STATE OF MAHARASHTRA Vs. SADANAND LAXMAN TAWDE

JUDGEMENT

(1.) The two respondents were tried before the learned Additional Sessions Judge, Greater Bombay, Shri T.R. Desai, on charges under Ss. 392/34, 397 and 302/34, I.P.C. on the allegation that on 11th February, 1975 in the Lalbaug Market locality, Dr. Babasaheb Ambedkar Road, Bombay, they, in furtherance of their common intention committed robbery of cash worth Rs.15 belonging to one Daji Baloo Gharge and also committed his murder. The learned Judge has convicted both respondents under S.304/34, Part II, and sentenced the first to 7 years' R.I. and the second to 2 years' R.I. The first respondent was further convicted under S.392/397, I.P.C. and sentenced to R. I. for 7 years and a fine of Rs. 50/- while the second Respondent was convicted under S.392/34 and sentenced to R.I. for 3 years and a fine of Rs. 50/-. Substantive sentences were directed to run concurrently. By implication both the respondents stand acquitted of the capital charge of murder under S.302. The State has come up in appeal against this acquittal.

(2.) Neither of the respondents has challenged the convictions and/or sentences recorded against them by the lower Court. Indeed they have already served out their sentences. The learned Counsel of both sides agree that the only question that arises in this appeal is whether the lower Court should have convicted both or either of the respondents under S. 302/34, I.P.C. We shall, therefore, restrict our discussion to this particular aspect only, and it is not necessary to refer to all the details in extenso.

(3.) The material facts as found by the lower Court and not disputed before us are these : The two respondents first accosted eyewitnesses Nathuram Chandrakant Ubhare P.W. 4 and Vinod Bhagwanji Vakharia P.W. 5, who were sitting on the foot-steps of a hotel called "Shri Krishna Hindu Hotel" around mid-night of 10th/11 th February, 1975. The first respondent was at that time armed with a Rampuri knife. They first tried to relieve the two eye-witnesses of their cash, but it turned out that Vinod P.W. 5 was known to them. As such the respondents did not bother them. As the two respondents moved away, they saw the deceased Daji Baloo Gharge and accosted him. The material part of the evidence of Nathuram P.W. 4 which is accepted by the lower Court in its entirety runs: