DUNDAPPA SHETYAPPA PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Accused No.1 Dundappa Shetyappa Patil, accused No.2 his brother Kashappa Shetyappa Patil and accused No.3, the mother of accused Nos.1 and 2 by name Dundavva Shetyappa Patil were charged and tried before the Court of Additional Sessions Judge, Kolhapur in Sessions Case No.127 of 1988 for offence under Section 302 read with Section 34 on the allegation that these accused along with juvenile offender, one Basappan, son of accused No.2 committed murder of one Shivappa, who is the younger brother of accused Nos. 1 and 2 and the youngest son of accused No.3.

(2.) Shortly stated the prosecution case is that Kempawwa, PW No.5 is the wife of accused No.2 Keshappa. Although they were married about 20 years prior to the incident and though two sons were born out of the wedlock, Kempawwa and accused No.2 were not putting on well and for the period of five to six years prior to the incident. Kempawwa was staying with her parents while accused No.2 and his sons were staying with accused No.1 and their mother accused No.3. About five to six months prior to the date of the incident father of Kempawwa had come to the accused along with Kempawwa with a request that Kempawwa should be given divorce by Kashappa accused No.2, Shivappa, the youngest son and the deceased intervened in the matter and suggested that as the children out of the wedlock are grown up, they should not divorce each other but Kempawwa should cohabit with Kashappa. Accordingly five to six months prior to the date of the incident Kempawwa started residing with accused No.2 along with their sons. It appears that eight days prior to the date of incident there was again some quarrel between accused No.2 Kashappa and Kempawwa and deceased Shivappa is alleged to have intervened, given understanding to both of the to behave. Even on the date of the incident i.e. 3rd June 1988 in the evening there was quarrel between Kempawwa on the one hand and between accused No.2 Kashappa on the other. In the house at that time, it appears that apart from Kempawwa and accused No.2, accused No.1 Dundappa, accused No.3 Dundavva and original juvenile accused No.4 Basappa were also present. Deceased Shivappa was staying separately in a house which was situated after about four to six houses from the house where accused No.2 and accused No.1 and accused No.3 were staying together. It appears that Shivappa came to the house of the accused and from outside he was urging that they should not quarrel and they should settle the matter. It is alleged that at that time accused Nos.1, 2 and 3 and original accused No.4 Basappa started assaulting Shivappa just outside the house. Accused No.1 was a armed with spear. Accused No.2 was armed with sickle and accused No.3 was armed with blade of fodder cutter and juvenile accused Basappa, son of accused No.2 was armed with stick. All of them assaulted Shivappa in the courtyard. Shivappa received bleeding injuries. He fell down on the ground. Kempawwa raised shouts. Then she rushed it inform the wife of Shivappa. One Arjun Murgi, PW 11 also witnesses the incident. He immediately went to his uncle Mallappa Murgi PW 4 who also happened to be the father-in-law of deceased Shivappa. PW 4 Mallappa and PW 11 Arjun came back along with the police patil. Mallappa enquired of Shivappa and came to know from Shivappa that accused Nos. 1 and 2 have assaulted him with spear and sickle. Mallappa immediately rushed to Gadhinglas for making arrangement for carrying Shivappa to hospital in a car. However, in the meantime somebody arranged for one car of one Ghotane of Gadhinglaj and Shivappa was already carried in the car to Gadhinglaj. Doctor at Gadhinglaj examined Shivappa and as he found that the condition was serious, he advised them to shift Shivappa immediately to Government Hospital at Belgaum in Karnataka State as that was the nearest hospital. However, Shivappa could not reach the hospital alive and he died on the way. He was again brought back to Gadhinglaj. In the mean time PW 4 Mallappa lodged the complaint at Gadhinglaj police station against Accused Nos. 1 and 2. At about 4 O'Clock the corpse of Shivappa was brought to Gadhinglaj. Inquest was held on the dead body. Body was sent for post-mortem. Police started investigation. It is alleged that when the accused were arrested there were blood stains on the shirts worn by accused Nos. 1 and 2. Therefore, they were seized. Later on at the instance of accused No. 2 and 1 recoveries of certain weapons were made. Ultimately three accused were charged and tried as mentioned above whereas Basappa, the juvenile offender, was charged before the juvenile Court. The record of the said case before the Juvenile Court in fact has been exhibited at Exhibit 98 in these proceedings which shows that ultimately Basappa was acquitted.

(3.) Prosecution examined about 14 witnesses. PW 4 is complainant Mallappa Murgi and the father-in-law of deceased Shivappa who has filed complaint and who has also deposed regarding oral dying declaration of Shivappa involving accused Nos. 1 and 2. PW 5 is Kempawwa who is the eye witness. PW 11 is Arjun Murgi, another eye witness. Though there are three alleged eye witnesses PW 8, PW 9 and PW 10 all of them, though examined, have turned hostile. PW 7 is one Dattatraya Ghotane whose car was utilised for taking Shivappa to the hospital. PW 6 is Dr. Nagumahanti Venkatesh Rao who was the Medical Officer at Gadhinglaj and PW 14 is Dr. Pramod Kalyashetti who conducted the autopsy on the dead body of Shivappa. The other witnesses are PW 1 Appasaheb Jarali who is panch for the panchanama of scene of offence. PW 2 is Tukaram Shinde who is panch to panchanama for arrest of accused Nos.1 and 2 and seizure of clothes from their person. PW 3 is Pandurang Shinde who is the panch for panchanama of seizure of weapons in pursuance to the statement made by accused No.2 as also seizure of two sticks at the instance of accused No.1. Prosecution has also produced post-mortem notes at Exhibit 65 and Chemical Analyser's report at Exhibits 69 and 70.