BHOJRAJ ALIAS KAMAL THAPA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by the accused who stands convicted under section 302 of the Indian Penal Code for causing homicidal death of one Manbahadur Singh Thapa. The accused was not represented by any advocate, therefore, Shri Motriya, Advocate was appointed to defend the accused. However, inspite of the matter being listed on the weekly board, none appears for the accused. Taking into consideration the fact that the appeals from jail are pending for last seven years, it should be causing unnecessary delay and injustice to those who are languishing in jail for all these years. We, therefore, deem it just and proper to decide the matter on merits on reappreciation of the evidence and the entire record before us. The learned Additional public Prosecutor appearing on behalf of the State has taken us through the entire evidence and our reappreciation of evidence stated briefly discloses the prosecution case as under: the complainant Rambahadur Thapa was working as a watchman in Sai Shiv Palace, Ulhasnagar. His cousin manbahadur Thapa was working as a watchman in Hanuman building in Shanti Nagar locality of Ulhasnagar town. Since they were related, they used to visit each other. On 20. 5. 2001, at around 10. 15 in the night, the complainant was sitting in the compound of the building of which he was the watchman, playing with his son when he saw the victim being dragged by accused No. 1 and accused No. 2 was accompanying them. The complainant therefore, asked accused No. 1 as to why the victim was so dragged. But the accused No. 1 Raju did not reply at all. According to the complainant, who claims to be an eye witness, accused No. 2 inflicted knife blows on the neck of Manbahadur Thapa as a result of which he collapsed and later on died. The complaint Exhibit 12 was lodged before the police by PW2, Rambahadur Thapa. He has proved it. This witness is therefore, the complainant. On the basis of this complaint, investigation was conducted. The accused persons were arrested and in due course were tried. During the trial, the prosecution examined 7 witnesses to prove its case and the learned trial Judge on appreciation of this evidence, convicted the accused by his order dated 1. 11. 2002 under section 302 of the Indian Penal Code to suffer imprisonment for life. It is this order which is impugned in this appeal on behalf of the accused.

(2.) IN this case, there is only one eye witness, pw2, Rambahadur. The fact that the death of the manbahadur was homicidal in nature is proved by PW1, dr. Kundi, who conducted the postmortem on the dead body of Manbahadur. He has deposed that the death was caused due to stab injuries on the neck of the victim. PW3, ravindrasingh, is the panch who has proved recovery of the knife at the instance of accused No. 2, the present appellant. He has proved the recovery panchanama at exhibit 22. Except this recovery, there is nothing on record to connect the accused No. 2 to the crime. We will analyse the evidence of PW2 little later after taking note of the other evidence on record.

(3.) PW4 Miharaj is the panch who proved the recovery of clothes at the instance of Accused No. 1. In view of the acquittal of Accused No. 1, his evidence is inconsequential. PW5 is the Secretary of the Society where the deceased Manbahadur was working and that is proved by this witness that Manbahadur was working as a watchman in their society. PW6 has turned hostile and has not deposed to anything which in any way can support the case of the prosecution. The Investigating Officer has been examined as PW7. He has proved the documents executed by him or executed in his presence.