RAJNATH DUDHNATH YADAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these appeals filed by original accused No. 1 Rajnath Yadav and original accused No. 4 Suraj Yadav take exceptions to the judgment and order passed by the learned Additional Sessions Judge, Thane, in Sessions Case No. 138 of 2003, dated 9th September, 2004 thereby convicting both the appellants for offence punishable under Section 302 of the Indian Penal Code and sentencing to suffer imprisonment for life and to pay fine of Rs. 5000/- in default to suffer rigorous imprisonment for six months. Both the appellants are, further convicted for the offence punishable under Section 148 of Indian Penal Code and are sentenced to suffer simple imprisonment for three years and to pay fine of Rs. 1000/- in default to suffer R.I. for three months. Original accused No. 2 Vishwanath Yadav and original accused No. 3 Prakash Kadu are acquitted of all the offences. The prosecution case, in brief, is as under:

(2.) It is the case of prosecution that accused No. 4 Suraj Yadav in this incident gave blow of Chopper on the abdomen of the deceased. Thereafter accused No. 1 Rajnath Yadav delivered blows of Gupti. Other accused holding Chopper also assaulted the deceased. Due to this incident, PW-1 Mustakim started running towards firewood godown of deceased Dilip. He was shouting. The people heard the shouts and came to the spot. PW-2 Azad rushed to the spot when he heard PW-1 Mustakim shouting about the attack on deceased Dilip. He witnessed the incident of assault by accused No. 4 Suraj, accused No. 1 Rajnath, absconding accused Lallu and Soharab and other 10 to 12 unknown persons with Chopper, Gupti and iron pipes on Dilip, because of which Dilip fell on the ground. Accused No. 4 Suraj thereafter assaulted on his face with the help of chopper. PW-3 Nasim who was proceeding from his house at Waghoba Nagar, Kalwa, towards his tailoring shop in Bhaskar Nagar, Kalwa, at about 8.30 a.m., saw the incident of assault. PW-4 Riyaj, who was doing business of collecting goat skin, saw the incident of assault at about 8.30 a.m. Due to severe injuries deceased Dilip was lying on the spot. When persons gathered there, the accused persons ran away from the spot and threw the weapons there. Police arrived on the spot within 15 minutes from the time of incident of assault, thereafter PW-1 Mustakim went to the police station and informed the incident to the police and the complaint was recorded vide Exh. 35. As per the time mentioned on the complaint, it was lodged at 9.15 a.m. which was registered vide Crime No. I-228/2002 for the offences punishable under Sections 302, 147, 148, 149 of Indian Penal Code. Thereafter inquest panchanama was prepared vide Exh. 53 by PW-11 N.N. Shaikh, Senior Inspector of Police, attached to Kalwa Police Station between 9.45 a.m. and 10.45 a.m. in presence of panch witnesses PW-7 Hariram Sharma and Uday Maharav. The body of the deceased was sent for post-mortem and thereafter spot panchanama was drawn in presence of witnesses PW-2 Azad and one Shafi Ahmed Shaikh vide Exh. 37 between 10.55 a.m. and 12.10 p.m. by PW-11, the Investigating Officer.

(3.) Learned advocates Shri Prakash Naik and Shri S.V. Marwadi, appearing for the respective appellants had submitted that the learned Trial Judge has based the conviction without considering the evidence in its proper perspective and submitted that though the name of appellant appears in the F.I.R. lodged and though it is mentioned that Accused No. 1 Rajnath was holding gupti in his hand, no specific role is assigned to him. It is further pointed out that, in spite of specific mention in the F.I.R. of the accused No. 4 Suraj holding chopper in his hand and had assaulted the deceased on his abdomen, there is no any specific mention with regard to the group of other accused persons who were with appellants and who, according to the complainant, were also armed with dangerous weapons like gupti, iron pipes in their hands. It is thus submitted that the evidence which has come on record is totally in variance and the witnesses have exaggerated and had transposed the prosecution case to falsely implicate the appellants.