PARVESH AND ORS. Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by judgment and order dated 29.09.2012 passed by Sessions Judge, Gondia in Sessions Trial No. 87/2010, by which appellant No. 1-Pravesh was convicted for an offence punishable under section 307 of the IPC and sentenced to undergo imprisonment for life and also for an offence punishable under section 302 read with 34 of IPC and sentenced to undergo imprisonment for life and to pay fine and convicting appellant Nos. 2 and 3 for an offence punishable under section 302 read with section 34 of the IPC, the present appeal has been filed by them. In support of the appeal, Mr. Daga, learned counsel for the appellants, vehemently argued that the prosecution case was based on the sole testimony of the alleged eye witness Rupesh Bhoyar (P.W. 1) and he was admittedly the friend of the deceased Ankit and as such his evidence was required to be scrutinized by the learned trial Judge with full care and caution. The learned trial Judge, however, did not apply the said parameters while appreciating his evidence and straightway believed it and relying on his evidence, recorded the judgment of conviction. The learned counsel then contended that if the evidence of Rupesh (P W1) is ignored, then there is no other evidence for recording conviction of the appellants and, therefore, the judgment of the trial Court is clearly illegal and the appellants deserve to be acquitted of all the offences for which they were charged. The learned counsel for the appellants then contended that the other victim namely; Manoj, who was examined by the prosecution before the Court as prosecution witness No. 3, did not at all support the prosecution case about assault on his person by appellant No. 1. On the contrary, he turned hostile and since the victim himself did not state that he was assaulted, the prosecution has failed to prove the offence under section 307 of the IPC. However, by relying on some other witness i.e. Vicky Kathane (PW5), the trial Court recorded the order of conviction. He, therefore, submitted that the conviction of appellant No. 1 for an offence punishable under section 307 of the IPC for the alleged offence of committing deadly assault on Manoj is liable to be set aside. At any rate, the Doctor did not depose about the injuries to Manoj as sufficient to cause death in ordinary course of nature and that is the another reason why conviction is liable to be set aside. Mr. Daga then contended that all the appellants should have been acquitted by the trial Court for the charge of offence of murder as the prosecution failed in proving the case. He then submitted that at any rate, the benefit of doubt should have been given to the appellants and should have been acquitted of all the charges levelled against them. In the alternative, Mr. Daga, learned counsel for the appellants, contended that insofar as appellant Nos. 2 and 3 are concerned, there is no evidence on record to show that there was premeditation between these three appellants for attacking the deceased Ankit. On the contrary, it is the prosecution case that suddenly on the spot of incident, appellant Nos. 2 and 3 had held deceased Ankit and appellant No. 1 had stabbed him. There is no evidence to show that appellant Nos. 2 and 3 were holding the deceased Ankit throughout and thus there was no offence of murder punishable under section 302 of IPC proved and hence the lesser offence at the most is said to have been committed.

(2.) Per contra, Mr. Mirza, learned A.P.P. for the State, supported the impugned judgment and order and submitted that though there is testimony of Rupesh (P.W. 1), the same is worth of believing or trustworthy and, therefore, the trial court has rightly recorded the conviction against the appellant. He, therefore, prayed for dismissal of the appeal.

(3.) We have heard learned counsel for the rival parties. We have perused the entire evidence with the assistance of learned counsel for the rival parties. At the outset, we find that Rupesh (P.W. 1) is an eye witness to the incident. He was standing with the deceased Ankit near railway chouki when appellant No. 1 came there. Thereafter, some altercation took place between appellant No. 1-Pravesh and Ankit and appellant Nos. 1, 2 and 3 held Ankit and appellant No. 1 stabbed him by knife. We quote relevant part of the evidence of Rupesh (P.W. 1) as under: