GANESH SAKHARAM KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard rival arguments at length on this Appeal preferred by the Appellants/original accused Nos.1 & 2. Both the appellants were convicted in Sessions Case No.489 of 2002 vide order dated 30.12.2003 passed by the 3rd Ad-hoc Additional Sessions Judge, Pune. By the impugned judgment and order in Sessions Case No.489 of 2002 both the present appellants / accused Nos.1 & 2 were convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and were sentenced to suffer imprisonment for life and were directed to pay fine of Rs.500/- each, in default of payment of fine to suffer R.I. For six months each. In the said Sessions Case, total six accused were tried. However, accused Nos.3 to 6 were acquitted of all the charges. Admittedly, since date of arrest i.e. since 14.7.2002 both the appellants / accused Nos.1 & 2 were in jail and as such after the judgment and order of conviction they are still in jail till date.

(2.) After the present Appeal was admitted vide order dated 29.3.2004, the application for bail was rejected by another Division Bench and as such during pendency of the present Appeal, both the appellants / accused Nos.1 & 2 are in jail. Reportedly, there is no Appeal by the State challenging the acquittal of remaining accused Nos.3 to 6.

(3.) The case of the prosecution narrated in nutshell is as under:- One Firoz Kallu Shaikh ( since deceased) was residing at Kasewadi, Bhawani Peth, Pune in the vicinity of the residence of one girl by name Swati. Allegedly said Swati and deceased Firoz had love affair. However, it was not approved by the present appellant No.1 / accused No.1 Ganesh (brother-in-law of Swati) and her mother and as such there were strained relations between the parties on account of such love affair and in fact there were earlier threats given by the present appellant No.1 / accused No.1 to the deceased and deceased was reprimanded by accused No.1 and was threatened of dire consequences of amputating his hands and legs. Apparently the love- affair continued and as such it resulted in doing away with Firoz and as such the incident occurred at the early hours of 11th July, 2002. On the fateful day, deceased Firoz was sleeping on a hand-cart parked by the roadside of the locality where he was staying. His another friend namely Azij Shaikh ( PW-4) was also sleeping by his side. At that early hours allegedly present appellants and their other associates - total about 5-6 persons, gathered on the spot and started assaulting the deceased Firoz by means of weapons like sattur, sword etc. The attack on the deceased Firoz was rather severe inasmuch as he sustained about 56 injuries on various parts of his body. However, he did notice the presence of present appellants / accused Nos.1 & 2 as assailants along with other persons. He noticed appellant No.1 / accused No.1 possessing a sattur and appellant No.2 / accused No.2 possessing a sharp-edged weapon and also noticed that they inflicted blows on his person by the said weapons. He also noticed other assailants however could not identify them. After the incident of assault, all the assailants ran away from the spot. Due to commotion, persons in the locality gathered on the spot and carried the deceased Firoz in an auto-rickshaw to Kasewadi Police Outpost. Then the victim was taken to Sasoon Hospital by the police. The Medical Officer of Sasoon Hospital started treatment.