STATE OF MAHARASHTRA Vs. GANESH RAJU RAJPUT

JUDGEMENT

(1.) THE Additional Sessions Judge, Yavatmal by his judgment and order dated 21.12.1995 in Sessions Trial No.240/93 has convicted accused No.1 Ganesh Raju Rajput and accused No.2 Kumar N. Parraman Mondar for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and had sentenced accused No.1 Ganesh to death and accused No.2 Kumar to suffer imprisonment for life. THE accused No.1 is also convicted for the offence under section 4 (2) (b) punishable under Section 16 and accused No.2 for the offence under Section 4 (2) (b) punishable under Section 20 of Bonded Labour System ( Abolition ) Act, 1976 and sentenced to suffer 3 months simple imprisonment and to pay a fine of Rs. 1,000/- in default to suffer further three months simple imprisonment. THE accused No.1 Ganesh is also convicted for the offence punishable under Section 324 of Indian Penal Code and sentenced to suffer three months R. I. THE learned trial Judge has sent this Reference to this Court under Section 366 of the Code of Criminal Procedure, 1973 for confirmation. Accused No.1 Ganesh has preferred criminal Appeal No.26/96 and accused No.2 Kumar has filed Criminal Appeal No.74/96 against their conviction and sentence. All these three cases are heard together and are being disposed of by the common judgment and order.

