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3. In the village of Chafe there are about 250 houses. Of these, twenty houses are situated in a locality known as Maharwada. There are ten or twelve Knots at Chafe. Ramkrishna Joshi, Shri-krishna Shevde and Bhargave Puranik, being some of the Khots. Ramkrishna owns extensive lands. They measure 150 acres and are assess;d at Rs. 65/- After the abolition of the Khoti, inquiry was commenced in the village about Knot Nisbat lands and a survey was started in Dec. 1955. The persons concerned with the survey were residing in the house of Ramkrishna's adoptive father. Dattatraya was giving instructions to the Survey Officers on behalf of all Khots. Dattatraya was also ma-, naging the family affairs perhaps owing to the old age of his father Ramkrishna who had executed in Dattatraya's favour a Mukhtyarpatra or a Dower of attorney. Dattatraya was also looking to the Court-work of his brother Khots and at the survey measurement Dattatraya represented the Khots, while accused Nos. 1, 2 and 6 pleaded the cause of Mahars.

6. The houses in Maharwada are situate in Survey Nos. 15 and 16 and these two fields belong to Khots. Fields bearing Survey Nos. 10 to 14 also belong to Khots, while Mahars are entitled to a oortion in Survey Nos. 76 and 121. On two sides of the Maharwada there are Gadagas (stone walls) and they belong to Ramkrishna. The height of the Gadga is said to be 41/2 feet, while its breadth is about 3 feet.

7. In the morning of the 23rd February 1958 at about 6 A.M. Ramkrishna Keshav Joshi left the house of his adoptive father in order to go to the house of his natural father where his family lived and when he went there, he saw, in a pool of blood, the dead body of Dattatraya in the court yard of the house. Ramkrishna shouted for the inmates to which there was no response. So he went into the house by the rear side and then he saw the dead bodies of his wife Radhabai, his daugter in law Sulochanabai and his grand-daughter Shalini. He also saw at that time the dead body of his servant Balu Veer. Ramkrishna started shouting again, but nobody came up and so he went to the house of Mulye and asked one Narayan Mulye to go with him in order to send a telegram. He returned to his house when he saw his grand-son Suryakant, a boy of about 6 years of age, the only surviving member in the wreckage of the whole family. Suryakant told Ramkrishna that at night he was asleep. Ramkrishna then sent Purshottam Mulye to Malgund, a village situate at a distance of six miles from Chafe, in order to send a telegram. Purushottam Mulye went to Malgund for sending telegrams and he sent two telegrams, of which one was to the District Superintendent of Police and the other was to the Police Sub-Inspector, upon sending the telegrams, Purushottam returned to Chafe. The telegram sent to the Sub-Inspector was received by Sub-Inspector Sarangdher who, in February 1956, was working as a Police Sub-inspector. Ratnagiri, and he received the telegram on 23rd February 1956 at about 10.45 A.M. Sub-Inspector Sarangdhar then went to Chafe, reaching the place at 2.30 P.M. accompanied by' the Civil Surgeon, the sub-charge medical officer of the name of Dr. Hombal and some nurses. Sub-Inspector Sarangdhar commenced investigation and the investigation in this case was conducted partly by Sub-Inspector Sarangdhar, partly by Sub-Inspector Kocharekar, partly by Sub-inspector Biwalkar and party by Detective Inspector Savant. Sub-Inspcctor Sarangdhar made inquest panchanamas concerning the bodies of Radhabai, Dattatraya, Sulochanabai, Shalini, Chandrakant and Balu Veer, and after the inquest panchanamas were over, he gave the dead bodies of these persons to the medical officer for examination. He then examined some of the witnesses. On 24th February 1956 he made a panchanama of the scene of offence. Various other panchanamas were also made to which reference wilt be made in appropriate places. The accused were arrested. Accused Nos. 1 to 7 were arrested on 24th February 1956. Accused Nos. 8 and 9 were arrested on 4th March 1956. Accused No. 10 was arrested on 5th March 1956. Accused No. II was arrested on 20th March 1956 and accused No. 12 was arrested on 25th March 1956. An attempt was made to apprehend Bhagya, but he was not traced and has been absconding. In the course of investigation two confessions were recorded. The onfession of accused No. 10 was recorded on 24th March 1956 and that of accused No. 11 was recorded on 2nd April 1956. Certain articles were sent to the Chemical Analyser and after completing the investigation a charge sheet was presented against the twelve accused persons on 13th April 1956, the charge sheet showing Bhagya as absconding.

