STATE OF MAHARASHTRA Vs. LAXMAN DASHRATH GARAD

JUDGEMENT

(1.) THE two appellants: (i) Laxman Dashrath Garad, aged 30 years, and (ii) his younger brother Mohan Dashrath Garad, aged 25 years, have been convicted by the Sessions Judge of Osmanabad for having killed their father, Dashrath Bali Garad, on the night of November 28, 1968 at village Jagaji by giving axe blows. Appellant Laxman has been sentenced to suffer the extreme penalty under the law i.e. death by hanging, and appellant Mohan has been sentenced to imprisonment for life for the same offence. The learned Sessions Judge has referred the sentence of death for confirmation, and the reference is registered as Confirmation Case No. 13 of 1969. Both the accused have also been convicted under Section 201, Indian Penal Code for having disposed of the dead body with a view to screen the offence of murder; but no separate sentence has been passed for this offence. Laxman's appeal is numbered as Criminal Appeal No. 1012 of 1969 and Mohan's appeal is Criminal Appeal No. 1048 of 1969.

(2.) BRIEFLY the prosecution case is that there was a dispute between the two appellants on the one hand and the deceased Dashrath and his another son Shankar on the other for sharing of produce of crop from certain land which was being exclusively cultivated by the deceased and Shankar. The accused had a grievance that they had not received any share in the sale proceeds of disposal of some other properties and, therefore, they claimed right of share in the produce of the land cultivated by Dashrath and Shankar. A threat is alleged to have been given by the accused to the deceased because of his refusal to allow them a share in that produce. The deceased was occupying a hut in the land belonging to one Namdeo, and one Maruti Mang was also occupying another hut in the same land. The deceased Dashrath was engaged in poultry farming which was conducted by Namdeo Deshmukh, while Maruti Mang was an agricultural labourer also engaged by the same Namdeo. It was Thursday night when Dashrath was sleeping in his hut and Maruti Mang was also sleeping in his hut. Maruti suddenly heard cries of Dashrath. Then he came out and noticed that the two accused were dealing blows with axes to the deceased Dashrath. There was a lantern burning in the hut and Maruti had seen the act in the light of that lantern. Then Dashrath fell on the ground and died. The accused are then alleged to have wrapped his body in a gunny cloth. They tied the gunny cloth with a rope, Maruti was asked to hold a torch and walk ahead. Then Maruti was also forced to carry a pickaxe. All the three then went in the direction towards the boundary of village Ami. The dead body was thus carried by the two accused on their shoulders. Then the two accused dug a pit about two feet deep and buried the dead body wrapped in the piece of gunny cloth. Then they spread earth over it and all of them returned to the hut near the land. Then the two accused scraped the blood -stained earth from the floor and threw it into the well. Thereafter the clothes of the deceased, which were blood stained, were collected and they were thrown in the well. Then the two accused asked Maruti to accompany them towards the village, though he was not willing; he was compelled to accompany them under a threat. Then they went to a place called Barle land where one Sitaram Kakde, who has been examined as a witness, was sleeping in his hut. The accused then woke Sitaram and told him that they had killed Dashrath, and there being nobody to look after the hens and she -buffaloes on the Morvandi land Sitaram was asked to keep a watch there. Then Maruti was told by accused Mohan to go to the land of Namdeo and keep a watch over the crop and then to go to his house and not to disclose what he had seen to anybody. Maruti, however, went straight to Ms master Namdeo Deshmukh, woke him up and told him about the entire occurrence. Then Namdeo and witness Maruti went to Police Patil Venkat and narrated to him the entire incident. The Police Patil prepared a report as per exh. 8 and that was taken to the police station at Dhoki. Meanwhile the Police Patil had asked Pralhad Kotwal to find out and detain the two accused. S.I. Vasant Korde was in the police station when the Police Patil presented his report, on which offences under Sections 302 and 201 read with Section 34 were registered. The P.B.I. immediately went to Jagaji and sent for panchas. He attached the clothes from the person of the two accused, who were already detained by the Kotwal. The clothes were alleged to be blood stained. Then the accused were arrested and later alleged to have made several statements which led to the discovery of the weapons and also the discovery of the place where the dead body was alleged to have been buried. The dead body was sent for postmortem examination by Dr. Kalyankar, who found as many as 11 injuries on the person of the deceased Dasbrath; all these injuries were incised wounds. Out of these injuries, injuries Nos. 5, 6 and 7 were dangerous to life and according to the Doctor, the victim must have died instantaneously due to these injuries and of profuse inside haemorrhage. After completing the investigation, both the accused were charge -sheeted before the committing Magistrate on February 3, 1969. The learned Magistrate recorded the statements of the accused about having' received copies of documents on February 13, 1969 and adjourned the case for recording evidence, which was actually recorded on March 18, 1969. Witness Maruti was examined in the committal Court. This witness, who is an eye -witness and the principal plank of the prosecution case, was not cross -examined at all on behalf of either of the accused, because the accused were not represented by counsel in that Court. On the same day the committing Magistrate recorded the statements of the accused, and both the accused stated, in answer to a specific question by the Magistrate as to whether they are going to engage their own pleader in the Sessions Court, in the affirmative.

(3.) ON June 16, 1969 both the accused sent a communication to the learned Sessions Judge, Osmanabad, through the Osmanabad District Prison where they appear to have been detained, intimating that they had received Communication No. 3316 dated June 13, 1969 from the Sessions Judge intimating the two accused that their trial under Sections 302 and 201, Indian Penal Code was fixed for hearing before the Court on June 18, 1969, and further requesting the accused to inform the Sessions Court whether they have engaged any pleader and to inform that fact before June 15, 1969. It is in reply to this communication that the two accused intimated the Sessions Judge by their communication, which is .to be found on Record at page 9 of File IV of the Sessions Court record, that they were unable to bear the expenses of engaging - a lawyer because their financial condition was very poor and their annual income is not more than Us. 300 to Us. 400. They, therefore, requested that a counsel be appointed for them at the State expense. This communication was received by the Clerk of the Court on the next day, perhaps on June 17, 1969; but it does not seem to have been brought to the notice of the Sessions Judge on that date.