TUKARAM JAGANATH KOKARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 30th January, 2001 of the Additional Sessions judge, Pandharpur in Sessions Case No. 120 of 1999, the Appellants have preferred this criminal Appeal against the conviction under section 302 read with Section 34 of the Indian penal Code (hereinafter referred to as "the i. P. C. ") and sentence of life imprisonment and a fine of Rs. 1000/ -.

(2.) The prosecution case as has been unfolded before us is as follows :- the Appellants, Tukaram and tulshiram, who were accused Nos. 1 and 2 respectively, were the brothers of the victim sopan. They have two other brothers, namely, Namdev and Sahebrao. The mother of the Appellants and the victim inherited some property. Namdev, one of the brothers, approached Sopan, the victim, and requested him to seek a partition of the property which was being looked after by Tukaram and tulshiram. The victim thereafter approached tukaram and Tulshiram at his parent's house at Koprevasti. He was accompanied by his wife and daughter. Sopan requested tulshiram and Tukaram, in the presence of his wife, daughter, Namdev and his parents to partition the property. Irked by this request, tulshiram dealt a blow on the head of Sopan with a stick. Blood started oozing out from the head injury. Thereafter, both the accused lifted the victim and threw him on the ground resulting. in a further injury to the victim. Both the accused fled from the scene. Namdev attempted to catch them but was unsuccessful. Namdev then called Dr. Ranaware who declared the victim dead. A complaint was lodged and the accused were arrested. Accused No. 1 was arrested on the same day while Tulshiram, accused No. 2 was arrested on 19th August, 1999. Both the accused were tried before the Sessions Court, pandharpur and have been convicted under section 302 read with 34 of the I. P. C. for committing the murder of their brother Sopan.

(3.) We have perused the entire evidence with the assistance of the learned advocate for the Appellants as well as the learned Additional Public Prosecutor. The prosecution has sought to establish its case by examining seven witnesses, three of them being eye-witnesses. Five witnesses have also been examined by the accused in their defence. PW-1 and PW-2 are the panch- witnesses for the spot panchanama and the inquest panchanama respectively. PW-3 is the Doctor who was called by Namdev and who declared Sopan dead. PW-4 is the wife of Sopan who was an eye-witness to the entire incident. She has deposed that at about 3. 00 p. m. on 13th August, 1999 she and her daughter, Pretabai, PW-5 accompanied Sopan. to the house of his parents. She has stated that they visited the parents in order to meet the accused who lived with the parents so that the property inherited by her mother-in-laws, pw-6 could be partitioned. She has further stated that the accused were not present when she arrived at the residence of her in-laws with Sopan and PW-5, but reached the scene thereafter armed with sticks. Sopan then requested them to allot a share of the property to Namdev after partitioning it. Both the accused, according to PW- 4, asked the victim to refrain from advocating Namdev's cause. They started abusing the victim and then accused No. 2 dealt blow with a stick on the head of the victim due to which he fell down. Blood started oozing out from the head injury caused to the victim. PW-4 has then stated that the accused lifted her husband and flung him on the ground. Namdev tried to catch both the accused but they fled away from the scene. She has also averred that PW-3 arrived at the scene at the request of Namdev and declared Sopan dead. This evidence of PW- 4 has not been shaken in the cross- examination. PW-5, the daughter of Sopan and who was also an eye-witness to the incident, has corroborated her mother's evidence in all material particulars. PW-6 is the mother of the Appellants and victim. She was also an eye-witness to the incident. However, she has denied the presence of PW- 4 and PW-5 at the time of the incident. She has also denied the presence of Namdev but has admitted that the victim was felled by a stick blow from Tulshiram, accused No. 2. This witness has been declared hostile. However, on being cross-examined by the additional Public Prosecutor, she has admitted that Namdev was seeking a partition of the property and that both the accused were not consenting to the same. She has also admitted that Sopan was attempting to convince the accused to part with the share of Namdev. She has then deposed in her cross-examination that Tukaram had gone to the Sugar factory at 1. 00 p. m. on the day and had returned only at 6. 00 p. m. However, a perusal of the evidence of PW-6 shows that she has not denied that the accused caused a bleeding injury on the head of the victim and he succumbed to the injury. PW-7 is the investigating Officer.