KRIPASING SHEETALAPRASAD SRIVASTAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the judgment and order dated 23rd November, 1981 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No. 361 of 1980 convicting and sentencing him to undergo rigorous imprisonment for life under section 302 read with section 34 I. P. C. has come up in appeal before us. Along with the appellant one Nandkishore Gulabsingh Rathod was also convicted under section 302 I. P. C. read with 34 I. P. C. and had been sentenced to life imprisonment. He had preferred Criminal Appeal No. 93 of 1982 in this Court. As the learned Additional Public Prosecutor made a statement on the basis of some documentary evidence that the said appellant had died on 9-9-84, we ordered his appeal to stand abated on 28-6-96.

(2.) THE prosecution case in brief runs as under:---Deceased Premchand was the real brother of Kishore Ghusia P. W. 5 and Jaichand Ghusia P. W. 8. They had a sister Lajwanti who was married about 15 years ago to one Ramkrishna in Gorakhpur, Uttar Pradesh. Lajwanti had four children from Ramkrishna. About two years prior to the incident she left Ramkrishna and her children and came down to Bombay. There she married one Ramdeo Srivastav, the real brother of the appellant. After marriage with Ramdeo, Lajwanti started residing in a hut situated about 100 meters away from the hut of the deceased and others. On account of Lajwantis marriage with Ramdeo, relations between Premchand and others on one hand and Lajwanti on the other became so much strained that they stopped visiting one another. On 18th May, 1980 at about mid-day Lajwanti came to the house of Premchand and others. Since they were not on visiting terms, the mother of Premchand and others asked Lajwanti to go back. Lajwanti however insisted that she wanted to meet Premchand. Thereupon the mother of Premchand and others pushed her away. This apparently seems to have infuriated the appellant who was Lajwantis brother-in-law. At about 1 or 1. 15 p. m. the same day the appellant started abusing Premchand and others from front of their house. He asked P. W. 8 Jaichand to come out of the house. At that time Jaichand was not in the house. Consequently, Premchand and Kishore came out of the house. Premchand went to the appellant and asked him as to why he was abusing and thereupon the appellant started hurling some more abuses. Some persons collected there and on their intervention Premchand was brought back to the house. Kishore stood at the entrance of his house and from there could hear the appellant abusing them. While appellant was abusing them Nandkishore Gulabsingh Rathod (he preferred an appeal in this Court and during the pendency of the same died) who lived in the vicinity of Premchand and others also joined in hurling abuses upon them. At that time Nandkishore Gulabsingh Rathod said that he would cut them into pieces. After some time both he and the appellant are said to have gone away. At about 2. 30 or 3 p. m. the same day, Jaichand P. W. 8 returned home. He was taking his lunch. Kishore and Premchand were sitting by his side. At about 3 p. m. Nandkishore Gulabsingh Rathod again started hurling abuses at them. On that Kishore and Premchand came out of the house. Premchand asked Nandkishore as to why he was hurling abuses at them and on that the latter replied that he would finish all of them. Premchand also asked Nandkishore as to why he was intervening in the quarrel for their quarrel was only with Ramdeo, the husband of Lajwanti. In the meantime Nandkishore Gulabsingh Rathod dashed his head against the forehead of Premchand resulting in the latter losing balance and nearly falling down. At that time the appellant came near Premchand, caught hold of him and dragged him on the road upto a distance of 10-12 feet near the house of one Gujrathi tailor. Nandkishore Gulabsingh Rathod then took out a knife from the front pocket of his trouser and was moving the same in such a manner so that nobody came near him. At that time he was saying that he would finish anyone who came near him. Kishore wanted to release Premchand but did not dare to do so as Nandkishore Gulabsingh Rathod was having a knife in his hand. In the meantime Jaichand P. W. 8 and Subhashchand also came there. Nandkishore Gulabsingh Rathod started proceeding in the direction of the appellant who was holding Premchand. He was brandishing his knife. Jaichand and Subhashchand who were having sticks in their hands were asking Nandkishore to throw away the knife but the latter did not accede to their request. In the meantime Nandkishore Gulabsingh Rathod came near the appellant who was holding Premchand and inflicted one knife blow in the abdominal region of Premchand. As a consequence of the blow blood started oozing out from Premchands injury. The appellant ran away. Thereafter Nandkishore Gulabsingh Rathod started moving near Jaichand with a knife in his hand. Jaichand and Subhashchand had sticks in their hands and assaulted Nandkishore with the same. Since Nandkishore was not throwing the knife, Jaichand proceeded towards him and caught hold of the blade of the knife with his hand resulting in a bleeding injury on his right palm. Kishore put his right hand around the neck of Nandkishore. As Nandkishore was struggling to free himself, all of them caught hold of him. In the struggle Kishore also received some injuries. In the meantime two constables came on the place of the incident. They caught hold of Nandkishore Gulabsingh Rathod. Jaichand snatched the knife from his hand. Thereafter Kishore and others along with Premchand and Nandkishore proceeded for Chembur Police Station.

(3.) THE F. I. R. of the incident was lodged at 3. 15 p. m. on the basis of information given by Kishore P. W. 5 at Chembur Police Station.