SHAM SHANKAR KANKARIA, DATTATRAYA VINAYAK BOTHARE, KHANDU DEORAM ABHANG, SANJAY ALIAS JAYA NANDKUMAR RANBHISE, RAJESH BAJIRAO BHAVAR, RAJU AYYUB PATHAN, STATE OF MAHARASHTRA, STATE OF MAHARASHTRA, RAJU AYYUB PATHAN, SANJAY NANDKUMAR RANBHISE Vs. SHAM SHANKAR KANKARIA, STATE OF MAHARASHTRA

JUDGEMENT

(1.) All these appeals arise from the judgment and order dated 6th February, 1993 passed by the 3rd additional Sessions Judge, Nasik, in Sessions Case no. 126 of 1992 whereby the accused No. 1 therein being convicted for the offence punishable under Section 304 (II) of Indian Penal Code and being sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 3,000/- in default to undergo rigorous imprisonment for one year and the accused Nos. 2 to 6 being convicted for the offence under Section 325 read with 34 of Indian Penal Code and each of them being sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for six months, and further the accused Nos. 1 to 6 being also convicted for the offence under Section 342 read with 34 of indian Penal Code and each of them being sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for one month. While the accused Nos. 1 to 6 being acquitted of the offences under Section 302 read with 34 of the Indian Penal Code and Section 135 of the Bombay Police Act. The substantive sentence of imprisonment awarded against the accused No. 1 for the offences punishable under Section 304 (II) as well as under Section 342 of Indian Penal Code has been ordered to run concurrently, so also the sentence imposed upon the accused Nos. 2 to 6 under Section 325 and 342 read with Section 34 of the Indian Penal Code has been also ordered to run concurrently.

(2.) The Appeal No. 34 of 1993 is by the accused no. l Sham Shankar Kankaria; the Criminal Appeal no. 110 of 1993 is by the accused no. 6 Dattatraya vinayak Bothare; the Criminal Appeal No. 111 of 1993 is by the accused No. 5 Khandu Deoram Abhang, the criminal Appeal No. 112 of 1993 is by the accused No. 3 sanjay alias Jaya Nandkumar Ranbhise; the Criminal appeal No. 116 of 1993 is by the accused No. 2 Raju ayyub Pathan; and the Criminal Appeal No. 114 of 1993 is by the accused No. 4 Rajesh Bajirao Bhavar. The criminal Appeal No. 241 of 1993 is by the State against the acquittal of the accused Nos. 1 to 6 of the charge under Section 302 read with 34 of the Indian Penal code and Section 135 of the Bombay Police Act, and the criminal Appeal No. 242 of 1993 is also by the State for enhancement of the sentence. All these appeals were heard together and are being disposed of by this common judgment.

(3.) The prosecution case in brief is that on 13th january, 1992 one Vijay @ Bablu, the son of Kashinath kedare, who was residing with his parents and other members of the family in House No. 1342, situated at khadkali area of Nasik city, was called by the accused no. 3 Sanjay and the accused No. 5 Khandu, and, therefore, he left his house at about 8. 00 p. m. along with the said accused. He did not return till late night. At about 2 O'clock in the night between the 13th and 14th January, 1992, Khandu went to the house of Vijay and knocked the door of his house. On opening the door by Sanjay Kedare (P. W. 9) , the accused no. 5 Khandu informed Sanjay that his brother Vijay was assaulted and was lying at some place. Sanjay thereupon accompanied Khandu who took him to Bharati lodge, and further to the top floor of the Lodge where sanjay found his brother Vijay in injured condition tied to the cot with his hands and legs tied. Sanjay also saw some blood oozing out from the head of Vijay. Sanjay released the hands and legs of Vijay and asked him as to how it had happened, whereupon he was told by Vijay that all the six accused after he being tied to the cot, assaulted him severely with instruments like iron pipe and wooden stick on the allegation that he had stolen a bicycle. Sanjay thereupon carried vijay to his residence and Vijay once again narrated the said incident to his mother in the presence of sanjay and from there, he was taken in a rickshaw to the Civil Hospital, Nasik. On the way to the hospital, Vijay became unconscious and on being admitted to the hospital, he was declared to have been dead. Sanjay lodged complaint in writing at bhadrakali Police Station where the offence was registered under Sections 302, 342, 143, 147 and 149 of the Indian Penal Code read with Section 37 (1) read with Section 135 of the Bombay Police Act. On commencement of the investigation, all the six accused were arrested, their clothes were attached under the panchanama. The body of the deceased Vijay was subjected to the inquest panchanama as well as post-mortem examination. The medical officer opined that the death of Vijay was due to shock, intractranial haemorrhage and due to fracture of skull. After carrying out the spot panchanama, the articles at the spot of the incident including the blood scrapping were collected from the scene of offence. The iron pipe was recovered at the instance of the accused No. 1 Sham Kankaria. Coir cord and pieces of wooden pegs having blood stains were attached from the spot of the incident. The seized articles were sent for examination by the Chemical analyser. The blood sample of the deceased was also collected and sent for medical analysis along with the clothes on the body of the deceased. On conclusion of the investigation, all the six accused were chargesheeted. They were tried before the learned additional Sessions Judge and were convicted by the impugrred judgment and order, as stated above.