(2.) THE facts in brief of the prosecution case are as under :- Accused No.1 Ganesh and Accused No.2 Kumar are original residents of Tamil Nadu State. Accused No.1 Ganesh has a house in Ward No.20, Rangaripura at Wani district Yavatmal. He was running a confectionary business and used to prepare etables like Maida Kandi, Samosa, Gulab Jamun etc. and used to sell the etables in surrounding villages of Wani. For running his business, he has brought some 5/6 young boys aged about 10 to 15 years from Tamil Nadu for doing the work. His work of preparing etables started early every morning. Young boys were residing in his house and he used to wake the boys at about 4 or 5 A. M. for work. Accused No.2 who is of the same age of accused No.1 was also working with Accused No.1. THE incident in this case occurred on 29.6.1993 in the house of accused No.1 Ganesh. One boy Shiva Murgan, aged about 10 to 12 years had gone to answer nature's call outside the house of accused No.1 and did not return immediately. THErefore, accused Nos. 1 and 2 and one boy Muni Andi went in search of Shiva and they brought him to the house of accused No.1 at about 7 A. M. Accused No.1 got annoyed on the behaviour of Shiva. He asked Shiva to start work and threatened him that he would see him after the work was over. All boys worked till 10 A. M. After finishing the work, Accused No.1 gave a kick to Shiva and he fell down and thereafter started beating and torture to Shiva by kicks and fists, electric wire, plastic pipe, Nylon rope and cycle tube. This torture continued till evening till the death of Shiva in the house of accused No.1. In this beating and torture, along with accused No.1, accused No.2 was also involved and he is alleged to have given burns to Shiva by heated iron rod. During this period, Shiva passed excreta in his half pant. It is alleged that accused No.1 lifted Shiva by cable and took him to the adjoining bath room where the younger brother of Shiva - Raja ( Chhota ) was asked to wash the body of Shiva which he did in the bath room. So also, accused No.1 pushed Shiva against the wall and further gave blows by means of brick piece on his head. Shiva was brought outside by Raja ( Chhota ) and put on gunny bag spread on the floor. In the meanwhile, another accused No.3 Kammu @ Kamruddin, original accused No.3 also came to the house of accused No.1. Shiva was not making any movement. Accused No.1 pressed his abdomen once or twice, gave call to Shiva by his name, but Shiva did not respond. Accused No.1 said that Shiva died. THE children started weeping. Accused No.3 Kammu was again called by Accused No.1 who examined Shiva and said that Shiva is sick, he is still alive and he should be taken to hospital. THEreafter, Accused Nos. 1 and 2 took Shiva on M-80 two wheeler moped to Rural Hospital at Wani. THE doctor Moreshwar Mahajan ( P. W. 8 ) declared Shiva dead. THE body of Shiva was lying on a bench in the hospital. P. W. 2 Sonu whose house is adjacent to the house of accused No.1, in the morning heard the cries and screams of a boy coming from the house of accused No.1 and while going to work at about 9 A. M. he saw beating to Shiva by accused through the hole of Bamboo matting. P. W. 3 Diwakar Bharatkar also witnessed the incident of beating to Shiva by wire and stick at about 10 A. M. and P. W. 4 Mohammad Sheikh had also witnessed the beating by kick and fists blows at 3 P. M. After returning from work Sonu ( P. W. 2 ) had gone to see the Sawari ( Moharrum festival ) and at that time noticed the accused Nos. 1 and 2 taking Shiva on the two wheeler. He immediately informed his brother P. W. 1 Ganpat Sahare who was the Municipal Councillor from Ward No.28 of Wani. P. Ws. 1, 2, 3 and 4 and others had gone to Rural Hospital. Body of Shiva was lying on a bench. THEy noticed the injuries all over the body of Shiva. P. W. 1 thereafter went in Police Station, Wani and lodged his oral report Ex.32.THE Police immediately went on spot, drew spot panchanama, seized various articles including wire, iron rod etc. found on the spot. Next day early in the morning, police took P. W. 9 Anil Photographer to the hospital and he took various snaps of the dead body and the scene of offence and the articles lying there. THE inquest over the dead body of Shiva was held. Dead body was sent for post mortem examination. THE accused Nos. 1 and 2 were arrested immediately. THE blood stained clothes of the accused were seized. THE statements of the inmates of the house of accused No.1 including P. W. 6 Mukesh alias Murgan Devar and P. W. 7 Raja Devar were recorded. Accused No.1 expressed his desire to show the brickpiece. THE statement of accused No.1 was recorded in presence of panchas ( Ex. 118 ). Accused No.1, took police and panchas to his house and showed the brick piece. It was seized as per seizure memo Ex. 119. After completion of necessary investigation, the charge-sheet was submitted in the Court of Judicial Magistrate First Class, Wani. During the trial, the learned trial Judge has framed the charge against accused Nos. 1 to 3 for the offence punishable under Section 302 of Indian Penal Code simplicitor, under Sections 302, 34 and/or 302/109, 201 read with Section 34, and under Sections 323 and 324 of Indian Penal Code and under Section 4 (2) (b) read with Section 16 of the Bonded Labour System ( Abolition ) Act, 1976 against accused No.1 and under Section 4 (2) (b) punishable under Section 20 of Bonded Labour System ( Abolition ) Act, against accused Nos. 2 and 3.To the charge, the accused pleaded not guilty and chaimed to be tried.

(3.) WE have heard the learned Appointed counsel Shri B. S. Wankhede for accused No.1, Shri P. V. Hardas learned counsel for Accused No.2 and the learned 'a' Panel Counsel Shri Deshpande for the State. Shri Wankhede has fairly conceded that accused No.1 being annoyed with the behaviour of Shiva for avoiding work, gave some slaps or beating to Shiva in order to correct him. There was no intention on the part of accused No.1 to kill Shiva and Shiva died due to the acts of accused No.2 for which accused No.1 cannot be held liable. According to him, offence against accused No.1 would be at the most under Section 304 Part II of Indian Penal Code because of applicability of section 34 of Indian Penal Code. The learned counsel for accused NO. 2 Shri Hardas has submitted that there was no intention on the part of accused No.2 to kill Shiva. At the most from the circumstances of the case, beating was done with intention to teach a lesson to Shiva to chastise him, and therefore, the offence under Section 302 read with Section 34 of Indian Penal Code is not attracted. Shri Deshpande has supported the judgment and order of the trial Court and submitted that a very crucial and inhuman treatment is meted out to Shiva - a very young boy of tender age and the accused did not show any repentence for their acts and accused No.1 if allowed to live will commit such type of offences again, and therefore, extreme punishment of death be confirmed.