SHANKAR MAHIA ANDHER Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appellant convicted under section 302 of the Indian Penal Code and sentenced to life imprisonment by the judgment and order dated 12th August 1994 delivered by the learned Sessions Judge, Dadra and Nagar Haveli, Silvassa, in Sessions Case No.9 of 1993, has preferred this appeal impugning his conviction and sentence.

(2.) ORIGINALLY, there were four accused who are interrelated. The accused no. 2 is the son of the accused no. 4 and the accused no. 1 and 3 are husband and wife. Accused no. 1 is the first cousin of accused no. 2 and nephew of accused no.4 . The date of the incident is 28.6 . 1993 when one Lallu Maria Andher, son of accused no. 4 and brother of accused no. 2, was murdered. Deceased Lallu was thus the first cousin of the appellant. The appellant (original accused no. 1) was charged for the offence of murder of deceased Lallu under section 302 of the Indian Penal Code. The remaining accused, being accused no. 2, 3 and 4 were charged for offence under section 302 read with section 114 of the Indian Penal Code for having abetted and instigated the appellant for committing the murder of deceased Lallu. By the impugned judgment and order dated 12th August 1994, the learned Sessions Judge had acquitted the accused no. 2, 3 and 4 and convicted the appellant original accused no. 1 for offence under section 302 of the Indian Penal Code and sentenced him to life imprisonment.

(3.) AT the time of the trial, the complainant Lalita, the wife of the deceased, was not available for giving evidence as she had died on 15.8 . 1993, within a short time after the murder of her husband. On behalf of the prosecution, a number of witnesses, including six eye-witnesses were examined. Out of them, four witnesses P. Ws. nos. 3, 4, 6 and 7 had turned hostile and did not support prosecution case in the Court about assault on the deceased by the appellant-accused no. 1. Only P. Ws. 5 and 8 supported the prosecution case as eye-witnesses. The other witnesses are P. W. 1 Medical Officer who conducted the postmortem; P. W. 11 is head constable Parmar who recorded the F. I. R. and registered the offence. P. W. 12 is P. S. I. Rathod who had investigated the offence. The other witnesses are the panchas to the various panchanamas and P. W. 2 is the Circle Officer from the Revenue Department who drew the map of the scene of offence.