SHAMRAO VITHOBA PACHUDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN the incident involved in these appeals which occurred on the 18th of June, 1987 at about 19.30 Hrs. , in R. S. No.551/1/p Plot No.8 in the City of Sangli, Nandkumar. P. W 8 Rajendera and Parwatabai sustained injuries. Nandkumar was removed to hospital, but died at 8.15 p. m. (20. 15 hrs. ). All the 6 (six) accused persons were charged and tried thus : (I) IN relation to Rajendra PW 8 : (i) under Section 324 read with Section 149 IPC. alternatively. (ii) under Section 324 IPC read with Section 34 IPC : (II) IN relation to Parwatabai : (i) under section 323 read with Section 149 IPC. alternatively, (ii) Section 323 read with Section 34 IPC ; (III) IN relation to Nandkumar : (i) under Sections 147, 148, 302 read with Section 149 IPC; alternatively, (ii) under Section 302 IPC read with Section 34 IPC; and further alternatively. (iii) Accused No.2 Subhash individually for under Section 302 IPC. To substantiate the charge, during trial, the prosecution mainly relied upon the testimony of PW 8 Rajendra, the injured and Complainant, PW9 Raju Bavadekar and PW 10 Shrirang Jadhav as eye-witnesses. Parwatabai has not been examined.

(2.) BY the impugned judgment, the learned Additional Sessions Judge, Sangli, held : Accused No.2 individually guilty for commission of murder of Narendrakumar and convicted and sentenced him under Section 302 IPC : Accused Nos. 1 and 4 guilty under Section 324 IPC for causing injury to PW 8 Rajendra; and sentenced them 3 months R. I. and fine. Accused Nos. 3, 5 and 6 were acquitted of all the charges. Convicted Accused Nos. 1 , 2 and 4, therefore, presented Criminal Appeal No.761 of 1989. Whereas State has presented criminal Appeal No.96 of 1990 as against the order of acquittal. Both these Appeals were heard together and are being decided by this common judgment. Mr. Hudlikar, the learned counsel, has challenged the finding of conviction, principally, on the ground that PW Nos. 8, 9 and 10 were not the eye witnesses to the incident. They have been installed, as such, with the active connivance of the investigating Agency. The learned counsel stressed on various aspects to probabilise the plea. To examine the substance of challenge, we propose to examine the account of the witnesses.

(3.) ACCORDING to Mr. Hudlikar the following aspects completely dislodge the claim of the Complainant PW 8 of having seen the incident : (A)The story of falling in the gutter at the time of assault has been a consistent omission in F. I. R. and consequent statements. His clothes tainted with silt were not immediately seized after lodging of the FIR. (B)Absence of an injury on stomach falsifies ocular testimony.