SHAIKH ASIF SHARPHODDIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal arises from the order of conviction and sentence dated-3rd November, 1999 passed by the learned Sessions Judge at Ahmednagar in Sessions Case No. 34 of 1999. The Appellant/accused came to be convicted for an offence punishable under section302 of the Indian Penal Code (the Code, for short) and he has been sentenced to suffer imprisonment for life. The Appellant is presently in jail.

(2.) THE prosecution case could be briefly summarized as under : THE deceased Ashok Kakani had lent an amount of Rs. 150/- to the accused and in morning of 1st December, 1998 the deceased and his brother P. W.1 Zawarlal @ Rajendra Rameshchandra Kakani had come to open their godown near Santosh Tea House at village Wambhori. Ashok saw the accused and went to him for recovery of Rs. 150/ -. THE deceased demanded from the accused the hand loan amount Rs. 150/- advanced to him and the accused replied that he had no money. Ashok asked the accused to take out his shoes and, though he took out his shoes, the accused got annoyed and left the place by saying that he would take care of both the brothers. Within 2-3 minutes he came back to the spot with a knife and tried to attack Ashok. At this juncture, complainant P. W.1 Zawarlal @ Rajendra intervened and sustained two injuries on his right hand forearm. THEreafter, the accused went ahead and attacked Ashok by giving a knife blow on his chest as a result of which Ashok collapsed on the spot. He died while being taken to the hospital. THE incident took place at about8. 30 a. m. on1st December, 1998 and the accused came to be arrested by the police from the Wambhori Outpost at about9. 00 a. m. Knife, which was in his hands, was seized by the police at about9. 15 a. m. under Panchanama (Exhibit 30) in the presence of Panch witness P.W.3 Vishnu Keshav Pandit. THE complainant was sent for medical examination and P.W.4 Sambhaji Pandurang Avhad issued injury certificate at Exhibit-33 and certified that he had received two injuries. THE dead body of Ashok was sent for postmortem to the Municipal hospital at Rahuri and Dr. R. R. Vairagar conducted the autopsy. He issued postmortem notes at Exhibit-32. THE bloodstained clothes and knife seized from the accused were sent for chemical analysis and C. A. report at Exhibit-17 to 19 were received. On completion of investigation, charge-sheet was filed and the case came to be committed to the Court of Sessions. Charge at Exhibit-3 came to be framed by the learned Sessions Judge on23rd August, 1999. THE accused denied the charge and stated that he was falsely implicated. THE prosecution examined in all four witnesses though it had submitted a list of 11 witnesses. PW1 Zawarlal @ Rajendra is the brother of the deceased. P.W.2 Chandrakant Shahurao Makasare is an employee of the accused (motor driver ). P.W.3 Vishnu is the Panch witness for seizure Panchanama and P.W.4 Sambhaji Avhad is the Medical Officer who had examined PW1 Rajendra. THE prosecution, it is pertinent to mention at this stage itself, did not examine the Investigating Officer for the reasons best known to it. As the P. M. notes were admitted the Medical Officer, who conducted the postmortem, was also not examined. Thus, the case of the prosecution is based solely on the testimony of so called two eye-witnesses i. e. P. W.1 Rajendra and P.W.2 Chandrakant as well as the medical evidence.

(3.) IT has come in the cross-examination of both these witnesses that the accused had also received injuries. P. W.- 1 Rajendra stated, in his cross-examination, very specifically that the accused was not chased and beaten by the members of the mob. The defence tried to make out a case that the deceased himself was armed and when there was a squabble between the two, the deceased tried to use the knife and in the process his brother P. W.1 Rajendra was injured. Subsequently, the accused snatched the knife and gave blow to the deceased on his chest and that is how the plea of self defence was claimed before the trial Court. IT is, thus, very doubtful whether the knife was in the possession of the accused right from the beginning or it was in possession of the deceased. The plea of self defence has been rightly rejected. By improvisation, as pointed out by the defence, while P. W.1 Rajendra and P.W.2 Chandrakant were under cross-examination, the prosecution case, on that score, has been impaired in this regard.