SAKHARAM RAOJI DHARAP Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Appeal challenges the impugned judgement and order of conviction dated 24th February, 2011 passed by the learned Additional Sessions Judge, Mangaon, District Raigad in Sessions Case No.17 of 2010 thereby convicting and sentencing the appellant - accused to undergo rigorous life imprisonment and to pay fine of Rs.1,000.00 and in default thereof, to suffer RI for six months.

(2.) The prosecution case in brief is that the father of the accused i.e., Ravaji Govind Dharap was residing with his family consisting of his wife Sangeeta (mother of the accused) and sons Ravindra and Chandrakant at Mouje Wafeghar Adivasi Wadi, Taluka Sudhagad, District Raigad. The accused is the younger son of Ravaji Dharap, who was staying at Panvel on account of his work. It is alleged that on 14.1.2010 at about 9.45pm, in the presence of Ravaji and Sangeeta, Ravindra was having some interaction with the accused. Hence, a scuffle took place between Ravaji and Ravindra. Ravindra brought an axe to the spot, which Ravaji attempted to snatch and yelled at Ravindra as to whether he was attempting to hit Ravaji. It is alleged that the accused Sakharam gave blows on the head of Ravindra, due to which he received head injury and he became unconscious. It is alleged that Ravaji left the spot.

(3.) The learned Counsel appearing for the appellant submitted that if the evidence of the Police Patil is read carefully, no role or overt act is attributed qua the present appellant. The entire case of the prosecution rests upon the alleged confessional statement of the appellant recorded by the Magistrate under section 164 of the Code of Criminal Procedure and the alleged recovery from the appellant. It is submitted that the alleged confessional statement does not fulfill the requirement of provisions of section 164 of Code of Criminal Procedure. It is submitted that there was no eye witness to the incident. At the time of the alleged memorandum statement of the appellant recorded by the concerned police officer, the appellant was handcuffed and, therefore, no implicit reliance could have been placed on such memorandum statement and pursuant to it, the recovery of the articles. Therefore, it is submitted that the learned Magistrate recorded the statement of the appellant under section 164 of Code of Criminal Procedure. Before recording such statement, he dealt with the remand application of the appellant and sent him to judicial custody. It is submitted that the said Magistrate was not competent to record the statement under section 164 of Code of Criminal Procedure in view of the fact that the said Magistrate had undertaken adjudication of remand application and enquiry. Therefore, the learned Counsel appearing for the appellant submits that the appeal may be allowed.