12. It would be convenient now to state the effect of this evidence upon the question of Criminal conspiracy, as alleged by the prosecution. The evidence of Ramkrishna Joshi shows that the relations between the Khots on the one hand find the Mahars or Harijans on the Other were strained. To that evidence. I have already referred in detail in an earlier part of this judgment. Dattatraya had given an application complaining of the threatening language, as used by accused No. 1. Dattatraya had made a complaint ia connection with the cutting of Kalaks (bamboos). Bhar-gav Puranik also had filed a complaint and the letters to which I have referred in detail in an earlier part of this judgment seem to reflect in mistakably the kind of relations existing between the Khots on the one hand and the Mahars or Harijans on the other. On that evidence, it seems clear that the Mahars or Harijans were not satisfied with the survey measurement, as it was taking Place. There is reason to think that the Mahars or Harijans also did not like the establishment of a Gram Panchayat of which Ramkrishna was the Chairman. The evidence shows that Dattatraya, besides being the police patil and owning a small shop, represented the Khots before the survey officers and also was representing the Khots in the Court work. Following the measurement done by the survey officers at the survey undertaken By them, accused No 1 appears to have left for Bombay In Poush which corresponds roughly with January 1856, The evidence of Pahdu Sakharam shows that he was present at a meeting called in Bombay by the Mahars of Chafe residing in Bombay and the record shows that the Sangh or union had two meetings, one on the 10th January 1956 and the other on the 10th February 1958. Accused No.1 appears to have returned to Chafe because the evidence of Rama Namu shows that he was present, among others, at a meeting held on the 16th February 1956 at Devli which is the date of the letter and which contains a significant sentence ^^ dVkpk ukjy Fksoyk a ** The period between the 16th February 1956 and the 23nd February 1056 is a period of six days and it is probable that the letter of the 16th February J956 was received in Bombay on or about 18th February 1956. Accused No. 7 admits that the letter was written by him and the evidence shows that the letter was addressed to accused No 8, though accused No 8 had stated that the evidence about the tracing of the letter was false. When these facts are taken in the context of the purchase of knives in Bombay shortly before the date of the offence, it is not a difficult step to take that the conspiracy having been laid with the purchase of knives the parties to the conspiracy set their hands to the accomplishment of the object of that conspiracy. To attain that end, leave was applied for by some of the accused and the record shows that accused Nos. 10, 11 and 12 were absent from Bombay on 21st, 22nd and 23rd February 1956. As regards accused No. 9, although the punching machine shows that he was present, we accept the evidence of Rangachari that it is possible to misuse the punching machine and since we accept the evidence both of Babaji Pawar and Dattaram Parkar, there is no difficulty in holding that accused No. 9 too was absent from Bombay on 2lst, 22nd and 23rd February' 1956. It is significant that accused No. 9 is the brother of accused No. 12. When these are the facts, it is, We think, reasonable to hold that there was a criminal conspiracy to commit the murders of Dattatraya and the members of his family. For one reason or another Dattatraya had incurred the displeasure of the Mahars or Harijans and looking to the, manner in which the object of conspiracy was carried out, there can be no doubt that the object of conspiracy was to do bodilv harm to the family of Dattatraya. In considering the question of criminal conspiracy it is not always possible to give affirmative evidence about, the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object which the conspirators set before themselves as the object of conspiracy and about the manner in which the object of conspiracy is to lie carried out-- all this is necessarily a matter of inference and ag we peruse the record of this case, we are satisfied that there was a criminal conspiracy to commit the murders of Dattatraya and the members of his family. There are many cases upon the subject. It will, I think, be enough to refer to one of them, to begin with, and that is the case of Emperor v. Shafi Ahmed (1925) 31 Bom LR 515 (B). At page 618 of the report will be found a number of cases cited by Mr. Justice Crump and it will be enough, wo think to quote a passage from an English case cited in the judgment. That passage runs as follows:

16. The learned Government Pleader has urged, not without justification, that looking to the number of murders and looking, further, to the circumstances in which the murders are committed, the extreme penalty should be imposed in-this case. I do not say that the submission is not correct. But if one were to accept this submission, one will have to disregard a whole series of cases in which the principle of discrimination has been recognised. On the other hand, Mr. Samarth appearing for the accused says that in this case justice should be tempered with mercy. He says that we should take into consideration the circumstances prevailing at the time of the com-mission of the offence. He also says that we should take into consideration the plight and the predicament of the people residing in the Maharwada. In substance, his contention is that the Mahars or Harijans were suffering from social disabilities and We should keep this circumstance in mind. As a pure argument, I must reject it. Persons suffering from social disabilities and living in difficult conditions should not commit the sort of crime, which has been committed in this case. It is true that the survey measurement was unfavourable to the Mahars or Harijans. It is true that some of them thought that the introduction of a Gram Panchayat was not beneficial to them. But, surely, that is hardly a reason for forming a criminal conspiracy and to carry out the object of the conspiracy in the manner as shown in this case. At the same time, we shall have to consider the question dispassionately and we must come to a just decision in this case. As we have come to the conclusion that accused Nos. 1, 2, 9, 10, 11 and 12 were all members of the criminal conspiracy to commit the murders of Datiatraya Joshi and the members of his family and the object of the conspiracy has been carried out, we must not overlook the fact that the evidence as to the actual crime i.e. who assaulted whom is wanting in this case and if that evidence is lacking, we must go by the record as it is and we would not be justified in reconstructing the record. That the Court must discriminate in such a case is established by a series of authorities. The earliest case is Queen Empress v. Basvanla. ILR 25 Bom 168 (C). That case was decided as long ago as 1900. .It was a case of murder and the trial Court had, it appears, awarded death sentences to five persons and in reference to this topic. Mr. Justice Pulton observed as follows: