SHASHANK SURESH KHADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE appeals have been preferred by five persons namely Ravindra @ Ravi Ramchandra Gurav, Dhananjay Datta Dhuri, Manoj Jaysing Kadam, Prashant Suresh Khade and Shashank Khade against the judgment and order dated 31-10-1995, passed by the Additional Sessions Judge, for Greater Bombay in Sessions Case No. 1016 of 1992 convicting and sentencing them to suffer imprisonment for life for the offence under section 302 read with 34 of the I. P. C. While Criminal Appeal No. 631 of 1995 has been preferred by the appellants-Shashank Khade and Manoj Jaysingh Kadam, Criminal Appeal No. 700 of 1995 has been preferred by Ravindra @ Ravi Ramchandra Gurav, Dhananjay Datta Dhuri and Prashant Suresh Khade. Since both these appeals arise out of same set of facts and a common judgment, we are disposing them off by one judgment.

(2.) THE prosecution case in short, is as under: -At the time of the incident, whereas the deceased Sanjay Kawle, eye-witnesses Vijay Dhupkar P. W. 2 and Rohidas Kawle, P. W. 3 lived in Palanji Ratanji Chawl No. 8 the appellants lived in Palanji Ratanji Chawl No. 9. The said chawls were situated in the immediate proximity of one another at Dadaji Kondeo Marg, Byculla, Bombay 27. On 6-6-1992, at about 5/5. 30 p. m. the appellant-Shashank Khade pushed Devendra Kawle, brother of Baban Kawle and Sanjay Kawle. Consequently, a fight ensued between Shashank Khade and Devendra Kawle, Vijay Dhupkar P. W. 2 Baban Kawle and Sanjay Kawle pacified them. The appellant-Prashant Khade, brother of the appellant Shashank Khade came there and threatened Vijay Dhupkar and others that he would see them. In respect of the incident, Shashank Khade lodged a complaint at Byculla Police Station. On 9-6-1992 at about 8 p. m. while Vijay Dhupkar was behind Patanwala Building, he met the deceased Sanjay Kawle. They went to Hotel Arogya Bhavan, Hingwala Lane, at Dadaji Kondeo Marg, Byculla, Bombay. While they were eating in the said hotel, they saw the appellants. The appellants Ravindra Gurav, Dhananjay Dhuri and Prashant Khade were armed with knives. When after paying the bill, Vijay Dhupkar and Sanjay Kawle stepped out of the hotel, the appellant Prashant Khade caught hold of Sanjay Kawle and dragged him out of the hotel. He was felled down on the road and all the five appellants started inflicting fist blows on him. Sanjay Kawle started shouting. Thereafter, the appellant Ravindra Gurav inflicted a knife blow on Sanjay Kawle which he warded of with his left hand; the appellant Prashant Khade inflicted a knife blow on the left side of his chest and waist; and the appellant Dhananjay Dhuri assaulted him with knife on the back portion of his waist. Vijay Dhupkar became afraid and wanted to run away from there but, before he could escape, he was caught hold by the waist by the appellant Shashank Khade. In order to save himself, Vijay Dhupkar pushed Shashank Khade resulting in the latter falling down on the crate of soda water bottles which was placed there. At that time, Vijay Dhupkar saw Rohidas Kawle P. W. 3, Suryakant Pawar and Sanjay Rane shouting for help. Thereafter, the appellants ran away. Apart from Vijay Dhupkar, this incident was seen by Rohidas Kawle. P. W. 3 Suryakant Pawar and Sanjay Rane. Vijay Dhupkar, Rohidas Kawle, Suryakant Pawar and Sanjay Rane took Sanjay Kawle, who was in a precariously injured condition, in a taxi to J. J. Hospital, Bombay.

(3.) THE evidence of Police Constable Ramesh Dalvi P. W. 4 shows that on 9-6-1992 (on the date of the incident) he was posted as E. P. R. (Emergency Police Register) Constable at J. J. Hospital, Bombay. At about 8. 30 p. m. an injured person was brought in a taxi by two persons. As he was injured, he took him to the Casualty Medical Officer, Dr. Prakash Ware P. W. 11 who asked him few questions and medically examined him. Dr. Ware found on his person the following injuries. . Stab injury on left side in 9th intercostal space. The size of injury was 2. 5 cm. x ? cm. deep bleeding profusely. 2. Stab injury on left infrascapular space was 2. 5 cm. x ? cm. deep bleeding profusely. 3. Stab injury on the right 7th intercostal space, bleeding profusely. 4. There was doubtful stab injury on the left buttock. 5. Stab wound was on left forearm anteriorly 2. 5 cm. x ? cm. The evidence of Constable Ramesh Dalvi also shows that thereafter he removed the injured to the Emergency Ward. He followed him there; asked him his name; and he replied that he was Sanjay Kawle. On questioning him as to how he was injured, he (injured) answered that on 6-6-1992, at about 8. 15 p. m. Manoj Kadam, Prashant Khade, Dhananjay Dhuri and Ravindra Gurav (appellants) had assaulted him with sharp cutting weapon in front of Arogya Bhavan Hotel situated at Hingwala lane, Dadaji Kondeo Marg, Byculla, Bombay. To his question as to who had brought him, he replied that his friend Vijay Dhupkar had brought him to the hospital. Constable Dalvi noted all this in the E. P. R. Book vide Entry No. 4825. The evidence of Constable Dalvi further shows that thereafter he informed Byculla Police Station. 3-A. The evidence of P. S. I. Ramrao Desai P. W. 12 shows that on 9-6-1992, at about 9 p. m. while he was on night station duty at Byculla Police Station, he received a telephonic call from P. C. No. 2037 (Constable Ramesh Dalvi) who informed him that at about 8. 15 p. m. one Sanjay Kawle had been assaulted near Arogya Bhavan Hotel, Hingwala Lane, Dadaji Kondeo Marg, Byculla, Bombay by Ravindra Gurav, Dhananjay Dhuri, Manoj Kadam and Prashant Khade (the appellants) with sharp cutting weapons had been brought to J. J. Hospital by Vijay Dhupkar and admitted him in ward No. 4. He noted the said message in the station diary and left for J. J. Hospital. He sought oral permission from the concerned doctor for recording the F. I. R. of Sanjay Kawle. Thereafter, recorded it; thereafter asked the concerned doctor to endorse the F. I. R. recorded by him about his then condition; and the concerned doctor immediately made the said endorsement. After recording the F. I. R. , he read it to Sanjay Kawle who on finding it to be correct, affixed his signatures. The said F. I. R. is Exhibit 37. On the basis of Exhibit 37, the same day at 10. 30 p. m. C. R. No. 300 of 1992 was registered against the appellants Ravindra Gurav, Dhananjay Dhuri, Manoj Kadam and Prashant Khade.