PRAMOD NILKANTH JIVTODE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is filed by the appellants against the judgment and order dated 21-2-1990, whereby the appellants are convicted for the offence punishable under section 302 of Indian Penal Code and are sentenced to suffer imprisonment for life. Initially, another eight accused along with the present appellants were prosecuted for the offences punishable under sections 148 and 302 read with section 149 of Indian Penal Code. However, the other eight accused have been acquitted of the offences charged and there is no appeal filed by the State against the order of acquittal.

(2.) THE prosecution case in nut shell can be summarized as follows: all the appellants as well as other co-accused were residents of village Wagholi. The deceased Rajaram Jyotiram Gote was also resident of the same village. On 4-8-1985 there was some programme of music called Powada in the village. All the accused were present in the said programme. There was a pole having electric bulb at the corner of the shop of Dada Khodankar and the bulb on the said pole was on. There was another pole having electric bulb in the pendal of the programme which was also on at the relevant time. Deceased Rajaram was sitting in the lane in front of the house of Gopal Marwadi which was at a distance of 15-20 feet away from the pendal. All the accused except appellant No. 1 Pramod were sitting ahead of Sukhdeo (P. W. 6), Suresh and deceased Rajaram. Since appellant No. 1 Pramod got up and started watching the programme while standing in the pendal, deceased Rajaram asked him to sit down since he could not see the artists on the stage. Appellant No. 1 Pramod did not listen to deceased Rajaram. Therefore, deceased Rajaram caught hold of the hands of appellant Pramod and made him sit down. In the meanwhile, one Trimbak Sontakke came near Rajaram and took him towards the house of one Barber. Appellant No. 1 Pramod (original accused No. 1), appellant Manik (original accused No. 4) and appellant Rajkumar (original accused No. 10) followed Rajaram. Within five to ten minutes, deceased Rajaram returned back in the pendal. It is the prosecution case that all the appellants came there and stood near deceased Rajaram. Appellant Pramod and other co-accused Keshav had axes in their hands while rest of the accused had sticks in their hands. Appellant Manik dealt a blow by means of stick on the head of deceased Rajaram as a result of which he received head injury. Thereafter, appellant No. 1 Pramod and other co-accused Keshav dealt a blow by means of an axe on the person of deceased Rajkumar. Rajkumar (sic Rajaram) sustained bleeding injuries on his head, right hand and chest etc. The incident of assault was witnessed by Motiram (P. W. 1), Meerabai (P. W. 2), Arvind Wasekar (P. W. 3), Sukhdeo Wasekar (P. W. 6) and Vishranti Gote (P. W. 7 ). The condition of deceased Rajaram was serious. At the relevant time, deceased Rajaram disclosed to Motiram (P. W. 1), Meerabai (P. W. 2) as well as Vishranti (P. W. 7) that appellant No. 1 Pramod, Manik and Rajkumar assaulted him. One Premdas Mahadeo Gote then telephoned the Police Station Hinganghat about the incident. Deceased Rajaram succumbed to the injuries on the spot. The Investigating Officer after completing the investigation filed a charge-sheet. A charge under sections 148 and 302 read with section 149 of Indian Penal Code was framed against the accused persons and was read over and explained to them. The appellants as well as other co-accused pleaded not guilty to the charge and claimed to be tried. Their defence is that they are falsely implicated in the case.

(3.) MRS. Sirpurkar, learned Counsel, for the appellants contended that the evidence adduced by the prosecution is one and the same as against the present appellants as well as other co-accused. It is contended that the trial Court disbelieved the evidence of the prosecution witnesses as far as other co-accused are concerned and, therefore, they are acquitted for the offences charged. It is contended that in the instant case Motiram (P. W. 1), Meerabai (P. W. 2), Arvind (P. W. 3), Sukhdeo (P. W. 6) and Vishranti (P. W. 7) are the alleged eye-witnesses to the incident of assault by the accused. It is submitted that the trial Court rejected the evidence of Motiram (P. W. 1) in respect of the assault alleged to have been committed by the appellants in view of the material omissions in his oral report (Exhibit 43 ). Similarly, the trial Court has specifically recorded a finding that Meerabai (P. W. 2) did not see the accused persons assaulting Rajaram with the axe, spear, sticks etc. Similarly, the evidence of last eye-witness Vishranti (P. W. 7) has also been rejected on the ground of material omissions found in her testimony. However, the trial Court accepted the oral dying declaration given by deceased Rajaram to Meerabai (P. W. 2), Arvind (P. W. 3) and Vishranti (P. W. 7) coupled with the evidence of Sukhdeo (P. W. 6) and convicted the appellants for the offence of murder of deceased Rajaram. It is contended that since the trial Court virtually rejected the testimony of these witnesses on the point assault witnessed by them in view of the material omissions, the trial Court ought not to have relied on the oral dying declaration given by deceased Rajaram to these witnesses. It is contended that in the instant case, all these witnesses cannot be believed even on the point of oral dying declaration because these witnesses have made unnatural improvement in their ocular testimony before the Court and, therefore, the reliance placed by the trial Court on part of the testimony of the witnesses is improper and the findings of conviction recorded by the trial Court are not sustainable in law.