GORAKH BABAN KANKATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal against conviction, the judgment and order dated 16.5.2005 passed by the learned Adhoc Additional Sessions Judge, Pune, is challenged. The accused are convicted for the offences punishable under sections 302, 149 r/w 34 of the Indian Penal Code and are sentenced to suffer R.I. for life and fine. The case of the prosecution in brief is as follows:

(2.) The case stands on the evidence of five eye witnesses including PW9 Prakash Londhe, the informant, who gave FIR (exhibit 66) on 2.3.2002. PW2 Arjun Mahadev Kakate, PW3 Ashok Shivaji Mehtre, who was the uncle of the deceased Vilas, PW4 Pramod Devidas Londhe and PW5 Rajesh Vitthal Tavare are the other eye witnesses. PW9 Prakash Appa Haribhau Londhe has deposed that he had constructed a temple in his land and wanted to install the idol of Lord Mahadev at the hands of Gajanan Maharaj of Khopoli. He wanted to give invitation to him. So he and his brother, Arjun, Sitaram, Ashok, Rajendra, Altaf and Pramod first went to the temple of Maruti at Urali Kanchan in the morning at around 9.30 am. At that time, when he went to other temple and his brother was standing infront of Maruti temple, he heard shouts of his brother Vilas calling Appa (complainant) to save him. So, the complainant and his friends rushed there. He found the original accused Nos.1, 4, 6, 7 and 9 i.e., the appellants assaulting his brother Vilas with different weapons. He has deposed that accused Nos.4 and 7 were armed with sickles; accused No.1 Gorakh with chopper, accused No.5 Bandya with Sattur and accused Somnath Kanchan was having Sattur and they mounted multiple assaults on Vilas. His right hand, palm were completely severed from the body and he was lying in a pool of blood. They reached there and started shouting.

(3.) Mr. Siddiqui, the learned Counsel for the Appellants/accused, has submitted that the evidence of these eye witnesses and the complainant is not reliable. These eye witnesses were in fact not present at the time of assault. He read over the evidence of all the eye witnesses, the complainant so also, the evidence of PW21 Raghunath Gangaram Jadhav, police personnel attached to Haveli police station, PW22 Avinash Shankarrao Shilimkar, the PSI attached to the Loni-Kalbhor police station. The learned Counsel submitted that PW22 had received anonymous phone call about some untoward incident at the temple. However, there is no such record of anonymous call and the prosecution did not produce entry in the police station diary to that effect. He also read over the evidence of PW25 Suryakant Rangrao Kamble and PW26 Suresh Pandurang Bhosle, the Investigating Officer. After referring to the evidence of these police personnel, he pointed out the omissions in the evidence of eye witnesses. He submitted that there are basic inter se inconsistencies in the evidence of these eye witnesses. He highlighted that Shivaji, the uncle of the deceased, claimed that though he was present at the time of the incident, he has also acted as panch for inquest panchanama (exhibit 30) on the same day. The said panchanama was drawn on the same day at around 1400 to 1500 hrs. However, in his evidence, he did not say a word that he has acted as a panch. He further relied on the evidence of API Jadhav, and highlighted that in the cross-examination, this police officer, has given admission that there was nobody to identify the dead body. So he called Appa Londhe i.e., the complainant, and Appa arrived at the end of panchanama to identify the body. He submitted that it appears that Ashok Mehtre was either not present at the time of the incident or at the time of the inquest, and hence, his evidence becomes doubtful.