STATE OF MAHARASHTRA Vs. PANDURANG TATYASAHEB SHINDE

JUDGEMENT

(1.) THIS is an application filed by the State of Bombay praying for an order enhancing the sentence passed upon the accused, Pandurang Tatya-saheb Shinde. The accused was tried before the Additional Sessions Judge, South Satara, at Sangli for an offence under Section 302, Penal Code. The trial was held with the aid of four Assessors. Three of the Assessors were of the opinion that the accused was guilty of the offence charged. The fourth Assessor was not present at the time of the arguments and the learned Judge did not record his opinion. Agreeing with the view of the Assessors who were present, the learned Sessions Judge convicted the accused of the offence charged. Having regard to certain circumstances mentioned in para 24 of the judgment the learned Judge sentenced the accused to transportation for life and further ordered him to pay a fine of Rs. 500/- and in default to suffer rigorous imprisonment for three years. Against the order of conviction and sentence, the accused preferred an appeal to this Court which was summarily dismissed. The State has now applied for enhancement of the sentence passed upon the accused. Even though the appeal filed by the accused has been summarily dismissed no order could be passed to the prejudice of the accused without hearing him on the merits of his conviction. We have accordingly heard the Advocate appearing on behalf of the accused on the merits of his conviction and in our view the conviction of the accused is amply justified.

