HARISHCHANDRA Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) All the original three accused who were convicted by the IInd Adhoc Addl. Sessions Judge, Palghar by judgment dated 31.5.2002 for offences under Sections 307 r/w. 34 of IPC and sentenced to suffer R. I. for ten years with fine, for offence under Section 302 r/w. 34 of IPC and sentenced to suffer for life and fine, have filed this Appeal, challenging their conviction.

(2.) We heard the counsel for the Appellants-accused and the learned APP.

(3.) At the outset, it has to be stated that the case of the prosecution as reflected by the FIR Exhibit 28 lodged by witness Prema Dayanand Patil is different than the case sought to be proved at the stage of trial, and the difference is not minor but there are material and major variation in the entire story. In her FIR complainant Prema has told that she resides at Navapur, Banglipada, Agashi Taluka, Vasai, Dist : Thane, along with her husband, three children and in-laws on 1.10.1998 in the morning at 9 O clock, she has come to her maternal house at Kalamb Ranbhag along with her husband and children for Dassera. It was her brother s house i.e. house of Mahendra. Her brother has agricultural land by the sea side. On way to that land or field there is a house of Harichandra Manakya Kini - accused No.1 8-9 months before the incident Harichandra and his companions had assaulted Kishore Gowari, her cousin with koitaa, axe etc. Kishore had lodged complaint with police station about this and consequently Harichandra - accused No.1 and his companions were arrested, and, therefore, relations between her brother and accused were strained. She further states in her FIR that on 2.10.1998 she had gone to the field of Mahendra at about 9 a.m. along with her brother Arvind, Murlidhar and cousin brother s wife Manda Vidyadhar Gowari. At about 2 in the afternoon all of them started from the field towards their home. Complainant Prema was ahead alongwith Manda and Murlidhar was following them. When they came near the field of Inas Soze, Murlidhar raised shouts. She therefore looked back and found that Murlidhar had collapsed on the ground and blood was oozing from his waist. Accused No.1 - Harichandra, Accused No.2 - Vidyadhar Harichandra Kini, Accused No.3 - Santosh Harichandra Kini and absconding accused Yogesh were running away after assaulting Murlidhar. Accused No.1 Harichandra had sickle, Accused No.2 Vidyadhar had a iron rod, absconding accused Yogesh had a sickle and accused No.3 Santosh had a trident - trishul. (In this case Accused No.1 Harichandra, Accused No.2 Vidyadhar and Accused No.3 Santosh are the only accused). Thereafter she has stated that she, her cousin sister in law Manda raised hue and cry, and, therefore, then Arvind and persons residing in the neighbourhood of his house by name Rahul Gowari, Ranjit Gowari, Eknath Gharat, Vinay Nijai, Anant Gharat, Saroj Nijai, Vaijanti Kini, about 25-30 people came running. Some of them lifted Murlidhar and took him to the hospital by Rickshaw of Anil Kini.