamber which was on the boundary of the land of appellant No. 1 and one Pawar. He was then closing the water. At that time, it is the case of the prosecution, that appellant No. 1 and 2 went there. The appellant No. 2 Arjun is the servant of appellant No. 1. The appellant No. 1 daryavardi told the deceased Parashuram to give him more water. Thereupon the deceased parashuram informed him that he would give water of two chambers and if he wanted more water, he should bring permission from the sugar factory. Even then the appellant No. 1 persisted for more water. At that time, the appellant No. 1 was having one spade with him. It is then the case of the prosecution that both the appellants abused deceased Parashuram. The appellant No. 2 Arjun then caught hold of the arms of Parashuram and appellant No. 1 assaulted him with the spade on his both the knees and also on the head. Parashuram fell down. PW-1 Maruti raised shouts and hearing the shouts, PW-4 Shivappa Naik and parashuram Naik went there. Both the accused persons ran away from the place. The deceased Parashuram was then taken on the road. His clothes were blood stained. By that time one Rafik Patel came there on bicycle. The said Rafik Patel took Parashuram on his bicycle to the village. In the village, Parashuram told about the incident to his sister PW-3 sakhubai Koli. Then Vijay, brother of the deceased took Parashuram by truck to Miraj. The deceased Parashuram was then admitted to Civil Hospital, Sangli at about 7:30 p. m. He was examined by PW-5 Dr. Bobade, Medical officer. In the Civil Hospital PW-6 Head constable Kadam, who was then attached to the Miraj Rural Police Station, recorded the statement of deceased Parashuram. In view of the said statement, offence was registered at C. R. No. 10/1988 under Sections 325 and 504 r/w Section 34 of the IPC. PW-6 Kadam earned on investigation of the said offence. On the next day i. e. , on 9-2-1988 he went to village waddi and visited the place of the incident. He drew the panchanama of the scene of offence and recorded the statements of various persons. During the night of 10-2-1988, at about 12:30 midnight, Parashuram succumbed to his injuries and the offences came to be registered against the appellants under Section 302 r/w Section 34 of the IPC. The inquest panchanama was duly drawn and thereafter the body was sent for examination of which the report was received in due course, which is part of the record. PSI Nadaf (PW-7) took over the investigation after the offence under Section 302 of the IPC was registered. The investigation officer recorded the statements of various other witnesses and arrested both the appellants on that very day i. e. 10-2-1988. He also attached the clothes of the appellants under panehanama. The clothes of the deceased were already attached under panchanama. In the course of the investigation, appellant No. l revealed the information as a result of which the recovery of weapon of offence i. e. the spade was made under the memorandum of panchanama. The attached clothes and the other articles were sent to the chemical analyser for examination, whose report was received in due course and which is part of the record. On completion of the investigation, charge-sheet was sent to the court of Judicial Magistrate, First Class, Miraj. As the offence under the charge-sheet was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions.

(3.) The learned Sessions Judge, sangli, framed the charge against the appellants/ accused for commission of the offence under section 302 r/w Section 34 of the IPC. They pleaded not guilty. By and large the defence of the both the accused is that at the relevant time there was exchange of words and a scuffle ensued in which course the deceased parashuram fell on the ground and suffered injuries and he was at that time under the influence of alcohol. The learned Sessions judge proceeded to record the evidence of the prosecution which consists of seven witnesses, supported by documentary evidence. On conclusion of the trial, the learned Sessions judge held that it was proved that the appellant no. 1 had committed murder of deceased parashuram and proceeded to convict and sentence him in the aforesaid manner. However, it was held that the prosecution did not prove that appellant No. 2 was guilty of the offence under Section 302 r/w Section 34 of the IPC and on the basis of the available record, he was convicted for the commission of offence punishable under Section 325 r/w section 34 of the IPC. Hence the present appeal.