ANNA GANPATI VIREKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) SINCE both these appeals arise out of same set of facts and a common impugned Judgment. We are disposing them off by one Judgment.

(2.) THROUGH these appeals, the appellants challenge the Judgment and Order dated 7-1-1994 passed by the Sessions Judge, Sangli, in Sessions Case no. 34 of 1988, convicting and sentencing them in the manner stated hereinafter :- (i) Under section 147 IPC to suffer one years R. I. and to pay a fine of rs. 500/- in default to undergo three months R. I. (ii) Under section 148 IPC to suffer one years R. I. and to pay a fine of rs. 500/- in default to undergo three months R. I. (iii) Under section 457 IPC to suffer one years R. I. and to pay a fine of rs. 1000/- in default to undergo three months R. I. In addition: (i) the appellants -Anna Ganapati Virekar and Bandu Aba Virekar under section 326 IPC to suffer six years R. I. and to pay a fine of Rs. 5000/-in default to suffer six months R. I. (ii) the appellants-Anna Ganapati Virekar and Tanaji Ganapati Virekar under section 326 r/w 149 IPC to suffer five years R. I. and to pay a fine of Rs. 2000/- in default to undergo six months R. I. ;and (iii) the appellant-Bandu Aba Virekar under section 302 IPC to suffer imprisonment for life. The substantive sentences of the appellants were ordered to run concurrently. In short, the prosecution case runs as under :-At the time of the incident, the informant Gunvant Barge PW 4, his brother the deceased Jalindhar and their father Maruti used to reside along with family mem-bers in village Kedarwadi, District Sangli, within the limits of Kasegaon police station. Initially, they were living together but, eight to nine months before the incident, jalandhar had constructed a new house wherein he was living with his wife Sarojini pw 5, his two sons and Maruti. At the time of the incident, the informant Gunvant barge along with his mother Sushila PW 6, his brother Shrirang and other family members was living in the old house which was situated at a distance of 8 to 10 feet from the new house. The electric meter which was in the name of Shrirang had been fixed in the old house and from it, a connection was taken in the new house. Between the two houses, there was a open space in whcih there was a electric pole. According to the prosecution, land get no. 1197 Hissa no. 2 originally belonged to Narayan Dattraya Pandharpure-Joshi and Nagesh Shripad Joshi. They leased it out to Bapu chougule who was a tenant in it. The deceased Jalindhar had filed a civil suit against Bapu Chougule in the year 1972 and during the pendency of the suit, Bapu Chougule had sold Gat no. 1197/2 to Virekar family to which family the three appellants belonged. The suit was decided in favour of Jalindhar and the appeals preferred by Bapu Chougule were rejected both in the District Court and the High Court. Thereafter, Jalindhar received possession of the land on 1-7-1987. Thereafter, he decided to cultivate it. In the meantime, co-accused Bapu Virekar (who died prior to the commencement of the trial) obtained a stay order from this court but,the same was vacated at the instance of Jalindhar. Thereafter, Jalindhar decided to cultivate the land with the help of police. He obtained its help on 19-12-1987 when he went to Gat no. 1197/2, on the said date the appellants and co-accused Shivaji, kisan and /baburao objected. The police took both the parties to the police station and granted Baburao Virekar four days time to bring a stay order. In the meantime, on the night of 19th/20th December, 1987, this unfortunate incident took place. On the said night, Jalindhar along with his wife Sarojini P. W 5, his two sons and his father Maruti was sleeping in the new house and the informant gunvant, his brother Shrirang his mother Sushila PW 6 and some others were sleeping in the old house. At about 1 a. m. tol. 30 a. m. Sarojini heard someone calling her husband. Consequently, she went to the kitchen and switched on the light. She woke Jalindhar who lighted a cigar. Thereafter, she and Jalindhar found that some persons were knocking the door and hammering the window. In the meantime. Maruti also got up. Thereafter, the said perons removed the door frame of the northern side opening in the Wall. She raised cries 'save save'. After the door frame had been removed, co-accused Baburao with a spear in his hand, with his head covered with a black quilt came and inflicted a spear blow on the chest of Maruti resulting in his falling down. Someone pelted a stone which hit Jalindhar and removed an axe which was in his hand. At that juncture, she raised a loud cry. She took Jalindhar near the coach. When Jalindhar was sitting there, co-accused Shivaji, co-accused Kisan and the appellant -Bandu entered the house. Bandu and Shivaji were armed with axe and kisan was having a sword. Shivaji inflicted an axe blow over the right ear of Jalindhar and thereafter, Bandu, Shivaji and Kisan started inflicting blows with weapons which were in their hands on Jalindhar. In order to prevent furthe erassault on jalindhar, Sarojini fell on his body; asked the accused persons not to assault Jalindhar; and told them that she would hand over the papers. At this juncture sons of Jalindhar were also crying 'do not beat papa, do not beat papa'. Thereafter co-accused baburao and the appellants Anna and Tanaji came inside. Thereafter, the appellant-Bandu and Shivaji inflicted axe blows on /the head and back of Sarojini. The appellant-Anna inflicted a sword blow on her fingers resulting in two fingers being cut. She also received sword blows on her right hand. At that time, Shivaji picked up a bag which was on the cupboard. While they were about to leave, one of the accused persons broke the bulb and co-accused Baburao inflicted a spear blow on Maruti. 2 A. In the meantime, the informant Gunvant Barge PW 4 and Sushila PW 6 came. Sushila saw the appellants Anna and Tanaji and co-accused Baburao near jalindhar's door. The appellant-Tanaji inflicted an axe blow on her fore-head and baburao a spear blow on her thigh. The said blows were given to her when she was just near the entrance of Jalindhar's house. The said persons told Sushila and others that if they tried to enter the premises, they would be dealt in the same manner as Maruti and Jalindhar. Thereafter, the evidence of Sushila PW 6 is that the appellants Anna and Tajaji and Baburao entered inside the house of Jalindhar. The evidence of the informant Gunvant Barge PW 4 is that on hearing the cries of the sons of Jalindhar, he along with his mother Sushila tried to enter the house. The appellant -Tanaji assaulted Sushila with an axe on her head and Baburao gave a spear blow on her thigh. Thereafter, her mother fell down. He tried to enter the house but, the accused persons threatened to kill him. Thereafter, Baburao and the appellants- Tanaji and Anna entered inside the house. He went near the door which was open and saw shivaji and the appellant Bandu with axes and Kisan with a sword inside the house and also saw the said persons assaulting Jalindhar and saw that when Sarojini intervened, the appellant-Anna inflicted a sword blow on her hands. Shivaji gave axe blow on her head and the appellant-Bandu gave axe blows on her leg. The evidence is that after fatally assaulting Jalindhar and Maruti and injuring sarojini and Sushila, the accused persons ran away. According to the prosecution, the incident was seen by the said three eye-witnesses in electric light.

(3.) THE evidence of Gunvant Barge PW 4 shows that after the appellants and others had run away, Sarojini told him about the incident. He thereafter, went to kasegaon police station to lodge his FIR. He narrated the incident to PSI Ganpat jadhav PW 11 and told him that his mother and Jalindhar's wife were in a precarious condition. Consequently, PSI Jadhav immediately went to village Kedarwadi and took Sushila and Sarojini to the police station. At Kasegaon police station, PSI Ganpat Jadhav PW 11 recorded the FIR of gunvant Barge at 5a. m. and registered on its basis C. R. No. 107 of 1987. He thereafter, sent Sushila and Sarojini for medical examination with yadis to primary Health centre, Kasegaon.