STATE OF MAHARASHTRA Vs. SATISH ACHUT KALSEKAR

JUDGEMENT

(1.) THE State of Maharashtra has preferred this appeal being aggrieved by the judgment and order dated 28-5-1981 passed by the additional Sessions Judge Greater Bombay in Sessions Case No.58 of 1980, whereby the learned Sessions Judge acquitted the Respondent-Accused of charges u/s 143, 144, 147, 148, 302 and 324 r/w 149 of the I.P.C.

(2.) BRIEFLY stated the prosecution story runs as under: Jathu Janu Shirke (P.W. 2) was residing in Room No.25, 1st floor, 616-N Laxmi Building N.M.Joshi Marg. Deceased Ramesh Kishan Shirke was residing on the 1st floor of 616-C Laxmi Building. On 28.3.1979, at 7-30 a.m. P.W. 2 Nathu Janu Shirke met deceased Ramesh Kishan Shirke near Sadguru Hotel by the side of Laxmi Building. One Ashok Shirke was with him. Deceased Ramesh told Nathu Shirke (P.W. 2) that on 27.3.1979, at about 8-30 a.m. Accused No.9 had abused him and hence they should go and ask him ask him as to why he had abused him. Accused no.9 resides in 616-B Laxmi Building, 1st floor, N.M.Joshi Marg, Nathu Shirke accompanied the deceased and Ashok Shirke to 616-B, Laxmi Building at about 8-30 a.m. According to the prosecution Accused No.9 was sleeping in the common passage. Ashok went to Accused no.9 and asked him as to why he had abused the deceased. Accused no.9 replied that he would collect his associates and would give a fitting reply. The fact that the deceased went to accused no.9 is supported by Exhibit 46-D which is the complaint Lodged by Accused no.9 at the Agripada Police Station. The prosecution story further goes on to say that thereafter Ashok went to Worli and Nathu (P.W. 2) and deceased Ramesh went to Bhandup to one Suresh Aba Shirke (P.W. 5). They came to Byculla at about 2-30 p.m. by train and went to a paan shop near Sadguru Hotel. Deceased, Nathu (P.W.2) and Suresh (P.W. 5) were standing near the Paan shop when 10 persons from Laxmi Building came running towards them. P.W. 2 Nathu identified Accused nos.1, 3, 4, 8, 7, 11, 12 and 9 P.W. 5 Suresh identified Accused no.1 and Accused no.8. According to the prosecu-tion Accused no.1 caught held of the shirt of the deceased and gave a first blow to the deceased. P.W.5 Suresh intervened and asked accused no.6 as to why he was assaulting his cousin. Accused no.8 abused P.W. 5 Suresh and P.W. 2 Nathu then ran to Jai Ambe building. The Deceased entered 616-C Building. P.W. 3 Shankar Shirke resides in Room no.2, ground floor of the said building. Shankar Shirke P.W. 3 and his brother Vithoba were sleeping. At about 2-15 p.m. door of the room was opened with a bang and P.W. 3 Shankar noticed the deceased in the room. Deceased was followed by Accused no.1, accused no.7, accused no.8 and accused no.2. They were kicking and beating the deceased with hands till he fell down. P.W. 3 Shankar and Vithoba were asked to keep quiet by the accused. According to the prosecution the deceased was dragged out of the room, he was pushed and kicked. Accused no.2 assaulted him with a bamboo. Accused no.1, Accused no.7 and Accused no.8 assaulted him with bricks. Deceased fell infront of Laxmi Building No.616-C. Blood was oozing out of his mouth. P.W. 4 Chandrakant Shirke, a resident of 1st floor, Laxmi Building 616-M came down and saw the deceased being assaulted. Chandrakant Shirke is the cousin of the deceased. According to the prosecution Chandrakant tried to cover the deceased and was hit by a brick. He was injured on the head. Nathu (P.W. 2) returned from Jai Ambe Building and noticed Ramesh being beaten by Accused no.1, 3, 4, 8, 7, 11, 12 and 9. According to Nathu P.W.2, Accused no.2 was assaulting the deceased with a Bamboo and