L L KALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant stood charged along with two other accused persons under Sections 147, 148, 302, 307, 326 and 324 read with Sec. 34 of the Indian Penal Code for having caused the death of Shankar on 2nd February, 1981 at 11 a.m. and injuring PWs. 2, 5 and 7 in course of the said incident. The Sessions Trial was registered as Sessions Case No. 94 of 1984. Prior to this case, in respect of the same incident, one Ankush Landya Kale was tried in Sessions Case No. 279 of 1982 and was acquitted by the learned Sessions Judge. The said order of acquittal became final, not having been challenged in any higher forum. Apart from these four accused persons, the prosecution alleged that there was another accused, who is still absconding and has not been arrested. So far as the three accused persons, who stood their trial in the case in hand, the learned Sessions Judge convicted the present appellant under Section 302 and sentenced him to imprisonment for life. So far as the charge under Section 302/34 or in the alternative Sec. 302/149 is concerned, the learned Sessions Judge acquitted the other two accused persons. So far as the charges under Section 320 read with Sec. 34 and under Sec. 326 read with Sec. 34 are concerned, the learned Sessions Judge acquitted all the accused persons. He however convicted all the three accused persons under Section 148 and sentenced them to rigorous imprisonment for one year thereunder and also convicted them under Section 324 read with Sec. 149, IPC and sentenced them to undergo rigorous imprisonment for 1-1/2 years each and a fine of Rs. 300/-, in default, to suffer further R.I. for two months. On appeal, the High Court affirmed the conviction of the appellant under Section 302 as well as under Section 324, IPC and affirmed the sentence thereunder. The High Court also affirmed the conviction and sentence against the two other accused persons under Section 324 read with Sec. 149, but modified the sentence to the period already undergone. The conviction and sentence passed by the Sessions Judge under Section 148, IPC, however was quashed and hence, the present appeal by the appellant, L. L. Kale, alone.

(2.) Mr. V. A. Mohta, the learned senior counsel, appearing for the appellant does not assail the conviction and sentence of the appellant under Section 324 read with Sec. 149, IPC but has seriously assailed the conviction of the appellant under Section 302 and submitted that under the facts and circumstances of the present case, it cannot be said that the prosecution case as against the appellant has been proved beyond reasonable doubt.

(3.) The prosecution case in nutshell is that the complainant and the accused persons are related to each other and the deceased Shankar was uncle of PW 1 Govind. The accused persons are all brothers and it is alleged that PW 1 and the deceased used to make false complaints of theft of crops against the accused persons, on which score, the police had raided the house of accused persons on several occasions. On 1-2-1981, as Govind PW 1 did not return to his house, his wife and PWs. 2, 5 and 7 went to Shankar, who was then working in the field. Shankar also came with them and made some query and learnt that the accused persons had taken away Govind with them. They then approached PW 3 for his help to trace out Govind but said PW 3 directed them to go to police and inform the police about the same. When police was approached, it was learnt that both Govind and accused Ankush were with the police and therefore, they went to the police station and brought Govind with them. On 2-2-1981, at about 5 a.m., while Govind was returning home from his field, these accused persons met him on the way. There was a scuffle and then Govind was taken to one Kumbhar Guruji and Ankush informed the said Kumbhar Guruji that Govind was caught red handed, while stealing corn from his field but sometime after both Ankush and PW 1 came on foot and on the way met the other accused persons. The prosecution alleged that the accused persons, finding Govind alone, started assaulting him with different weapons like gupti and this was seen by deceased Shankar, PW 2, PW 5 and PW 7, who came on the railway line. Seeing these people, the present appellant who was armed with gupti, rushed towards the deceased and gave a blow on his chest and two other blows on the back and left side of the head. The other accused persons also started assaulting PWs. 2, 5 and 7, on account of which, they were also injured. Shankar fell down on getting the fatal blows and died at the spot. Govind PW 1, wanted to carry the deceased to the dispensary but accused persons prevented him on the plea that they would pay Rs. 3000/-, if the dead body was thrown to Ujani Dam. This was however not acceptable to PW 1 and, therefore, PW 1 carried the dead body to Bhigwan Dispensary and he was accompanied by PWs. 2, 5 and 7. PW 1 then went to the police station and narrated the entire incident which was treated as F.I.R. Exh. 9 and the police started investigation. On completion of investigation, the police submitted the charge-sheet. As has been stated earlier though the charge-sheet was filed against the five accused persons, only accused Ankush was tried in Sessions Trial No. 279 of 1982 and the three others were tried in Sessions Trial No. 94 of 1984, out of which the present appeal arises. Though the prosecution examined a number of witnesses but the prosecution case hinges upon the ocular statement of PWs. 1, 2, 5 and 7, of whom PWs. 2, 5 and 7 were injured and the evidence of Dr. D. B. Tavare, who conducted the autopsy over the dead body of Shankar. According to the medical evidence the deceased had four injuries and all the injuries were ante-mortem in nature and death was on account of injuries 3 and 4 namely: