JAYESH KOMAL BORKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal under Section 374(2) of the Criminal Procedure Code, the appellant challenges his conviction for the offence punishable under Section 302 of the Indian Penal Code (referred to as Penal Code for short). The aforesaid conviction has been recorded vide judgment dated 24th August 2010 in Sessions Case No. 168 of 2010. The appellant has been sentenced to life imprisonment and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months. The facts leading to the prosecution of the appellant are that one Dnyaneshwar, the appellant this younger brother and Nirmalabai their mother were residing at Bramhapuri. Dnyaneshwar was residing in a separate room while the appellant and his mother were residing in the same house separately. Dnyaneshwar was running a Pan Shop in front of his house. On 5th October 2009 at about 10.30 P.M. when Dnyaneshwar was at his Pan Shop along with one Kailash Kamble, his wife Sapana came running and informed him that the appellant was assaulting his mother by means of a crowbar. Dnyaneshwar immediately ran to the place of incident and snatched the crowbar from the appellant. Nirmalabai was lying on the ground with bleeding injury. Dnyaneshwar along with one Nilesh Khetade and Swanand Shende took Nirmalabai to the Government Hospital. She was however declared dead. Report was thereafter lodged by Dnyaneshwar on the basis of which offence under Section 302 of the Penal Code came to be registered. Due investigation was carried out and on its completion the charge sheet was prepared and submitted in the Court of learned Chief Judicial Magistrate, Bramhapuri. The case being triable by the Court of Sessions it was accordingly committed for trial. The charge was framed against the appellant who pleaded not guilty and claimed to be tried. On conclusion of the trial the appellant was convicted in the manner stated above. Hence this appeal by the original accused.

(2.) Dr. U.K. Kalsi, the learned counsel appearing for the appellant has submitted that the appellant has been wrongly implicated and convicted for said offence. It is submitted that there was no sufficient evidence on record to hold that it was the appellant who was guilty of having committed aforesaid offence. The incident took place at 10.30 p.m. in the night when there was total darkness. The relations between the appellant and his brother Dnyaneshwar were strained and hence he had been implicated in the said crime. The seizure of the crowbar was from a place accessible to public and hence same could not be relied upon to convict the appellant. The learned counsel therefore prayed for acquittal of the appellant.

(3.) Shri S.S. Doifode, the learned Additional Public Prosecutor for the State has relied upon the impugned judgment and supported the conviction of the appellant. It is submitted that the conviction is based on the testimony of P.W. 1 and P.W. 3 who were witness to aforesaid incident. The appellant was immediately arrested and he could not explain the blood stains on his clothes. After proper investigation the learned Judge of the Sessions Court on being satisfied about the guilt of the appellant convicted him for said offence. The learned counsel therefore prayed for dismissal of the appeal.