SAMPAT DAULAT PAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present appeal is directed against the Judgment and Order dated 11th March 1994 passed by the Addl. Sessions Judge, Nasik. THE accused who has appealed before us has been found guilty under Section 304 (ii) of the Indian Penal Code and has been sentenced to suffer R. I. for 7 years and to pay a fine of Rs. 100/-, in default, simple imprisonment for three months. Originally the accused was charged under Section 302 of which charge he has been found not guilty. Being aggrieved by the said order, present appeal is preferred by the accused.

(2.) THE prosecution case is that on 8th September 1992 P. W. 1 visited his brother-in-law Baban at Gaidarpada, had dinner with him and P. W. 1 and the deceased decided to go to village Jirwada for enjoying Video Movie. Village Jirwada is about 4 kms. from Gaidarpada. This was about 7.30 p. m. in the evening and after both of them crossed Shringarwadi near a road bridge which is known as Wangnacha Ohol, a bicycle was seen parked. Deceased Baban by putting his hand on the bicycle enquired whose bicycle it must be. At which point of time, the bicycle fell down due to Baban putting his hand on it. THE accused who was sitting on the bridge and who was not noticed earlier, rushed towards both of them and started abusing them. THE accused then caught hold of Baban and pushed him by holding his shirt towards the bridge and then dealt him a blow of Sura in the abdomen. P. W. 1 got frightened and started running. THE accused chased him for about 10 minutes. P. W. 1 escaped any injury on his person and straightway went to village Gaidarpada and informed his father-in-law i. e. P. W. 2 Soma and his brother-in-law P. W. 3 Ramdas and other relatives. All of them went to the spot. By that time the deceased had succumbed to his injury. THE bicycle was found missing. So was the accused. However, the fishing net and blanket belonging to the accused were found near the road. Next day morning at 7 a. m. or so First Information Report was lodged by P. W. 1. Search was made for the accused but he was found absconding. THE body of the deceased was sent for post-mortem. THE post mortem report suggested that the death had occurred due to stabbing injury with a sharp weapon due to which lower part of the heart of the deceased had been pierced causing hemorrhage and shock. Ultimately the accused was arrested on 16th November 1993 i. e. after more than one year. Although the weapon supposed to have been used in the murder was recovered at the instance of accused, the said fact is not at all believed by the learned trial Judge. 2 (A ). Mr. Joshi, the learned Counsel appearing for the accused submitted that the accused has been convicted only on the basis of eye witness account of P. W. 1 and that when the incident happened at night, it was not possible to believe the account given by P. W. 1 that it was the accused who was responsible for the attack on the deceased. It was his submission that the incident which is described by P. W. 1 would not show that any serious quarrel had taken place between the parties and that therefore, it was not possible to believe that the accused would have, had he been present there, attacked the deceased in the manner described.

(3.) HOWEVER, Mr. Joshi appearing for the accused pleaded for mercy on behalf of the accused and stated that the accused was about 30 years of age, married and having two children, one of them being a girl who is of marriageable age. Under these circumstances, he pleaded that the sentence be reduced and in fact he submitted that the time which he has served in prison would serve the purpose and would meet the ends of justice. Although looking to the family background of the accused, we are inclined to treat the time which is spent by the accused behind the bar as sufficient. The incident took place in September 1992. The incident is a very serious incident inasmuch as a human being has lost his life. Such a thing cannot be lightly taken. HOWEVER, looking to the facts and circumstances of the case, in our view, the sentence of 7 years if reduced to 5 years would serve the ends of justice. In this view of the matter, although we do not wish to disturb the reasoning and findings of the learned trial Judge, in respect of the substantive sentence, we are reducing the same to 5 years from 7 years keeping the sentence of fine intact. The appeal in these circumstances, except the above variation is dismissed. Appeal partly allowed. .