S. R. Dongaonkar, J. - (1.)The appellant, State of Maharashtra, seeks to challenge the acquittal of the respondents, for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code and of Respondent No. 3 for the offence under Section 28 of Indian Arms Act, rendered in Sessions trial No. 36/87 by the Additional Sessions Judge, Bhandara, vide his judgment dated 29th May, 1989.
(2.)The facts leading to the prosecution of the respondents, as alleged by the prosecution, were that the Respondent No. 1/accused No. 1 Mathuraprasad, Respondent No. 2/accused No. 2 Kamlakant and Respondent No. 3/ Accused No. 3 Rajnarayan are related to each other. Respondent No. 2 Kamlakant is the son of sister of Respondent No. 1 Mathuraprasad whereas Respondent No. 3 Rajnarayan is the son-in-law of Respondent No. 1 Mathuraprasad. Respondent No. 1 Mathuraprasad used to sell liquor near Sindhi Tree near Hanuman Tank at Tumsar. Deceased Guddu and Deceased Jagdish were real brothers. Deceased Guddu was also dealing in the sale of liquor. Respondent No. 1 Mathuraprasad on one side and deceased Guddu and deceased Jagdish on the other side had enmity on account of sale of illicit liquor. The house of deceased Guddu and that of Respondent No. 1 Mathuraprasad were adjacent to each other. At the time of Diwali of 1986, there was quarrel between deceased Guddu and Respondent No. 1 Mathuraprasad. It is alleged that Respondent No. 1 Mathuraprasad had threatened him of destruction of whole of his family. This quarrel was pacified by the brother of deceased Guddu; deceased Jagdish. It is alleged that Respondent No. 2 Kamlakant was residing with Respondent No. 1 Mathuraprasad since one and half year prior to the incident. About 10-15 days prior to the incident Respondent No. 3 Rajnarayan had come from Allahabad to reside with Respondent No. 1 Mathuraprasad. On 11. 3. 1987 in the morning at about 8 - 8. 30 a. m. Manikchand Ilame had been on his bicycle in the market. When he was returning at about 9. 30 a. m. , deceased Guddu had met him and they both started towards the house of deceased Guddu near Railway crossing. Manikchand told deceased Guddu to give some liquor. At that time Purushottam (P. W. 3) and one Arun Madavi came on bicycle and deceased Guddu had given them call. He asked them to join for liquor to the den of Respondent No. 1 Mathuraprasad. All of them went to him. Respondent No. 1 Mathuraprasad was present near the Sindhi tree. The servant of Respondent No. 1 Mathuraprasad by name Kailash was also there. P. W. 1 Dashrath and P. W. 4 Atamkhan had also come there. Respondent No. 1 Mathuraprasad was selling liquor near the said Sindhi tree. Deceased Guddu demanded the liquor. It is alleged that deceased Guddu told Respondent No. 1 Mathuraprasad that his 10th standard examination was going on, so he wanted a dabaki (container) containing liquor. Respondent No. 1 Mathuraprasad told him that he would give the same after about an hout deceased Guddu wanted the same at that very moment, so quarrel arose between them. It is alleged that deceased Guddu had rushed with stick to beat Respondent No. 1 Mathuraprasad. At that time Respondent No. 1 Mathuraprasad went towards his house. It may be stated that it is the allegation of the prosecution that at that time deceased Guddu was handicapped because of fracture of his leg. It is further alleged that P. W. 2 Hiralal had come to the house of deceased Jagdish to take the clothes from deceased Jagdish to the laundry. Respondent No. 1 Mathuraprasad had gone to his house. Thereafter all the three respondents came from the house near parapet wall. There was a gun in the hands of Respondent No. 3 Rajnarayan. He fired the same at deceased Guddu. After hearing the sound of firing, deceased Jagdish rushed towards him, from the side of the house of one Shri Shukla. Respondent No. 3 Rajnarayan then fired shots with gun at the said Jagdish. All this incident was seen by P. W. 2 Hiralal, P. W. 3 Purushottam, P. W. 4 Atamkhan and P. W. 5 Nandu. Deceased Guddu and deceased Jagdish fell down. P. W. 2 Hiralal allegedly attempted to give water to deceased Guddu, but, he was dead. Thereafter P. W. 3 Purushottam and one Arun Madavi ran away from the spot as they were afraid. It is alleged that Premkrushna Shukla had also witnessed the incident. Thereafter the respondents had gone away. They had gone to the Police Station.
(3.)At about 11. 30 a. m. , P. W. 4 Atamkhan came to Police Station Tumsar and lodged oral report there. It was reduced into writing by P. W. 17, P. I. Pande. The relevant report is at Exh. 61 and F. I. R. in Printed Form is at Exh. 62. Offence under Section 302 r/w Section 34 of Indian Penal Code bearing Crime No. 52/87 was registered. It is alleged that after some time the respondents had come to the Police Station, as stated above, and Respondent No. 3 Rajnarayan had a gun with him. P. W. 17, P. I. Pande directed the seizure of the said gun to P. S. I. Gaikwad. Thereafter he went to the spot of incident. It is alleged that P. S. I. Gaikwad seized a gun and belt having packets to keep cartridges from Respondent No. 3 Rajnarayan as per seizure memo (Exh. 73) in presence of panchas. He arrested all the accused persons as per arrest panchanama (Exh. 52). P. W. 17, P. I. Pande, who had gone to the spot, noticed dead bodies of deceased Guddu and deceased Jagdish. In presence of panchas, inquest panchanamas (Exh. 105 and Exh. 107) were prepared. Some articles were also seized from the spot as per seizure memo (Exh. 51). Spot panchanama as per Exh. 84 was prepared. The dead bodies were sent to the Medical Officer for post mortem examination. A plastic chappal lying at about 45 ft. from the spot, so also gunny bags near the earthern pot were also seized. Blood mixed soil and simple soil were seized. P. W. 17 P. I. Pande took the search of the house of Respondent No. 1 Mathuraprasad from where one cap of Khaki colour, one steel whistle, one plastic cover, one gun license No. 1943-II of Respondent No. 3 Rajnarayan along with other articles were seized. Some articles brought from the person of the deceased Guddu were also seized including pellets found in the injuries of deceased Guddu. Besides this, some articles and deformed pellets extracted from the person of deceased Jagdish were also seized. The respondents were sent for medical examination and also for taking their blood samples.