(1.) THE appellant, aggrieved by the Judgment and order dated 10th August, 1984, passed by the Additional Sessions Judge, Thane, in Sessions Case No. 253 of 1981, convicting and sentencing him to imprisonment for life for an offence under section 302 I. P. C. , has come up in appeal before us.
(2.) THE deceased Chintamani Tambada was the younger brother of the appellant. It is said that there was a dispute between them on account of land. The appellant was taking the entire yield. About six months prior to the incident, the appellant had come to the deceased with the intention to kill him. About two months prior to the incident, Chintaman Tambada had sold the grass and had appropriated the entire proceeds. Since no partition between the appellant and Chintaman Tambada had taken place, the former was angry with the latter. On 4th June 1981, sometimes between 1 p. m. to 2 p. m. , Chintaman Tambada, his wife Kamubai (P. W. 2), their sons Sunil and Nandkumar were sitting in a small hut in Vakharicha Vada, within the limits of Police Station Tarapur, District Thane. At that time, the appellant alongwith his sons Ravindra and Bharat came in a bullock cart. The said bullock cart stopped near the hut of Chintaman Tambada. The sons of the appellant climbed over the mango tree which was there. As a result thereof, a branch of the said tree was broken. Chintaman thought that the sons of the appellant must have fallen down and consequently went to the tree; little realising that his end was only some seconds away. As soon as he came out the appellant, who was standing beneath a Tad tree armed with a gun, the said tree being situated at a distance of about 15 to 20 feet from the mango tree where Chintaman was standing, fired on Chintaman resulting in the latter sustaining fire arm injuries and falling down on the ground. According to the prosecution, the murder of the deceased was witnessed by his wife Kamubai (P. W. 2 ). It is said that within 2 to 3 minutes of the appellant firing upon Chintaman, Deepak Shelar (P. W. 1) whose mother was the real sister of Chintaman and the appellant, came on the place of the incident. There Kamubai told him that the appellant had fired upon and killed Chintaman.
(3.) THE evidence is that Deepak Shelar first tried to contact the Kotwal, but he was not available. Thereafter, he went to the Police Patil, who lived in Parnali. He too was also not available. Thereafter, he proceeded to Police Station Tarapur, where he lodged his F. I. R. the same day at 6 p. m. The F. I. R. is at Exh. 23. It may be mentioned that the distance between the place of the incident and Police Station Tarapur is 7 Kms. The evidence of P. S. I. Dattatray Khedkar (P. W. 9) is that, on the basis of the F. I. R. he registered an offence under section 302 I. P. C. The evidence of P. S. I. Dattatray Khedkar is that, immediately after lodging F. I. R. , he proceeded to the place of the incident which he reached the same evening at 6. 30 p. m. He went to the house of the appellant. He was not there. His wife Savitri was there. In the presence of panch Rama Gowari (P. W. 7), he searched the house of the appellant and from the loft recovered a gun. Savitri opened the lock of the cupboard from wherein he recovered a live cartridge. The said recoveries were made under a panchanama. The next day he interrogated some witnesses including Kamubai. It is also said that the next day, the appellant reported at the police station. He was taken in custody. He alongwith P. S. I. Khedkar went to his house. There in the presence of public panch Chintaman Raut (P. W. 8), the appellant asked his wife Savitri to bring the gun licence. She brought the same. The same was attached under a panchanama. Bharat, the son of the appellant took out an empty cartridge which was concealed in the ground and handed it over to the police. The said recovery was also made under a panchanama. It is said that the recovered gun, the live cartridge and the empty cartridge were sent to the Ballastic Expert. It is also said that on the place of incident, the Investigating Officer found blood stains and he took some of them in possession under a panchanama. The said recovery was made also the same day i. e. 5. 6. 81. After completing the Investigation, P. S. I. Khedkar submitted the charge-sheet against the appellant, on 10. 6. 81.