RAJESH BALKRISHNA PILLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Appellant -original accused No. 1 has impugned the judgment and order dated 21st May, 2002 passed by the learned Ad -hoc Additional Sessions Judge, Pune in Sessions Case No. 158 of 2001. By the impugned judgment and order dated 21st May, 2002 the learned Ad -hoc Additional Sessions Judge has convicted the Appellant under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and a fine of Rs. 500/ -, in default of fine to further undergo rigorous imprisonment for three months. The Appellant has also been convicted for the offence punishable under Sections 324 read with Section 34 of the Indian Penal Code, and has been sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 300/ -, in default of payment of fine to further suffer rigorous imprisonment for one month. For the offence punishable under Sections 506(ii) read with Section 34 of the Indian Penal Code, the Appellant has been convicted and sentenced to suffer rigorous imprisonment for one month and fine of Rs. 100/ -, in default of payment of fine to further suffer rigorous imprisonment for one week. The learned Ad -hoc Additional Sessions Judge has directed that the substantive sentences of imprisonment shall run concurrently.

(2.) THE facts which are necessary to decide the present Appeal can briefly be stated as under :

(3.) THE learned counsel for the Appellant submitted that P.W.2 and P.W.3 who are the witnesses to the incident have not stated about the presence of P.W.6 at the spot of incident or either prior to it and therefore, the presence of P.W.6 at the spot or near the spot is doubtful. She further submitted that P.W.5 who is the panch witness to the discovery of knife at the instance of the Appellant, in his testimony has not stated about the sealing of the said article on the spot and therefore, it creates doubt about it being tampered at the instance of the investigating agency. She further contended that the learned Trial Court in the impugned judgment has recorded a finding that the fatal blow which caused the death of Mr. Mohammed Shaikh was given by original accused No. 2 Pappu Ghayalkar and it means that the Appellant did not give the fatal blow. The Appellant only caused injury to the deceased and the injured witnesses only with a view to beat them and therefore, it cannot be inferred that the Appellant shared common intention along with co -accused Pappu Ghayalkar. She contended that the Appellant only caused hurt by blunt side of the knife to the deceased and the injured witness Mr. Namdev Gaikwad (P.W.3). She further submitted that her said contention is supported by the medical evidence. She lastly submitted that as the Appellant did not share common intention with the co -accused Pappu Ghayalkar, the conviction under Section 302 of the Indian Penal Code may be altered to one under Section 325 of the Indian Penal Code and the Appellant may be acquitted from the charge under Section 302. The learned counsel for the Appellant in support of her contention relied on the judgment of the Supreme Court in the case of Shri Kishan and others v. State of Uttar Pradesh reported in : AIR 1972 SC 2056.