SHASHIKANT BABU DIKAR SURVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Criminal Appeal No. 947 of 1980 has been preferred by the original accused No.2 Shashikant Babu Dinkar Surve against his conviction under Section 302 read with Section 34 and under Section 307 read with Section 34 of the Indian Penal Code. For the offence under Section 302 read with Section 34 of the Indian Penal Code he has been sentenced to imprisonment for life and for that under Section 307 read with Section 34 he has been sentenced to rigorous imprisonment for seven years. Criminal Appeal No. 873 of 1982 has been filed by the original accused No.1 Kishor Parashuram Sawant against his conviction under Section 302 and 307 of the Indian Penal Code. For both the offences he has been sentenced to imprisonment for life. Both the accused were jointly tried for the aforesaid offences in the Sessions Court, Bombay, on the allegation that on or about July 10, 1979, at about 7 p.m. near Shirin Talkies, Jacob Circle, Bombay, in furtherance of their common intention of both the accused caused the death of Suryakant Sakpal by stabbing him with a knife and attempting to commit the murder of P.W. 3 Ramakant Kharangati. The trial proceeded before the AddI. Sessions Judge, Shri Jalisadgi, and the prosecution examined eleven witnesses. Both the accused were in custody. However, accused No.1 escaped from the custody on or about April 2, 1980, and as the presence of this accused could not be secured, the trial of accused No.2 was separated and proceeded further. The prosecution produced further witnesses in support of its case. Accused No.2 who was examined under Section 313 of the Code of Criminal Procedure also produced evidence of two witnesses in his defence. The learned trial judge by his judgment and order dated August 30, 1980 found the accused guilty and sentenced him as above. Criminal Appeal No. 947 of 1980 is directed against the said order of conviction of accused No.2. Thereafter, accused No.1. who was arrested by the police some time before the end of 1980 was produced before the Court. The trial against the said accused was commenced before the AddI. Sessions Judge Shri Desai. Apart from the evidence of 11 witnesses, which was already recorded in the presence of the accused before he absconded, the prosecution examined five more witnesses and the evidence of two witnesses was taken on record under Section 299 of the Code of Criminal Procedure. The accused was examined under Section 313 of the Code of Criminal Procedure. Unlike accused No.2, he did not produce any witness in his defence. On a consideration of the evidence and material produced, the learned judge found accused No. 1 guilty as above, by his Judgment and order dated October 26, 1982. This order of conviction is challenged by accused No. 1 in Criminal Appeal No. 873 of 1982.

(2.) We heard Mrs. Bhonsale for accused No.1 and Mr. Rane for accused No.2. We also heard Mrs. Keluskar, the learned Public Prosecutor, for the State. Evidence in both the cases is common. Both the appeals arise out of the same incident and as a matter of fact there would have been occasion for a separate judgment in the trial court but for the fact that accused No. 1 absconded while the trial was going on. The material evidence against both the accused is the same. The material witnesses were examined before accused No. 1 escaped from custody and absconded. In the circumstances, both the appeals can be disposed of by common judgment.

(3.) The facts leading to the prosecution are these. P.W. 4 Sadanand Sahadeo Sakpal is the brother of the deceased Suryakant Sahadeo Sakpal. Both of them were residing jointly in a tenement in Chawl No. 58 at World, Bombay, known as B.D.D. Chawls. Accused No.1 is residing in Chawl No. 33 while accused No.2 is residing in Chawl No. 32 in the same area and known as also B.D.D. Chawls. The relations between the residents of Chawl Nos. 32 and 33 on the one hand and the residents of Chawl No. 58 had become strained since a few years prior to the incident on account of dispute regarding the contribution to be paid for the celebration of Navaratri festival. Quarrels used to take place between the residents of the said Chawls every year on that account. A couple of days prior to the incident, i.e., on July 8, 1979, there was an incident of maramari between some of the residents of Chawl No. 58 on one hand and some residents of Chawl Nos. 32 and 33 on the other. In that incident amongst others, accused No.2 was also injured. In connection with that the incident P.W. 4 Sadanand Sakpal and P.W. 5 Narendra Surve were arrested on July 9, 1979, and were produced before the Metropolitan Magistrate, Dadar, on July 10, 1979, when they were remanded to the police custody for seven days. While he was in the Magistrate Court P.W.4 Sadanand Sakpal had told his brother deceased Suryakant to bring him food and clothes. Apart from P.W. 4 Sadanand P.W. 5 Narendra was also remanded to police custody and both of them were kept at the Divisional Police lock-up at Jacob Circle. It is the prosecution case that at about 5 p.m. in the evening deceased Suryakant approached P.W. 3 Ramakant Kharangati and requested him to accompany him to the police lock-up as he was taking food and clothes for his brother who was detained there. Then both Suryakant and Ramakant along with a satchel containing food and clothes went to the police station at Worli and obtained permission for delivery of food to P.W. 4 Sadanand in the lock-up at Jacob Circle. Then both Suryakant and Ramakant went to the lock-up at about 6 p.m. It is alleged that P.W. 4 Suryakant and P.W. 5 Narendra had at about that time seen both the accused entering into the compound of the lock-up through the main gate on a scooter and looking around for a few seconds and going away. They had again seen both of them there in the compound for a short while after about 10 minutes and proceeding towards Jacob Circle. Soon thereafter at about 6.30 p.m. Suryakant and Ramakant came to the lock up and handed over the memo of permission to P.W. H C. Salunke who was then in. charge of the lock-up and with his permission the tiffin carrier and the clothes were delivered to P.W. 4 Sadanand through P.C. Borate. At that time P.W. 4 Sadanand told Suryakant to come after some time for collecting the tiffin carrier as it would take some time for him to eat the food. Suryakant and Ramakant then went away saying that they would come back after some time. After leaving the lock-up, Remakant and Suryakant went towards Shirin Talkies which is in the vicinity of the lockup. After easing themselves they were walking on the foot path for going back towards the lock-up. It is alleged that when both of them so walking on the pavement near the pan shop at about 7 p.m. the two accused came in front of them. Accused No.2 said to them in Marathi Aata Kuthe Janar? (i.e., how will you escape now?). At that very time accused No. 1 immediately started stabbing Suryakant with a knife. While being assaulted with knife Suryakant started running towards the lockup along the foot-path. In the meanwhile, accused No.2 caught hold of P.W. 3 Ramakant by standing behind him and then accused No. 1 stabbed him with a knife on the right side of his chest. Ramakant shouted for help and then both the accused ran away from the spot. Then Ramakant started walking along the foot-path towards the lock-up keeping his hands on the stabbed wound. As soon as he approached the main gate of the compound of the lock-up he noticed that his companion Suryakant was lying on the road near the compound. He proceeded towards the lock-up Sadanand was then inside the lock-up near the wire meshing. By standing outside near the wire meshing, he told Sadanand that both the accused had stabbed him and Suryakant with knife. The two policemen, H.C. Salunke and P.C. Borate, were present at the lockup. P.C. Borate then brought a taxi and carried Ramakant to Nair Hospital for treatment. H.C. Salunke went to the spot where Suryakant was lying on the road and found him dead in a pool of blood. He then immediately proceeded to the Home Guard Office located in the same compound and sent a telephonic message to Agripada Police Station. The message was recorded at 7.20.p.m. at Entry No. 31 in the station diary register. H.C. 1213/D informed on telephone that one Ramakant Mahadeo Karangate came running to lock-up at Jacob Circle informing that he and Suryakant Sakpal stabbed by two persons namely Kishore Sawant and Babu Surve and the injured Suryakant was lying dead on the road in front of Jacob Circle lock up gate and traffic was jammed.'