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8. There was dispute between deceased Louis and the accused persons as regards the right of way on the pathway which passed from the property of Louis viz. Hissa No. 3, survey No. 196 between village Uthawane and Bilewadi. Deceased Louis was owner of survey Nos. 371 and 372 as well as part of old survey No. 376 which was newly numbered as survey no. 196. Out of the survey number 196 Louis was owner of hissa Nos. 2, 3 and 7 only. In the year 1985 Louis had planted mango graft trees in his survey Nos. 371 and 372. Some of. the accused persons along with others had filed Regular Civil Suit No. 80 of 1986 against Louis and his family members claiming easementary rights on the pathway which passes through hissa No. 3 of survey No. 196. The plaint in that suit has been produced on record by the prosecution at Exhibit 58. In the said suit an application for temporary injunction was also filed which was not granted by the Civil Judge Junior Division, Sawantwadi observing in his order dated 22/4/1986 that no specific document was produced to show prima facie easement and the notice was directed to be issued to the defendants. In the year 1986 Louis had applied to the office of the District Inspector of Land Records for carrying out survey of his lands being survey No. 136, hissa Nos. 2, 3 and 7 which was fixed sometime in the month of May 1986. As the DILR authorities found that there were bushes on the land to be surveyed existence of which would not have enabled them to take proper measurements, no measurements were taken in May 1986 which is clear from Exhibit 61 produced by the prosecution on the record. After the rainy season, Louis had again applied to the office of the DILR for taking survey of his aforesaid land pursuant to which he had received notice dated 1/1/1987 (Exh.62) fixing 16th and 17th January 1987 as the dates for taking measurements of his land. In the said notice it was made clear to him that since the said land is having bushes which obstruct taking measurements in the land, the measurements will not be taken unless and until the bushes are cleared. With a view to ensure that the bushes from the land in possession and ownership of Louis alone are removed for the purpose of facilitating taking of measurements in the land in question by DILR officers on 16th and 17th January 1987, deceased Louis hired the services of a retired Government officer PW 12 Gangaram Naik who had retired from the office of the District Inspect of Land Records, to show him the bushes required to be removed from his land. PW 12 Naik went to the said survey number along with Louis and Police Patil in the morning of 11th January 1987. After the area of the land under the ownership of Louis was demarcated by PW 12 Naik the said witness as well as the Police Patil left the place. Deceased Louis along with his three sons deceased Remi, PW 1 Jerome and PW 7 Hygiene were in the said land on that day. They had engaged the services of three servants PW 6 - Phelix, PW 8 - Bapu and one Namdeo for removing the bushes from the said land. that work started at about 3 p.m. that afternoon. While the work was still in progress accused Nos. 6 and 7, who were two ladies, came there at about 4 p.m. and questioned Louis and his sons as to why they were removing bushes from their land. When the two ladies were questioning Louis and his sons, other accused i.e. accused Nos. 1 to 5 and 8 arrived there armed with solid bamboo sticks in their hands and started assaulting the deceased. Initial assault was given by accused No. 3 with a stick on the head of Louis as a result of which he fell on the ground. When the three sons present there Remi, complainant Jerome and Hygiene went to rescue their father Louis, the sons were also assaulted by the accused. Complainant Jerome and PW 7 Hygiene took to their heels and took refuge in their farm house which was on the northern side of the place of incident in the same Hissa No. 3. The said farm house is locally called as "manger". Louis and Remi were brutally beaten there. At about 6 p.m. Victor, son of Louis arrived at the place of incident to find Remi dead. He went to the farm house where he told Jerome that their brother Remi was dead. Victor then went to Banda police station to inform them and call the police for help. The Sub Inspector Mahadik who was present there wanted to record the statement of Victor but he was in a trauma and was not in a position to give any statement. As it is he had no personal knowledge about the incident in question. Police, therefore made entry in the station diary which is produced on record at Exhibit 175 in which mention is made about the death of Remi due to the assault on him with a sickle locally known as "Palkoyta" which has a long wooden handle. The police, therefore, came to the place of incident at about 9 p.m. along with Victor and took brutally injured Louis, complainant Jerome and PW 7 Hygiene to the Sawantwadi Cottage Hospital leaving Remi, who was already dead, there. They reached hospital at about 10 p.m. Louis had died by the time they reached the hospital and, therefore, he was declared dead by the doctor in the said hospital before his admission. In the said hospital police took down the complaint of PW 1 Jerome which is produced on record at Exhibit 67 which mentions in detail as to how the incident took place and the assault which was seen by him until he ran away and took shelter in the farm house. During the period after the incident and before the injured were removed to the hospital by the police, three villagers happened to go to the place of incident and see the injured who have deposed that injured had told them about the assault by accused No. 4 and other Kothawales. It may be mentioned here that before Victor had reached at Banda police station, accused No. 3 along with his wife had already gone to the said police station and lodged the complaint against Hygiene PW 7, deceased Louis, deceased Remi and PW 1 Jerome stating therein that they were assaulted by these people at about 4.15 p.m. as a result of which he received the injury on his back and his wife -accused No. 6 received abrasion. Both of them . were sent to the hospital for examination by doctor.

18. Before 16th and 17th January 1987 i.e. the dates fixed by the office of the DILR for taking measurements of the land, deceased wanted to remove bushes from the land. In order to ensure that bushes from his land which would obstruct the taking of measurements are removed, he engaged the services of a retired officer from the office of DILR i.e. PW 12. Accordingly PW 12 Gangaram Naik, a private surveyor, came to land survey No. 196 for the purpose of showing the areas and places on the lands of Louis from where bushes should be removed. At the instance of deceased Louis even police patil of the village PW 11 Krishna Sawant was present when PW 12 Naik showed the places from where bushes were required to be removed to facilitate taking of measurements. PW 12 showed the bushes which were needed to be cleared from the land in occupation of deceased Louis for the purpose of survey of the land in the forenoon of 11th January 1987 which is the date of the incident. After PW 12 showed the area he had lunch in the farm house of Louis along with Louis, his sons and police patil and thereafter they left that place. At 3 p.m. deceased Louis along with his three sons, deceased-Remi, complainant-Jerome PW 1 and PW 7 Hygiene and three other workers engaged for the said purpose i.e. PW 6 Phelix, PW 8 Bapu and one Namdeo started removing the bushes from the said land. When the work of removing bushes was in progress at about 4 p.m. two ladies, accused Nos. 6 and 7, followed by other six male accused i.e. accused Nos. 1 to 5 and 8 came to the place of incident. Accused No. 6 questioned Louis and his sons as to why they were removing the trees from their land. When the talk was going on accused Nos. 1 to 5 and 8 came rushing armed with sticks in their hands. All the witnesses have deposed about the initial assault made by accused No. 3 on the head of Louis with stick as a result of which he fell down on the ground. The sons of Louis went to their father's rescue but all the accused started assaulting the three sons/of deceased Louis. All the three sons, therefore, tried to run away to escape from further assault on them by the accused persons. While PW 1 Jerome and PW 7 Hygiene took shelter in their farm house deceased Remi fell down because of the assault made on him while running away. When Remi fell down accused No. 4 turned back and picked up sickle which was left by PW 6 on the ground and chopped off the heels of both the legs of Remi as a result of which the blood from his body oozed out and after some time Remi died. At that time the accused had assaulted the deceased Louis also with sickle as well as sticks.