SITARAM SHIORAM MOKALKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order passed on 19.1.2004 by the learned 4th Adhoc Additional Sessions Judge,Amravati in Sessions Trial No. 129/2003, the appellant Sitaram s/o Shioram Mokalkar (original accused) has preferred the present appeal. The appellant/accused was charged for committing the offencepunishable under Section 302 of Indian Penal Code, i.e. committingm urder of Parasram Shivram Mokalkar and secondly, of causing hurt toGopal Parasram Mokalkar by means of a spear and thereby committing offence under Section 324 of the Indian Penal Code. The learned trial Court convicted the appellant/ accused for the offence of murder and sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs.1000/ andin default of payment of fine, to undergo simple imprisonment for three months. The appellant/accused was also convicted under Section 324 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/and in default, to suffer S.I. for 15 days.

(2.) The prosecution case in brief is as follows One Gopal Parasram Mokalkar lodged a report at Loni Police Station and stated that he was residing at Shivgaon and was cultivating his land. They were in all 3 brothers and they were residing separately.The partition of the land was effected. The uncle of Gopal, namely, Sitaram was not happy with the partition. Sitaram was also not on talking terms with Gopal and the other brothers. On 22.4.2003 Sitaram picked up quarrel on the ground of untethering the bullocks. It was further stated in the complaint that on 26.4.2003 father of Gopal, namely, Parasram was sleeping on the cot near the cattleshed. Gopal was also sleeping in the cattleshed. At about 6 O'clock in the morning Sitaram came to the cattleshed with a spear and assaulted Parasram. A hue and cry was made and on hearing the shouts, the other family members rushed out of the house and caught hold of Sitaram. In the scuffle, Sitaram delivered a blow by the spear which landed on the waist of Gopal and Gopal sustained injury. Many of the persons residing in that locality gathered On the spot. Parasram died on the spot. On receiving the report, the same was reduced in writing and printed format FIR was prepared at Police Station Loni. The investigating machinery was set in motion. PSI Raut who was incharge of the investigation at the relevant time referred the complainant who was injured in the assault to the Primary Health Centre for medical treatment. After examination of the complainant, the Medical Officer issued the certificate. The steps in the investigation, such as preparation of the spot panchnama, inquest panchnama, the recording of statements, forwarding the dead body for postmortem examination and obtaining the P.M. report, etc. were taken by the investigating agency. The accused who was found on the spot having his clothes stained with blood was arrested. The spear which was also found on the spot was also seized. After completion of the investigation, the charge sheet was filed for the offence under Section 302 and being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions/The defence of the accused was of total denial and false implication. The circumstances to prove the case against the appellant/accused which are relied by the prosecution are mainly as follows:

(3.) Mr. R.M. Daga, the learned Counsel for the appellant,submitted that the socalled Eyewitnesses of the prosecution, namely, Gopal and Sunanda are the son of deceased and daughterlnlaw of the deceased respectively. He further submitted that because these witnesses are closely related to the deceased, they are interestedwitnesses and it is not safe to rely on the testimony of such interestedwitnesses. He further submitted that the prosecution has also failed to bring any motive in the said crime. He further submitted that the appellant was cultivating his own land and the partition was effected long back prior to the incident and as such, there was no reason for the appellant to commit the crime in question. Mr. Daga further submitted that looking to the nature of the injury, it is the case of a single blow andas such, the offence would be not an offence punishable under Section 302 of Indian Penal Code but it would be an offence punishable under Section 304 Part II, as there was no premeditation and there was only a single blow.