SURENDRA MAROTRAO YENURKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants are charged for having committed an offence under sections 302 and 323 read with section 34 of the Indian Penal Code. The Additional Sessions Judge, Bhandara, vide judgment and order dated 6-8-1997 in Sessions Trial No. 39/96, convicted both the accused appellants herein under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer life imprisonment and to pay a fine of Rs. 500/- each in default R. I. for 9 months. Both the accused (appellants herein) are also convicted under section 323 read with 34 of the Indian Penal Code and sentenced to suffer R. I. for 3 months and to pay a fine of Rs. 200/ in default to suffer R. I. for one month. The appellants, by this appeal, are challenging the said judgment and order passed by the trial Court. The said appeal was admitted on 30-9-1997. During the pendency of the appeal, one of the appellant viz. Surendra Marotrao Yenurkar has filed an application for release on parole through Jail, which was converted into Criminal Writ Petition No. 242/02. The said criminal writ petition was circulated for admission and appeared on the Board for admission. It was pointed out that the criminal appeal filed by the said Surendra Yenurkar was already on the Board and, therefore, the learned Advocate appearing on behalf of the appellant requested that the criminal writ petition may also be heard alongwith the main appeal.

(2.) FACTS: the appellants herein, the deceased and his family members are close relatives. There were several civil and criminal cases pending between the two families in various courts. Marotrao, Devaji and Mangru were real brothers. Marotrao died in the year 1980 and the appellants Surendra and Mahendra are his sons. Devaji was their uncle who had 4 sons and 2 daughters viz. Jaywanta, Umakant, Dilip, Navin Nischal, Hemlata and Mina. In the present case, Devaji died and it is the case of the prosecution that the appellants herein Surendra and Mahendra were responsible for committing the murder of said Devaji. There was a dispute between Devaji and his wife Subhadra who had filed various cases against her husband including a petition for maintenance which was decreed. There was admittedly a dispute between the appellants and their cousin and uncle and they were on inimical terms with each other. It is the case of the prosecution that on 11-12-1995 at about 7. 00 a. m. , Dilip was going on to the Pan Shop to eat gutka. When he was in the courtyard and after he had crossed a short distance from his house, it is the case of the prosecution that, Mahendra came out of his house with a stick in his hand and accused Surendra caught him and fell him down on the ground and thereafter Mahendra gave stick blows to the deceased. This incident was witnessed by Mina the sister of Dilip who raised hue and cry and as a result Devaji came to rescue Dilip. At that time accused Surendra took out a big stick called as Ubhari from the bullock cart which was parked near the house and both the accused assaulted Devaji who was 65 years old and as a result of the assault he fell down and he died on the spot. It is alleged that another son of Devaji viz. Navin Nischal also witnessed the said incident from his house. A complaint was lodged by Mina who alleged in the complaint that she had also received injuries. She was sent to the Hospital for examination and Investigating Officer prepared the spot panchanama and recorded the statement of all the witnesses and registered an offence under Crime No. 428/95 and further investigation was carried by Subhash Panse the Police Inspector, Bhandara. Finally, the charge-sheet was filed. The trial Court framed charge under sections 302 and 323 read with section 34 of the Indian Penal Code. The accused pleaded not guilty to the said charge. The trial Court, on the basis of the evidence of the eye-witness and other evidence adduced by the prosecution, convicted both the accused under sections 302 and 323 read with section 34 of the Indian Penal Code and sentenced them to suffer R. I. for life.

(3.) WE have heard the learned Counsel for the appellants and learned A. P. P. appearing on behalf of the State. The learned Counsel for the appellant has taken us through the depositions of various witnesses and also the other evidence adduced by the prosecution so also the judgment and order of the trial Court. The learned Counsel appearing on behalf of the appellants/accused submitted that the accused had raised the defence of private defence and had filed a written statement in the trial Court. In the statement under section 313 of Cri. P. C. the appellants had also stated that Dilip and deceased Devaji both had attacked the appellant Surendra with a knife and stick and that Surendra had received injuries on his person as a result of the said attack and that he had, in private defence, taken out a big stick (Ubhari) from the bullock cart and when he was moving the stick in the air in self defence, the said stick accidently hit Devaji as a result of which he died. He, therefore, submitted that so far as Mahendra appellant No. 2 is concerned, his name has been falsely implicated and that he was never at the scene of offence at any time. He submitted that the cross case was lodged against Dilip for having assaulted Surendra which was pending in the trial Court and charge-sheet was filed against Dilip. He submitted that, in the event, this Court came to the conclusion that Surendra-appellant No. 1 had exceeded in his right of private defence, his case at the most would fall under section 304-I or II of the Indian Penal Code.