SHIVJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants cballanged their conviction under Section 302, Indian Penal Code as also their sentence of life imprisonment imposed by the Sessions Judge, Jalna. The convictions of the two appellants are under Section 302 read with Section 34, Indian Penal Code, Section 397 read with Section 34 and Section 342 read with Section 34, Indian Penal Code. The prosecution reveals its case through its witnesses as under.

(2.) The two accused persons are brothers and live jointly with their other brothers at village Machinder Chincholi Tq. Ambad. Their family owns 2 separate and independent rooms which are situate opposite to each other at some distance from their residential houses. One of these rooms is used exclusively as a Baithak i.e., drawing room and another is used for running a flour mill. Deceased Sheshrao's parents lived in a Wada which was situated in the same locality about 20 to 25 paces away from the flour mill and Baithak room. The paternal uncle's family of the deceased also resided in the same Wada. It is the case of vhe prosecution that one Arjun More was employed by the accused to operate their flour mill. The deceased's father Sabebrao had shifted to Bombay since he had secured a job there some time before the alleged incident. Deceased Sheshrao, therefore, was staying with his mother in the family house and was studying in VIth Standard.

(3.) The incident relates to 14-3-1984 at about 9 P.M. It is the prosecution case that Arjun More who was working as an employee of the accused in the flour mill had locked the flour mill door and heard a cry of some boy emanating from the Baithak room belonging to the accused persons. Arjun more, therefore, rushed to Baithak but found that the door was chained from inside. He knocked at the door, but it was not heeded from inside. Arjun More, therefore, decided to call the neighbours and he rushed to the adjoining tailoring shop of P. W. Subhash Ghogra and related to him whatever he had heard and noticed. Both Arjun More and Subhash Ghogre rushed towards the Baithak. At this juncture, the door from inside was opened and Arjun More and Subhash Ghogre saw the boy Sheshrao lying in an injured condition on the floor of the that room and two accused standing by his side with lethal weapons in their hands. It is said that these two witnesses - Arjun More and Subhash Ghogre made an enquiry from the two accused persons as to why they had attacked and injured Sheshrao. Accused threatened them and said that they had no business to make such query aad they should immediately quit. The accused thereafter lifted the body of the injured boy Sheshrao and carried him to the place near the door of the Wada and dropped him in front of the main door of the Wada. Sheshrao was groaning and hereing his groans, his mother Padmabai came out of the door and saw him lying in an injured condition. The boy Sheshrao was restless and gasping. His mother offered him water. Thereafter she asked Sheshrao as to how he had sustained injuries. Sheshrao then told his mother that both the accused had confined him in Baithak and thrashed him with sticks and iron bars. He is also said to have told his mother that his wrist watch was snatched away by the accused. Bhagwan, cousin of Sheshrao, came on the spot to see the condition of the injured, but the mother of Sheshrao asked him to chase the culprits viz., the accused persons who had dropped the decsased there. Bhagwan is said to have ran in the direction in which the accused had run. But could not trace them. He then brought abullock cart and asked the mother of injured to take him immediately to the police station. Some other persons by that time had gathered at that spot and they also advised the mother accordingly. The injured Sheshrao was taken to Ghansawangi Police Station by bullock cart. They reached the police station at about midnight. Constable Bhosle who was then working as P.S.O. of the police station recorded the complaint of the deceased's mother as F.I.R. and sent the injured to Ghansawangi Primary Health Centre for treatment. It seems that the complaint was recorded after the boy Sheshrao was sent to Ghansawangi Primary Health Centre. After recording the complaint, Constable Bhosle also rushed to Primary Health Centre to find out the condition of the deceased. At that time, Dr. Baad and Dr. Kulkarni were seen attending to the injured. Since the condition of the injured was serious and critical, Constable Bhosale made enquiries with the deceased about the cause of injuries and recorded his dying declaration. He was questioned by Dr. Baad and the deceased disclosed to him the names of the two accused persons stating that he was confined by them in their Bhaithak. He was robbed of his wrist watch and thrashed with a stick and iron bar. The statement of the injured was reduced to writing by the Head Constable Bhosale. Signature of the injured was obtained below the said writing and Dr. Baad as well as Head Constable Bhonsle endorsed the said document stating that it was reduced to writing in their presence. The said document is Ex. 21 and has been treated as a dying declaration of the deceased.