SHANKAR BABA GOJEGAVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Bhagwan (original accused No. 2) is the son; chandrabai (accused No. 3) is the: wife and Padminibai (accused No. 4) is the daughter of Shankar Gojegave (accused No. 1). All the accused were prosecuted for having committed offence punishable under section 307 read with section 34 of the Indian Penal Code (for shorl: "ipc") - Giving benefit of doubt, learned trial judge acquitted accused Nos. 3 and 4 and convicted appellants of the offence punishable under section 326 read with section 34 of the Indian Penal Code and sentenced them to suffer R. I. for three years and to pay a fine of Rs. 1,0007- each. This order of conviction and sentence is impugned in the present appeal by the appellants.

(2.) Briefly stated the relevant facts are that complainant (PW1) Vitthal. Digamber Kulkarni is native of village Bomnali, Taluqa Mukhed, District nanded. In the year 1980, PW 1 borrowed loan of Rs. 3000/- from appellant No. 1 by executing a sale deed. It was orally agreed that on repayment of the loan, the deed should be cancelled. PW 1 repaid the loan in the year 1985. Receipt of the repayment was executed by appellant No. 1 and an endorsement regarding the repayment was made on the document. Subsequently in the year 1989-90, appellant No. 1 started claiming ownership of the land on the basis of the earlier transaction. He, thus, filed an application for mutation with the Tahsildar. On enquiry, this application came to be rejected, as PW 1 was found to be in possession of the field. PW 1 then, moved Sub-Dhisional Officer for entry in the record of rights in his favour. Appellant No. 1 filed an appeal for possession. He also started threatening PW 1 with dire consequences. In view of these threats pw 1 stopped visiting the field. He filed a Civil Suit for declaration and injunction in the year 1993. An order in his favour was passed by the Civil Court, protecting his possession of the field.

(3.) Villagers of Bomnali use place by the side of the river, near the field of sambhaji Honrao, for morning duties. At the relevant time, crop of hybrid jowar was standing in the field of Sambhaji. On 4th September, 1993. PW 1 was returning to his house after easing himself at about 6. 30 a. m. On his way, he saw chandrabai (appellant No. 3) , wife of appellant No. 1 and her daughter padminibai (appellant No. 4) but ignored them. While PW 1 was passing by the side of these ladies, they threw chilly powder in his eyes. Some of the powder found the target, while some fell on his chest. The ladies then caught legs of the pw 1 and brought him down. At this juncture, Shankar (appellant No. 1) and his son Bhagwan (appellant No. 2) who were hiding, came out from the crop of jowar. Appellant No. 1 dealt first blow on the right thigh. The second blow was dealt below the knee of the right leg of PW 1. Appellant No. 2 dealt stick blow on the right wrist, right shoulder and right sidle of the back. Appellant No. 1 continued to inflict axe blows on the right leg. Hari Karadkhede (PW 2) and ashok Ghodke (PW5) who were also returning from the easing ground, witnessed the incident and rushed to the rescue of PW1. After they intervened, pw 5 said that PW 1 has succumbed to the injuries. Thereupon, the appellant ran away from the spot, PW 2 tied injuries of the FW 1 with dhoti of PW 1 and his lungi. He then informed son of PW 1 regarding the assault. PW 1 was then placed on a cot and taken to Mukhed Police Station. At the Police Station, Head constable Narsing Lutte who was Station House Officer, immediately sent the injured to Rural Hospital, Mukhed for medical treatment. He then summoned head Constable Shamrao Patil (PW 8) and sent him for recording complaint of the injured.