JUDGEMENT
Arijit Pasayat, J. -
(1.)These appeals are directed against a common judgment of the Division Bench of the Bombay High Court by which eight appeals were disposed of. Six of them were by the accused persons while two were by the State. Out of the two Criminal Appeals filed by the State, one was against the acquittal of the accused persons of the charge under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC) and of Section 135 of the Bombay Police Act, 1951 (in short the Bombay Act). The other was for enhancement of sentence. The two appeals filed by the State were allowed, except in respect of two who had died, while the six appeals filed by the accused persons were dismissed.
(2.)The appeals were directed against the judgment and order dated 6th February, 1993 passed by the learned Third Additional Sessions Judge, Nasik whereby accused No. 1 Sham Shankar Kankaria was convicted for offence punishable under Section 304 Part II IPC. The other five accused persons were convicted for offence punishable under Section 325 read with Section 34 IPC. All the six accused persons were convicted for offence punishable under Section 342 read with Section 34 IPC. For the first offence accused No. 1 Sham Shankar Kankaria was sentenced to undergo rigorous imprisonment for six years and to pay fine of Rs. 3,000/- with default stipulation. For the second offence each of accused Nos. 2 to 6 were sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs. 2,000/- with default stipulation. For the third offence, all the six were sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 3,000/- each with default stipulation. The accused Nos. 1 to 6 were acquitted of the charge under Section 302 read with Section 34 IPC and Section 135 of Bombay Act. While the accused persons challenged their conviction and sentence, the State questioned correctness of the judgment of the trial court and prayed for enhancement of sentence and for conviction under Section 302 of the first accused and under Section 302 read with Section 34 IPC in respect of each of the accused persons.
(3.)Prosecution version in a nutshell is as follows:
On 13th January, 1992 one Vijay @ Bablu, the son of Kashinath Kedare, who was residing with his parents and other members of the family in House No. 1342, situated at Khadkali area of Nasik City, was called by the accused No. 3 Sanjay and the accused No. 5 Khandu and, therefore, he left his house at about 8 p.m. along with the said accused persons. He did not return till late night. At about 2o clock in the night between the 13th and 14th January, 1992, accused Khandu went to the house of Vijay and knocked the door of his house. On opening the door by Sanjay Kedare (P.W.9), accused Khandu informed Sanjay that his brother Vijay had been assaulted and was lying at some place. Sanjay thereupon accompanied Khandu who took him to the top floor of Bharti Lodge, where Sanjay found his brother Vijay in injured condition tied to the cot with his hands and legs tied. Sanjay also saw some blood oozing out from the head of Vijay. Sanjay released the hands and legs of Vijay and asked him as to how it had happened, whereupon he was told by Vijay that all the six accused after tying him to the cot, assaulted him severely with instruments like iron pipe and wooden stick on the allegation that he had stolen a bicycle. Sanjay thereupon carried Vijay to his residence and Vijay once again narrated the said incident to his mother in the presence of Sanjay and from there, he was taken in a rickshaw to the Civil Hospital, Nasik. On the way to the hospital, Vijay became unconscious and on being admitted to the hospital, he was declared to have been dead. Sanjay lodged complaint in writing at Bhadrakali Police Station where the FIR was registered relating to offences under Sections 302, 342, 143, 147 and 149 IPC read with Section 37(1) read with Section 135 of the Bombay Act. On commencement of the investigation, all the six accused were arrested, their clothes were seized under the panchnama. The body of the deceased Vijay was subjected to the inquest panchnama as well as post mortem examination. The medical officer opined that the death of Vijay was due to shock, intracranial hemorrhage and due to fracture of skull. After carrying out the spot panchnama, the articles at the spot of the incident including the blood scrapping were collected from the scene of offence. The iron pipe was recovered at the instance of the accused No. 1 Sham Kankaria, Coir Cord and pieces of wooden pegs having blood stains were seized from the spot of the incident. The seized articles were sent for examination by the Chemical Analyser. The blood sample of the deceased was also collected and sent for medical analysis along with the clothes on the body of the deceased. On conclusion of the investigation, all the six accused were charge-sheeted. They were tried before learned Additional Sessions Judge and were convicted and sentenced by the judgment and order dated 6th February, 1993. Challenge was made to the same before the High Court, as noted above.