- (1.) Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Aurangabad Bench upholding the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC ) and sentence of imprisonment for life and a fine of Rs. 500/- with default stipulation. He was also convicted for offence punishable under Section 324 IPC and sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs. 250/- with default stipulation. He was also convicted for offence punishable under Section 342 IPC and sentenced to undergo RI for three months and fine of Rs. 100/- with default stipulation. Additionally, he was charged for offence punishable under Section 454 IPC and he was separately sentenced to suffer RI for a period of one year and to pay a fine of Rs. 250/- with default stipulation. Two others co-accused persons were acquitted by the trial Court of all charges. Both the appellant and the State filed appeals. The State s appeal was directed against the acquittal of accused Nos. 2 and 3 and the same was dismissed at the admission stage.
(2.) Background facts giving rise to the trial as projected by the prosecution are as follows: Appellant and the deceased Sampatrao Gopal Khandekar were real brothers. They had two other brothers by name Haribhau and Indakar. The deceased Sampatrao was an educated person and was a professor at Balbhim College in Beed. He was also managing an educational trust by name "Bade Baba Shikshan Sanstha" at village Lahuri, Taluka Kaij, in district Beed. Deceased and his brothers were separate in residence and there was a partition effected between the brothers. Deceased Sampatrao was in possession of his share of the ancestral lands and also had some self acquired land at village Kolhewadi. As regards the educational trust mentioned herein above, deceased Sampatrao was a founder member and the Secretary. The family of Sampatrao was residing at Beed since Sampatrao was serving as a professor in the town. Sampatrao used to get his lands, in village Kolhewadi, cultivated with the help of labourers. His two brothers i.e. the present appellant and Indakar (A-3) who were residents of village Kolhewadi, had a dispute with the deceased Sampatrao as the partition and its terms were not acceptable to them. Sampatrao and wife Mangalabai had filed Regular Suit No. 285 of 1996 in the Court of the Civil Judge, Junior Division at Kaij for a declaration of title and injunction in respect of five lands which were the suit property in that suit. The suit was filed against two brothers i.e. the present appellant and A-3 Indakar as well as some other members of their family. In the suit, the deceased and his wife filed an application for grant of interim injunction, on 31st October 1996, and the interim injunction application was allowed by the Civil udge, Junior Division, Kaij 4th November, 1996. Even after the grant of injunction, the disputes remained, because the cotton crops were allegedly stolen by accused No. 1 Arun, acquitted accused No. 3 Indakar and their family members and in this regard a police complaint was filed by PW-13 Mangalabai, wife of deceased against the present appellant and A-3 and their family members. She had prayed for strict police action against the persons named in the complaint. All these facts indicate that the relations between family of deceased Sampatrao and the families of his two real brothers were strained and inimical. The incident in question took place on 22nd November 1996. Prior to incident, PW-11 Bhairu Anna Khose had been engaged by deceased Sampatrao to work in his fields for period of three months in lieu of payment of Rs. 5,000/--. PW-11 Bhairu Khose had executed a Naukarnama to this effect. He had agreed to work on the field of Sampatrao on 21st December, 1996 and Sampatrao had asked him to meet him at village Neknoor. Accordingly, they had met at Neknoor and from there had gone to village Kolhewadi. On 22nd December, 1996, in the morning, deceased Sampatrao took PW-11 Bhairu to his field. Adjoining to the field of deceased Sampatrao, was the field of accused No. 2. This field had an electric motor and a pipeline fitted therein. At the spot, there was some discussion between deceased Sampatrao and accused No. 2 pertaining to the supply of water to his field and to the field of accused No. 1. Accused No. 3 Indakar was also present at the spot, at that time. After this incident, the deceased Sampatrao and PW-11 Bhairu came walking through the fields to Shri Bade Baba Vidyalaya Mandir i.e. the school situated at village Lahuri. They reached the Lahuri school at about 11.45 a.m. got the office room opened through a Peon and were sitting in the office. At that time, accused Nos. 1 and 3 came running towards the school. A-1 Arun, who was also working as a peon in the said school, latched the door of the office room from outside and from the window he told PW-11 Bhairu that if he wanted to save himself, he should come out. Sampatrao told his brother Arun that Bhairu was his servant and that he would not leave. Sampatrao then locked the door of the office from inside, shutting out accused No. 1 Arun. Accused No. 1 Arun then climbed on to the roof of the office, which was a tin shed. He bent a sheet of tin on the roof of the said office and from the opening so created, he jumped into the office room. After jumping into the office room he took out chilly powder from his right pocket and threw it into the eyes of deceased Sampatrao. He then picked up an iron hammer and with this iron hammer as well