RAJABHAU PANDURANG GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants have impugned order of conviction and sentence passed on them by I Ad hoc Additional Sessions judge, Ambajogai on 30-11-2004, convicting them for the offence punishable under Sections 307, 326, 504, 506 (Part-II) r/w Section 34 of the Indian Penal Code. The appellants are sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,000/- each, to suffer simple imprisonment for six months for the offence punishable under Section 307 r/w 34 of the Indian Penal Code. They are sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 750/- for the offence punishable under Section 326 r/w 34; rigorous imprisonment for one year and fine of Rs. 500/-each for the offence punishable under Section 504 r/w 34; and rigorous imprisonment for three years and fine of Rs. 500/- for the offence punishable under Section 506 (Part-II) r/w 34 of the Indian Penal Code.

(2.) Briefly stated the prosecution case is that : Sahebrao Khanderao Jadhav has four sons, namely, Khanderao (father of first informant) ; Baburao (PW-9) ; Rajabhau (PW-8) and Subhash (PW-7). The family owns 8 acrees of land from Survey No. 343, known as madarpatti, situated at Ambajogai, consisting of two strips, one of 5 acres and 6 gunthas and the other 3 acres. Both the strips are situated at different places. The brothers are living separately but have not partitioned the estate. They jointly cultivate the field but take the income from the field by rotation. At the time of incident, it was the turn of Rajabhau to take income from the piece of 3 acres of land, where the incident took place. The accused are related to Sahebrao Jadhav. The appellants, Babasaheb (PW-5) and the first informant are relatives. Field of appellants adjoint this strip of three acres on the west. Another field of the appellants adjoin the strip of land admeasuring 5 acres and 6 gunthas. Appellants committed an encroachment to the extent of 13 gunthas over the strip of 5 acres of land belonging to Sahebrao. Thus, Baburao (PW-9) filed a civil suit against the appellants in the year 1989. After about 7 to 8 years, the suit was decided in favour of baburao. The appellants preferred an appeal against this decision in or about the year 1989. The appeal came to be dismissed in default. It was, however, subsequently restored to the file on payment of costs of Rs. 750/ -. The matter is still subjudice. On account of this dispute, there was enmity between the two families.

(3.) On 20th March, 2002, Jaiprakash requested his maternal uncle, Babasaheb Vitthal gaikwad (PW-5) for helping him to plough the land by his tractor. Balasaheb, therefore, brought his tractor to the strip of 3 acres at about 6. 00 p. m. and started ploughing the land with the help of Bharat Gaikwad. While ploughing was in progress, at about 10. 00 p. m. , all the appellants entered the field, standing in front of the tractor. Appellant no. 3 Pandurang abused Jaiprakash as he was ploughing the land and threatened to kill him. Thereupon all the appellants rushed at the first informant. Appellant no. 1 inflicted sickle blow on his left leg below the knee. On receiving the blow, first informant sat down. Thereafter appellant no. l inflicted another sickle blow on his head, causing bleeding injury. On account of the assault, first informant raised cries for help. During this period, Baburao, Rajabhau and subhash, uncles of first informant, were resting near their cattle shed at the distance of about 150 feet from the scene of occurrence. In response to the cries, Baburao first rushed to the help of his nephew. Rajabhau and Subash followed him. When Baburao reached the scene of occurrence, and tried to intervene, appellant no. 2 inflicted blow with Katti on his right leg below the knee. Appellant no. 1 inflicted sickle blow on his head, accused no. 2 again inflicted another blow on the right led below the knee of baburao with Katti, as a result, Baburao also fell down and was shouting for help. By that time, rajabhau and Subhash also arrived at the scene of occurrence. On their arrival, appellant no. 2 inflicted blow on the right leg below knee of rajabhau with Katti. Appellant no. l inflicted blow on the right arm of Rajabhau with sickle; appellant no. 4 dealt stick blow on the head of subhash. Appellant no. 2 inflicted blow on the left hand of Subhash with Katti. Appellant no. 1 dealt two sickle blows on his head, one of them fell on the left ear. During the assault on rajabhau and Subhash, appellant no. 3 and 4 were instigating appellant nos. 1 and 2 to kill the victims. On hearing hue and cry, neighbouring cultivators Shivaji Salve and Kailas Jadhav came to the rescue of the victims. Babasaheb and bharat, who were watching the assault from the tractor, also stepped down. Having seen this, appellants ran away. After departure of appellants, Babasaheb went to the village and informed Sahebrao that the victims are lying in the field in injured condition. Therefore, Sahebrao went to ambajogai police station for giving intimation. PSI - Kuntakure, who was performing patrolling duty, was informed about the occurrence by the station House Officer. In response. Investigating Officer came to the police station and proceeded to the scene of occurrence with sahebrao. On reaching the scene of occurrence, the Investigating Officer put all the injured in a police vehicle and 'took them to S. R. T. R. Hospital, Ambajogai. Dr. Suryawanshi (PW-11) , who was on duty, examined the patients and started their treatment. Subhash was seriously injured. He was, therefore, advised to be taken to well-equipped hospital for better treatment. Subhash was, therefore, shifted to the hospital of Dr. Sham Agroya (PW-10) for treatment and was discharged after about 26 days. While the treatment of the injured was in progress at s. R. T. R. Hospital, Ambajogai, Investigating officer recorded statement of Jaiprakash (Exh. 30) , who was certified to be well oriented and conscious by the Medical Officer. On the basis of this statement, Investigating Officer registered the offence against the appellants for the offences punishable under Sections 307,326, 325, 324, 504, 506 r/w 34 of the Indian Penal code and took over the investigation. He then visited the scene of occurrence on 21st and prepared a Panchanama (Exhibit-23). Samples of bloodstained soil and adjacent soil were collected in a polythene bag, which was sealed in presence of witness Kalyan Gaikwad (PW-1) and were attached under panchanama of the scene of occurrence (Exh. 23). Clothes of the injured were attached at the hospital under seizure Memos (Exhibits 34 to 37) in presence of PW-6 Shankar Jadhav. The Investigating officer then arrested appellant nos. 1 to 3. Appellant no. 4 came to be arrested on 23rd march, 2002. On 24th March, 2002, appellant nos. l and 2 made confessional statements in presence of witnesses and produced sickle and katti concealed in the cement tank placed in front of the cattle shed. The weapons were attached under Seizure Memos (Exhibits-26 and 28). Bloodstained clothes of the appellants came to be attached at the police station in presence of pw-6 Shankar Jadhav, under Seizure Memos (Exhibits-38 to 41). The articles attached during the course of investigation were sent to Chemical analyzer for analysis. After completion of the investigation, Investigating Officer filed charge-sheet against the appellants.