MALYA APAD ARAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The deceased Kashinath Janardan Vispute, witnesses Tuisiram Sakharam, Motiram Thorat and one more person, all merchants in silver and German silver articles at Nasik, had attended on 16/02/1965 with their wares the weekly Tuesday market at Hatrundi near Nasik. They had engaged two labourers, Kalu and Chima, to carry the boxes containing their merchandise. After the bazar was over in the afternoon, Kashinath, Tuisiram and Motiram packed their boxes and leaving them in charge of Kalu only, as Chima did not turn up by that time, they visited the place of witness. Waghmare for drinks where they found original Accuaed 1,2,4 and the appellant. After having drinks Kashinath, Motiram and Tulsiram started for palsan where they intended to camp for the night. The boxes of Motiram and Tulsiram were carried by the said Kalu and the box of Kashinath was carried by Accused 4. Accused 1) 2 and the appellant also travelled along with them, as if they too were going to Palsan with Accused 4. On the way when they were in the outskirts of Patali Shivar, a village about 2 or 3 miles from Palsan, and were passing through a jungle, Accused 1 pretending as if he had lost his way asked the appellant to lead the way. It appears that that was the signal pre-arranged between them. The appellant suddenly struck his stick against one of the boxes carried by Kalu which startled Kalu who threw them down. Immediately thereafter the appellant attacked kashinath with an axe giving three belows which fell on his right hand, right shoulder and his abdomen. Shocked by the sudden attack, Kalu and the two merchants ran away and Accused 1, 2, 4 and the appellant decamped with the deceased's box which, as aforesaid, was being carried by Accused 4 and which contained his wares and some cash. On the alarm raised by Kashinath, two cow-boys, Motya and Balwanta, arrived there from the vicinity and with thier assistance Kashinath, inspite of his injuries, managed to walk to Patali and contact witneis. Gavali, the police patil of that village. Kashinath had also brought with him the axe with which the appellant had attacked him and which he had left behind. Gavali took Kashinath to Palsan where he was given first aid by witness Rukminibai. On the basis of a statement made by Kashinath to witness Aher, the forester of Palsan, the police patil of that place sent a Khabri report to Surgana police station, in consquence of which head constable Kardak brought along with him Dr. Patil of Surgana to palsan. The Doctor treated the injured man and then Kardak recorded a detailed statement of Kashinath. All of them then started for Surgana in a truck but on the way Kashinath succumbed to his injuries and died.

(2.) On the basis of Kashinath's statement the police started investigation during the course of which they traced the witnesses, recorded their statements, recovered several articles belonging to Kashinath, both as a result of searches conducted by them and discoveries made by the appellant and the other accused. The post-mortem examination of the dead body of Kashinath disclosed two contused wounds, one on the right shoulder and the other below the lobe of the right ear and three incised wounds on the ring finger and the little finger of the right hand, the right shoulder joint towards the neck and on the right side of the abdomen below the right axilla on mid-axillary line 5" above the superior iliac spine. The last was the fatal injury as it hadruptured the liver and caused fractures of three ribs. This injury, according to Dr. Patil) was sufficient in the ordinary course of nature to cause death and the cause of death was haemorrhage resulting from these injuries. The death of Kashinath being thus homicidal and having been caused for committing and in the course of robbery, the appellant and the original Accused 1, 2 and 4 to 7 were charge-sheeted under S. 302, 304 and 394 read with Sections 34, 397 and 411 of the Penal Code and were committed in the usual course to the Sessions court at Nasik for their trial.

(3.) The prosecution led the evidence of : (1) Kashiram Pawar and Tuisiram Waghmare to prove the presence at Hatrundi of Accused 1, 2, 4 and the appellant on the night of the 15th and on the 16th of February, 1965, (2) motiram and Kalu to prove that Accused 1, 2, 4 and the appellant accompanied them and Kashinath on their way to Palsan and the assault by the appellant on Kashinath with the axe, (3) witness Aher, head constable Kardak and Dr. Patil to prove the dying statements Exs. 8 and 12 of Kashinath, (4) the Magistrate, K. M. Sayyad who held the identification parade on 9/03/1965, from where Motiram identified Accused 1, 2, 4 and the appellant and Kalu identified Accused 2 and the appellant, and (5) the police and the panch witnesses to prove recovery of various articles identified as part of the wares belonging to Kashinath. On appraisal of this evidence, the learned sessions Judge found: (1) that Accused 1, 4 and the appellant were the participants in the offence of robbery, (2) that Accused 5 had retained some of the stolen property and had concealed it, (3) that the appellant had attacked the deceased with an axe and caused him injuries which resulted in his death, and (4) that during the course of the said robbery the appellant had carried with him and used the said axe, and was therefore, guilty also under Section 397. The learned Sessions Judge, however, acquitted Accused 2, the wife of Accused i, and Accused 6 and 7 of the charge against them under Section 411. As regards the appellant, he held him responsible for the axe injuries which resulted in the death of Kashinath and also that the injury on the abdomen was the fatal injury. Having come to this conclusion he observed :