other assailants were throwing bricks. The deceased fell down. P.W. 8 Rajendra Dabade is a resident of room No.16, 616-M. According to him on 28.3.79 at about 9-30 a.m. Accused no.9, brother of Accused no.1 came and asked him the where-abouts of the deceased. At about 2 p.m. Accused no.1 came again and enquired about the deceased. He told him that the deceased had gone to one Gole of Building No.616-M and Accused no.1 then went to the said room followed by P.W. 8 Rajendra. Accused no.1 asked one Ram Shinde about the deceased and threatened Ram Shinde and told him to tell the truth. Rajendra Dhabade however, has not supported the main story of the prosecution and has only stated that he helped Shankar (P.W. 3) and P.W. 4 Chandrakant in removing the deceased to Nair Hospital in a taxi at about 3-30 p.m. His evidence is, therefore, not helpful to the prosecution. At Nair Hospital deceased Ramesh was pronounced dead. Police Constable Bodke (P.W. 6) was on duty at the Casualty Ward of the Nair Hospital from 9 a.m. onwards on 28.3.79. According to the prosecution at about 3.05 p.m. Shankar Shirke came to him with the deceased and told him that at about 2-15 p.m. Accused Satish Bandu, Suresh and Tushar assaulted the deceased with Bamboo and bricks at Laxmi Building and that 7/8 persons were standing there. To that effect an entry was made at Exhibit 27 in the E.P.Register and the Agripada Police Station was informed accordingly. P.W. 14, S.I.Khambe was on duty at the Agripada Police Station from 8 a.m. The telephone call of P.C. Bodke was conveyed to S.I.Khambe. S.I.Khambe made the relevant entry and went to the Nair Hospital. At Nair Hospital S.I.Khambe contacted P.C.Bodke and recorded his statement, which came to be treated as F.I.R. P.I. Babade and A.P.I. Lagli also came to the hospital. Dead body of the deceased was taken charge of under panchnama Exhibit 35. Clothes of the deceased were also taken charge of. On 7.4.79 identification parade was held by S.E.M. Dholpuri, in which P.W. 2 Nathu Shirke identified Accused No. 3, 4, 6, 9 and 10 and P.W. 3 Shankar identified Accused no.9. In the second identification parade held on 7.5.79 P.W. 3, Shankar identified accused no.12. Postmortem on the dead body of the deceased was conducted by Dr.Chandrashekar Kapse. The following are the injuries noticed by Dr.Kapse:-

(3.) THE defence of the accused was one of denial. Accused no.9 stated that on 26.3.1979 at about 6-30 p.m. he was going along N.M.Joshi Marg and at that time Nathu Shirke who was standing in "Satyam Tailor's Shop" called him and told him that the tailor had not stitched his shirt properly. The tailor told Nathu to take that shirt as it was stitched. On 27.3.1979, at about 8-30 or 9 p.m. he was standing near the main entrance gate of their Chawl. At that time he saw a person going along the road wearing a similar shirt as that of Nathu which he had taken from the tailor the previous evening. He thought it was Nathu and, therefore, he placed his hand on his back and asked him whether he had put on the shirt which he had taken from the tailor the previous evening. However, on seeing that person's face he realised that it was not Nathu and, therefore, he apologised. That person was deceased Ramesh Shirke Suresh Shirke and 2 or 3 other persons were also with Ramesh All of them started abusing him (Accused no.9). On 28.3.1979, at about 7.43 or 8 a.m. Nathu (P.W. 2) and Ramesh (deceased) and P.W. 5 Suresh came to his building and started assaulting him. He was injured and he lodged a complaint at the Agipada Police Station. According to him he was not concerned with the murder of Ramesh and that he was falsely implicated in the case.