Decided on December 15,2017

Dattu Rama Theurkar Appellant


Bharati H. Dangre, J. - (1.) Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge of Baramati in Sessions Case No.23 of 1993 (State of Maharashtra vs. Dattu Rama Theurkar & Ors.), dated 30th December, 1999, the two Appellants i.e. original accused No. 1 and 2, have preferred the present Appeal challenging their conviction under section 302, read with section 34 of the Indian Penal Code ("I.P.C". for short). The learned Additional Sessions Judge, Baramati, District Pune, convicted the present Appellants for the offences punishable under Sections 302 read with Section 34 of the IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs.500/-, each, in default, to suffer rigorous imprisonment (R.I.) for two months. The learned Additional Sessions Judge has also convicted the above Appellants for the offences punishable under section 323 read with Section 34 of the IPC and sentenced them to suffer R.I. for two months and to pay fine of Rs.200/-, each in default, to suffer R.I. for one month. The substantive sentences of accused / appellants were directed to be run concurrently. By the said judgment, the accused no.3- Kamal Dattu Theurkar came to be acquitted since no clinching evidence to rope the said accused was brought on record by the prosecution.
(2.) The prosecution case needs a narration in nutshell:
(3.) For the sake of convenience, the appellants hereinafter, would be referred to as accused No.1 and accused No.2. Deceased Bhimrao Dnyandeo Shitole was the husband of Savita Shitole (PW 2) who were residing with their children by the side of house of the accused persons. The accused persons were cultivating the field of Shri Punekar which is situated behind the house of Savita Shitole (PW 2), on crop share basis. Prior to the incident there was some quarrel among the accused persons, Bhimrao and PW 2 Savita on account of canal water. PW No.2 Savita had erected thorny fencing behind her house so as to prevent the entry of hens in the land of Shri Punekar. Accused No.1 Dattu removed the fencing when PW 2 Savita enquired as to why he removed the fencing. On this accused No.1 was annoyed. It was on 8th December, 1992. At that time deceased was not present at home. He had gone to the field for plucking flowers. Accused No.1 Dattu was sowing in the field of Shri Punekar. He went near the house of PW 2 Savita and started beating her. Accused No.2 and 3 also joined accused No.1. All of them started beating PW 2 Savita by fist and kick blows. In the meantime, Bhimrao came there. Accused No. 1 and 2 started assaulting Bhimrao by means of sticks and axe on his head. PW 1 Ramchandra witnessed the quarrel between accused and Bhimrao. He went to rescue Bhimrao. At that time, accused no.1 Dattu gave blow of stick on the head of Ramchandra and accused No.2 gave blow of axe on the head of PW 1 Ramchandra. Ramchandra sustained bleeding injuries. He fell down. PW 3 Vimal Mali, PW 4 Balasaheb Shitole and PW 6 Vilas Shitole came to help of deceased Bhimrao. PW 4 Balasaheb and PW 1 Ramchandra took Bhimrao to Yavat.;

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