BHARAT DASHRATH KARDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE original accused no.2 has challenged his conviction for offence under section 302 of the Indian Penal Code and the order of sentence of imprisonment for life.

(2.) INITIALLY , the elder brother of the appellant, the appellant and one Bandu Mhatre were charged for an offence under Section 302 as well as under section 504 and 323 read with 34 of the Indian Penal Code and 37(1) read with 135 of the Bombay Police Act. The accused no.1 and 3 were acquitted of all the charges, the accused no.2 was convicted for the offence under section 302 and was acquitted of all other charges.

(3.) THE evidence, in our opinion, shows that the deceased died a homicidal death. So far as the involvement of the accused no.2 is concerned, the prosecution has relied upon the evidence of three eye-witnesses. The first is P.W. 4 Somnath who has stated that on 7th March 1991 at about 8.30 p.m. when he returned from his work, his friend Chandrakant met him near the ota of Sumanbai Jadhav. At that time, all the accused came there and the accused no.2 assaulted Vithal with a sword. Vithal sustained injury on the right side of his neck and on left hand on the palm. Hence, this witness and Chandrakant went to separate Vithal but the accused no.2 rushed with a sword and hence, both of them ran away. However, Chandrakant sustained injury on his back by the sword of the accused no.2. PW 5 Chandrakant has given an identical version, save and except that he has merely stated that when he tried to rescue Vithal, the sword touched his back. We do not find any material whatsoever in the cross-examination or otherwise on record to discard the evidence of these two witnesses. Mr.Chitnis submitted that if these witnesses were really there, they would have referred to the quarrel which was the cause of the attack. In that behalf, he referred to the evidence of P.W. 7 Tarabai who has stated that at about 8 or 8.30 p.m. she heard shouts of some quarrel and, therefore, she had gone near the latrine. The deceased was asking Sunita i.e the wife of the accused no.1, to take aside her daughter who was sitting by the side of the road. There was exchange of abuses whereupon Sunita was saying that she would tell the incident to the male members of her family. P.W.8 Nirmala gives identical version. Referring to the evidence of these two ladies, Mr. Chitnis submits that the evidence of Somnath and Chandrakant cannot be accepted as they do not refer to the earlier quarrel. We are not impressed by this submission because the submission presumes that the quarrel and the assault took place at the same spot and in quick succession. It is relevant to notice that the evidence of those witnesses clearly shows that the incident of assault took place in front of the ota of P.W. 6 Sumanbai whereas the aforesaid quarrel appears to have taken place near the latrine. What obviously has happened is that after the quarrel, the deceased came near the ota which is at some distance from the latrine. In the meantime, the wife of the accused no.1 complained and when the accused no.1, 2 and 3 came, the deceased was near the ota. P.W. 4 Somnath and P.W.5 Chandrakant were at the ota. Therefore, they might not have heard the earlier quarrel which took place near the latrine. As such, only on the count that they do not refer to the quarrel which they might not have heard, their evidence cannot be discarded as urged by Mr. Chitnis. As there is no other infinity in their evidence, we see no good reason to discard the same. On the basis of evidence of these two witnesses, the complicity of the accused no.2 is proved beyond any reasonable doubt.