SURESH SHIVRAM KADAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY means of this appeal the appellant has challenged the judgment and order dated 25th June, 1982 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No.189 of 1981, convicting and sentencing him to undergo imprisonment for life under section 302 IPC. Along with the appellant two others viz. Balu Shivaji Jagtap and Mumtaz Kasam Shaikh were also tried; whereas the later was acquitted the former was convicted under section 352 IPC and was sentenced to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for one month. However he has not preferred any appeal challenging his conviction and sentence.

(2.) BRIEFLY stated the prosecution case runs as follows : In the red light area of the Budhwar Peth, Pune is situated a "b" Grade hotel called 'samadhan' hotel. At the time of the incident the manager of the said hotel was one Devidas Keshav Waghavkar P. W.8.A number of waiters, including Maruti Asaram Shinde P. W. 4, Mahatma Manikrao Balgir P. W. 13, Karim Abdul Shaikh (the deceased), Arun and Panchappa used to work in the said hotel which was situated in Dhamdhere Lane, wherein the appellant, Balu Jagtap and Mumtaz Kasam Shaikh used to live. The appellant and the said co-accused were known to Maruti Shinde P. W. 4 and Mahatma Balgir P. W. 13, from about 7 months prior to the incident. On 7.10. 1981 as usual Samadhan hotel opened at 5 a. m. At about 5.30 a. m. the appellant, Balu Jagtap and Mumtaz Kasam Shaikh came and ordered 'poha' (a salted rice preparation) and 'sheera' (a sweet preparation ). The same were served to them by the waiter Karim Abdul Shaikh. It is alleged that after consuming Poha and Sheera the appellant and others without paying the bill left the hotel. Naturally Karim Abdul Shaikh followed them and after some time returned and told Maruti Shinde, Mahatma Balgir, Panchappa and Arun that the appellant and others were not making the payment. Thereupon, the said persons along with Karim Abdul Shaikh came out of the hotel and entered the lane leading to Shrikrishna talkies. It was about 6 a. m. at that time. They came to the appellant and other Karim Abdul Shaikh said to them "thumara Baap Ka mal hai Kya". On that Balu Jagtap turned round and caught hold of him by the wrist and said that they were not going to make the payment. He also abused Karim Abdul Shaikh. At that time Mumtaz Shaikh picked up a stone and the appellant whipped out a knife and inflicted a solitary blow on the chest of Karim Abdul Shaikh with the same as a result whereof he fell down. Thereafter the appellant and others ran inside the Dhamdhere lane. This incident is also alleged to have been seen by Vijaya Tukaram Shinde, a prostitute.

(3.) IMMEDIATELY after lodging the FIR P. S. I. Magdoom proceeded to the place of the incident and drew up the spot panchanama. Thereafter he recorded the statement of Vijaya Tukaram Shinde. He learnt that the appellant and others had gone to the house of the maternal uncle of co-accused Balu Jagtap in Khed. He directed Head Constable Devidas Khadtare P. W. 10 to produce them before him. Thereafter he recorded the statements of Mahatma, Maruti, Arun and others. The same day the clothes of the deceased which were seized under a panchanama were produced before him. That day he directed police constable Hundal of the anti-corruption branch to draw the sketch of the scene of offence. At 4 p. m. the appellant and co-accused Balu Jagtap who had been arrested earlier in the day by H. C. Khadtare were produced before him. Under a panchanama Exhibit 18, in the presence of public panch Sudhir Keshavrao Taur P. W. 5, a medical practitioner, a blood stained shirt and a blood stained pyjama which the appellant was putting on was seized. Under the same panchanama a full sleeves shirt which was blood stained and which co-accused Balu Jagtap was wearing was also seized. A full pant which Balu Jagtap was wearing was also seized but there is no mention in the recovery memo of its being stained with blood. The appellant was interrogated and during the course of interrogation he disclosed that he could get the weapon of assault recovered. Consequently, under a panchanama Exhibit 21, in the presence of public panch Arun Shinde P. W. 6 the same day, a blood stained knife was recovered. The said recovery was effected on the pointing out of the appellant from behind the empty card-board box which was kept on the loft of the Government country liquor shop in House No.930 at Ramoshi Ali in Khed. The said knife was found to be stained with blood.