DADU PANDU NIKAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant convicted of having committed offence of murder under Section 302, IPC and sentenced to life imprisonment and to pay a fine of Rs.500/- in default to suffer RI for three months by the Judgment and Order dated 18-4-1994 recorded by the 2nd Additional Sessions Judge in Sessions Case No.215 of 1992 has presented this appeal. The prosecution case briefly stated is as follows:

(2.) THE appellant along with his brother Mahadeo and his wife Tarabai were charged for the offence of murder of the appellant's cousin-Mahadeo Govinda Nikam on the morning of 13th April 1992. The deceased had four brothers including the complainant-Dashrath Nikam. They were living separately in the vicinity of each other. Deceased Mahadeo was living in the house purchased by his brothers from Dadasaheb Nikam. About two years before the incident the appellant and his wife assaulted Baburao Nikam brother of the deceased and his wife Sonabai while they were sleeping in the courtyard. They had assaulted with stick and iron bar on their head and back as the complainant and his brothers had purchased the house from the father of the appellant. The offence was registered at Hatkanangale Police Station. After one year of the said incident there was rift between one Raosaheb Jadhav and the appellant, and the appellant and his wife had injured Raosaheb Jadhav by knife. At that time the deceased had rescued Raosaheb Jadhav. Suspecting that deceased had instigated Jadhav against him the appellant had given threat to kill the deceased. On 31.3.92 PW 6 Birju Pujari had informed the wife of the deceased that the appellant had told him that he would kill deceased Mahadeo within eight days with sickle. The complainant and deceased had confirmed this fact from the said witness. Both his brother and the complainant were working in Deccan Spinning Mills but their duty hours were different. While deceased Mahadeo was having his shift from 8 a.m. to 4 p.m. daily, the complainant at the relevant time was working on shift from 12 p.m. to 8 a.m. After attending his shift from 12 p.m. to 8 a.m. on 13-4-92 while complainant-Dashrath Nikam (PW 9) was returning home from his duty on bicycle he saw crowd gathered in front of Sonali Hotel. When he went to the said place to see what had happened he found his brother Mahadeo was lying in pool of blood. At that time Prosecution witnesses No.4 Pandit Jamdar was enquiring from the injured brother as to how it happened. At that time Mahadeo told him that the appellant, his wife and one more person assaulted him with sickle. Similar question was put to him by the complainant and the injured gave the same reply. Mahadeo was having injuries on his head, forehead, cheeks, ears, hands and legs. Mahadeo was taken to KEM Hospital, Ichalkaranji in the ambulance of mill by the complainant, PW 4 Pandit Jamdar and Yashwant Patil. The deceased however succumbed to his injuries and the complainant lodged the report (Exhibit 41) to the Police Station at Hatkanangale and offence under Section 302 read with Section 34 of IPC was registered. The Investigating Officer drew the inquest panchnama, spot panchnama and all the three accused came to be arrested on 14-4-92. After completion of investigation charge-sheet was filed before the JMFC on 13th July 1992. As the offence was exclusively triable by the Court of Sessions the case was committed to the Court of Sessions, Kolhapur by order dated 18th July 1992. Before the Sessions Court charge under Section 302 read with 534 IPC was framed which was read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried.

(3.) MR .Marwadi, learned Counsel appearing on behalf of the appellant took us through the evidence of the prosecution witnesses and the panchanamas and the CA report. He challenged the evidence of PW 8 Mahadeo Pawar who had deposed that he was eye witness to the assault made on the deceased. He knew the deceased Mahadeo Nikam as the witness himself was serving in Deccan Spinning Mill and used to go by the road in front of Sonali Hotel to attend his duties where the deceased was killed. According to him he was going by scooter and had stopped near a pan stall near the said hotel. He saw the appellant and original accused no.3 i.e. wife of the appellant assaulting the deceased with sickles. He further says that he thereafter approached the deceased and asked him as to who assaulted him. Deceased told him that accused nos.1 to 3 assaulted him. From the tenor of his deposition in examination-in-chief itself the witness does not inspire confidence. When he claims to be an eye witness there was no reason for him to enquire with the injured deceased as to who assaulted him. In the cross-examination he states that no one except him had approached the deceased at that time and that he was not knowing the accused prior to the incident. In any event the trial Court while appreciating the evidence has rightly discarded the evidence of this witness as eye witness. From the evidence it appears that there was no eye witness and the complainant who is the brother of the deceased and who happened to reach the place of offence on his way back home did not claim to be the eye witness either. That was the time when the deceased was supposed to be on his way to the mill for the purpose of attending his duty. PW 9 Dashrath Nikam arrived at the place of offence while on his way back home and seeing group of people he halted to find out as to what had happened. When he saw his brother in injured condition he enquired from him as to who had assaulted him and he was told by the deceased that it was the appellant, his wife and one more person who had assaulted him with sickle, when he reached there PW 4 Pandit Jamdar was also there and was enquiring with the deceased as to how he got injured to whom the deceased replied the same way saying that Dadu Nikam, his wife and one person had assaulted him with sickle, PW 4 Pandit Jamdar also in his deposition testified that he had approached the deceased before the brother of the deceased had approached him and had made enquiry as to who had assaulted him. He also states in his deposition that at that time complainant also arrived there and made similar enquiry to which the deceased replied in the same manner. PW 4 Pandit Jamdar had also acted as pancha for inquest panchanama. He had also accompanied the complainant to take the deceased to the hospital. Name of this witness PW 4 Pandit Jamdar has been mentioned in Exhibit 41 which was the FIR filed by the PW 9 complainant. In our view this dying declaration cannot be doubted as the testimony of the complainant, who is the brother of the deceased, is trustworthy as the same has been corroborated by the FIR Exhibit 41 and also by the testimony of PW 4 Pandit Jamdar whose name is mentioned in the FIR. The appellant-accused was also named as assailant in the FIR which was filed immediately by the complainant.