DINKAR BANDHU DESHMUKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a confirmation case in respect of the sentence of death passed by the Sessions Judge at Satara against accused No. 2 before him. The same has come up for hearing along with the appeal filed by original accused Nos. 1 and 2 from the conviction and sentence imposed upon them by the trial Judge. It may be mentioned that the trial Judge had acquitted the 3rd accused in the said case.

(2.) THE facts necessary for the purpose of disposing of the matter before us are that accused Nos. 1 and 2 are brothers, and they had a third brother named Shankar who was married to the deceased Housabai. Shankar died some time in the year 1952, without issue and, after his death, Housabai adopted Varkari Sampraday and was residing in a Math at Pandharpur conducted by one Madan Maharaj. The deceased Madhav Buwa was the Secretary of the Math and witness Macchindra was also one of its inmates. Housabai used to reside in the premises of the Math after the death of her husband, but she claimed partition and separate possession of her share in the joint family property by filing Civil Suit No: 120 of 1960 against the two accused in the appropriate Court, and having succeeded in that suit, obtained possession of her share of the lands on the 23rd of April 1968. The enforcement by Housabai of her rights of partition and separate possession of her share of the family lands appears, naturally, to have embittered the relations between her and her brothers-in-law accused Nos. 1 and 2, and she apprehended some trouble from them at the time of undertaking sowing operations in the field of which she had been given possession pursuant to the decree of the Court. She accordingly, sought police protection by making two applications which are Exhibits 42 and 43 in the present case and, with the assistance of a constable, she went through the sowing operations without any untoward incident occurring. The time for harvesting having arrived, Housabai left the Math some time in the beginning of December 1968, accompanied by Madhav Buwa (since deceased) and witness Macchindra, in order to go to her lands at Nandgaon. She did not put up at the house of her brothers-in-law accused Nos. 1 and 2 from whom she presumably apprehended trouble, but put up at the house of witness Ramchandra Gadhave in the village of Targaon which is separated from the village of Nandgaon only by the river Krishna. From there, Housabai, together with Macchindra and Madhav Buwa, used to go to Housabai's field for the purpose of harvesting operations, and it may be stated that Housabai had actually introduced her two companions to accused Nos. 1 and 2 on the very first day, and had also spoken to accused Nos. 1 and 2 who had given her some jowar, flour and fuel which she needed. The work of removing the crop went on and was still incomplete after the expiration of a period of 13 days during which Housabai, Madhav Buwa and Macchindra continued to stay at the house of Ramchandra Gadhave. As, however, they had over-stayed their hospitality, they had thereafter to shift from the house of the said Ramchandra, and they then put up in the house of one Nivrutti Bartakke which was also situated in the village of Targaon. They had put up at the said Nivrutti only for a couple of days when the incident in the present case occurred on the 19th of December 1968.

