RAJESH UMANATH SHETTY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) All these three Appeals arise from the order of conviction and sentence passed on 8th October, 2002 by the learned Ad-hoc Additional Sessions Judge at Thane in Sessions Case No. 330/2000 in which five accused were put on trial and accused No. 4 Prakash Baswant Gangu was declared as an absconder after the charge was framed and, therefore, trial proceeded against accused Nos. 1 to 3 and 5. These Appeals have been filed by accused Nos. 2, 3 and 5, respectively and accused No. 1 came to be acquitted, whereas the Appellants have been convicted for the offence punishable under section 302 read with Section 34 of the Indian penal Code and sentenced to suffer R. I for life. Accused Nos. 3 and 5 are in jail and accused no. 2 Rajesh Shetty has been absconding after he was released on furlough as per the order passed on 16th March, 2004.

(2.) The prosecution case as seen from the record is that on 24th December, 1999 the deceased Sunil Chaugule along with 5 6 others was standing opposite the telephone booth by name Amit Communications in chinchpada area, New Bombay (Airoli) at about 10 a. m and was waiting for his brother to go to Thane. At about 10. 15 a. m i. e. within about 15 minutes, 5 6 assailants armed with deadly weapons like knives, sura and chopper etc. , arrived there and without any provocation from the deceased or any of his friends, the deceased was attacked. The first blow was given below his chest and he immediately started bleeding, to save himself from further attack he ran inside the telephone booth and as some of the accused were following, he exited from the rear door of the telephone booth, but at a distance of about 25 ft. he collapsed in the drain. One of the accused who had inflicted the first blow brandished his weapon and threatened the companions of Sunil not to move or interfere and therefore, they had receded backwards. After Sunil collapsed in the drain, all the accused again attacked him and within about 5 minutes time they left the place. Sunil was lifted from the drain by his companions and he was profusely bleeding and his clothes were stained with blood as well as mud. He was, shifted to Modi Hospital in a rikshaw by 4 of his companions and was declared dead by the Doctor. Dattatraya Pawar (P. W. 1) who was one of the companions lodged complaint with the Rabale Police Station and the same was recorded by Shri. Narayan Bankar, P. S. I (P. W. 8) as F. I. R, Exhibit-49 for the offences punishable under Sections 302, 143, 147, 148 and 149 of the Indian Penal Code at about 10. 35 a. m the dead body of Sunil was forwarded to the Government Hospital for Post-Mortem and the same was undertaken between 3. 30 to 4. 50 p. m on the same day by Dr. S. G. Bakshi. Post-Mortem Report at Exhibit-67 was prepared. P. W. 15 Shri. Pralhad Laxman Chandanshive took over the investigation from P. W. 8 and recorded the statements of eye-witnesses. He arrested accused Nos. 3, 4 and 5 at about 15. 15 hours on the date of incident itself and accused no. 2 at 22. 35 hours, whereas accused No. 1 came to be arrested on 5th January, 2000. On arrest the clothes of the accused were seized and while they were in custody recoveries of weapons i. e. Article Nos. 18, 19 and 20 were made at the instance of accused Nos. 2, 3 and 5. P. W. 15 carried out the spot panchanama on 24th December, 1999 (Exhibit-42) and recovered one knife stained with blood from the spot (Article-1 ). These weapons as well as the clothes of the accused and the deceased were sent for Chemical Analysis by P. W. 15. C. A. Report was received by the I. O.

(3.) P. W. 12 Shri. Ramesh Anant paranjape was the Special Executive magistrate, who conducted the Test Identity parade on 4th February, 2004 in the jail premises at Thane and had drawn the Test identification Parade panchanama at Exhibit-69. Vide the application at Exhibit-40 filed under section 294 of the Code of Criminal procedure, the prosecution had placed on record in all 12 documents before the trial Court and out of the same the defence specifically admitted the inquest panchanama dated 24th december, 1999 Exhibit-41, the Post-Mortem report dated 24th December, 1999 (Exhibit-67), and the panchanama of attachment of clothes of the deceased Exhibit-61 and 64. As the Post-Mortem Report was admitted, the prosecution did not examine the Medical officer, who had conducted the autopsy on the body of the deceased.