IMPORTANT POINT
A witness who witnesses an attack on another by three armed persons is not supposed to go on counting number of assaults on the parts of the body where the injuries were inflicted.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court directing acquittal of the respondents who were convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced to suffer capital punishment so far as respondents 1 and 2, namely, Prakash and Ramu are concerned. Accused No.3-Shiva was convicted for the aforesaid offence but was sentenced to suffer imprisonment for life. All the three accused persons were also convicted for offence punishable under Section 506 read with Section 34 IPC. No separate sentence was imposed.

2. Prosecution version as unfolded during trial is as follows:

Jaitubai is the sister of respondent Nos.1 and 2 and niece of respondent No.3. Jaitubai was married to Madhukar (hereinafter referred to as the deceased) long back. Jaitubai had a son Alpesh (PW6) and daughter Hema (PW5). Alpesh and Hema are major. All of them are residents of Rayagaon (Patilfali), Taluka Nawapur, District Nandurbar.

Deceased Madhukar brought Ramabai, a married woman and kept her in his house. On 15.7.2001, first husband of Ramabai, alongwith 15 to 20 persons came to Madhukar. There is a custom prevailing in their community, which is commonly known as ZAGDA system. As per this custom compensation is required to be paid to former husband. Pursuant to ZAGDA system, Madhukar paid Rs.5,051/- to the former husband of Ramabai. Thereafter Madhukar was allowed to marry Ramabai. Jaitubai and Ramabai stayed with Madhukar for a period of 15 days. On account of marriage with Ramabai, the married life of Jaitubai was disturbed. Accused nos. 1 to 3 were not happy over this affair. They were shocked to know that their brother-in-law Madhukar married Ramabai and kept her in the house which adversely affected the married life of Jaitubai. Accused became furious and decided to teach a lesson to Madhukar.

The incident occurred on 16.7.2001 at about 6.30 p.m. at a close proximity of the house of deceased Madhukar. Madhukar gave alarm to the effect “MARLE, MARLE”. On hearing the alarm of Madhukar, Reenabai (PW 3), sister of Madhukar, Gemji (PW 4), brother of Madhukar, daughter Hemabai (PW 5) and son Alpesh (PW 6) immediately arrived on the spot in order to see what had happened to Madhukar. Surtan (PW 7), Gulabsingh (PW 8) and other persons from neighbourhood also arrived on the spot after having heard the alarm of Madhukar. Accused Prakash went inside the house and brought two axes. He retained one axe with him and handed over another axe to his brother Ramu. Accused no.3 Shiva caught the legs of Madhukar by means of rope. Accused no.l cut the left hand of Madhukar. He also cut right foot of Madhukar. Accused no.2 inflicted axe blows on the right eye-brow and near the left ear of Madhukar. The blow was given with so much force that the blade of the axe stuck into the head of Madhukar and handle of the axe was broken. Accused no.2 brought knife from the house and inflicted blows on the back of Madhukar by means of knife. Reenabai (PW 3) tried to rescue her brother Madhukar, however, because of threats administered by the accused, she did not dare to rescue her brother Madhukar. In the presence of dear ones, Madhukar was brutally assaulted. His organs were severed by means of axes. But the dear ones and close ones could not offer any kind of help to Madhukar. After the brutal assault on Madhukar, accused nos. 1 to 3 disappeared from the scene of offence.

Reenabai (PW3) asked Alpesh (PW6) to go to the Police Patil. Alpesh (PW6) went to Pangram and contacted Police Patil Shamji Gavit (PW11). Alpesh (PW-6) narrated the entire incident to him. Police Patil Shamji (PW 11) went to Navapur Police Station on the bike belonging to Sarpanch and disclosed the occurrence to the Police. Reenabai (PW3) lodged FIR (Exh.14) at 10.30 p.m. On the basis of FIR (Exh. 14) Crime No. 55/2001 came to be registered. P.1. Pradip Sonawa