V.M.DESHPANDE, J. -
(1.) These two criminal appeals take exception to the judgment and order of conviction passed by the learned Additional Sessions Judge, Amravati dated 09.05.2001 in Sessions Trial No.73/1990 by which the appellants in these two appeals were convicted for the offence punishable under Section 302 of the Indian Penal Code read with Section 34 of the IPC and directed to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/by each of them and in default to suffer further rigorous imprisonment for a period of six months.
(2.) Criminal Appeal No.180/2001 is filed by Nana Shriram Wankhade, original accused no.4. Criminal Appeal No. 212/2001 is filed by Raju Uttamrao Gavai and Uttam Jangluji Gavai original accused nos.1 and 3 respectively. These appellants were released on bail by this Court on two different dates i.e. 03.04.2002 and 05.04.2002.
Since these two appeals arise out of the same judgment and order of conviction, they were taken and heard together and they are being disposed of by this common judgment.
(3.) The prosecution case as it is unfolded during the course of trial is succinctly narrated hereinunder:
(a) Pralhad Waidhure, in May-1989 was attached to Police Station, Rajapeth at Amravati as Head Constable. On 20.05.1989 he was on duty from 8.00 am to 8.00 pm. On the said day Shivcharan Yashvantrao Harne came to the Police Station. That time, Pralhad Waidhure was Station Diary Incharge. Shivcharan lodged his oral report which was reduced into writing by Pralhad (PW15). After narration of the report was complete, signature of Shivcharan was obtained. The scribe Pralhad also read over the contents of the report to Shivcharan. The said report was also signed by Pralhad (PW15) as a station diary incharge. Consequently, Crime No.411/1989 for the offence punishable under Section 326 read with Section 34 of the IPC was registered against the appellants. The FIR is at Exh.113.
(b) As per the FIR lodged by Shivcharan, on 20.05.1989 there was marriage of daughter of Pandurang Harne, brother of Shivcharan at Yog Bhavan near Mal Tekadi. The marriage ceremony was performed peacefully. At about 12.00 O'clock, first round of meals was finished and the accused took meals, came outside to wash their hands. That time, Raju Gavai (Original accused No.1) was throwing left out water in the drinking water vessel. Shivcharan accosted him as to why he had thrown the left out water in the drum containing drinking water. On that, Raju asked whether he is not knowing him and further asked him to come outside and gave abuses and left the place. The report further states that at about 3.30 p.m., father of Raju, Uttam Gavai (Original accused no.3) came and asked as to who has accosted his son and further quipped he would not spare him alive. In the meanwhile, Pandurang Harne (deceased) came there and requested the father of Raju that he should allow the marriage to complete peacefully. Thereafter, Uttam Gavai, father of Raju left the place. At about 5.00 O'clock, father of Raju brought some persons in an auto and those came in the pandal. Raju was asking where is Pandurang Harne. This was heard by Shivcharan from a long distance. Thereafter Raju took him in the hall. That time Raju was accompanied by Nana Wankhade (Original accused no.4). It is further stated in the FIR that Nana and Uttam caught hold of Pandurang Harne and thereafter suddenly Raju delivered the blow of knife. They also threw bowls and drinking water vessels here and there and ran away by the auto rickshaw and motorcycles. Pandurang Harne was thereafter taken to the hospital.
(c) Chakrapal Tiwari (PW13) was Police Sub Inspector at Rajapeth Police Station. As per the direction of Police Station Officer, Rajapeth, he proceeded to the place of incident immediately and prepared the spot panchanama of the place of incident (Exh.106). He also recorded statements of one or two witnesses namely; Gangadhar Warthe (PW1).
(d) In the meanwhile, Pandurang Harne, the injured who was admitted in the hospital, expired on 21.05.1989. From 21.05.1989, the investigation of crime No.411/1989 was took over by Vinod Sharma (PW11). On getting information about the death of Pandurang, Crime No. 411/1989 was altered for the offence punishable under Section 302 read with Section 34 of the IPC from Section 326 read with Section 34 of the IPC. On the said day, at about 10 O'clock, Shriram, brother of the deceased came to Police Station and produced clothes of the deceased. PI Sharma deputed other police officers on mortuary to conduct the inquest panchanama. He also recorded statements of Shivcahran Harne, Ramesh Athaole, Charandas Raut, Rahul Ogale, Shriram Harne, Digambar Harne, Jaikumar Harne and Punjabrao Bihade. Inquest over the dead body was performed. It is available on record at Exh.81.
(e) On 21.05.1989 at about 5.00 p.m. PI Sharma arrested Raju. While he was in the police custody, he volunteered to make a statement. Therefore, PI Sharma summoned panch witnesses and in their presence, his disclosure statement was recorded. The admissible portion of his disclosure statement is available at Exh.92. After recording his statement, accused Raju led the police in a police jeep to his house from where he took out one knife from behind the photographs which were mounted on the wall. The knife was seized under the seizure panchanama in presence of panchas under recovery Panchanama Exh.93. Under the seizure memo Exh.94, the clothes of Raju were also seized. The other accused Balu Wankhade was arrested on 31.05.1989. Uttam was arrested on 11.06.1989, whereas Nana Wankhade (accused No.4) was arrested on 26.06.1989. PI Sharma also recorded statements of various witnesses. In the meanwhile, he was transferred to Mumbai therefore he handed over the charge to PI Arvind Giri (PW12). PI Giri (PW12) gave a request letter to the Executive Magistrate for holding test identification parade (Exh.104). After completion of the other usual investigation, he filed final report in the court of 6th J.M.F.C. Amravati on 16.08.1989. The learned Magistrate found that the offence is exclusively triable by the Court of Sessions, he passed the committal order. The learned Additional Sessions Judge, Amravati, in whose court the sessions trial was alloted, framed the charge against the present appellants and others for the offence punishable under Section 147, 148 and 302 read with section 149 of the Indian Penal Code. All the accused denied the charge and claimed for their trial.
(f) After full dress trial, the learned Judge of the Court below, acquitted the original accused no.2 Balu Wankhade of the offence punishable under Section 147, 148, 302 read with Section 149 of the IPC.
Accused no.1 Raju, accused no.3 Uttam and accused no.4 Nana (all appellants before this Court) were also acquitted of the offence punishable under Section 147, 148 and 149 of the IPC. However, the learned Judge convicted the accused Raju for the offence punishable under Section 302 of the IPC, whereas he convicted accused no.3 Uttam and accused no.4 Nana for the offence punishable under Section 302 read with Section 34 of the IPC. Hence, this appeal.