JUDGEMENT - VISHNU SHAHAI, J.:---Vide judgment and order dated 16-10-1982, passed in Sessions Case No. 7 of 1982, the learned Sessions Judge, Raigad convicted and sentenced the appellants in the manner stated hereinafter:---

i)Under section 302 r/w section 149 I.P.C. to imprisonment for life;

ii)Under section 147 I.P.C. to one year R.I., and

iii)Under section 148 I.P.C. to two years R.I.

In addition:-the appellant Mahadeo Devji Gambhir was convicted under sections 325 I.P.C. and 323 I.P.C. Under the first count, he was awarded a sentence of two years R.I. and under the second count a sentence of one year R.I.; and

appellant Dattaram Devji Gambhir was convicted under section 325 I.P.C. and sentenced to undergo two years R.I.

Sentences of the appellants were directed to run concurrently.

It may be mentioned that along with the appellants, 12 persons namely:--

1)Marauti Vithal Batavale

2)Laxman Hari Batavale

3)Damu Govind Gade

4)Damu Bhiku Gothekar

5)Narayan Dagdu Kare

6)Parshuram Rama Batavale

7)Nathuram Vithoba Batavale

8)Dagadu Sudkaya Kare

9)Ganpat Kanu Chorge

10)Devji Dagadu Gothekar

11)Bharaya Balaji Kule

12)Balaram Narayan Batavale

were also prosecuted and tried but, they have been acquitted vide impugned judgment.

2.Briefly stated the prosecution story runs as under:---

The informant Tukaram Batavale P.W. 4 was brother of the deceased Malu and son of Hari and Laxmi P.W. 6. The appellant Narayan, Dattaram, and Shivaji Datavale are said to be cousins of the acquitted accused Parshuram Batavale. The appellants Mahadeo Gambhir, Dattaram Gambhir and Narayan Gambhir are said to be real brothers. The appellants Namdeo Gothekar and Hari Gothekar are said to be cousin brothers. All the appellants are said to be inter-related.

In the year 1971, appellant Namdeo Damu Gothekar and Mahadeo Devji Gambhir had assaulted the informant's brother Malu, his father Hari and one Krishna. A complaint had been filed. However, the matter was compromised in the year 1972. The acquitted accused Parshuram (uncle of the informant) had filed a civil suit against the informant's father and others for partition of land. Sometimes in the year 1980, when the civil suit was pending and informant and Malu had gone to the land, which was the subject matter of the civil suit, appellants Narayan Datavale and Mahadeo Gambhir along with acquitted accused Damu Gothekar came and assaulted them. Parshuram was also with them. In self-defence the informant and others assaulted them. However, before decision of the case, Malu was killed.

On 23-10-1981, informant and Malu were in their field known as 'Sambarshet'. At that time, appellants Narayan Datavale, Mahadeo Gambhir, Dattaram Gambhir and the acquitted accused Dagadu Kare, came and told them not to cultivate their land or else they would be murdered. Hence, the informant and others went to Tala Police Outpost and lodged a non-cognisable complaint (Exhibit 16) there.

On 1-11-1981, at about 3 p.m. the informant, Malu, Malu's wife Parvati and four labourers came to Sambarshet field for harvesting paddy. They lifted about 20 bundles of paddy. They tied about 7 bundles of paddy. At about 6.30 p.m. while the informant and Malu along with a bundle of paddy, on their heads, were returning, to their house, and when they reached near their cattle-shed, they found that the appellants and the acquitted accused were waiting in ambush in a lane. Excepting the appellant Dattaram Gambhir, who is alleged to be armed with a small axe, and Laxman Batavale, who is said to be carrying a tin containing acid, the remaining persons had sticks. On seeing the informant, appellant Mahadeo Gambhir gave a stick blow on his left forearm and the appellant Dattaram Gambhir inflicted an axe blow on the Shin of Malu. Malu fell down as a result of receiving the blow. Thereafter, appellants Narayan Datavale, Namdeo Ghotekar, Mahadeo Gambhir, and Hari Gothekar started assaulting Malu with sticks. The acquitted accused Laxman threw acid on Malu. While the informant was runn

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