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WITH CRIMINAL APPEAL NO.489 OF 2001 State of Maharashtra Appellant Versus Sandeep @ Babloo Prakash Khairnar (Patil) Respondent J U D G M E N T Shah, J.

In Sessions Case No.152 of 1999, by judgment and order dated 19.5.2000, Additional Sessions Judge, Nasik convicted Prakash Dhawal Khairnar Patil (A-1) and Sandeep @ Babloo Prakash Khairnar Patil (A-2) for the offence punishable under Sections 302, 120-B, 201, 397 read with Section 34 of the Indian Penal Code and under Section 25(1)(b)(a) of the Arms Act read with Section 120-B of Indian Penal Code. Both the accused were sentenced as under:-

In this case, dispute of partition of lands led one brother to anhilate entire family of his brother and also to commit murder of his own mother. AppellantPrakash Patil is the father of Sandeep @ Babloo Prakash Khairnar (Patil), A-2. Sandeep who was then aged 17 years was studying in First Year Engineering and was staying in a hostel at MIT, Pune. Supadu Dhawal Patil was the real brother of appellant Prakash Patil. Kesarbai was their mother and Pushpatai was wife of Supadu Patil and they were having one son Rakesh @ Pappu and two daughters, Poonam and Rupali alias Buntitai. Deceased Supadu Patil, his wife Pushpatai, mother Kesarbai, daughters Rupali and Poonam and son Rakesh died due to fire arm injuries on the fateful night of 24th October, 1996. Supadu Patil was working as an agricultural officer at Malegaon and was staying in his own bungalow which was constructed at village Soyagaon, which was at a distance of 2 km. from Malegaon. He was running a nursery in the field adjoining to his bungalow which was virtually a farm house. PW33 Vyankat @ Pintya used to sleep in the shed to the northern side which was at a distance of 225 feets. As per the inspection note, bungalow was at a secluded place. Sister of Supadu Patil Vijaya Zumbar Patil was also living alongwith her husband at Soyagaon. A1 Prakash Patil was staying at Nasik with his family members and was serving in Maharashtra Engineering Research Institute at Nasik as a Water Analyser (Sr. Scientific Assistant) It is the prosecution version that on 23rd October, 1996, A-2 Sandeep had gone to the bungalow of Supadu Patil, his uncle, in Soyagaon, Malegaon, District Nasik to attend the birthday of Rakesh son of Supadu Patil. There was enmity between Supadu Patil and Prakash Patil because of dispute for partition of agricultural land. On occasions there were quarrels and exchange of abuses between them. A-2 Sandeep Patil who came at the residence of Supadu Patil on 23rd October, 1996, stayed there till morning of 25th October, 1996 and left the house after the incident. Vyankat Pagare PW33 who was Supadu Patil's servant and was residing in a shed stated that he heard that Buntitai (Rupali) was crying 'aai ga' (Oh mother) and thereafter Kesarbai saying 'shant ho'. He also heard some fire shots. It is his say that as Supadu Patil used to kill pigs by his gun, he went off to sleep. At about 6 a.m. when he was folding his bed, one Suresh who was living in the farm house of Supadu Patil, came there and told that he went to Supadu Patil's bungalow to bring a bucket for milking the she-buffaloes and found the door of bungalow to be locked and a chit kept thereon, on which it was written - "we are all going out of station. The reason was not to be assigned by us. We are returning on Sunday or Monday. All work should be stopped". Suresh handed over the said chit to him. By that time, Subhash who was working with Supadu Patil came there. PW33 Vyankat Pagare told Suresh and Subhash about what he had heard at night. He took the chit and asked Subhash to go to Viju Atya, sister of Supadu Patil. On receipt of the information, Viju Atya came along with her husband, Zumbar Patil. Zumbar asked Subhash to call Ashok Anna PW1. On receiving the information, Ashok Anna and the driver of Supadu Patil came there. On their arrival, Vyankat Pagare informed them about what he had seen. They found that the doors and windows of the bungalow were closed and the kitchen door was closed from inside. By pushing the kitchen door, it opened out. They found the keys of Supadu Patil's van lying on the dining table. One Arun took those keys by inserting a bamboo through the grill and thereafter went to Lonkhadi, the house of the parents of Pushpatai. Thereafter, Ashok Anna and others took a round of the bungalow of Supadu Patil. They pushed the rear door of the window of the bedroom and entered the house and saw that Supadu Patil and Pushpatai were lying in a pool of blood. At that juncture, Vyankat Pagare started crying. Ashok Anna left for informing the police on scooter and telephoned Chavani police station. Within a short time police came there. They found that six corpses were lying inside the bungalow. PI More recorded the FIR, prepared inquest reports and sent the dead bodies for the post mortem. A reddish round shaped leather cartridge belt having 16 empty sockets, 9 live 12 bore cartridges and a 12 bore shot gun were seized. The said articles were sent to the Chemical analyst. Dr. Bharat Wagh PW36 who performed autopsy on the dead bodies found that the injuries on the deceased were caused by the fire arms.

