Decided on February 03,2016

Jivya Dharma Chothe And Ors. Appellant


- (1.) The appellants, who are original accused Nos 1 and 2 in Sessions Case No.923 of 1996, stand convicted for the offence punishable under Section 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/ each in default to suffer rigorous imprisonment for six months, by judgment and order dated 5.9.2008 of Additional Sessions Judge, Palghar. By the impugned judgment, they are also convicted for the offence punishable under Section 324 read with 34 of the Indian Penal Code. However, no separate sentence is passed for the said offence. 2. Being aggrieved by the said judgment and order, the appellants have preferred this appeal challenging their conviction and sentence. A separate Writ Petition No.628 of 2010 is preferred by them seeking relief of set off under Section 428 of the Code of Criminal Procedure, which is not granted by the trial Court, on the ground that punishment imposed on them is of life imprisonment.
(2.) Brief Facts Of The Appeal And Writ petition can be stated as follows : P.W.1 Kakad was resident of Jambhachya Pada. His brothers P.W.3 Lakhma, Dhanaji and Mahadu, since deceased, were residing separately, in the same locality. His sister Tulsabai was married to P.W.8 Dharma, who was also residing nearby. It is alleged that two months prior to the date of incident, wife of Dharma's brother Navsha, died due to illness. But Navsha believed that she was killed due to black magic practised by Tulsabai, the sister of P.W.1 Kakad. On account of that, there was dispute between P.W.8 Dharma and his brother Navsha. To avoid further dispute, Dharma and his wife shifted to village Jambhyacha pada. P. W. 1 Kakad and his brothers allowed Dharma to construct his house adjacent to their house.
(3.) The Incident Giving Rise To This Case Took Place On 13.2.1996. On that day at about 6.00 p.m. P.W.1 Kakad heard shouts of his brother Mahadu to save him as he was being assaulted. P.W.1 Kakad, therefore, rushed to the spot. On the way, he met P.W.8 Dharma, who had several injuries on his hand. On enquiry with Dharma, he informed P. W.1Kakad that he was assaulted with iron bar by appellant Nos. 1 and 2. When P.W.1 Kakad reached to the spot which was near to his house, in Shetpada, he found that appellant Nos. 1 and 2 were inflicting blows of iron bars on the head, neck and legs of his brothers Mahadu and Dhanaji. Mahadu had become unconscious due to the assault. Dhanaji also due to assault became unconscious. When P.W.1 Kakad tried to intervene in the incident, he was also assaulted and hence sustained injury on his leg. P.W.2 Lakhma also rushed to the spot hearing shouts and commotion. He rescued P.W.1 Kakad from the clutches of the appellants. P.W.4 Tulshi who had also rushed there, intervened in the scuffle and snatched away iron bar from the hands of appellant No.1. Both the appellants ran away from the spot of incident. Dhanaji died on the spot whereas Mahadu died on the next day in the morning.;

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