VASANT DHONDIBA CHOUDHARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant who was original accused No. I, has been convicted by the learned Additional Sessions Judge, Poona, for an offence under section 304, Part I of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for 7 years. He has also been convicted for offence under sections 323 and 323 read with section 34 and sections 324 and 324 read with section 34 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for six months on each count. He has been also convicted for an offence under section 447 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for three months. The substantive sentences have been directed to run concurrently.

(2.) The appellant who was original accused No. 1, and three others were prosecuted for offences under sections 302, 447, 325, 324 and 323 read with section 34 of the Indian Penal Code. The allegations on which the prosecution was founded are briefly these : Accused Nos. 1 and 2 are the sons of accused No. 4 and accused No. 3 is the father-in-law of accused No. 2. Accused Nos. 1, 2 and 4 and the victims of the incident are all residents of Sartapwadi, taluka Haveli, district Poona. The victims of this incident are Sunderabai wife of Pandharinath Gaikwad who died as a result of the assault made on her at the time of the incident, her husband Pandharinath (P.W. 9) who is the complainant, Pandharinaths brother Gulab (P.W. 8) and Laxmibai (P.W. 3) who is the wife of Gulabrao. Admittedly the land Survey No. 101 of Sartapwadi was purchased by Pandharinath as head of a family consisting of himself and his brothers and one Kisan Kashid and the families of both Pandharinath and Kashid were in possession and enjoyment of that land. In January 1969, Pandharinath purchased a house from one Laxman Dabde for Rs. 1300/- under sale deed (Ex. 23) dated 6-1-1969. On that very day, Pandharinath purported to sell the entire Survey No. l0l by the sale deed (Ex. 27) to accused No. 4 for a purported consideration of Rs. 1500/- Although the sale deed prima facie contains a recital that the possession of the land was delivered to accused No. 4, it is the prosecution case that in fact possession of the land was not at all delivered to the purchaser and that the transaction evidenced by the sale dead (Ex. 27) was not in fact a sale but a security for a loan which was advanced by accused No. 4 to Pandharinath to enable him to purchase the house from Laxman Dabde and that there was an agreement that the land should be reconveyed after repayment of the said loan within a period of 5 years. Even the consideration for the sale deed (Ex. 27) is in dispute. Within 3 or 4 days, after the sale deed, accused Nos. 1, 2 and 4 having tried to enter the land, Pandharinath complained to Khanderao (P.W. 2) the Sarpanch who convened a meeting. At that time it is alleged that accused Nos. 1 and 4 insisted on Rs. 2000/- being paid to them in order that they may give up their claim under the sale deed. Pandharinath having agreed to pay that amount once again approached the Sarpanch within 8 days. It is alleged that accused No. 4 did no accept that amount. Having regard to this dispute over the possession of the land, on 13-2-1969 Civil Suit No. 205 of 1969 was filed by Pandharinath his brother Gulabrao and the joint owner Kisan Kashid against accused No. 4 and the other brothers of Pandharinath and Gulab Gaikwad for a declaration that the sale deed Ex. 27 was not valid and for an injunction restraining accused No. 4 from interfering with the right of peaceful enjoyment of the plaintiffs in that suit as appears from the copy of the plaint in that suit. Within two months thereafter on 3-4-1969, Civil Suit No. 437 of 1969 was filed by Gulab and the joint owner Kisan Kashid against accused No. 4 and others for an injunction restraining the defendant No. 4 from interfering with the plaintiffs right of peaceful enjoyment of the suit land. It is in this suit that an ad interim injunction being secured the same was confirmed by the trial Court and an appeal being Appeal No. 102 of 1969 which was filed by accused No. 4 in the District Court was dismissed on 23-12-1970. Aggrieved by these concurrent findings, accused No. 4 approached this Court by filing Civil Revision Application No. 319 of 1971 on 9-7-1971 and that matter being admitted he secured an interim order of stay of the orders passed by the courts below. It may be mentioned that ultimately that civil revision application was rejected on 6-7-1973, i.e., after the incident giving rise to this prosecution. Within two months after the order of injunction was stayed by this Court in Civil Revision Application No. 349 of 1971, the incident giving rise to this prosecution has occurred in the morning of 11-9-1971.

