OMPRAKASH GULABDAS VAISHNAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order of conviction in sessions Case No. 58 of 2005, Nashik by the IV Adhoc sessions Judge, Nashik, dated 28th February, 2006, awarding life imprisonment with a fine of Rs. 500/, in default S. I. for one month, accused has filed the appeal.

(2.) Facts :the complainant, his brother Vinod (deceased) reside at Plot No. 6 at maratha Colony, Datta Nagar, Taluka Chehadi, District Nashik. One block constructed by Vinod was given to the accused for occupation as the accused had paid Rs. 55,000/to said Vinod. The accused is in Services. Both the families are known to each other since 1415 years. The accused having availed leave, had come to Nasik road on 7th June, 2004 and did not resume his duties at jammu. The accused suspected that his wife was having illicit relations with the complainant and Vinod, enquired the same with the complainant and also asked him about such relations to which Vinod had on phone refused. On 26th August, 2004 while complainant was at home. At 4. 00 P. M. Vinod returned to the house, vinod went to the house/room of the accused being called at 5. 00 to 5. 15 P. M. There was a huge sound of firing emminated from the room of Ompraksed (accused). Complainant and others rushed to the room of the accused. The accused had fired at the chest of Vinod from his 12 boregun while his wife shalini was shouting loudly that the accused had fired gun on the chest and was also shouting "wachava Wachava". The accused ran to the side of latrine and started consuming poison 'regor'. The complainant snatched container from the accused. However, at the same time his wife Shalini took it and she too started consuming poison. The accused was detained in the house and the police were communicated. At the instance of the complainant offence vide C. R. No. 312 of 2004 was registered against the accused under Sections 302, 309 read with 34 of the Indian Penal Code and under Section 3 read with 25 and under Section 27 of the Arms Act. The Spot Panchanama was drawn. The pairs of slippers with blood stains, 12 bore rifle, three live cartridges, one container with poison was taken charge. Rough sketch was prepared. The photographer Sanjay Bednere obtained photographs of the spot and of the dead body. The inquest on the body of Vinod was drawn. Since the blood stains were noticed on the sky blue coloured shirt of the accused, it was taken charge in the presence of panch witnesses. The statements of the witnesses were recorded. Blood sample of the deceased Vinod Panchal and accused was collected. The accused was arrested under Arrest Panchanama. The statement of shop owner Vishram Kolhe who sold 'regor t'o the accused was recorded on 7th September, 2004. I. O. sent the rifle, live cartridges, shirt of the deceased, the small shot taken out from the body of the deceased, the cap on the front side of the bullet, some part of the bullet taken out of the body of the deceased, skin sample of the spot where the deceased had wound on his chest, the bed sheet, slippers, shirt of accused omprakash, blood sample of deceased Vinod and that of the accused omprakash, Baniyan and other apparels were sent to the C. A/ballistic Expert for analysis. On receiving C. A. reports after completion of investigation, chargesheet against the accused and his wife was filed. The charge (Exh. 17) was explained to both the accused. They pleaded not guilty to the charge (Exhs. 18 and 19).

(3.) Defence :4 the defence of the accused was of total denial. The second limb of defence from accused No. 1 was when he had gone to latrine he heard a big noise and noticed that Vinod was lying on the cot. Vinod negligently handled the rifle and suffered gun shot. During submissions before this Court the defence counsel canvassed that the act of accused will be within the bracket of sudden provocation, and that there was no premeditation.