KAMLESH DASHRATH DETHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these appeals filed under Section 374 of Code of Criminal Procedure arise from the order of conviction and sentence passed in Sessions Case No. 605 of 1993 by the learned Additional Sessions Judge for Greater Mumbai on 29.1.2003. In all 8 accused came to be tried in Sessions Case No. 605 of 1993 and during the pendency of the trial, accused No. 1 Shabbir Mohd. Shaikh died on 3.2.2000 and accused No. 5 Maruti Nagappa Pawar died on 28.12.2001 and therefore, the case continued against the remaining six accused i.e. accused Nos. 2, 3, 4, 6, 7 and 8. They have been convicted for the offence punishable under Section 302 read with Section 149 of I.P.C. and sentenced to suffer R.I. for life. They have also been convicted for the offences punishable under Sections 144 and 148 of I.P.C. Criminal Appeal No. 268 of 2003 has been filed by all the six accused but subsequently, accused No. 7 Suresh Pannalal Jaiswal has filed Criminal Appeal No. 115 of 2004 and therefore, Criminal Appeal No. 268 of 2003 survives for accused Nos. 2, 3, 4, 6 and 8. Accused Nos. 6 and 7 are on bail.

(2.) As per the prosecution case, P.W.1 Smt. Indravati wife of Rajnarayan Vishwakarma was residing at Hanuman Nagar, Kandivali with her husband and five sons viz. (1) Suresh (aged 18 years), (2) Avadesh alias Subbu (aged 15 years), (3) Ramesh (aged 12 years), (4) Dinesh (aged 10 years), and (5) Ganesh (aged 8 years). On 4.4.1993 her with husband left the house at about 8 a.m. to attend to his duties and around 9.30 a.m. her son Avadesh alias Subbu left the house to go to Malad for his duties. While she was going out of her house to fetch water from the common tap at about 10.00 a.m. her son returned with bleeding injuries and fell into her arms. She noticed that her son Subbu had sustained bleeding injury near his neck on right hand side. With the help of her neighbour Smt. Sundera Rane (P.W.6), she made the injured Subbu to lie on a "khat" and carried him to the Hanuman Nagar Police Chowky. From the police chowky, he was moved into an auto-rickshaw and taken to Borivali hospital where he was declared dead. As per her, accused No. 4 Meheboob had a love affair with neighbouring girl Meera Pandit and the deceased Subbu had objected to their love affair. He had instructed accused Meheboob not to move around the house of Meera and therefore, Meheboob was annoyed. On 13.3.1993 Ramesh Jaiswal accused No. 7 and a friend of Meheboob accused No. 4 had some verbal altercation with Subbu and his friends and on that ground, Subbu was assaulted and killed.

(3.) The dead body of Subbu was sent for post mortem which was conducted by P.W. 7 Dr. Baban Shinde at the Cooper hospital on 5.4.1993 between 11 a.m. to 12 noon. He signed post mortem notes at Exh. 31 and gave the cause of death as "shock and haemorrhage due to withinjury to vital organ (unnatural death)". After 8 to 9 days, clothes of the deceased as well as P.W. 1 were recovered and sent for chemical analysis by P.W. 10 Suresh Bhumkar Investigating Officer. In the presence of P.W. 5 Ashok as a Panch witness, the discovery of knife at the instance of Maruti Pawar accused No. 5 was made and recovery panchnama Exh. 27 was drawn. The said weapon was also sent for chemical analysis. Accused Nos. 1 to 4 came to be arrested by P.W. 10 on 4.4.1993 whereas accused Nos. 5 and 6 came to be arrested by P.S.I. Mathadikari on 5.4.1993 and the said Officer arrested accused Nos. 7 and 8 also on 7.4.1993. On completion of the investigation, the charge sheet came to be filed on 30.6.1993 by P.W. 10 and the case being exclusively triable by the Sessions Court, it was committed. Charge at Exh. 8 was framed on 14.8.2002.