STATE OF MAHARASHTRA Vs. CHANDU YESHWANT FULKE

JUDGEMENT

(1.) A brutal murder of deceased Prakash Gajbhiye was committed on 9.4.1990 at about 1.30 p. m. at Akola. The respondents, are alleged to have caused his death by inflicting blows by Knife and gupti and hence they were prosecuted for the offence under section 302 read with section 34 of the Indian Penal Code in Sessions Trial no.132/1990 before the Sessions Judge, Akola. During the trial eleven witnesses including the eye witnesses and the sister of the deceased lalita were examined on behalf of the prosecution. Six defence witnesses were examined at the instance of the respondents. Learned trial Judge, by his elaborate judgment held that there was no possibility of alleged eye witnesses examined by the prosecution including the sister of the deceased, of being; on the spot or in the vicinity of the spot of incident. He also found that the defence evidence clearly points out that there is possibility of the respondents being elsewhere at the relevant time and there was also a possibility of deceased being assaulted by some other persons, he being a criminal with antecedents. Hence he rendered the judgment of acquittal of the respondents in Sessions Trial No.132/1990 on 26.7.1991. This judgment of acquittal is challenged by the appellant - State.

(2.) Briefly stated prosecution case is that the relations between the deceased and the close relatives of the respondent no.1 were not cordial on account of dispute over property. It is also alleged that the deceased had refused to become a member of the gang of the respondents in criminal activities. On 9.4.1990 at about 1.30 p. m. , the deceased was coming on bicycle near Bajrang Chowk in Deshmukh file Akola. It is alleged that the respondents, first pulled him down of the bicycle and hit him by gupti and knife. It is specifically alleged that the respondent no.2 - Rajesh and respondent no.3 Chandu had held deceased Prakash and Respondent No.1 Dharampal hit hi with Gupti. At that time, respondent Chandu was having Gupti, respondent Rajesh was armed with knife. They also assaulted the deceased by these weapons. It is alleged that sister of the deceased P. W.1 Lalita had gone to answer nature's call at the relevant time in public latrine in deshmukh File. She heard shouts "save Save. At that time she could not identify the voice of the said person. But after completing nature's call, she came out of the said premises and when she came on the road, she noticed respondent Chandu and Raju holding her brother near male latrines and respondent Dharampal hitting him by Gupti. Thereafter respondent Chandu and Rajesh releasing him and hitting him again with Gupti and knife respectively. She was frightened. She ran to her house. Thereafter, immediately, she went to the Police Station, Ramdaspeth, and lodged report (Exh.13 ). It is necessary to mention here that it is the prosecution case that this incident was also noticed by P. W.5 Nagesh, who is a rickshaw puller having rickshaw in the vicinity while he was soliciting customers. It is alleged that this incident was also witnessed by P. W.6 motilal Khobragade who happened to be on the spot at one Panshop in bajranj Chowk and P. W.2 Vithal Dangre, who was playing carrom in the shop of one Naresh.

(3.) After the report was lodged, which was received by P. W.11-P. S. I. Hushare, the first information report was registered and thereafter P. W.9 P. S. I. Tayde prepared spot panchnama as per exh.16, seizure memo of bicycle from the spot as per Exh.17, seizure memo of blood stained and simple earth as per Exh.18 and 19. He also prepared inquest panchnama on dead body of the deceased as per exh.21. P. W.10 P. I. Pandav had seized the clothes and shoes etc. , of the deceased as per Exh.58 and recorded memorandum statement of the respondents as per Exh.59 and seized knife, sword-cane, clothes of deceased as per Exh.16. One Naushad Khan and P. W.8 Mohan rohade are the relevant panch witnesses. After due investigation charge sheet was submitted in the court of Judicial Magistrate First class, Akola and the case was committed to the court of Sessions in view of the fact that the offence under section 302 of the Indian Penal code was exclusively triable by the court of Sessions.