VIJAY H MIRAJKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) WE have admitted the matter and heard both sides at some length on prayer for bail. The only evidence against the original accused is the evidence of alleged eye witnesses P.W. 1 Dinesh Joshi and P.W.2 Suresh Jadhav, who are friends of the deceased and aged about 34 and 38 respectively. They picked up Rekha and her children in a car of the deceased on 14.4.1996 and reached the house of Rekha's parents at about 4 a.m. on 15.4.1996. These two witnesses and deceased Peter Alwaris had tea there. Thereafter these two witnesses, deceased Peter were supposed to return back to Bombay but when they reached the car which was parked on the road, they saw that the two tyres of the car were punctured. Accused no.2 had a torch and accused no.1 has alleged to have asked as to who Peter Alwaris is. Peter came forward and disclosed his identify. The father of Rekha threw torch light on the face of the accused no.1. Rekha, her father ands two eye witnesses Dinesh and Suresh saw the face of the accused no.1 in the torch light, and it is alleged that accused no.1 dealt 3 to 4 axe blows on the person of Peter Alwaris who fell down. Accused no.2 is alleged to have facilitated accused no.1 by throwing torch light on the person of the deceased and thereafter both the accused disappeared. Rekha's father brought police patil to the village Dahivali near the scene of offence. Then admittedly Dinesh and Suresh as also the police patil went to Khed police station and police were brought to the place of offence. Rekha's complaint was recorded and it was sent to Khed police station and the offence was registered.

(2.) ADMITTEDLY Rekha and her father who were also alleged eye witnesses are not examined by the prosecution. What is startling is although admittedly these alleged eye witnesses Dinesh and Suresh alongwith the police Patil went to Khed police station almost immediately and in fact brought the police party to the scene of offence, their statements were recorded after recording the first information report of Rekha at about 1.30 p.m. That means though these alleged eye witnesses were in the company of the police officer as early as at 7.30 a.m. they disclosed the names of the accused only after 1.30 p.m. Prima facie we find it extremely difficult to appreciate the observations of the ld. Judge in para 22 that these witnesses 34 and 38 years of age must have been in a shock and they must have thought that Rekha was the proper person to lodge the complaint and therefore they merely accompanied the deceased Peter for Rekha and that ordinarily a layman is not expected to involve himself in serious matter like murder. Accused no.1 was a police naik which was known to these witnesses and they might have been worried that after filing of the complaint they are going to call a wrath of accused no.1 and as such both the witnesses were justified in not lodging the complaint soon after reaching the Khed police Station. The witnesses who had seen the murder and identified the accused and the witnesses who are of ripe age, when admittedly go to the police station it is extremely difficult prima facie to appreciate their conduct not disclosing the incident or the names of the accused to the police for hours together.