SUBHASH KADUBA JADHAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. M. R. Daga, Advocate for appellant and Mr. Loney, A. P. P. for State.

(2.) THE 2nd Additional Sessions Judge, Buldhana in Sessions Case No. 45/1995, by his Judgment and order dtd. 28. 09. 1995, convicted the accused for having committed offence under Section 302 and sentenced him to suffer imprisonment for life, which is under challenge in this appeal. 2a. In short it is the prosecution case, that on 26. 12. 1994, one Sandhu Trimbak Korde, invited the villagers for dinner, at his place. It was about 8 p. m. , the villagers were sitting in two rows, where the accused Subhash and victim Ashok, were also present, and having their dinner. One Sarangdhar, the brother of the accused served one chapati to Ashok, to which Ashok protested and returned it, on this Subhash felt annoyed and threatened Ashok for returning the chapati, which led to exchange of hot words between them. But, the quarrel was pacified by one Arun Ganesh Korde, the Police Patil of the village. On the next day in the morning, Subhash came towards the house of Purushottam (P. W. 1), armed with sickle and had covered himself with bed sheet, where Ashok had come after attending call of nature, and threw chilly powder in the eyes of Ashok, and gave two blows of sickle on the abdomen and one blow on the back. Seeing this, Purushottam (P. W. 1) who had just milked his Cow, rushed towards them, and caught hold of the sickle, due to which he also suffered injury on his palms. THE victim Ashok had fallen down on the ground. At that time Vijay, Purushottam's cousin came there and caught hold of accused Subhash. In the meantime father and younger brother of Subhash came there and took him away from the spot. Purushottam with the help of Vijay and others took the injured Ashok in bullockcart towards hospital, at Dhar, but, he died on the way, so the dead body was brought back, then he alongwith Arun Korde, Police Patil, went to Dhar Police Station, and lodged report Ex. 30. Purushottam was sent to Doctor for medical examination by the police. In the course of investigation police prepared scene of offence panchnama, Inquest panchnama, and dead body of Ashok was sent for post mortem examination, I. O. recorded the statement of the witness. THE accused came to be arrested on the same day in afternoon. On his interrogation, police was able to recover Sickle (Article - 8), from the house of the accused which was used by the accused for assaulting Ashok, under seizure memo Ex. 21, in presence of one Bhagwan P. W. 4 Panch. Clothes of the victim as well as accused the sickle, and blood samples of accused, victim and father of the accused came to be forwarded to the C. A. After the investigation was over, chargesheet came to be filed in the Court of J. M. F. C. Buldhana, thereafter the case was committed to the Court of Sessions.

(3.) MR. Daga, the learned counsel appearing for the appellant submitted, that, there is variance in the evidence of Purushottam P. W. 1, and medical evidence led by the prosecution, which would go to show that, Purushottam is not the eye witness to the incident. MR. Daga has drawn our attention to the fact, that in his cross examination, Purushottam has accepted that, he has reached the spot after two blows were already dealt on the victim, and he had seen the accused while he was giving third blow by sickle on the back of Ashok. This itself shows that this witness has not actually seen the assault. Another reason for this, is that in the opinion of the medical officer, the victim has suffered two stab wounds and one incise wound. MR. Daga, demonstrated to us by referring to the sickle (Article 8), before the Court, that the shape of the sickle is such that is cannot cause stab would, and therefore, the ocular evidence of the witness that the victim was assaulted with sickle is falsified, and this also goes to show that Purushottam is not the eye witness.