BALA GANGARAM CHANDRAKANT ACHAREKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned counsel appearing for the appellants. I have also heard the learned A. P. P for the State. With a view to appreciate the submissions made by the learned counsel appearing for the appellants, it will be necessary to refer to the facts of the case in brief. The appeals are preferred for taking an exception to the same judgment and order dated 29th November, 2005 passed by the learned Additional Sessions Judge by which all four accused were acquitted for the offence punishable under section 302 read with section 34 of the Indian Penal Code. However, the accused were convicted for offences punishable under section 304 (Part II) read with section 34 and section 324 read with section 34 of the Indian Penal Code. For the offence under section 304 (Part II) the accused were sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 5,000/ -. For the offence punishable under section 324 read with section 34 of the Indian Penal Code the accused have been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/ -.

(2.) The original complainant is one mr. Kesarinath, name of his brother is kashinath. Rupali is the sister of deceased nitesh and Swapnil the is brother of deceased nitesh. On 07th June 1996 at about 6. 50 p. m the said Swapnil was standing in the courtyard of his house and at that time his sister Rupali was sitting on a platform of her uncle harishchandra's house alongwith her cousin by the name Varsha. The house of harishchandra is opposite to the house of kesarinath. At that time it is alleged Bala, accused no. 1 accompanied by Sandeep, mahendra and Sashikant (accused nos. 2 to 4 respectively) were passing by the road. According to prosecution case the accused teased Rupali and hence Harishchandra warned them not to commit such mischief. Thereafter, the accused questioned Swapnil as to why he was staring at them. The said Swapnil retorted by telling them that God had gifted him eyes to look for and that he was free to see anywhere. Further, the prosecution case is that the accused gave angry glances towards swapnil and abused Swapnil. Thereafter, they went away. Kashinath, Rupali's father came back to his house at about 7. 00 p. m. The said swapnil disclosed the incident to him. After knowing the incident, Kashinath accompanied by deceased Nitesh and Swapnil proceeded towards Makunsar Naka with a view to eat vadapav and also to make inquiry as to why accused abused Swapnil. The 1st accused Bala was residing in a bungalow of one Satardekar by the name Swami Krupa. Kashinath accompanied by his sons straightaway proceeded towards the said bungalow. Accused no. l Bala was residing in the said bungalow as a guest of said Satardekar. Kashinath called Satardekar and enquired about 1st accused Bala. The said Satardekar called the 1st accused Bala. Bala came out of the house. Thereafter, Kashinath enquired with him about three other persons who had accompanied him. Kashinath questioned Bala as to why they have teased his daughter. Thereafter Bala called the 2nd to 4th accused. The said accused came to the spot. As kashinath questioned the accused about the incident of the evening they got annoyed and started a scuffle with Kashinath. They started assaulting Kashinath. The allegation is that deceased Nitesh intervened to save his father kashinath. The accused started assaulting the said Nitesh. It is alleged that accused Bala inflicted blow with his knife over the stomach of Nitesh. Nitesh went away and fell down. Swapnil ran away from the spot and proceeded to call his uncle Kesarinath. The said kesarinath immediately reached the spot. At that time 2nd, 3rd and 4th accused had caught hold of Kashinath and the 1st accused i. e Bala inflicted blow with a knife over his right and left thigh and caused bleeding injury. There were shouts for help and therefore it is alleged that the accused ran away from the spot. By the time Nitesh was taken to government dispensary he was declared as dead. His father kashinath was taken to the hospital. Kesarinath lodged the F. I. R.

(3.) The 2nd witness is Tukaram manglya Patil who is the panch witness to the arrest panchanama. The 3rd witness is laxmikant Chimanlal Patel. He is also a panch witness who stated that the spot of incident was on Saphale road and in front of Swami krupa bungalow. He stated that police did not seize blood mixed soil and plain soil in his presence. The 4th witness is Harishchandra kanha Thakur who is again a panch witness to the seizure of the clothes on the person of kashinath.