RAJESH VISHNU TAWADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Pradip P. Kadam, P.W.8 received a telephone call from an unknown person at about 20.30 hrs. on 29th July, 1992 informing him that four persons had injured one person by stabbing him near Lakme company. After receiving the information the said API along with other staff including PSI Amrutsagar, Dhaygude and Ghag reached the spot and came to know that the injured had been removed to Rajawadi Hospital. Two persons out of the team remained at the spot while the others proceeded to the Hospital. On enquiry they were informed that the injured, Atmaram Patil, had been declared as dead before admission. The son of the deceased, Kishore Atmaram Patil, P.W. 1, was present upon whose information an FIR (Exhibit 10) was recorded. P.W. 1 had stated that he knew the four accused viz. Suresh Chavan, Rajesh Tawade, Prakash Pednekar and Shridhar Panchal. All the accused were residing in Ganesh Wadi, near Lakme Compound, Govandi. The said witness was also residing in the same area. There were two Mandals viz. Jai Bhavani Mitra Mandal and Shiv Shakti Mitra Mandal in that locality which celebrate Shivaji Jayanti. P.W. 1 was the president of Jai Bhavani Mitra Mandal about a year prior to 1992 and the accused were members of Shiv Shakti Mitra Mandal. Accused No.3 Prakash Pednekar was the secretary of that Mandal. Accused No.3 Prakash was persuading P.W. 1 to join their Mandal which he declined. On 29th July, 1992 at about 7.30 hrs. when he was talking to one of his friends Shantaram Kakade at the BEST colony, all the four accused alighted from an auto near him. They chased him. P.W. 1 started running as Prakash came with a sword. Shridhar also had a sword. He wanted to assault P.W. 1 who ran away, when his father intervened and he was assaulted with a sword. Suresh and Rajesh were also armed with weapons. They injured his father while he ran shouting for help. He could not clearly state as to what type of weapons they were carrying. The accused after injuring his father ran away. The father was rushed to the hospital where he was declared dead. The prosecution story is then concluded by the Investigating Officer P.W. 11. He arrested accused No.1 Suresh Chavan and accused No.2 Rajesh Tawade on 30th July, 1992 and recorded a further statement of the complainant (P.W.1). The other accused were also arrested on 31st July, 1992. Recoveries of the swords and of the clothes of accused Nos.3 and 4 were made by the disclosure statements of accused Nos.3 and 4 vide Exhibits 28, 28A, 26 and 26A respectively. Entries for these recoveries were duly made in the records vide Exhibits 33 and 33A. The injury report as well as the Postmortem report of the deceased was prepared vide Exhibit 37 by P.W. 10 Dr. Bagul. After completing the investigation and recording the statements of the Prosecution Witnesses, a charge-sheet was filed before the Learned Metropolitan Magistrate, 44th Court at Kurla who committed the accused to trial under Section 302 read with Section 34 of the Indian Penal Code before the Court of Sessions vide order dated 19th October, 1992. The accused stood the trial before Court. Statements under Section 313 were recorded. The accused opted not to lead any evidence in defence and they offered a complete denial to the incident. By his judgment dated 26th August, 2002 the Learned Additional Sessions Judge for Greater Mumbai found all the accused guilty of the offence with which they were charged and after hearing the accused on the quantum of sentence, awarded the following sentence to the accused :

(2.) The legality and correctness of the judgment of the Learned Trial Court is challenged in the present appeal primarily on the following grounds :

(3.) It is a settled rule of criminal jurisprudence that the prosecution must prove its case beyond reasonable doubt and it is the right of the accused even to maintain silence and not to offer any defence. These two settled canons, by development of law, have been expanded to coincide with the normal conduct of the human being that wherever the factors or the evidence indicate a doubt the accused is required to explain the doubts so created on him. The purpose of recording the statement under Section 313 of the Criminal Procedure Code is two fold. Firstly, it is to put to the accused all the material evidence which is on record and which he is expected to be aware of and /or meet in order to falsify the case of the prosecution. Secondly, it is an opportunity provided to the accused not only to explain the factors or the evidence stated against him if he so choses, but also to offer an explanation voluntarily. Where he refuses to offer any explanation or he offers an explanation insofar as it corroborates the case of the prosecution, the same is relevant and the Court can take notice thereof. In the present case the accused have taken the plea of false implication implying that they were not present at the place of occurance, but they have opted not to explain where they were at the relevant point of time. It is the prime and foremost duty of the prosecution to prove its case and bring the guilt of the accused before the Court. Thus, we must proceed to examine whether the prosecution has been able to lead cogent and proper evidence to establish the guilt of the accused or not.