JUDGMENT - MOHITE R.S., J.:---This is an appeal filed by the State against the judgment and order passed by the II Additional Sessions Judge, Thane on 14-1-1992 in Sessions Case No. 229 of 1991 acquitting the three accused of offences punishable under sections 452 and 302 read with 34 of Indian Penal Code.

2. The brief facts of the prosecution case are as under:

(a) That, deceased Prakash Gopal Wagh was a builder residing at Kalwa and had constructed two buildings in the said area. Accused No. 3 Dinesh was another builder who had constructed a building by name Gurukripa by the side of the buildings constructed by deceased Prakash. Waste and sewerage water was flowing from the building of accused No. 3 towards the buildings of deceased Prakash and in order to stop this nuisance deceased Prakash had constructed a wall about 15 days prior to the date of the incident i.e. 15-1-1991. Construction of this wall was a bone of contention between the parties and accused Nos. 1 to 3 had discussed the matter with deceased Prakash.

(b) P.W. No. 1 Lata Pandurang Chavan is the real sister of the deceased. She is married lady and resides at some other place at Kalwa. According to her, on 14-1-1991, at about 6.00 or 7.00 p.m. she saw the accused Nos. 1 to 3 standing near the disputed wall and disclosed this fact to her mother. She claims to have spent the night between 14-1-1991 and 15-1-1991 with her mother as she had quarrelled with her husband. Her mother was residing in a flat in the same building on the ground floor.

c) Deceased Prakash used to sleep in a room by the side of his office which was in front of the building. Another brother of the deceased by name Mangesh was residing elsewhere. According to P.W. No. 1 Lata at about 4.40 a.m. her brother came and informed her that Prakash had been assaulted in the room where he was sleeping. Then, Lata and her mother immediately rushed to that room and found that Prakash was lying in a pool of blood. She lifted him and enquired from him as to who had assaulted him. At that stage, deceased Prakash is alleged to have disclosed to her that he was assaulted by accused No. 1 Datta Naik and others. Lata alongwith some servants of the deceased by name Chandu and Mangesh then brought deceased Prakash to Police Station and P.S.I. then asked them to take Prakash to the Civil Hospital and therefore, he was taken to Civil Hospital, Thane where he was declared dead. Post-mortem notes indicate that Prakash had as many as 22 wounds on his body. The cause of death was shown as Cardio-respiratory arrest due to multiple injuries, specially head injury leading to haemorrhagic shock.

d) P.W. No. 7 P.S.I. Vinayak Choudhary received a message that deceased Prakash had been attacked and admitted in hospital. He took two Police Constables and went to the place of offence and kept the guard of two policemen at the place and then came to the out post. At that time, P.W. No. 1 came there and she lodged the complaint, on the basis of which, the crime was registered. The F.I.R. was then forwarded to Rabale Police Station. This witness took photographs of the scene offence and recorded the statements of witnesses Anjayya, Chandu Jaiswal and Ramdas Wagh. He drew the scene of offence panchanama and attached cover of pillow and earth smeared with blood at that place. He then handed over investigation to P.W. No. 8 Ganesh Vitthal Ajinkya who obtained the clothes of the deceased, advanced medical certificate and arrested all the accused at Village Kharegaon on 20-1-1991. Discovery is said to have been made at the behest of accused No. 1 of some weapons which were thrown in the bushes of Village Kharegaon Pakhadi. These weapons were Chopper and dagger and were said to have been stained with blood. These weapons were seized under panchanama Exh. 13. On 22-1-1991, further discovery was said to have been made at the behest of accused No. 1 under which he agreed to produce the clothes from his own house. Accordingly, his clothes were

Click Here to Read the rest of this document