ASHOK BHAGWAN BENJARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant against his conviction under section 302 I. P. C. and imprisonment for life imposed thereunder vide judgment and order dated 25-10-1991, passed by Shri N. G. Ghotekar, Additional Sessions Judge, Greater Bombay, in Sessions Case No. 218/1989.

(2.) THE prosecution case in brief, as transpires from the recitals made in the F. I. R. lodged by P. W. 1 Moti Gupta and as unfolded in the evidence adduced during trial is as under:-The informant Moti Gupta is residing in hut No. 22 situate in Baiganwadi, Shivaji Nagar, Govandi, Police Station Deonar, Greater Bombay. In the afresaid hut, along with him his son Ramachal (deceased) his brother-in-law Subhash, P. W. 7 and a person of his native place namely P. W. 11 Ram Sahai also used to live. According to the prosecution, the appellant was known to the informant and others because, till 3 to 4 months prior to the incident, he had been working with Nyamatmulla who was residing in Hut No. 28 situate opposite to the house of the aforesaid Moti Gupta. The case for the prosecution is that at about 15 days prior to the incident at about 12. 15 a. m. when the informant and others were sleeping in the aforesaid Hut No. 22 the appellant Ashok entered the hut and while he was trying to steal the clothes, the informant and his son Ram Achal caught hold of him. However, Ashok managed to free himself and run away. On account of the fear of Ashok, who is said to be a person of a desperate type, no report was made either by Moti Gupta or Ram Achal. On 22-10-1988, according to the prosecution, the informant, his son Ram Achal, his brother-in-law Subhash and Ram Sahai after having dinner were sleeping in the Hut No. 22. At about 11 p. m. there was knock at the door resulting in the informant waking up and inquiring as to who was knocking. It is alleged that on the informants inquiry, the appellant Ashok replied in Hindi "i am Ashok open the door". It is said that the informant did not open the door and asked Ashok to meet him in the morning. After about fifteen to twenty minutes, somebody threw a stone on the door of the hut of Moti Gupta who and the aforesaid persons who were sleeping with him, woke up. Electric light is alleged to have been burning in the hut. Moti Gupta and Ram Achal came out of the hut and saw that the appellant was standing in front of the door of Hut No. 25, which, as is apparent from the perusal of the site plan is situate at a distance of about 30 ft from their hut. It is said that Ram Achal went and inquired from the appellant as to why he had hurled stone on the door, and this inquiry resulted in the appellant assaulting him with a knife on the left side of his chest. As a result of the blow, blood is said to have started oozing out from injury of Ram Achal. Ram Achal ran to a distance of about 10 to 15 steps and fell down. It is stated in the F. I. R. that the informant made an endeavour to catch the appellant but, he managed to run away. According to the prosecution, apart from the informant Moti Gupta and Subhsh P. W. 7 also saw the incident. P. W. 11 Ram Sahai is said to have seen the appellant running away from the place of the incident.

(3.) AFTER the appellant had run away, the informant Moti Gupta went and got an autorickshaw and on the same along with Ram Achal and Subhash proceeded to police station Deonar where the police authorities finding Ram Achal to be precariously injured sent him along with a constable to Rajawadi Hospital. In the aforesaid Hospital, at 11. 45 p. m. P. W. 8 Dr. Jatin Wani medically examined Ram Achal and found on his body a solitary incised wound, on the left side of chest. As the doctor suspected stab in the heart, surgery was performed upon Ram Achal. During surgery, a cardiac stab wound on the left ventricle 1" x 1/2" extending from the anterior wall to the posterior wall was found. Within half an hour, of his medical examination, i. e. at 12. 15 a. m. Ram Achal died at the Hospital.