GENBA SHANKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant No. 1, and the appellant Nos. 2 and 3 who are the sons of appellant No. 1, were tried by the learned Sessions Judge, Pune, for the offences under section 342 read with section 34 of the Indian Penal Code and section 302 read with section 34 of the Indian Penal Code. By his judgment and order dated April 29, 1978, the learned Judge found the accused guilty of the aforesaid offences and sentenced each one of them to suffer rigorous imprisonment for six months for the offence under section 342 read with section 34 of the Indian Penal Code and to suffer rigorous imprisonment for life for the offence under section 302 read with section 34 of the Indian Penal Code.

(2.) The three appellants, who are hereinafter referred to as the accused, have challenged their convictions in this appeal. The facts leading to the prosecution case against the accused may be stated thus :---

(3.) The victim of the incident is Sambhaji, who was the son of accused No. 1 Genba Shankar Satav and the brother of accused Nos. 2 and 3. It appears that there were disputes between the deceased on one hand and the accused on the other with regard to the partition of the joint family properties. In the result, the deceased stated residing separately in a hut at a distance from the family house where the three accused continued to reside. The locality where the deceased and the accused stayed is known as Satav Vasti at Baramati. The distance between Satav Vasti and Baramati is hardly 2/3 miles. It appears that the deceased was given 1 acres of land and also a separate residence in a shed, while the accused and the members of their family jointly cultivated the rest of the joint family land and also resided in the joint family house. The relations between the deceased and the accused were strained, may be, because he was demanding some more land than the one allotted in the partition or wanted a fresh partition, Babi (P.W. 5) is the wife of the deceased; while Dhansingh (P.W. 6) is his son. Babis brother, Kashinath (P.W. 9) is a resident of Khandaji, a few miles away from Satav Vasti. It is a common ground that the deceased was addicted to liquor. On May 9, 1977, which was the date of the incident, the deceased had gone to Dhavan Vasti at Baramati to attend the wedding of the mothers sister of his wife. His son, Dhansing, has also attended the wedding. However, his wife, Babi, for reasons which are not on record, did not accompany her husband to the wedding of her own mothers sister. The marriage was at 2.30 p.m. The deceased, however, returned to his Vasti at about 3 p.m. Without taking meals at the place of the marriage. On his return from Dhaven Vasti it was noticed that he had come in a drunken state. On his return he slept at his house for about an hour and then started quarrelling with his wife who was then working in the land and hurled a stone at her head causing her bleeding injury. Her mother-in-law, Jijabai, also come there hearing her shouts. The deceased hurled a stone at her also which hit her on her head. It is alleged that thereafter all the three accused came there and chased the deceased. They caught him on the road and took him towards the babhul trees on the other side of the road and after tying both his hands and feet by a rope, both his hands and feet were then tied to two babhul trees. Accused Nos. 1 and 2 then started assaulting him with sticks, while accused No. 3 assaulted him with a cycle chain for quite some till he became unconscious. The evidence with regard to both the incidents as well as the time when the deceased as well as the two injured were taken to the hospital at Baramati is not quite clear. However, the prosecution evidence itself shows that Jijabai was examined by Dr. Naigaonkar at the hospital at Baramati at 4.30 p.m., while Babi was examined at 5.15 p.m. It also appears from the prosecution evidence itself that the deceased was admitted to the hospital at 7 p.m. after he was brought in a taxi. Within a short time of his admission to the hospital, however, the deceased succumbed to his injuries. Head Constable, Sukhdare who happened to be present in the hospital for investigation in some other case noticed that the deceased was brought in one car at about 7 p.m. by his cousin with his hands and feet tied. He found that he was unconscious and also has some injuries on his person. The person who brought him told the Head Constable that he was drunk and he had to be examined. Then he was freed from the ropes and later on was examined by the doctor as mentioned above. Head Constable, Sukhdare, then informed the Police Station on telephone about the death of the injured. On receipt of the phone message P.S.I. Khatavkar (P.W. 13) went to the hospital and made enquiries with Babi and the brother of the deceased. Having been convinced that he died as a result of beatings, he came back to the Police Station, prepared his own complaint (Exh. 36), registered an offence under section 302 read with section 34 of the Indian Penal Code at 9 p.m. and took up the investigation. Accused No. 2, Vithal, who was present in the hospital was arrested on the same night. The other two accused were also arrested on the same night at Satav Vasti by P.S.I. Khatavakar. The statements of some witnesses including Babi were recorded on that night; while the statements of the other two eye-witnesses, Dhansing and Kashinath, were recorded on 11th and 12th respectively. During the course of the investigation on 11th of May, 1977 one blood stained stick (Article No. 8) as recovered from the house of the accused at the instance of accused No. 1 and a cycle chain (Article No. 9) which was lying near the Babhul trees was also recorded. According to the prosecution, the cycle chain was recovered at the instance of accused No. 3.