RAJU MALLAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants, who have been convicted of the offence under section 325 I. P. C. and sentenced to suffer three years' rigorous imprisonment by the Additional Sessions Judge, Greater Bombay, have preferred this appeal challenging their conviction and sentence.

(2.) The case of the prosecution against the accused may be summarised as under There is a group of buildings at Worli known as "Adarsha Nagar" and behind these buildings, there is a hutment colony. At the material time, both the accused lived in the hutment colony. Accused No. l Raju Mallan is the nephew of accused No. 2 Rama Mallan. The deceased Badmada Muttu Viran also resided in the same locality but had no hut of his own. He used to take his meals with his sister Nallamma, p. w. 8, who is a resident of the . hutment colony, and he used to sleep on the top of a water-tank. A number of persons of the hutment colony were sleeping on the top of the water tank at night. According to the prosecution, the relations between accused No. 2 Rama and the deceased Muttu were inimical because accused No. 2 Rama suspeted that Muttu had illicit relationship with his wife. It is alleged that there were quarrels between the relations of Muttu, on one side, and the relations of the accused on the other. It is alleged by the prosecution that on the date of the incident i. e. , on January 3, 1973, Muttu abused the wife of accused No. 2 and accused No. 2 went to the Police Station, Dadar., and lodged a complaint which was recorded as a N. C. complaint by the police. It is the case of the prosecution that on the night of 3rd, among those who had slept on the platform of the water-tank in Adarsha Nagar, were the children ol Ramaswami Vardan ( P. W. 2 ), who along with his wife Muttamma (P.W.4 ) and his children was residing in the said hutment colony. On that night, Subbayya, P, W. 3,the eldest son of Ramaswami aged about 13 years old, was sleeping on the top of the water tank along with his two younger brothers as usual. Deceased Muttu was also sleeping there at that time. It is alleged that at about 10.30 P.m., both the accused assaulted Muttu who was then sleeping on the top of the water tank with iron bar, and Subbavya who- was sleeping ran away to his house and told his parents Ramaswami and Muttamma who were returning from the market. that accused Nos. 1 and 2 were assaulting Muttu, and that the younger children were still sleeping there. On getting this information, Ramaswami and Muttamma rushed to the water tank, took their children and returned to their hut. It is the case of the prosecution that Muttamma went to Nallamma, the sister of Muttu, and told her that accused Nos. 1 and 2 had assaulted Muttu. On learning about this incident, Nallamma ran to her brother Kuppan, P. W. 12, and told him that accused Nos. 1 and 2 were assulting Muttu. Thereafter both Nallamma and Kuppan went to the water tank and they found their brother Muttu lying in a pool of blood and he was not able to speak. Both of them.then rushed to the Dadar Police Station and lodged the first information report.

(3.) According to the prosecution Nallamma told Sub Inspector Patil, P. W. 13, that Muttu was assaulted by accused Nos. 1 and 2. It is also the case of the prosecution that a few minutes earlier, accused Nos. 1 and 2 had also gone to the Dadar Police Station and accused No.1 who had an injury on his forehead, lodged a complaint with Sub Inspector Patil that he was assaulted by Muttu, Sab-Inspector Patil then sent accused No. 1 to the Potdar Hospital for treatment. On learning about the incident from Nallamma and- Kuppan about the assault oh Muttu, Sub-Inspector Patil went to the scene of offence. However, he found that Muttu was not there. After making some inquiry inthe localiy, he went back to the police station. On returning to the police station, Sub-Inspector Patil came to know that Muttu had been removed to the K. E. M. Hospital and Sub-Inspector Kurdikar and A. P. I. Desai had gone to the K. E. M. Hospital. It is further the case of the prosecution that at the hospital, Sab-Inspector Kurdikar - and A. P. I. Desai saw Muttu but his condition was not such that his statement could be recorded. They, therefore, contacted Ramaswami who was present there. He interrogated him and brought him to the police station. At the police station, the first information of Ramaswami was recorded' which is at Ex. 5. This first information, Ex. 5, indicates that 'Ramaswami did not know the names of the assailarits, and" it is recorded therein that the accused were not know. This first information was recorded at about 00.26 hours on January 4, 1973. 'Both the accused who were already present at the police station were immediately arrested. During the course of investigation, on January 5, 1973, an iron-bar was recovered from a spot in Adarsha Nagar on a statement made by Accused No. 2 There were blood stains on the iron bar. The blood-stained clothes of accused No. 1 were also seized. The bloodstained clothes of accused No. 1, the iron bar as wellas the blood stained clothes of Muttu were serit to the Chemical Analyser for analysis and report. According to the report of the Chemical Analyser, all these articles had stains of human blood of 'B' group. Muttu was in K. E: M. Hospital since his admission January 3, 1973 till his death oh April 1, 1973. On completing the investigation, the : police submitted a charge-sheet against the accused in the Court of the Presidency Magistrate, 9th Court; Dadar, For. offences under section 302 read with section 34 I.P.C. for having committed the murder of Muttu. In due course, the learned Magistrate committed the accused to the Court of Seasion to stand their trial for the aforesaid offences.