SIDDHAPPA ANDAPPA ANDOLGI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Vithal and Bhimsha were brothers. Both had agricultural holdings in the village of Galorgi in the Taluka of Akkalkot in the District of Solapur. Vithal had two sons, Kashinath and Vishwanath. Kashinath has a son by the name of Shivlingappa. Bhimsha died and was survived by his wife Sugalabai. The accused resided in a portion of the Wada in which Sugalabai also resided. The accused were related to the complainant. The relations between the two sides were strained on account of certain disputes arising out of the agricultural holding. The case of the prosecution is that Shivlingappa (P.W. 6), who was about 13 years old, used to accompany his grandfather Vithal to the agricultural field where they stayed during the night. On 17th August 2003, Vishwanath, PW 7, went to serve a tiffin of food to Suglabai between 9 and 9.30 p.m. when Appellant No.1, Sidhappa abused him. At 9 p.m. on the same day Shivlingappa, PW 6, went to the field together with his grandfather the victim, Vithal, for resting for the night. The two Appellants together with four others, namely, Maruti, Revansiddha, Mallappa and Shavarappa approached the area where PW 6 was sleeping in close proximity to his grandfather. PW 6 was awakened and saw the two Appellants strangulating his grandfather, Vithal, on the throat and neck. Thereafter, Appellant No.2 threw a stone below the umbilical region on the person of the victim to see whether he had died. Apart from the two Appellants, four other accused, according to PW 6, Accused Nos.3 to 6, stood by. Thereupon, PW 6 ran home and narrated the incident to his parents and to the other members of the family. Kashinath (PW 9), Vishwanath (PW 7), and the members of the family went to the site and found that their father, Vithal, was dead and that blood had oozed out from his mouth, nostrils and ears. Kashinath lodged an FIR at the Police Station at Akkalkot the next morning and an offence was registered against the accused.

(2.) Six accused were committed to trial and charged with offences under Sections 143 and 147 and Section 302 read with Section 149 of the Indian Penal Code. The Additional Sessions Judge at Solapur, by a judgment dated 12th May 2005, convicted the Appellants for offences under Section 302 read with Section 34 of the Penal Code and sentenced them to imprisonment for life and to pay a fine of Rs.3,000/- each. The other four accused were acquitted. All the accused were acquitted of offences under Sections 143 and 147 of the Penal Code.

(3.) In assailing the correctness of the judgment of the Additional Sessions Judge, convicting the Appellants, it has been urged on behalf of the Appellants that (i) From the evidence of PW 7 and of PW 9, it is evident that there was previous enmity between the family of the complainant on the one hand, and the accused on the other, and there were two factions in the village; (ii) The Learned Trial Judge has recorded a finding of fact that since the entire land of Bhimsha had been sold, there was no motive for the accused to commit a crime; (iii) PW 6, Shivlingappa, who was the sole eye witness, was a child, aged about 12 years and his testimony would have to be evaluated with the greatest circumspection. The testimony of the child witness in the present case would have to be discarded because there were omissions at two places and he had deposed falsely to the effect that he was unaware of Marathi; (iv) The FIR was not on the record and there was a breach of the obligation arising out of Section 157 of the Code of Criminal Procedure, 1973 to transmit the FIR forthwith to the Magistrate; (v) The testimony of the child witness is inherently improbable because though the agricultural field was in close proximity to the family house, no person had reported hearing any commotion arising out of the incident; (vi) The other accused who were implicated by the child witness came to be acquitted; no role having been ascribed to them; and (vii) The judgment of the Additional Sessions Judge must be set aside inasmuch as no charge was framed under Section 34 of the Penal Code.