SADASHIV JAYWANTA SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants are convicted for offence punishable u/s 302 r/w 34 of Indian Penal Code and sentenced to suffer life imprisonment, fine Rs. 500/-, in default to suffer rigorous imprisonment for 3 months, by judgment dated 33. 1995 delivered in Sessions Case No. 181/1994 by Second Additional Sessions Judge, Nanded. THE said judgment and conviction is being challenged by present appeal.

(2.) DECEASED Bharat was son of appellant no. 2-Maruti. On the night between 9.5.1994 and 10.5.1994, he was murdered by inflicting an injury on the right side of the neck by means of sharp cutting weapon. On 10.5.1994, a report by accused Maruti about the same was delivered through Kotwal of village Dahikalamba to Osmannagar Police Station (Exh. 36 ). In this report, accused Maruti had not named any culprit nor expressed suspicion against anyone. A. P. I. Shri Honaji Warne proceeded to village Dahikalamba. At that time, Maruti orally narrated the details which were reduced to writing by Police. This report is at Exh. 37.In this report, appellant-accused Maruti has expressed that deceased Bharat had illicit relations with Gayabai w/o Nagorao Shinde and, therefore, he claimed that Nagorao and his sons Suryaji and Devidas have killed his son Bharat. Admittedly, deceased was married to Jayashri and Nagorao and his wife were the mediators for this marriage, Jayashri being daughter of Gayabai's sister. For the purpose of marriage, accused had borrowed an amount of Rs. 4,000/- from Nagorao. According to this report (Exh. 37), Jayashri was staying with her parents, as she had not attained puberty and Bharat was more attached to the family of Nagorao, he was frequenting, even staying there and taking his meals with that family. Only occasionally he was staying with parents. According to Maruti, he and his wife had tried to persuade Bharat against immoral relations with Gayabai. About a month prior to the incident, deceased Bharat had taken two Maunds of wheat from parents' house to Nagorao inspite of objection by father Maruti. On the basis of this complaint, it appears that A. P. I. Shri Warne effected arrest of Nagorao and his son Devidas on 11.5.1994, who were subsequently released u/s 169 of the Code of Criminal Procedure, 1973, on the basis of report dated 21.7.1994 by Police Inspector, Local Crime Branch, Nanded. It appears that investigation of the matter was taken away from A. P. I. Warne of Osmannagar Police Station and handed over to P. I. Shri H. L. Salunke on 6.7.1994 as ordered by the Superintendent of Police, Nanded. This was because of application by Yamunabai, mother of the deceased. This application is at Exh. 51.In this application, Yamunabai has accused Police to have indulged into corruption. She has requested for fresh investigation in the matter and she has claimed that Bharat was murdered by brother of her husband Sadashiv (appellant no. 1) and his wife Shantabai, as also son Narayan. After this order, P. I. Shri H. L. Salunke, attached to L. C. B. , Nanded, carried out further investigation by recording statements of witnesses on 12th and 13th July, 1994. He effected arrest of both appellants on 13.7.1994 and appellants were remanded to Police custody upto 18.7.1994 and subsequently 21.7.1994. Weapon used for the commission of offence i. e. axe, is said to have been recovered at the instance of appellant no. 1 Sadashiv during this period. After completion of investigation, P. I. Shri H. G. Chauhan, successor in office of P. I. Shri Salunke filed the chargesheet in the Court of J. M. F. C. , Kandhar. Prosecution has entered the trial with a story that appellant no. 1 inflicted the axe-blow to the victim and appellant no. 2 had caught the legs of the deceased. This was because upon hearing the cry of the victim, witnesses saw appellant no. 1 standing near the head of the victim with an axe and appellant no. 2 sitting near the legs. The case ended in conviction, as narrated above, after trial before Second Additional Sessions Judge, Nanded.

(3.) SINCE the impugned judgment of conviction is mainly based upon evidence of Sarjabai (P. W. 6), Shivaji Shinde (P. W. 7), Datta Baba (P. W. 8), and Suryaji Shinde (P. W. 10), learned counsel Shri Mundhe, appointed for the purpose of prosecuting the appeal, assailed the evidence of these four witnesses as unreliable and for the purpose he relied upon the portions from their previous statements dated 10.5.1994, which were contradicted by these witnesses and proved by A. P. I. Shri Warne. Sarjabai, daughter of victim, is the main witness of the prosecution in this matter. On reference to portion from her Police statement dated 10.5.1994 which was contradicted by her (Exh. 46), she appears to have stated that appellant Sadashiv had come to her place on 9.5.1994 requesting her husband to lend Rs. 5,000/- and on the next day i. e. 10.5.1994, a messenger came from Dahikalamba informing about murder of her brother Bharat. She claims to have proceeded to Dahikalamba after such message. It is needless to say that this previous statement of Sarjabai leads to an inference that she was not at the place of parents on the fateful night. Other witness Suryaji Shinde, who claims to have seen the incident while sleeping on the parapet wall of the well, in his statement dated 10.5.1994 claimed ignorance about who might have murdered Bharat. This contradicted portion from earlier statements is Exhibit 45.P. W. 7 Shivaji Shinde, friend of the victim in his statement dated 10.5.1994 (Exh. 42) has stated to have departed at 11 p. m. on his own. It was not his contention that time, that accused no. 2 sent him away. Lastly, Datta Baba Shinde (P. W. 8) had stated before Police on 10.5.1994 that he had consumed liquor with his friends on that night and slept thereafter with little bickering with his wife. He narrated to have learnt about the murder only on 10th morning (Exhs. 43 and 44 ). If these previous statements of the four witnesses are taken into consideration, the common inference that can be drawn against them is that they are not the eye witnesses.