(2.) THE case for the prosecution is as follows: The deceased Hambirrao Bhausaheb Shinde was a paternal cousin of the accused. Hambirrao had two brothers Rajaram and Shivaji. The accused had two brothers Babasaheb and Abasaheb. It appears that was long standing enmity between the family of Hambirrao and the family of the accused. Bhausaheb, father of Hambirrao, was murdered by his brother Akram. Akram was then murdered and for his murder Rajaram and Hambirrao were charge-sheeted but it appears that in the trial they were acquitted. A complaint was filed by the accused against Hambirrao and his two brothers for an offence under Sections 323 and 324, I. P. C. with respect to a quarrel which took place about two or three years before the date on which the offence charged in this case was committed. That quarrel arose out of a dispute relating to a piece of land belonging to the accused. In that complaint Hambirrao and his two brothers were convicted by the trial Magistrate and sentenced to pay fine. Against the conviction and sentence passed, an appeal was preferred to the Court of Sessions at Sangli and the order of conviction was confirmed by the Court of session some time in July 1954. It appears that Hambirrao had submitted an application on 25-12-1953, at the Police Station, Budagaon, in which he stated that he was apprehending danger from the accused and his two brothers and requested that enquiries be made and that he be given protection. Rajaram, the elder brother of Hambirrao had also submitted a similar application on 10-7-1954, stating that he was apprehending danger from the accused and his two brothers. That application was sent to the Police for enquiry and the statement made by Shivaji, brother of Hambirrao, was recorded. For some time before 20-9-1954, the accused and his two brothers used to shadow Hambirrao and his two brothers. About 8 or 10 days before 20-9-1954. Hambirrao ran into the house of one Tarabai Maula Bubhale. He was chased into the house of Tarabai by Abasaheb, brother of the deceased. Hambirrao jumped over the hedge into the adjoining house and made good his escape. The accused came into the house following his brother, Abasaheb. Tarabai enquired of the accused as to why he and his brother. had come into her house. It is the case for the prosecution that Abasaheb, Tarabai enquired of the accused as to why he and his brother had come into her house. It is the case for the prosecution that Abasaheb, brother of the accused, stated to Tarabai that no murder would be committed in her house and thereafter Abasaheb left Tarabai's house accompanied by his brother, the accused. Abasaheb was at the time of this incident armed with a sickle. On 20-9-1954, which was a bazar day in the village of Mhaisal, a police havaldar came to the Chavadi to intimate that the Muddemal in Criminal complaint No. 1099/1953 (which presumably was the complaint filed against Hambirrao) should be taken away. Shivaji, Hambirrao and Abasaheb were called to the Chavadi at about 4-30 P. M. and were given intimation to take away tho Muddemal. After receiving intimation Shivaji returned home. Hambirrao went to the bazar and chatted with one Bhagwan. Thereafter he was returning to his house with a Ghagar filled with water on his shoulder. When Hambirrao reached the road in front of the house of one Dhulappa Chaugule, the accused approached him from the opposite direction, passed him and suddenly turned round and caused injuries to Hambirrao with a 'jambiya'. At that time one Kamalabai was on the road leading her she-buffaloes to the village well. She saw Hambirrao being struck with 'jambiya' by the accused. One Babu son of Dhulappa, came out of his house when hc heard a commotion on the road in front of his house saw the accused stabbing Hambirrao, and went back into his house and informed his father Dhulappa, who was resting on the verandah. Dhulappa also came out and saw the accused causing injuries to Hambirrao, who fell on the ground near the village drain. Dhulappa intervened and requested the accused to desist from causing further injuries stating that Hambirrao was nearly dead. About this time several other parsons, Tarabai. Shirpatrao Powar, Khandu Krishna and Babu Ka-thiwala, were on the road and saw the accused causing injuries to Hambirrao. The accused then left with the 'jambiya' in his hand. The clothes of the accused were blood-stained. The accused hid the 'jambiya' in the fold of his 'dhoti' and he proceeded towards his house. He was then seen by one Yesabai Krishna. Babu Kothiwala and Dhulappa Chaugule went to the house of Shivaji and told him what had happened. Shivaji went to the spot where Hambirrao was lying dead, and he then went to the Police Patil and gave information about the commission of the offence of murder of Hambirrao by the accused. The complaint filed by Shivaji was recorded. It appears that in that complaint Shivaji was described as an eye-witness to the commission of the offence by the accused and his two brothers. The Police Patil then drafted the first information which was despatched to the Budgaon Police Station. In the meanwhile it appears that the accused went to a field across a streamlet known as Gavandar Odha and met one Babu Kalavat. He smoked a bidi there and told Babu Kalavat that he the accused had killed Hambirrao. Thereafter the accused went away towards his field. The Police Sub-Inspector having received information about the commission of the offence from the report of the Police Patil registered an offence under Section 302 read with Section 34, I. P. C. against the accused and his two brothers and arrived at Mhaisal at 4-0 A. M. on 21-9-1954, He immediately commenced investigation and recorded the statements of a large number of witnesses. The dead body of Hambirrao was sent to the dispensary at Niraj for postmortem examination. 'panchnamas' were made of the scene of offence and enquiry was started against the accused. It appears that the accused was not found at his place. Constables were sent to villages nearby but the accused could not be traced. A warrant under Section 75, Criminal P. C. was issued by the First Class Magistrate, Sangli, against the accused and on 29-12-1954, the house of Madhavrao Bhausaheb Desai was raided by the Sub-Inspector and the accused was arrested at 2-0 A. M. on that day. On enquiry the accused showed his willingness to point out the place where, he stated, he had thrown away the knife and on 8-1-1955 in the presence of Panchas the accused dug up a place near the streamlet Gavandar Odha and he took out a blood stained knife. A 'panchanama' was made and the earth was found to be stained with blood. Mud which was found encrusting the knife was also taken possession of. The blood-stained knife and the mud were sent to the Chemical Analyser for his report. The Chemical Analyser reported that the mud was stained with human blood but on the knife, though found to be stained with blood, the elements were so disintegrated that its origin could not be determined. After the certificate of the Chemical Analyser was received by the Sub-Inspector, he submitted a charge-sheet against the accused in the Court of the Judicial Magistrate F. C. Sangli for an offence under Section 302, Penal Code. It may be mentioned that on investigation it was found that there was no substance in the charge made against the two brothers of the accused and, therefore, proceedings against them were dropped.

(3.) THE Judicial Magistrate committed the case against the accused to the Court of Session at Sangli. The case was tried against the accused with the aid of Assessors by the Learned Additional Sessions Judge with the result already stated by me. In support of the prosecution case the prosecution examined 5 persons who claimed to be eyewitnesses. They were Kamalabal (ex. 4) Dhulappa Dosappa Chaugule (Ex. 9), Babu Dhulappa Chou-gule (Ex. 10), Tarabai (Ex. 11) and Khandu Krishna Pawar (Ex. 14 ). Kamalabai was the main prosecution witness. (After narrating the evidence of these witnesses His Lordship proceeded further ).