KISHOR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both appellants are hereby assailing judgment and order of conviction passed by the learned Additional Sessions Judge, Aurangabad dtd. 15/9/2017 in Sessions Case No.153 of 2013 by which both appellants are held guilty and thereby convicted for offence under Sec. 302 read with 34 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life. BRIEF STORY OF PROSECUTION

(2.) On 16/1/2013 at around 10:00 p.m. there was heated exchange of words between PW1 Pawan and appellant Samadhan. Thereafter, at the instance of appellant Samadhan, 5-6 boys visited house of PW1 Pawan raising shouts. PW1 Pawan called up appellant Samadhan and questioned him why he had sent boys to his house. According to prosecution, appellant Samadhan threw challenge to PW1 Pawan to visit N6 Cidco. PW1 Pawan went to the said place with his younger brother Kapil at around 11:45 p.m. There appellants Samadhan, Kishor and two of their other friends initially assaulted PW1 Pawan with fist and kick blows. Appellant Kishor whisked out knife from his waist and gave several blows on the chest, stomach, waist of Kapil as a result of which he collapsed. PW1 Pawan with the help of PW3 Chandrakant shifted him to the hospital. Early morning Doctor declared him dead. After last rituals and funeral, PW1 Pawan set law into motion vide Exh.18. Crime being registered, investigated by PW6 Bawiskar (PI) and both appellants were challaned and finally tried by the learned Additional Sessions Judge, Aurangabad, who on appreciation of evidence adduced by prosecution, reached to a conclusion that prosecution has proved the charges and thereby convicted both appellants for charge under Sec. 302 read with 34 of the IPC. Above conviction is subject matter of challenge in this appeal on various grounds raised in the appeal memo. SUBMISSIONS On behalf of appellants :

(3.) Mr.R.S.Deshmukh, learned Senior Counsel for the appellants took us through the charge as well as evidence of PW1 Pawan, PW2 Vishal, PW3 Chandrakant and PW6 Pratap (Investigating Officer) i.e. through both examination-in-chief and cross-examination and he would strenuously submit that there was no motive behind the occurrence. He would submit that merely case is put-forth that appellant Samadhan is a 'Gunda element' but there is no iota of evidence documentary or oral. He pointed out that going by sequence enumerated by prosecution witnesses, it is the informant party who themselves had gone to the spot. He would submit that here what actually happened at the spot is neither stated by PW1 Pawan, PW2 Vishal and PW3 Chandrakant, who are relevant witnesses. He pointed out that very genesis of occurrence is also not put-forth by prosecution. That the act was not premeditated one as there was only allegation of assaults by fist and kicks. He pointed out that there is nothing on record to show that appellant Samadhan was aware of appellant Kishor to be armed with knife or he to be using it. Consequently, it is his submission that even common intention could not be attributed with such quality of evidence. He further pointed out that here though there is allegation of assault by appellant Kishor, surprisingly recovery of knife is shown to be at the instance of appellant Samadhan and so it is his submission that so called discovery cannot be attributed to appellant Samadhan, who was neither equipped nor put to use any weapon in the incident. He submitted that viewing from any angle, case in hand would not attract offence under Sec. 302 of the IPC but at the most it would attract offence of culpable homicide not amounting to murder and more particularly, offence under Sec. 304 Part II of the IPC and case would not travel beyond it. For all above reasons, he seeks indulgence of this Court by allowing the appeal. On behalf of State;