PRABHU RAMA SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants, Prabhu Rama Shinde, and Bhau @ Sudhakar Prabhu Shinde, Original accused Nos. 1 and 2, father and son, respectively were charged for intentionally or knowingly causing death of Shrikant @ Bitu Vasantrao Godase. They were also charged for committing an offence punishable under section 135 of the Bombay Police Act by Joint District Judge and Additional Sessions Judge, Solapur, in Sessions Case No. 120 of 1993. The charge having been proved, they were convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and were sentenced to suffer imprisonment for life and to pay a fine of Rs. 100/- each, in default to suffer rigorous imprisonment for one month. They were, however, acquitted of the offence punishable under section 135 read with section 37 (1) of the Bombay Police Act. They were allowed the set off under section 428 of the Criminal Procedure Code, by judgment and order dated August 19, 1993.

(2.) THE prosecution story, as has been unfolded by oral and documentary evidence, reads as under:-ppellant Nos. 1 and 2, original accused Nos. 1 and 2, are father and son respectively. They own agricultural land bearing Gat No. 231 situate in village Kurnur, Taluka Akkalkot. The deceased owned land bearing Gat. No. 227. A common bund, which runs north-south, separates these parcels of land. A well in Gat. No. 229 is co-owned by the appellants, the deceased and several other persons including some of the eye witnesses. On the common bund, in between the lands bearing Gat. No. 231 and Gat. No. 227 owned by the appellants and the deceased, respectively, there is a cement pole. The appellants and the deceased had installed electric motors of 5 HP and 3 HP, respectively, on the cement pole. They were getting water from the well in accordance with their respective shares in it. Sharing of the water from the joint well in Gat. No. 229 led to straining of relations between the two families, namely, of the appellants and the deceased. As and when the deceased switched on the electric motor for the supply of well water, the appellants switched off, thereby causing loss to the standing crop in the land of the deceased. About a fortnight prior to the incident resulting in the death of the deceased, there was a quarrel between the appellants and the deceased over sharing of well water. The incident in question took place on February 11, 1993 between 6 to 6. 30 p. m. near about the common bund between the land bearing Gat. No 231 and the land bearing Gat. No. 227. It needs to be mentioned that the land comprised in Gat No. 231 is owned by appellant No. 1 and the land comprised in Gat No. 232 is owned by his brother Ganpat Rama Shinde. At about 4. 00 p. m. , the deceased went to the field. He wanted to water the standing crop of wheat. He switched on the electric motor for receiving water from the common well in accordance with the share for irrigating his wheat crop. At about 6 to 6. 30 p. m. , the prosecution alleges, both the appellants came to the spot. Appellant No. 1 is alleged to have switched off the electric motor. Resultantly, the deceased could not water his standing wheat crop. Altercation ensued between the appellants and the deceased. PW 6- Bhimrao Jadhav, PW 7- Ashok Birajdar, PW 8- Laxman Dagade and PW 9- Shivaji Shinde were working in their respective fields. They heard the cries of the deceased. They left their respective fields and ran towards the land of the appellants. They were at a certain distance from the appellants and the deceased. They saw that appellant No, 2 had held both the hands of the deceased from his back side with one of his hands and was holding an axe in his other hand. They also saw appellant No. 1 inflicting blows with a sickle on the stomach of Shrikant, the deceased. PWs. 6 to 9 are alleged to have witnessed the infliction of sickle blows on the stomach of the deceased. The deceased cried "melo" and fell down. PWs. 6 to 9 wanted to intervene and separate the appellants and the deceased. However, appellant No. 1 threatened them of dire consequences if they came forward. It is alleged by the prosecution that appellant No. 1 had snatched the axe from the hand of appellant No. 2 and had threatened PWs. 6 to 9 that they should not come forward or else he would see them. The appellants remained at the spot for some time. Thereafter they went away by Palapur Road. After their departure, PWs. 6 to 9 went to the place where the deceased was lying. They saw that