HARIDAS DAYARAM WANKHADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants, in all these appeals, were tried together in Sessions Case No. 71 of 1997 for murder of Tulsiram Dashrath Wankhade under Section302 read with Section34 of the Indian Penal Code. In support of the charge, the prosecution had examined in all 11 witnesses. THE prosecution case, in brief, is that on26-04-1997, at about10:00 a. m. , there was a quarrel between Tulsiram (deceased) and original accused No. 2 Sanjay, original accused No. 3 Ramesh and original accused No. 4 Mukund on the water tap near school at village Hartala. With the intervention of the villagers, the quarrel subsided. However, at about1:00 p. m. , the accused No. 2 Sanjay, accused No. 3 Ramesh and accused No. 4 Mukund had gone to the house of Tulsiram and in furtherance of common intention of the said accused and accused No. 1 Haridas, who resides in the adjoining house of deceased Tulsiram, assaulted the said Tulsiram with knife. THE knife blow was given by accused No. 1 Haridas on the stomach of Tulsiram as a result of which his intestines protruded. THE prosecution case is that accused Sanjay, Ramesh and Mukund had called deceased Tulsiram from his house and when he came out, he was caught hold of by them and accused Haridas inflicted a knife blow on his stomach as a result of which said Tulsiram died on27-04-1997. THE incident is reported to have been seen by Shashikala (PW-7), who resides in the adjoining house to the house of accused No. 1 Haridas. THE deceased is also said to have made oral dying declaration to Fulanbai (PW-4), Nandu (PW-6), Chandu (PW-8) and Bandu (PW-9 ). THE incident in question is denied by the accused/appellants. Accused Sanjay has stated in his statement under Section313 of Cr. P. C. that witnesses Band, Chandu, Nandu and Sahadeo beat accused Mukund and Mukund was carried to the hospital and in that case his brother gave evidence as a result of which his name has been involved in this case. Similar stand is taken by accused No. 3 Ramesh in his statement under Section313 of Cr. P. C. Accused No. 4 Mukund has also taken a similar stand in his statement under Section313 of Cr. P. C. He has further added that Nandu, Chandu and Bandu were giving threats to him and asked him to withdraw the case under Section307 of the Indian Penal Code. He refused to withdraw this case and, therefore, he is involved in this case.

(2.) THE trial Court accepted the eye witness account of Shashikala (PW-7) as also the oral dying declaration made by the deceased Tulsiram to Fulanbai (PW-4) and Nandu (PW-6), Chandu (PW-8) and Bandu (PW-9) besides other witnesses on record.

(3.) LEARNED Advocate for the appellants/accused No. 2 Sanjay and accused No. 3 Ramesh in Criminal Appeal No. 50 of 1999 has urged that the question which is required to be examined and decided is whether accused No. 2 Sanjay and accused No. 3 Ramesh can be said to have entertained the common intention to kill the deceased. It is urged that the evidence of Shashikala (PW-7) as also evidence of Bandu (PW-9) would go to show that accused No. 1 Haridas who has inflicted the knife blow did not go along with the other three accused. He has drawn our attention to the evidence of Shashikala (PW-7) where she states that at the time when accused No. 2 Sanjay, accused No. 3 Ramesh and accused No. 4 Mukund gave a call by standing outside the house of Tulsiram, accused No. 1 Haridas was in his house. Our attention has also been drawn to the evidence of Bandu (PW-9) wherein it is stated that his father Tulsiram told him that accused Nos. 2 to 4 then beat him and thereafter took him to the courtyard of accused No. 1 Haridas which would go to show that accused Nos. 2 to 4 did not entertain the common intention to kill deceased Tulsiram and for the knife blow given by the accused No. 1 Haridas after he came out of the house, it is only accused No. 1 Haridas who can be held liable. According to the learned Advocate for these appellants, the prosecution has failed to prove common intention as against them and they are entitled to be acquitted. LEARNED Advocate for the appellants placed reliance on Ramashish Yadav and others Vs. State of Bihar (reported in 2000 Cri. L. J. 12 ).