BHURYA SUBHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE correctness of the conviction and sentence awarded to the accused! appellants by the Additional Sessions Judge, Chandrapur in Sessions Case No. 29 of 1. 990 vide judgment dated 31. 1. 1991 for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and also under Sections 147 and 148 of the Indian Penal Code is questioned in this appeal. The Additional Sessions Judge, Chandrapur has awarded sentence to suffer life imprisonment to the accused/appellants for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentence to suffer rigorous imprisonment for one year on each count for the offences punishable under Sections 147 and 148 of the Indian Penal Code. The above sentences have been ordered to run concurrently.

(2.) ACCUSED/appellants Bhurya @ Sulshan (Al), Malhari (A2) and Shripati (A3) along with Babu Waghu Darjode, Bandu Malhari Shende and Kashiram Pirappa Daokate were charged that they along with two other absconding accused in the intervening night of 16. 9. 1989 and 17. 9. 1989 at mouza Sorakasa Shiwar formed unlawful assembly and in prosecution of common object, did commit murder by intentionally or knowingly cousin the death of Vitthal Narayan Mane and thereby committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code. All the accused persons were also charged that they were the members of unlawful assembly with the common object of stabbing, cutting and killing Vitthal Mane and at that time, they were armed with deadly weapon to be used as a weapon of an offence likely to cause death and thereby committed offences punishable under Sections 147 and 148 of the Indian Penal Code.

(3.) ACCORDING to the prosecution case unfolded during trial, in the intervening night of 16. 9. 1989 and 17. 9. 1989 Vitthal Mane was sleeping on the cot in the cattle shed and at some distance in Mala, Tukaram (P. W. 3) and Ranba (P. W. 9) were sleeping. Both, P. W. 3 Tukaram and P. W. 9 Ranba heard the noise and voice of Bhurya and they got up. They saw 8-9 persons running to Mala where they were sleeping. They identified Al Bhurya, A2 Malhari and A3 Shripati amongst those 8- 9 persons. P. W. 3 Tukaram and P. W. 9 Ranba conceased themselves and those 8-9 persons went away. Thereafter P. W. 3 Tukaram and P. W. 9 Ranba went to cattle shed where Vithal was sleeping and found him lying outside the cattle shed and he was already dead having bleeding injuries on his neck, stomach and other parts of the body. P. W. 3 Tukaram went to Police Out-post, Teka Mandwa and from there wireless message of the incident was given to Rajura Police and on the basis of the wireless message, First Information Report (Exhibit 64) was lodged. M. B. Chate, Police Inspector (P. W. 10) started investigation. Inquest Panchanama (Exhibit 65) in presence of Mehboob Sahab Allaudin and Sambhaji Ramrao Gandhiji was prepared. The Investigating Officer also prepared spot panchanama. The dead body of Vithal was sent for post mortem and Dr P. N. Swami conducted post-mortem and the post mortem report is at Exhibit 39 on record. On the body of the deceased, four incised wounds were found. One incised wound was found on the left parielate region of head while another incised wound was found in front of neck above cricoid cartilage. Third incised wound was found on the little finger of the left hand of the deceased and fourth injury was found on the left lateral side of waist above iliacrest on the body of deceased. According to the medical opinion, Vithal died due to shock and injury to Trachea which was a corresponding injury to external injury No. 2 and that was sufficient in ordinary course of nature to cause death and could be caused by sham object. The Investigating Officer recorded statements of various witnesses including the statements of Tukaram (P. W. 3) and Ranba (P. W. 9) and also recovered stick, axe, arc knife, in presence of panchas along with other articles. On conclusion of investigation, the Investigating Officer challaned the accused/appellants and four others for the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and all the seven accused persons were charged for the aforesaid offences.