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2015 DIGILAW 1151 (BOM)

State of Maharashtra v. Balasaheb Dashrath Shep

2015-05-05

I.K.JAIN, T.V.NALAWADE

body2015
JUDGMENT : I.K. Jain, J. 1. This application under section 378(1)(3) of the Code of Criminal Procedure is filed for grant of leave to appeal against the judgment and order of acquittal passed by the learned Additional Sessions Judge, Ambajogai, District Beed on 22.08.2014 in Sessions Case No. 15/2012, dated 22.08.2014, for the offences punishable under sections 147, 148, 302, 307read with 149 of the Indian Penal Code. Heard learned Additional Public Prosecutor and learned counsel for respondents extensively. Perused original record. 2. The facts giving rise to the present application may be stated in nutshell as under: "i. That Meghraj Shriram Chate was resident of village Sakud, Taluka Ambajogai, District Beed. He was serving as operator in the office of MSEDCL, Sub-Station, Girwali. He was also running Sanjit Finance and CM. bricks business. The office of Meghraj was in a tin shed situated in open space near Vanjari Vastigriha. It was on rental basis. Complainant Satish Mahipatrao Kendre is a legal practitioner and brother-in-law of Meghraj. ii. Incident occurred on 23.10.2011 at about 6.30 p.m. Before incident, Meghraj phoned Satish Kendre and called him to his office. Satish Kendre then reached the office of Meghraj within five minutes. That time, Meghraj was talking to Vaijnath. Soon Satish Kendre reached Vaijnath left the place. Thereafter Satish Kendre and Meghraj were sitting chitchatting in the office. It is alleged that accused No. 2 with five others, armed with sword and sickles, abruptly entered the office. They attacked Meghraj. Complainant raised alarm to save Meghraj. Assailants assaulted Satish Kendre too. Meghraj sustained grievous injuries on head, face, both hands and died on the spot. Complainant anyhow managed to escape from the clutches of assailants. He went to police station, Ambajogai town. Police referred him to Hospital, Ambajogai where he was admitted. iii. In the meanwhile, PSO of the concerned Police Station received telephonic information about the occurrence of incident. API Baliram Gitte rushed to the spot. Inquest and spot panchanamas were recorded. Dead body was referred for postmortem to Ambajogai Hospital. PW-7 Dr. Vishwajit Pawar conducted postmortem. During postmortem, medical officer noticed multiple chops, 17 in number, on face, scalp and neck, sharp wound on right shoulder joint, multiple defence wounds on right hand, left hand, avulsion of neck and imputation of thumb. Inquest and spot panchanamas were recorded. Dead body was referred for postmortem to Ambajogai Hospital. PW-7 Dr. Vishwajit Pawar conducted postmortem. During postmortem, medical officer noticed multiple chops, 17 in number, on face, scalp and neck, sharp wound on right shoulder joint, multiple defence wounds on right hand, left hand, avulsion of neck and imputation of thumb. Cause of death opined by Doctor was hemorrhage and shock due to multiple chop wounds by heavy sharp cutting weapons. iv. It appears that statement of injured Satish Kendre was recorded in the Hospital. The same was treated as FIR. On the basis of FIR, investigation proceeded. Number of witnesses were examined by the investigating agency. Incriminating articles like sickles and kukri were recovered. On completing investigation, charge sheet was filed before the concerned Court. The case was then committed to the Court of Sessions." 3. The Trial Court framed charge against the accused vide Exhibit 48. Prosecution examined in all 15 witnesses. PW-1 Satish Kendre and PW-8 Nandraj Chate were the eye witnesses. They implicate accused Nos. 1, 2, and 7 to 10. Recovery of incriminating articles i.e. four sickles and a kukri at the instance of accused No. 8 Bitu, accused No. 9 Pintu and accused No. 2 Bibhishan came to be proved through Panch witnesses and investigating officer. Sickles were blood stained. Besides, this, there is evidence to the effect that accused No. 2 sustained injuries in the incident. He got himself admitted to the hospital in the fake name. No plausible explanation was given by accused No. 2 regarding injuries. 4. On going through the record, it is noticed that trial Court appreciated the evidence of eye witnesses in the light of police statements recorded during investigation and surprisingly test applicable to the dying declaration under section 32 of the Indian Evidence Act was made applicable to the police statement of witnesses. 5. In this premise, considering the evidence of eye witnesses, recovery of incriminating weapons and unexplained injuries found on the person of accused No. 2, we find that there is an arguable case for the State against accused/respondent Nos. 1, 2 and 7 to 10. To that extent, leave to appeal needs to be granted. 6. So far as respondent Nos. 3 to 6 are concerned, absolutely, there is no iota of evidence to show their involvement in the incident. No identification parade was held. 1, 2 and 7 to 10. To that extent, leave to appeal needs to be granted. 6. So far as respondent Nos. 3 to 6 are concerned, absolutely, there is no iota of evidence to show their involvement in the incident. No identification parade was held. For want of evidence, leave to appeal against respondent Nos. 3 to 6 will have to be refused. 7. In the result, criminal application is partly allowed. 8. Leave to appeal against respondent Nos. 1, 2 and 7 to 10 is granted. 9. Appeal is admitted to the extent of respondent Nos. 1, 2 and 7 to 10. So far as these respondents are concerned, comply with the provisions of section 390 of the Code of Criminal Procedure. Criminal Application pertaining to respondent Nos. 3 to 6 stands dismissed.