JUDGMENT - VISHNU SAHAI, J. :---Vide Judgment and order dated 27th November, 1981 passed in Sessions Case No. 31 of 1981 the Additional Sessions Judge, Satara convicted each of the three appellants under section 304 Part (II) of the Indian Penal Code. He sentenced the appellants in the manner stated hereinafter:---

Appellant Adhikrao Vithal Desai:--- to three years R.I. and to pay a fine of Rs. 500/- in default to further undergo R.I. for three months;

Appellant Mahadeo Vithal Desai:---to suffer R.I. for seven years and to pay a fine of Rs. 100/- in default to undergo R.I. for two months; and

Appellant Parvatibai:---to six months R.I. and to pay a fine of Rs. 100/- in default to undergo R.I. for one month.

Through this appeal the appellants have challenged the aforesaid conviction and sentences.

2. The prosecution case in brief is as under:---

Informant Nivrutti Kundalika Desai and witnesses of this case are residents of a common village viz. Paparde. Deceased Shankar was the younger brother of the informant. Both of them lived in different portions of the same house. Partition between them had taken place about nine years prior to the incident. There was a field near Dombarkhadicha Dongar. In that field Mango, Shewari and Jambul trees were standing and it belonged to the deceased. Adjacent to the land of the deceased was that of father of the appellants Adhikrao and Mahadev, sons of the appellant Parvatibai.

3. On 28-4-1980 Shankar left his house early in the morning to cut the Shevari tree. He instructed his wife Dropadabai P.W. 8 to follow with food and water. At that time he was wearing a banayan and half pant. While he was cutting the Shevari tree, the appellants objected on the ground that it stood in their field and hence he should not cut it. Appellant Adhikrao with a bamboo stick, appellant Mahadev with a crowbar and appellant Parvatibai with kicks and fists started assaulting Shankar. This incident was seen by Dnyandeo Rau Kumbhar P.W. 9 and Dnyandeo Tukaram Patil P.W. 10. They are said to have been harrowing the land of Tukaram which is in immediate proximity of the place of the incident. It is said that these witnesses wanted to intervene but on account of the threats of the appellants they did not dare to do so. It is further said that the appellants also told them not to give water to the deceased nor to disclose the incident and their names to anybody. They told them that in case they did the same they would meet similar fate. Thereafter, the appellants are said to have run away.

This incident is alleged to have taken place some time round about 9 a.m.

It so happened that one Dadu Dnyanu Suryavanshi P.W. 6, resident of Sangwad at about 9 a.m. happened to reach the place of incident on way back from Soniaichewadi where he had gone to see the previous day his ailing brother-in-law. At that time he found a person lying beneath a Mango tree. That person, who was not known to him, asked him to inform his brother Nivrutti that he was lying beneath the Mango tree in Deshpande's land. Dadu Suryavanshi gave the aforesaid message to Nivrutti. Nivrutti thereupon called Ganpat Tukaram Desai P.W. 7 and the two of them went to the place of the incident. There they found that Shankar was lying beneath a Mango tree. Soon thereafter Dropadabai P.W. 8 wife of the deceased also came. Shankar is alleged to have made a oral dying declaration to them, in terms that the appellant Adhikrao with a stick, appellant Mahadev with a crowbar and appellant Parvatibai with kicks and fists assaulted him. Thereafter Shankar is alleged to have succumbed to his injuries.

4. The informant Nivrutti Kundalika Desai P.W. 11 after death of his brother on the asking of Ganpat P.W. 7 proceeded to Police Station Patan which he reached at about 2.30 p.m. At the aforesaid Police Station he lodged his F.I.R. The F.I.R. was recorded by P.S.I. Krishna Dagadu Mohol P.W. 13. On its basis at 6 p.m. he registered a case under section 302 read with 34 I.P.C. against th

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