MAHADEO LAXMAN SARANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal u/s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Sec. 379 of the Criminal Procedure Code the appellants Mahadeo and Raju have impugned the judgment and order of the High Court of Judicature at Bombay dated 6/7.04.2005 in Criminal Appeal No. 279 of 1995 the appeal filed by the State against their acquittal. The Trial Court, on a consideration of the evidence on record, passed an order of acquittal in favour of all the four accused before it. The High Court by its impugned judgment and order, while upholding the acquittal of two other accused namely Basu and Sidhu, recorded an order of conviction against the appellants herein u/s. 302 read with Sec. 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1,000.00, in default, to suffer further imprisonment for a period of three months.

(2.) At the threshold we may notice that all the four accused including the two appellants herein are brothers. The deceased Bhimashankar Madolappa Kapse was the brother of Kashappa Kapse (PW-5) who is the informant in this case. The accused are the sons of their sister. It would thus appear that the parties are related to each other.

(3.) The case of the prosecution is that on 26.06.1994 at about 8.30 P.M. an occurrence took place in which the deceased was assaulted by the appellants resulting in his death. The first information report was lodged by the informant, PW-5 who, as noticed earlier, is the brother of the deceased. The case of the prosecution is that on the date of occurrence the informant, PW-5 along with PW-8 Mallikarjun Kapse and PW-12 Babling Patil was sitting on the katta in front of the Gram Panchayat. While they were sitting and chatting they noticed the deceased passing that way. Sometime later they noticed the appellants herein armed with sword and knife and two of their brothers (since acquitted) going in the same direction. The assault on the deceased took place at a distance of about 150 ft. from the katta where they were sitting. Appellant No.1 Mahadeo is said to have given two or three blows on the neck of the deceased while appellant Raju gave him two or three injuries on his abdomen. They are also said to have raised the slogan "Kamaleshwar Maharaj Ki Jai" which attracted the attention of the eye-witnesses. It is further the case of the prosecution that Bhartabai (PW-13) who was related to the deceased as his niece resided in a house about 18 ft. from the place of occurrence. On hearing the commotion she had also come out and witnessed the incident.