CHANDRAKANT SOMNATH KUDALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment of the High court in an appeal preferred by the State to challenge the conviction of the appellants under S. 304 Part II Indian Penal Code instead of under S. 302 Indian Penal Code by the Additional Sessions Judge, Poona. the Additional Sessions Judge convicted appellant 1 under S. 304 Parallel ipc and the second appellant under S. 304 Part II read with S. 109 Indian Penal Code and sentenced them to undergo RI for seven years and fine of Rs. 1,000. 00 and RI for two years and fine of Rs. 500. 00 respectively. The High court set aside the convictions of the two accused for the lesser offence and convicted them under S. 302 Indian Penal Code and S. 302 read with S. 109 Indian Penal Code respectively and sentenced both of them to suffer imprisonment for life. Against the judgment of the High court the appellants have preferred this appeal.

(2.) The facts of the case are not disputed and the only controversy in the appeal is regarding the nature of the offence committed by the two appellants.

(3.) The prosecution case which has been accepted by the Sessions Judge as well as the High court is to the following effect. Deceased Papa had sent a sum of Rs. 398. 00 on 24/01/1974 through his employee Public Witness 10 to purchase ganja from the shop of appellant l. While the ganja was being purchased, the shop was raided by the police and they seized the ganja as well as the sum of Rs. 398. 00 sent by Papa. Public Witness 10 was also taken into custody but after being released on bail, he informed Papa as to what had happened. On 27/01/1974, Papa demanded rectum of the sum of Rs. 398. 00 by appellant l. Appellant l asked Papa to meet him at his house half an our later. Accordingly, when Papa went there, appellant 2 caught hold of his hands from behind and appellant l repeatedly stabbed Papa with a knife having a blade of 6 inches length uttering the words 'take this money, take this money'. As many as five injuries were inflicted on vital parts of the body of Papa and all the time appellant 2 kept his hold on Papa and thus effectively prevented him from running away or warding off the stabs inflicted on vital parts of his body. On receipt of the stab injuries Papa met with instantaneous death. the occurrence was witnessed by Public Witness 9 and he ran to a place nearby where Public Witness 10 and other witnesses were seated and brought them to the scene.