KESHAO SHRIRAM KODWATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Jaltare, learned counsel for the appellant and Mr. Loney, learned Additional Public Prosecutor for the respondent-State.

(2.) THE present Criminal Appeal is directed against the Judgment and Order of conviction, dated-26th August, 1999, passed by Second Additional Sessions Judge, Nagpur in Sessions Trial No. 155 of 1998, whereby the appellant Keshav Shriram Kodwate was convicted for the offence punishable under Section302, Indian Penal Code, and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000-00, in default to suffer Rigorous Imprisonment for six months, as well as for the offence punishable under Section307, Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for five years and to pay a fine of Rs. 2,000-00, in default to undergo Rigorous Imprisonment for six months. THE facts and circumstances which have given rise to the prosecution of the appellant in the crime in question are thus :-

(3.) THE learned counsel for the appellant Mr. Jaltare contended that the evidence of the prosecution witnesses is not only inconsistent with each other, but the same is inconsistent with material particulars of the prosecution case. It is submitted that though Durgabai claimed to be an eye-witness, the inconsistencies in her testimony create doubt as to whether she had really witnessed the incident. It is contended that Durgabai (P. W.1) in her examination-in-chief has stated that at about8. 30 p. m. , some quarrel was going on amongst four persons behind her house and, therefore, she went to see the quarrel. Her son deceased Ganesh had also gone to witness the quarrel. According to her, the four persons killed one person by means of a weapon. THEse four persons also stabbed her son Ganesh with the same weapon in her presence. It is contended that Durgabai (P. W.1), in her cross-examination, has admitted that she had not stated about the description of the assailants to the police when she lodged an oral report of the incident. It is contended that the testimony of this witness is contradictory to the Dying Declaration (Exh. 66) of deceased Ganesh. In the Dying Declaration, deceased Ganesh has stated that on the day of incident at about8-00 p. m. , some quarrel was going on behind his house and, therefore, his mother Durgabai (P. W.1) asked him to see what is going on and, therefore, he went to see the quarrel. It is further stated in the Dying Declaration by Ganesh that when he was trying to intervene in the quarrel, somebody delivered a blow of knife or a Gupti on his abdomen. He immediately came home and his father took him to the hospital. Mr. Jaltare, learned counsel for the appellant, states that Durgabai (P. W.1), in her cross-examination, stated that her son Ganesh did not intervene in the quarrel. THE learned counsel, therefore, states that the prosecution case put forth by Durgabai (P. W.1) and Ganesh in the Dying Declaration is inconsistent with each other, which creates a doubt about the authenticity of the ocular testimony of Durgabai (P. W.1) as well as recitals in the Dying Declaration (Exh. 66) of deceased Ganesh.