Thereafter, A-1 asked him for his sweater. He shown him a sweater lying in front of the cupboard in the devghar (the room of the household goods). A-1 put on his sweater and went to the bedroom and TV room and returned. Thereafter, he removed sweater and shirt and put on T-shirt which was hanging on the wooden peg in front of the basin. A-1 again went to the bedroom and he himself (A-2) went to W.C. When he came out from the W.C. and washed and cleaned his hands and went to the kitchen room for drinking water, he heard the noise of firing of bullet from TV room. Immediately, he heard a loud cry of Rakesh shouting "Aai Ga (Oh mother)", then he heard another round of fire and heard a cry "Aai", probably of Rupali. When he came near the curtain of TV room, he saw his father wrapping a scarf on his face, putting on spectacles and holding a gun. He ran towards the bath room. He saw Pappu was lying on the mattress and Rupali was lying on the sofa. Both had sustained bullet shots. As he was standing near the curtain, Poonam came there running and as she could not identify him, she had a sharp clash with him in which he sustained scratches on his nose because of her nails. He then shook her and apprised of his identity. He thought that his uncle and aunt would wake up and they might think that he himself had killed them and out of this fear he tried to go outside through the kitchen door but he could not go as the door was locked. When he was in kitchen room, he heard his aunt, grandmother and Poonam saying 'bring vehicle and make a telephone'. He peeped into the kitchen and saw his uncle going to the bedroom. He also heard the sound of opening the cupboard. At that time, his father was standing in the passage in front of the bathroom and W.C. from where he fired a shot. His aunt and Poonam rushed from the TV room and they pushed his father into the prayer room up to the fridge. There was a sharp clash, during which he heard the sound of the bullet shot. Immediately, Poonam collapsed on the floor of the prayer room. He further saw his grandmother going to the bedroom and crying there. Thereafter, his father went to the bedroom and he heard sound of two bullets shot. He heard the cries of his aunt and grandmother at the same time. His father came to the kitchen and asked him to prepare for leaving the bungalow. A-1 put off his spectacle. He (A-2) found tears in the eyes of his father and that he was frightened. He put on his own clothes and brought his sweater lying in the kitchen. When he was keeping his white shirt, hanging on the string, in his bag, his father had gone to WC. His father came out from WC wearing slippers and went to the bedroom. He followed him to see as to what his father was doing. His father wiped the gun with a handkerchief and hung the same on the nail. He put the cartridge belt in the Godrej cupboard. Thereafter, he collected keys lying on the floor near the cupboard and came out from the bedroom. At that time, he started putting on his shoes kept beneath the basin opposite the bathroom. At that time, his father partially shut the door to open the cupboard kept behind the door of the devghar. For that purpose, he pushed aside his suit case which was kept nearby. He could not see as to what he took out from the cupboard. When he was putting on his socks, he thought of going to W.C. Hence, he removed his socks. Thereafter, he went to W.C. and came out within five to ten minutes and washed his feet and put his shoes. Then, his father handed over to him his suit case and school bag. His father went to TV room and brought one pen (Reynold) and paper and asked him to write as per his dictation. When he asked him the reason, his father got annoyed and threatened him saying that he should obey his order. Then he wrote the matter in a panic stricken condition. Thereafter, his father put that pen into his bag. His father further brought a torch from devghar. Then, they came out of the bungalow. His father closed the door of the bungalow, locked it and affixed a chit on that lock. On the road, his father took out bundle of notes of rupees hundred from his pocket in the illumination of battery and handed over to him. After the boundary of Mala (agricultural field) was over, his father threw away keys by the side of that road. He went up to Ekatamata chowk on foot. From there, they reached to Malegaon S.T. Stand by an auto rickshaw. His father was waiting on one side and he went to enquire as to when the bus would go to Nasik. At that time, it was 5 a.m. Thereafter, they boarded one jeep which was going to Nasik. His father alighted at Nimani bus stop and he got down at C.B.S. Nasik and boarded the bus leaving for Pune from Nasik. Thereafter, he reached his MIT hostel on auto rickshaw. There was some quarrel regarding fare between him and the auto rickshaw driver and he sustained injury at the hands of auto rickshaw driver. On the same day i.e. on 25.10.1996, in the night between 8 to 8.30 p.m. when he removed the articles from his bag, he found one blood smeared T-shirt, handkerchief, gloves, a pair of white slippers and six empty cartridges. He thought that his father might have kept the said articles in his bag when he had gone to W.C., because his father had given him the said bag when he came out from the W.C. He dropped the above articles from Mhatre bridge situated on the Karve Road. In the night between 2.00 am to 2.30 am, police of Kothrud police station took him to the said police station for making enquiry and PSI Ugale came to Kothrud police station from Malegaon in the morning to take him away. Thereafter, in the night of 27.10.1996, he was produced before the Addl. S.P., Malegaon. He told the incident to him. On 28.10.1996, he was arrested by PW42 Ramesh D. More, Investigating Officer.

Accused were seen leaving Malegaon after the incident.

Both the accused left Malegaon on 25.10.96 at about 5 a.m. in the taxi of Uttam Thethe PW15, who has identified them in the test identification parade conducted on 22.11.96. He stated before the Court that he is a driver and that he used to carry the bundles of newspapers from Nasik to Malegaon by a jeep. For this, he was leaving Nasik at about 2.30 a.m. and reaching at Malegaon at 4.45 - 5.00 a.m. After handing over the bundles of newspapers at Malegaon S.T. stand, he used to take some passengers for the purpose of his miscellaneous expenses to go to Nasik. On 25.10.1996, A-1 and A-2 had travelled by his jeep. In our view, there is no reason to disbelieve the evidence of this witness and the High Court has rightly not given any importance to the contention raised by the learned counsel for the appellant that the evidence of PI More reveals that he interrogated witness on 18.11.1996, yet in his application dated 13.11.1996, Ex. 191 for holding the TI Parade, name of the witness is mentioned by observing that there was some confusion on the part of witness PI More with regard to the date as the name of the witness is specifically mentioned in the application dated 13.11.1996. In any case, this mistake of date would have no bearing on the identification of the accused in TI Parade.