(3.) It appears that having secured the stay order of the injunction which was granted by the Civil Court and the District Court, the accused wanted to enter the land. Pandharinath having received information about the intention of the accused to go to the land on 11-9-1971, for the purposes of sowing, he instructed his brother Gulab and his wife Sunderabai and sister-in-law Laxmibai to go to the land and not to allow the accused to sow the land. Meanwhile he offered to leave for Poona which is about 19 miles from Sartapwadi for consulting his Advocate Mr. Joshi who was briefed in the pending civil suit. As expected it appears that all the 4 accused left the village for the disputed Survey No. 101 in two carts for the purpose of sowing the land. Laxmibai and Sunderabai who were proceeding to some other land having noticed that the carts of the accused were being taken to the disputed land went towards that land. After reaching the land the accused unyoked both the carts and they started to make arrangements to sow the land. That is why Laxmibai and Sunderabai who were the first to approach the land went towards the accused. Sunderabai having obstructed the sowing operations by standing in front of the accused, accused No. 3 pushed Sunderabai. It may be mentioned that by the time of this incident Pandharinath had also returned to the village after consulting his Advocate and he and his brother Gulab were also proceeding towards their land and one Baban Chorge (P.W. 10) whose land is near about also happened to notice the incident. As regards the actual incident, as stated by these 4 eye witnesses, accused No. 3 having pushed Sunderabai, accused No. 1 fetched an axe from the bullock cart and struck Sunderabai on the head. Accused No. 2 also is alleged to have struck Sunderabai on the head with what is called the "fas" which we are told is the blade of the harrow. Sunderabai fell down after the assault and Laxmibai shouted. Thereupon accused No. 1 struck Laxmibai on the head with the axe which, having grazed on the head, struck against the wheel of the cart and the handle broke down. In the process the butt-end of the axe fell on the wrist of Laxmibai. Pandharinath having intervened, accused No. 1 struck Pandharinath with the axe on the head. Accused No. 2 struck Pandharinath on the head with the blade of the harrow. Accused No. 3, it is alleged, accosted Pandharinath who was about to runaway and stabbed him with the knife on the left wrist. Thereafter accused Nos. 1 and 2 exchanged the weapons and chased Gulabrao, around the bullock cart. Gulab tumbled and fell and thereafter accused No. 3 struck Gulab on his left palm. Thereupon accused No. 2 rushed towards Baban Chorge. Baban Chorge having challenged accused No. 2, accused No. 1 pulled him aside. Then all the accused left the place. Baban thereafter carried Sunderabai on his back to the farm house of Sarpanch Khanderao, (P.W. 2). Pandharinath and Gulab went to the Lonikalbhor Police Station. The injured persons were sent to the Sasoon hospital, Poona. The First Information Report (Ex. 25) of Pandharinath was recorded by Head constable Shaikh (P.W. 15). Shaikh thereupon drew a panchanama of the scene of offence. All the injured persons except Sunderabai were examined by Dr. Patil (P.W. 18). Sunderabai was examined by Dr. Manohar Bapaya (P.W. 19). As it appears from his evidence and the case papers (Ex. 48), Sunderabai had a contused lacerated wound on skull frontal region extending backwards parallel to the Sagital sutureline 3" in length bone deep, depression on frontal bone seen through the wound suggesting the depressed fracture of skull. The patient was operated at 7.30 p.m. by Dr. Ambike and Dr. Bapaya assisted him in that operation. The patient, however, succumbed to her injuries at 2.30 p.m. on 13-9-1971. The post-mortem examination was held by Dr. Laxman Fervani (P.W. 11.) As it appears from his evidence and the post mortem notes (Ex. 31), the cause of death of Sunderabai was shock due to extra dural haemorrhage, laceration of brain, haemorrhage in pons due to fractured skull. Apart from the operation wound with which we are not concerned, this doctor noticed contused lacerated wound 3-" long present on the right parietal region, 3-" above the right eyebrow at right angle to the injury No. 1. He also noticed that as a result of that external injury there were the corresponding internal injuries as mentioned below :---