DESHMUKH, J. - (1.) THIS is an appeal by original accused Nos. 1 and 2 who are convicted under Section 302 read with Section 34 of the Indian Penal Code.
(2.) ORIGINALLY 5 accused were prosecuted and the charges were under Sections 148, 302 read with Section 149 and alternatively under Section 302 read with Section 34 of the Indian Penal Code were also framed against them.
(3.) THE prosecution alleged that there was a long standing dispute between the deceased Khandu and accused No. 1 Nana and the members of his family. This dispute related to the ownership and user of survey Nos. 1369/1 and 1369/2. Admittedly, survey No. 1369/1 is a pasture land and is known as lenddara. Survey No. 1369/2 is a cultivable land and it is known as "Pandiche Waver". The deceased Khandu has two brothers Tukaram and Pandu. The accused No. 1 Nana Gangaram Dhore along with one Gopal Takalkar purchased both these lands from Pandurang alone some time in 1948. He claims to be in exclusive possession of these lands as a result of the sale -deed. The exclusive possession as well as title of accused No. 1 Nana was being challenged. Khandu alleged that this was a transaction of a conditional sale -deed which was in fact a mortgage. So far as the lenddara the pasture land is concerned, it was alleged that Pandu had no right to sell it alone and it still continued to be a family land in joint possession of Khandu and his brothers. This dispute took various shapes and forms. There was first an enquiry before the Revenue Officer for purposes of making entries in the record of rights as there was obstruction to the exclusive possession and user of Khandu. There were proceedings under Section 447, Indian Penal Code. Chapter proceedings also took place. However, it appears that there was no incident of assault by and between the parties. In 1961 the accused No. 1 Nana filed a civil suit for injunction against Khandu, and perhaps his brothers, for restraining them from obstructing accused No. 1's possession and user of both the lands. Though accused No. 1 has denied it, evidence clearly showed that the said suit succeeded only in respect of survey No. 1369/2 i.e., the cultivable land, but no injunction was granted in respect of the pasture land.;