the intestine from the stomach of the deceased had come out. The clothes on his person, namely, the underwear and banian were besmeared with blood. Before any help could be offered to him, the witnesses found that the injured Shrikant had succumbed to his injuries. P. W. 6 Bhimrao was requested to report the matter to the Police Patil and Kotwal of village Kurnur. The distance between the field of the appellants and village Kurnur is approximately 4 kms. P. W. 6 went to Police Patil, P. W. 12- Salgare, and disclosed the incident to him. The Kotwal of the village was also apprised of the matter. Mohan Shinde (P. W. 11) was requested to carry the information of the death of Shrikant to his parents who were residing at Akkalkot which is at a distance of 24 kms. from village Kurnur. P. W. 11 left Kurnur on his motor cycle for supplying information to the parents of the deceased. P. W. 11- Mohan Shinde, after conveying the sad news to the parents of the deceased, also went to Akkalkot North Police Station. He conveyed the information to Head Constable Ghadge at about 2. 00 a. m. in the night intervening February 11, 1993 and February 12, 1993. The Head Constable made an entry in the Station Diary. The Head Constable also communicated the information to PSI Rajeshirke (PW 17 ). It appears that PSI Rajeshirke with police party left Akkalkot for Kurnur and reached the place of incident at about 3 to 3. 30 a. m. on February 12, 1993. PSI Rajeshirke, on arrival at the spot, saw the dead body lying in the field. PWs 6 to 9 and the Police Patil and the Kotwal of the village were also present by the side of the dead body. PW 6- Bhimrao narrated the entire occurrence to PSI Rajeshirke. The PSI returned to the police station with P. W. 6- Bhimrao at about 5. 00 a. m. F. I. R. was registered on the basis of the statement of P. W. 6 and an offence under sections 302, 506 read with section 34 of the Indian Penal Code was registered at Akkalkot (North) Police Station. PSI Rajeshirke took over the investigation. PSI Rajeshirke along with complainant Bhimrao returned to the spot at about 7. 00 a. m. He drew inquest panchanama (Ex. 9 ). He sent the body of the deceased with PW 13- Narayankar to the Municipal Dispensary at Akkalkot. The doctor attached to the Municipal Dispensary was also requested to ascertain the cause of death of the deceased and to take his blood samples. The spot panchanama was drawn in the presence of two panchas. PSI Rajeshirke collected earth stained with blood and ordinary earth, and seized a white Nehru Shirt, a white pant and a pair of slipper, etc. under seizure panchanama, Ex. 21. PSI Rajeshirke deputed a Head Constable and certain Constables to arrest the appellants. Appellant No. 1 was arrested on February 12, 1993 at about 4. 15 p. m. and appellant No. 2 was arrested on February 13, 1993 at about 10. 00 p. m. appellant No. 1 at the time of his arrest was wearing a shirt and Dhoti. These clothes were stained with blood. They were seized under a panchanama. Appellant No. 2 was wearing a banian and underwear stained with blood at the time of his arrest. The same were seized under a panchanama. On February 14, 1993, the appellants were sent to the Medical Officer, Municipal Dispensary, Akkalkot, for taking their blood samples. On February 16, 1993 appellant No. 1 made a statement that he was willing to get the weapon of offence recovered. A memorandum (Ex. 26) to this was reduced to writing which was witnessed by panchas. The Police staff left the police station in a jeep. Appellant No. 1 took them to the land of Ganpat Shinde situate within the limits of village Kurnur. He moved the earth and produced the sickle. The same was attached under a panchanama (Ex. 27 ). The sickle was marked as Article 18. Its blade was stained with blood and earth. On February 17, 1993, appellant No. 2 volunteered to get the axe recovered. A memorandum (Ex. 28) was drawn which was witnessed by panchas. Appellant No, 2 then led the police and the panchas to the standing crop of jawar in his field and produced the axe and the same was seized under panchanama (Ex. 29 ). The axe is marked Article 19. The seized articles were sent to the Chemical Analyser for report. The Medical Officer in-charge of the Municipal Dispensary also sent the post-mortem report to the police station.

(3.) AFTER completion of the investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class, Akkalkot, who committed the case to the Court of Session vide order dated April 29, 1993.