DAYAL MAROTI LAKHOTE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants along with two others were tried for murder of Rashtrapal Jawade. The appellants are original accused Nos. 2 and 3. The other accused, who were tried with them, that is original accused Nos. 1 and 4, were acquitted. The appellants challenge their conviction and sentence in this appeal.

(2.) THE prosecution case, in brief, is that appellant No. 2 Kishor caught hold the waist of Rashtrapal, took him towards nullah and pushed him on the ground and appellant No. 1 Dayal assaulted Rashtrapal with iron rod five times. The Medical Officer found multiple abrasions on both the sides of forehead of the deceased, as also lacerated wound of about 3x1x1 cm. over left side of occipital region besides extensive fractures, to which we shall refer later. The deceased died as a result of the said injuries. In all eleven witnesses have been examined and the appellants have been convicted for murder under section 302 I. P. C. and sentenced to suffer life imprisonment. The period of detention undergone during the trial has been set-off.

(3.) THE learned Advocate for appellants urged before us that the evidence of two eye-witnesses, namely P. W. 1 Vilas and P. W. 2 Kausalyabai, cannot be believed in the light of the material omissions in their statement before the police and that the evidence of P. W. 3 Sachin cannot be relied upon for want of corroboration from any independent quarter. It is also submitted by him that the defence witness examined by the appellants has been able to establish that the dead body of the deceased was lying near the heap of stones and there were blood-stains on the stones and in the light of this evidence, the medical evidence to the effect that Injury No. 2, which was a fatal injury, could be caused due to fall, would go to show that the deceased had in fact died on account of fall on the stones. It is, therefore, contended that both the appellants deserve to be acquitted. Alternatively, it is contended that in so far as appellant Kishor is concerned, the prosecution has failed to prove that he had common intention to kill the deceased and as such in the absence of common intention, the mere fact of catching hold of the waist of Rashtrapal and throwing him on the ground may at the most bring his action within the ambit of sections 323 or 352 I. P. C. It has been urged that the mere fact that appellant Kishor caught hold of the waist of the deceased and threw him on the ground would not by itself bring the case within the ambit of section 34 of the Penal Code. In support of his submissions, the learned Advocate for appellants placed reliance on the judgments of the Apex Court in (Dhian Singh v. State of Punjab), A. I. R. 1995 S. C. 2451, and (Ramashish Yadavv. State of Bihar), 2000 S. C. C. (Cri.) 9.