JASPALSING CHARANSING SAINI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellants, have been convicted for the offences punishable under section 302 read with section 149 of the Indian Penal Code and also for the offence under section 326 read with 149, besides section 147, 148 of the Indian Penal Code. Each of them is sentenced to suffer life imprisonment and to pay fine of Rs.10,000/-, in default to suffer R.I. for 2 years for the offences under section 302 read with section 149 of the Indian Penal Code. No separate punishment has been awarded for the conviction of other offences. It may be mentioned that they are acquitted of the offence punishable under section 3 read with section 25 of the Arms Act read with section 149 of the Indian Penal Code. This judgment of their conviction in Sessions Case No.28/1995 dated 13.9.1995 delivered by the Additional Sessions Judge, Khamgaon is challenged in this appeal.

(2.) Facts leading to the prosecution of the appellants - accused, are as under: Deceased - Purushottam Thakre was owning a hotel on National High Way No.6, which was run under the name and style Geeta Dhaba. Purushottam Thakre was the younger brother of Bhika P.W. 6 and Dinkar P.W.4. They used to help him in running the said Dhaba. In 1993 he had purchased 2.5 acres agricultural land in village Chikhli. Appellant - accused no. 6 Shrikrushna Onkar Raipure was keen to purchase that land. However, he could not succeed and the same was purchased by deceased Purushottam. Hence there was enmity brewing between them. It is alleged that appellant no.1 accused Jaspalsing was running another Dhaba by name Pala Samaj Dhaba in front of Geeta Dhaba public road was in between. It is alleged that appellant no.6 was helping appellant no.1 Jaspalsing to run said Dhaba in competition with deceased Purushottam Thakre and his Geeta Dhaba. Business rivalry had developed between these persons. There was a raid under Narcotic Drugs & Psychiatric Substances Act on Geeta Dhaba, so also on the Dhaba of appellant no.1. i.e. Pala Samaj Dhaba. Due to criminal cases, suspecting each others' hand, they had developed enmity. About couple of days prior to the incident i.e. in the night of 28.12.1994, some of the accused i.e. accused no.1 Jaspalsing, accused No.4 Shrikrishna Pachpande, accused no.6 Shrikrushna Raipure, accused no.7 Rajaram Puri, accused No.8 Samadhan Sabe present appellants. had been to Geeta Dhaba with a view to attack Purushottam Thakre (the deceased). At that time he ran away from the spot as he saw assailants approaching Geeta Dhaba. He escaped at that time. At that juncture nephew of Purushottam Thakre named Dilip Vasantrao Gaikwad and one servant had received injury in the assault. Report was lodged to the Police Station by Dilip Gaikwad (P.W.10). It is alleged that, following this incident, the incident in question had taken place on 30.12.1994.

(3.) According to the prosecution, on 30.12.1994 at about 9.00 a.m. Appellants / accused persons having deadly weapons in their hands started from Dhaba of appellant no.1 and after crossing the road they reached Geeta Dhaba. It is alleged by the prosecution that appellant no.1 Jaspalsing was having Farshi, axe, appellant no.6 Shrikrushna Raipure was having Farshi Axe, appellant no.2 Harichand Singh was having sword, appellant no.7 Rajaram Puri was having pipe, appellant no.8 Samadhan was having iron rod in his hand, appellant no.5 Samadhan was having a stick, appellant no.3 Balliram Pachpande was having sword in his hand appellant no.4 Shrikrushna Pachpande was having pipe. Such were arms in the hands of the respective appellants. P.W. 6 Bhika Thakre came ahead with a view to make these appellants stop. However, appellant no.6 Shrikrushna Raipure and appellant no.3 Baliram Pachpande assaulted P.W. 6 Bhika Thakre and he suffered injuries. P.W. 4 Dinkar Thakre and deceased Purushottam Thakre went there to rescue P.W. 6 Bhika. But he was also attacked by the appellants /accused and he received injuries. On seeing the attack by the appellants on Bhika and Dinkar Thakre, Purushottam Thakre and his two nephews Dilip ( P.W.11) and (P.W.9)Pradip Gaikwad, started running from the spot. Appellants then left Bhika Thakre and Dinkar Thakre and started chasing Purushottam Thakre. Some time thereafter, within short time of about half an hour, P.W. 9 Pradip Gaikwad returned back and told his maternal uncle P.W.4 Dinkar that dead body of Purushottam was lying near Nala. It is the case of the prosecution that P.W. 9 Pradip Gaikwad, Dilip Gaikwad P.W.11 and deceased Purushottam Thakre had initially ran away in the same direction, however, subsequently, Dilip Gaikwad and Pradip Gaikwad overtook deceased Purushottam Thakre. Thereafter Dilip Gaikwad ran away, crossed Nala and disappeared, whereas Pradip Gaikwad concealed himself behind bush and witnessed appellants attacking deceased Purushottam. Dilip Gaikwad had also seen one of the assailants attacking deceased Purushottam. After the incident was over, when P.W. 9 Pradip Gaikwad came and told about the incident to P.W.4 Dinkar, they went there. P.W. 9 Pradip Gaikwad had stopped one S.T. Bus and P.W. 4 Bhika Thakre (injured) was taken to Khamgaon. On reaching Khamgaon, he initially was taken to police station and later on to hospital and at that time Pradip Gaikwad had told the police as to what had happened. Khamgaon Police was also informed as to what had happened. Khamgaon Police through wireless message informed about the incident to Jalamb Police Station, which had jurisdiction over the spot of incident. Police officials of Jalamb Police Station were asked to reach the spot of occurrence immediately. It is necessary to mention that distance between Geeta Dhaba and Khamgaon Police Station is about 7.00 k.m., whereas distance between Geeta Dhaba and Jalamb Police Station is about 15 k.m. Although Geeta Dhaba comes within the jurisdiction of Jalamb Police Station, for all practical purposes, it is convenient to reach police station at Khamgaon as it is well connected by road. it is also necessary to mention that the conveyance is also readily available from the place Geeta Dhaba to Khamgaon Police Station. Thereafter, Police Jeep from Police Station Khamgaon reached to the spot of incident which was incidentally followed by Police Jeep from Police Station Jalamb. P.W. 4 Dinkar Thakre who was there, was questioned and enquired with and he then gave report to Jalamb Police officials P.W. 14 Chavan which is at Ex. 39. As jurisdiction was with Police Station Jalamb, it started investigation. Some of the accused were arrested immediately thereafter and some later on. It is alleged that they made memorandum statements to discover weapons concealed and accordingly they were seized. The clothes of the injured as well as the deceased Purushottam Thakre were also collected in due course. Dead body of Purushottam Thakre was sent for postmortem examination after the inquest Panchnama. P.W.6 Bhika who had received head injury was referred to hospital at Akola. It may be mentioned that Ex. 39, contains names of all the appellants as assailants. Therefore, one by one all the appellants were arrested. During investigation spot Panchnama was prepared, the articles were seized from the spot and these articles were referred to Chemical Analyser for Chemical Analyser's opinion which was received by the I.O. After due investigation, charge sheet was submitted for the aforesaid offences against all appellants.