as a brick which had been stored in the room along with other bricks kept for construction purposes, he hit the deceased Sampatrao pressed his neck and inflicted eight blows on the head of the deceased. PW- 11 Bhairu was requesting accused No. 1 Arun not to beat Sampatrao. At that time, accused No. 2 informed Bhairu from the window that he should not interfere in the quarrel between the brothers. Accused No. 2 caught hold of the hands of PW-11 Bhairu near the window. Accused No. 1 was also carrying a wire on his waist and he used this wire also to beat Sampatrao. Accused No. 1 threw a brick which struck the forehead of Bhairu and also beat Bhairu with the wire. Bhairu fell down and pretended to be dead. Accused No. 1 Arun, however, asked Bhairu to shift the table to the place in the room where the tin sheet of the roof had been bent. He made Bhairu keep a chair on the table and both, he and Bhairu got out of that room through the damaged tin roof. The accused Nos. 1 to 3, thereafter, left the place and went together to the side of Lahuri village. There were some other persons who went behind them. This entire incident was over by about 1.00 p.m. PW-11 Bhairu then went in a jeep to Police Station, Kaij. He narrated the entire incident to the police and the police recorded his FIR on the same day. Sudarshan Mundhe, API (PW-17) who was then attached to the Kaij Police Station, registered the crime under CR. No. 257 of 1996, for offences punishable under Sections 302, 342 read with Section 34 IPC. He found that the clothes of the complainant were blood stained. He first seized the clothes of the complainant under Panchnama (Exhibit-31). Since the complainant was injured the investigating officer referred him for medical treatment to the Government Hospital at Kaij. PW-17 API Sudarshan then summoned a photographer and together with the photographer, he went to the spot of the incident. He found the room of the office to be locked. The police managed to open the lock of the office but even after opening the lock and unlatching the door they found that they could not enter the office because it was latched from inside. One police constable was then made to climb to the roof and he entered the office from the opening in the roof and unlatched the office door from inside. The photographer then entered and took several photographs of the dead body of deceased and all the other articles found inside the room. It was found that a chair had been kept on a table under the spot and the tin roof had been bent and the photograph of this was also taken. After photographing the room, the investigating officer prepared the panchnama and seized several articles which were found in the room. On the same day, the investigating officer arrested accused No. 1 Arun and seized his bloodstained clothes under Panchnama. The arrest cum- seizure panchnama was produced at the trial and marked Exhibit-32. The investigating officer referred accused No. 1 Arun for medical examination as he found some injuries on his person. The investigating officer then collected the medical certificates of the complainant and the present appellant. As per the medical certificates, the injuries that were found on the person of the complainant, (PW-11) Bhairu and A-1 were simple injuries caused by a hard and blunt substance. After completion of investigation, charge sheet was filed. As the accused persons pleaded innocence trial was held and 19 witnesses were examined to further the prosecution version. PWs 8 and 11 were stated to be eye witnesses to the occurrence. They were two students who were staying in the hostel of the school. The trial Court found the evidence to be cogent, credible and recorded the conviction so far as the present appellant is concerned. In appeal, it was stated that the appellant had gone unarmed and alone to the school to persuade the deceased to put an end to the dispute between them. When the appellant made his request to the deceased, he abused him in filthy language and made obscene suggestion. He also started pushing the appellant outside the room. When he saw that the appellant was not going out of the room, the deceased picked up a hammer which was lying in the room and gave blows on the head of the appellant who tried to save himself. The deceased gave two more blows on the head and when the appellant apprehended that he was likely to be killed he gave some more blows. Appellant tried to save himself and when he was trying to save himself and when he was in a fit of uncontrollable anger, in that process the deceased and the appellant might have been injured. It is also stated that the stand regarding throwing of chilly powder was false and the chilly powder was subsequently planted at the scene of the offence. The State s stand was that in view of accepted position regarding the presence of the accused and the role described by PWs 8, 10 and 11 there is no scope for interference with the well reasoned judgment of the trial Court. The High Court accepted the stand and dismissed the appeal.
(3.) In support of the appeal, learned Counsel for the appellant submitted that there was an earlier FIR which was suppressed and after deliberation report was lodged which was treated as a FIR. It was the deceased who was the aggressor and the appellant was exercising his right of private defence. According to him, the deceased gave four blows on his head and, therefore, the judgment of the High Court is clearly unsustainable.;