DEVIDAS AND ORS. Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) BEING aggrieved by the judgment and order, dated 11.5.2012, passed by the 4th Additional Sessions Judge, Nanded in Sessions Case No. 118 of 2010 convicting both the appellants, for the offence punishable under Section 452 r/w 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years with fine of Rs. 1,000/ -, in default to suffer rigorous imprisonment for one month; for the offence punishable under Section 324 r/w 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for two years; for the offence punishable under Section 307 r/w 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years with fine of Rs. 1,000/ -, in default to suffer rigorous imprisonment for one month; for the offence punishable under Section 302 r/w 34 of the Indian Penal Code and sentencing them to life imprisonment with fine of Rs. 1,000/ -, in default to suffer rigorous imprisonment for one month; and for the offence punishable under Section 4/25 of the Arms Act and sentencing them to suffer simple imprisonment for one year with fine of Rs. 500/ -, in default to suffer simple imprisonment for one month, present appeal was filed by original accused/appellant Nos. 1 and 2.

(2.) BRIEFLY stated, it is the case of the prosecution that appellant No. 1 is the father of appellant No. 2 and the complainant Meena is the wife of appellant No. 1. Appellant No. 1 is teacher in Zilla Parishad School at Wahegaon. The complainant has a son appellant No. 2 and a daughter Bhagyashree. Appellant No. 1 developed illicit relations with one Laxmibai of village Wahegaon and married her and since then he and his son, appellant No. 2 reside at Wahegaon. The brother of the complainant -Meena by name Dattatraya was murdered and first information report was lodged against the appellants. In that case, complainant Meena and her daughter Bhagyashree are the witnesses. Knowing that they are the witnesses, while under absconsion in the offence of murder of Dattatraya, on 13.11.2008 at 6.30 a.m. in the morning, both of appellants came to the house of complainant Meena. Appellant No. 1 had a katti and his son appellant No. 2 was armed with iron pipe. They started giving blows on Meena, who shouted and tried to resist when Bhagyashree came. Appellant No. 1 dealt a katti blow on the head and back of the complainant, and when Bhagyashree intervened, appellant No. 1 dealt a katti blow on her hand and appellant No. 2 dealt an iron rod blow. Complainant Meena fell down and then appellants went towards the house of her mother by name Laxmibai by murmuring "now they would teach lesson to old woman". Bhagyashree followed them up to the house of Laxmibai. Appellant Nos. 1 and 2 entered the house of Laxmibai and assaulted her with katti and iron pipe. Hearing shouts, Bhagyashree returned home and informed accordingly to the complainant Meena. The police was informed about the incident. Complainant was taken to the hospital in a jeep, so also her mother, who died. Offence was registered. P.I. Madan Shinde carried out investigation and arrested appellant Nos. 1 and 2 on 9.12.2009, who had absconded. Discovery and memorandum panchanamas were prepared. Necessary investigation was carried out. Articles were sent for scientific investigation to the Chemical Analyser. Statements were recorded. Charge sheet was filed. Case was committed. The defence of the appellants was of total denial. Evidence was tendered by the prosecution. Upon hearing the parties and analyzing the evidence, learned trial Judge convicted both the appellants. Hence this appeal.

(3.) LEARNED counsel for the appellants, therefore, submitted that evidence of both these interested witnesses ought to be rejected. There are serious infirmities in their evidence, but still the learned trial Judge landed in perversity in accepting their evidence, which is wholly illegal. Learned counsel for the appellant then contended that for the alleged murder of Laxmibai the mother of PW 1 Meena, PW 2 Bhagyashree cannot be said to be eye witness, because even according to her she has not seen the incident of assault by anybody or the appellants, because, according to her, she was outside the house and heard only shouts. Therefore, she cannot be said to be eye witness to the alleged murder of Laxmibai. Learned counsel then submitted that, at any rate, the evidence of these two witnesses being interested witnesses and having failed in earlier Sessions trial in respect of alleged murder of her brother Dattatraya, the witnesses were revengeful towards the appellants. No independent witness has been examined by the prosecution as eye witness when the incident has taken place in broad day light i.e. in the morning. Evidence of PW 12 Pralhad is not an assault -proper and therefore, falls short of he being an eye witness. According to the learned counsel for the appellants, none of the offences for which the appellants were tried, have been proved by the prosecution. Prosecution miserably failed to prove its case. The appellants deserve to be acquitted.