MURLIDHAR SHIVRAM PATEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS criminal appeal arises from an order of conviction and sentence passed by the learned II Additional Sessions Judge, jalna in Sessions Case No. 29/94 and the appellants accused were convicted for an offence punishable under section 302 r/w 34 of I. P. C. (hereinafter referred to as the Code for short) and they have been sentenced to suffer life imprisonment and to pay a fine of Rs. 1000/- each in default to suffer further r. I. for one year.

(2.) THE prosecution case unfolds thus: the accused Nos. 1 and 2 are husband and wife and resident of village motigavan in Jalgaon District. The deceased Asaram was married in the same village and continued to stay there. He was working with accused No. 1 and was on visiting terms with the accused. The accused No. 2 had alleged that on 27-8-1993 deceased Asaram had entered her house in the absence of her husband and children at about 6 p. m. when it was running heavily and raped her. On the next day morning i. e. on 28-8-1993, while the accused were proceeding to report to the Police Station, deceased Asaram prevented to bring them from going to the Police Station to lodge a complaint and he started scuffling with the accused No. 1. The accused No. 2 therefore, noticing that deceased Asaram had over powered the accused No. 1, caught hold of his genitals and facilitated accused No. 1 to give blows by a knife (Article No. 1 ). This incident was witnessed originally by the complainant Madhav Gore who died during the pendency of the trial as well as Kishan Mohite (P. W. 2)Pandurang (P. W. 3) and Pralhad Mohite (P. W. 4 ). The victim was taken to the hospital at Jalna in a tractor and on the other hand the accused went to the police Station at Moujpuri and lodged a complaint (Exh. 52) against deceased asaram for an offence punishable under section 376 of the Code and also stated that Asaram was injured by knife blows and the knife was produced before the P. S. I. Aridhale (P. W. 8 ). Seizure panchanama (Exh. 37) was made. The Head Constable Babulal Labhange (P. W. 7) who visited village Motigavan and undertook further investigation while he was proceeding towards the said village he met the injured who was being transported to Jalna by a tractor and recorded his dying declaration at Exh. 40 at about 10. 45 a. m. on the same day. The doctor at Jalna hospital directed that the victim be taken to Government Medical College Hospital at Aurangabad as he was in serious condition. Then the victim was brought by the police to the Ghati Hospital at aurangabad. The doctor on examination declared him dead. Madhav the com-plainant filed his complaint at Exh. 42 which came to be registered as F. I. R. for an offence punishable under section 302 r. w. 34 of the Code. However, on the demise of the victim Asaram said complaint was converted for an offence punishable under section 302 r. w. 34 of the code. However, investigation was conducted by Venkat Andhale (P. W. 8 ). Blood stained clothes of the deceased were sent for chemical analysis alongwith weapon (knife) as well as blood samples of the deceased and accused. The dead body was sent for post-mortem and Dr. Anil Digambarrao Jinturkar (P. W. 5) performed post-mortem between 7 to 8 p. m. on 28-8-93 (vide post-mortem Notes Exh. 32 ). The accused came to be arrested on the same day and on completion of investigation charge-sheet came to be filed as the offence was triable by the Sessions Court.

(3.) THE Judicial Magistrate, First Class committed the case to the Sessions court at Jalna on 19-2-94. Charge was framed at Exh. 11 against both the accused under section 302 r. w. 34 of the Code on 14-8-96 and the accused denied the charge and claimed to be tried.