DASHRATH D TEMBHURNIKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Mr. A. S. Jaiswal with Mr. R. B. Gaikwad, learned Advocates for appellant/accused and Mr. D. B. Yengal, learned A. P. P. for State.

(2.) In Sessions Trial No. 43/92 the appellant Deshrath s/o. Daji Tembhurnikar was tried on a charge of having committed murder of Gangabai w/o Jairaj Chahande with a country made hand-gun capable of firing 12 bore cartridge and thereby, committed an offence u/s. 302 of Indian Penal Code. Further, in the course of the same transaction caused injuries to Nitu s/o Jairaj chahande by means of a stick and thereby committed offence u/s. 324 of Indian Penal code and being found in possession of country made pistol without licence committed an offence u/s. 3 read with Section 25 of the Arms Act. The Additional Sessions judge, Gpndia by his judgment dated 27/6/1994 acquitted the accused of the charge of having committed offence under section 302 of Indian penal Code bur instead held him guilty for having committed offence punishable under Section 304 part ii of IPC and sentenced him to suffer R. I. for 4 years and to pay a fine of Rs. 1000/-, in default, to undergo R. I. for two months. The trial Court; further found him guilty of having committed an offence u/s. 323 IPC for assaulting Nitu PW. 2 and sentenced him to suffer R. I. for two months by ordering that the substantive sentences will run concurrently and by giving set off to the appellant u/s. 428 'of the Cr. P. Code. The appellant came to be acquitted for the offence punishable u/s. 3 read with Section 25 of the arms Act. The appellant has challenged his conviction and sentence by preferring Criminal Appeal No. 249/94 whereas the State has come in appeal being aggrieved by the decision of the trial court in acquitting the appellant/accused for the alleged offence u/ s. 302 IPC and also offence punishable u/ s. 3 read with Sec. 25 of the Arms Act.

(3.) Briefly stated, the prosecution case is that on 2.2.1992 at about 7.30 a. m. at dakbanglatoli at Risama within the jurisdiction] of Police Station Amgaon, District bhandara, the deceased Gangabai w/o jairaj Chahande and Bayanabai wife of the appellant/original accused Dashrath tembhurnikar had a quarrel at the hand- pump where they had gone to fetch water. When the deceased Gangabai and bayanabai were quarrelling, Nitu s/o Jairaj chahande P. W. 2 intervened in the quarrel in order separate them and while he was bringing her mother deceased Gangabai to their house, the appellant/accused came with a Bamboo stick in his hand and assaulted Nitu PW. 2 over his head and on his left flung because of which he suffered bleeding injuries to his head and collapsed on the ground. In the meantime, father of Nitu pw. 7 Jairaj s/o Shivram Chahande came there and took him inside the house and he was removed to Government hospital. It is the prosecution's case that in the meantime, the appellant/accused armed with country made hand-gun came towards the house of gangabai and fired 3 shots, out of which one shot hit Gangabai on her chest and she came to be removed to hospital by her younger sister PW. l Sarita and other and then PW. 1 Sarita also went to Amgaon Police station and lodged the report Exh. 46. It appears PW. 12 Dr. Lalwani, Medical Officer, who was at the relevant time working in b. G. W. Hospital, Gondia examined Gangabai and found fire-gun injuries on ner chest and noticed that blood was coming out from the wound, her X-ray was taken which showed 4 foreign bodies on left side of chest, that gangabai expired on 2.2.1992 at 1.25 p. m. Therefore, her body was sent for postmortem examination which came to be conducted by Dr. Ingole P. W. 4, Medical Officer, kts Hospital, Gondia who gave opinion that death occurred due to injuries to vital organs, i. e. lung injury due to bullet and firearm pellets. It is the prosecution's case that when Sarita PW. l Nitu PW. 2 and father of nitu, Jairam and others had gone to the police Station, the appellant/accused also reached the Police Station and came to be arrested and hand-gun with 3.12 bore cartridge came to be seized from him.