SHAMRAO BHIKU YEVALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Judgment will dispose of both the cross appeals. Criminal Appeal No. 914 of 1988 is preferred by the accused for setting aside the order of conviction and sentence, whereas Criminal Appeal No. 101 of 1988 is preferred by the State for enhancement of sentence. Both these appeals emanate from the Judgment and Order passed by the Additional Sessions Judge, Satara dated October 9, 1987 in Sessions Case No. 84 of 1984. The accused were prosecuted for the offence punishable under section 302,342, 201 r/w 34 of the I. P. Code.

(2.) The deceased and the accused are related to each other. The accused No. 1 Shamrao Bhiku Yevale and accused No. 2 Baburao Bhiku Yevale are the real brothers. Accused No. 3 Ramdas Shamrao Yevale is the son of accused No. 1 Shamrao. Accused No. 4 Keshave Baburao Yevale and Accused No. 5 Bhanudas Baburao Yevale are the sons of accused No. 2 Baburao. The deceased Ashok was the third son of accused No. 2 Baburao. All the accused are residents of village Bhogaon, Taluka Wai, District Satara. The complainant Kusum P. W. 16 is the wife of deceased Ashok. The incident in question is alleged to have taken place on 13th April, 1984 at about 6 p. m. at village Bhogaon. It is the prosecution case that Ashok, his wife Kusum P. W. 16 and her mother-in-law were the only persons present in the house. All of them took food at about 12. 00 noon, whereafter, Ashok left the house to go to Pandewadi alongwith his son Vijay and Jitendra, Son of Sunanda to give fruits of Shevga to his sister Mangal P. W. 7. Sunanda P. W. 6 is the cousin sister of Ashok. Ashok returned back at about 4. 00 to 4. 30 p. m. Sunanda P. W. 6 made enquiries with Ashok as to why he had taken away her son to village Pandewadi. Sunanda then abused Ashok. Thereafter, Ashok went inside the house and consumed liquor and came out and demanded match box from his wife Kusum P. W. 16. As Ashok was threatening that he would set the stack lying in the court yard on fire and ruin all of them, Kusum P. W. 16 did not give match-box to him. It is alleged that Ashok himself went inside the house and came out with the match box. He thereafter, went to the Western rear court yard and set the stack on fire. Chandrabhaga wife of the accused No. 1 Shamrao shouted loudly. The inmates of the house and villagers arrived on the spot and extinguished the fire. On account of this incident all the persons in the house were angry and enraged. It is alleged that in the hit of moment, accused Nos. 1 to 5 asked Ashok as to why he has set the stack on fire. They enquired whether he intended to kill them and burn them. Thereafter, they started abusing Ashok. Ashok in turn, also abused the accused. This episode allegedly took place at about 6 p. m. It is alleged that altercation took place. Then all the five accused started pulling and pushing Ashok to fall on the ground. Thereafter, they dragged Ashok inside the house. It is alleged that the accused asked Kusum P. W. 16 to stay in the house of Shamrao-accused no. 1 (her cousin father-in-law) who had his house in the neighbourhood. It is alleged that the accused persons took Ashok in the middle room and they latched the middle room from inside and started beating him. Ashok was crying and calling his mother to rescue. The prosecution case is that Kusum P. W. 16 saw through the window that the accused Ramdas and Bhanudas were beating Ashok with sticks and the other three accused were giving kicks and fist blows. On seeing this, Kusum P. W. 16 shouted loudly, but nobody came to rescue her husband Ashok. After sometime Ashok stopped shouting. On that, Kusum P. W. 16 saw through the pipe of the window when she noticed that all accused persons were standing infront of her husband Ashok who was lying dead on the ground. It is also alleged that accused Shamrao, cousin father-in-law, threatened Kusum P. W. 16 and asked her to keep silent. On that Kusum P. W. 16 went to the house of Shamrao, cousin father-in-law and started crying. It is the prosecution case that thereafter, accused persons rolled up the dead body of Ashok in a blanket. They kept the dead body in the bullockcart belonging to accused Shamrao and took the dead body to the burial place and burnt the dead body on the very same night. It is the prosecution case that on the next day when the uncle of Kusum P. W. 16, Balasaheb Shinde, arrived at the scene, she told him that Ashok has not died natural death due to consumption of liquor as was informed to him, but has been killed. Thereafter, Kusum P. W. 16 is stated to have gone with her uncle Balasaheb Shinde P. W. 17 and later on went to the Wai Police Station where she lodged F. I. R. After the F. I. R. was registered, the Investigating Officer proceeded to the scene of offence alongwith Kusum P. W. 16 and panchas. Kusum pointed out the spot. It is the prosecution case that she pointed out the blood stains on the brass vessel article No. 1 and scraper article No. 2, blood stained sample of earth and sample earth and two liquor bottles, articles Nos. 3 and 4 from the rear apartment were collected. It is stated that Kusum also pointed out where the stack was burnt. Accordingly, the Investigating Officer prepared panchanama of the same and attached one bundle of husk paddy. Thereafter, Investigating Officer, A. R. Jadhav P. W. 18 arrested all the accused. It is stated that accused one by one produced blood stained clothes from their house which were kept on the string, which came to be attached under panchanama Exh. 29,31,32, 35 and 37. He thereafter, recorded statements of Sunanda Yevale, Mangala Gand, Sandip Arde, Gulabrao Yevale and Madhukar Pol and Others. It is stated that accused Shamrao pointed out ash and bones which were attached under panchanama Exh. 39. Further, it is stated that accused Bhanudas produced stick before the panchas for which memorandum was prepared. The accused Bhanudas, it is stated that, led panchas to a heap of sugarcane and removed short sticks articles No. 25 and 26 which were attached under panchanama. Accused Baburao produced bullock-cart which was attached under panchanama Exh. 60. Accused Baburao went to the spot and pointed out the bullock-cart. Thereafter, bloodstained pieces of wooden plank of the said bullock-cart was attached under panchanama Exh. 61. The Investigating officer P. W. 18 further states that he caused to produce in all 14 witnesses before the Special Executive Magistrate for recording their statements under section 164 of Cr. P. C. After the investigation was completed, charge-sheet came to be filed. The case was committed to the Sessions Court at Satara.

(3.) During the trial, prosecution examined as many as 18 witnesses. The accused pleaded not guilty and claimed to be tried. The accused tried to explain the bloodstains found on their clothes and on the floor and wall of the kitchen. According to them, wife of accused Baburao was cutting potatoes on the blade on the date of incident, she sustained injury while cutting potatoes and started bleeding profusely from her hand. She jerked her bleeding hand, on account of which the blood was strewn on the floor of the kitchen as also articles kept in kitchen and on the wall. According to the defence, Kusum P. W. 16 had gone to Chandwadi about four days prior to the incident on 13th April, 2004. On the date of incident deceased Ashok consumed liquor and was found dead in his room. Accordingly, message was sent to P. W. 16 whereafter she and persons from her parental house came on the next day Saturday morning. They stayed at Bhogaon till Sunday Morning and attended all the religious ceremonies which were performed after the death of Ashok. It is the case of the accused that Kusum P. W. 16 filed false case against them at the instance of her paternal uncle Balkrishna Shinde P. W. 17 in order to have share in partition. Accused examined Shivaji Laxman Yevale Exh. 89 as defence witness.