(3.) ON that day, Housabai, Madhav Buwa and Macchindra had gone to the field of Housabai at about 8 a. m. , as usual, for removing the crop and had worked in the field for the whole day. Accused Nos. 1 and 2, accompanied by accused No. 3 who was their distant uncle, had come into the neighbouring field belonging to accused Nos. 1 and 2 at about 4 p. m. that day and had started cutting the wood of a Babhul tree in their field. Accused No. 1 had for that purpose an iron bar, accused No. 2 had in his hand an axe and accused No. 3 had with him a saw. Housabai and her companions finished the day's work in the field at about 5-30 p. m. and began to collect their belongings in order to leave the field. It is the prosecution case that, seeing this, accused No. 1 left his field with the iron bar in his hand and went ahead. Shortly thereafter Housabai. Madhu Buwa and Machhindra left the field and were walking on a foottrack by the side of a canal in single file, Madhu Buwa being first, followed by Macchindra, followed by Housabai. According to the prosecution, accused Nos. 2 and 3 also left the field and followed fairly close behind Housabai and actually spoke to her as they went along. It is the prosecution case that when Housabai and her companions came to a place near the engine house of one Ghorpade, accused No. 1 suddenly darted out from the bed of the canal and gave a blow with the iron bar which was in his hand on the neck of Madhav Buwa, whereupon Madhav Buwa fell down instantaneously. Macchindra who was following Madhav Buwa at a distance of about 10 or 11 paces was taken aback and on looking behind towards Housabai who was following him at a distance of about 15 paces, he saw that accused No. 2 gave an axe-blow on the back of her head, whereupon Housabai also fell down. According to the prosecution accused No. 3 then exhorted accused Nos. 1 and 2 not to allow Macchindra to escape, but Macchindra threw away the bag which was in his hand and ran for his life into the adjoining field. Seeing him running away, accused No. 2 is alleged to have thrown the axe towards Macchindra, with the result that the handle of the axe hit Macchindra on his right thigh, and this was followed up by accused No. 2 throwing a stone at Macchindra which hit him on the back side of his waist. The prosecution story is that Macchindra, though injured, managed to run away and he ultimately went to a temple at a village named Borban of which witness Pandurang Narayan was the pujari to whom he narrated the incident. The prosecution story is that Pandurang, however, refused to give him shelter for the night and Macchindra, therefore, proceeded to the adjoining village of Targaon where he went to the house of Ramchandra Gadhave with whom they had previously put up and narrated the incident to him. Ramchandra, however, also declined to give him shelter for the night and Macchindra, therefore, proceeded to the house of witness Nivrutti Bartakke in Targaon itself with whom they had been putting up since a couple of days. It is the case of the prosecution that Macchindra narrated the incident to Nivrutti Bartakke also, but Nivrutti advised him not to stay there and accompanied him up to Targaon Railway Station from where, after various intermediate efforts to which it is unnecessary to refer, Macchindra ultimately succeeded in proceeding by a State Transport bus to Satara which he reached at about 9 a. m. the next morning. There he contacted one Shivaji More who was known to him and narrated the incident to him also. Accompanied by the said Shivaji, Macchindra proceeded to the house of the Mamlatdar who, however, was out and on being directed by his peon to report the matter to the Police Station at Borgaon, he ultimately went to Borgaon which he reached at about 3 p. m. , and had his statement recorded by the Police Sub-Inspector at the Police Station at that place. Investigation thereafter started. Macchindra was treated for his injuries at the dispensary at Satara and on the next day. he accompanied the police party to Nandgaon which they reached at about 12 noon. Accused No. 3 was found there and he and accused No. 1 were arrested on the same day, but it is the case of the prosecution that accused No. 2 was not to be found at his house and was arrested only on the 28th of December 1968. The dead bodies of Madhav Euwa and Housabai were recovered from the canal and were found to have several injuries upon them, and post-mortem examination was duly performed on their dead bodies. After the usual proceedings, the three accused persons were committed to stand their trial before the Court of the Sessions Judge at Satara where accused No. 1 was charged under Section 302 of the Indian Penal Code with the substantive offence of the murder of Madhav Buwa, accused No. 2 was charged under the same section with the substantive offence of the murder of Housabai, and alternatively, all the three accused were charged with the murder of Madhav Buwa as well as Housabai under Section 302 read with Section 34 of the Indian Penal Code. Accused No. 2 was also charged under Sections 323 and 506 of the Indian Penal Code with having voluntarily caused hurt as well as criminal intimidation to Macchindra, and accused No. 3 was further charged under Section 109 read with Section 302 of the Indian Penal Code with having abetted the commission of the offences of the murders of Madhav Buwa and Housabai by accused Nos. 1 and 2. The three accused were, in due course, tried by the Sessions Judge who by his judgment dated the 30th of August 1969 acquitted accused No. 3, but convicted accused Nos. 1 and 2, inter alia, under Section 302 read with Section 34 of the Indian Penal Code in respect of the murder of Housabai as well as of Madhav Buwa.