OJ APEAL 329 OF 1994.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.329 OF 1994

1. The State of Maharashtra

]… Appellant

V/s.

1. Shri. Palji Narayan Saparia,

]

B. M. C. Chawl, Room No.1, Parel(E)

]

]

2. Shri Lalji Hari Solanki,

]

Harijan nagar, Squatter's Colony

]

Jogeshwari (E),

]

Bombay 400 060

] Respondents

] Ori. Accused

3. Shri Danji Hari Solanki,

] Nos 1 to 4

B/7, Kavari Society, Dodha Nagar

]

Nala Sopara (W), Tal. Vasai

]

Dist. Thane.

]

]

4. Shri. Jaisingh Hari Solanki

]

B/7, Kavari Society, Dodha Nagar

]

Nala Sopara (W), Tal. Vasai

]

Dist. Thane.

]

Shri. A. S. Shitole, APP for Appellant State.

Mr. V. G. Pradhan, Senior Advocate, I/by Shri R.S. Mhamane,

for Respondent Nos 1 to 4.

CORAM : SMT. V. K. TAHILRAMANI &

DR. SHALINI PHANSALKAR-JOSHI, JJ.

CLOSED FOR ORDER: 02.07.2015.

JUDGMENT PRONOUNCED ON : 13/07/2015.

Page No.1 of 24

OJ APEAL 329 OF 1994.doc

ORAL JUDGMENT : [Per : Dr. Shalini Phansalkar-Joshi, J.]

1.

This appeal is preferred by the State being

aggrieved by the judgment and order dated 24.02.1991 of

the learned Additional Sessions Judge, Mumbai in Sessions

Case No. 212 of 1982, thereby acquitting respondent Nos 1 to

4 for the offences punishable Sections 302 and 324 read with

34 of the Indian penal Code. For the sake of convenience, the

parties are referred to by their original nomenclature.

2.

Facts, as are necessary, for deciding this appeal

can be stated as follows :-

Deceased Vishram was the brother of P.W.1 Dinesh.

The accused Nos 2 to 4 are brothers interse and related to

accused No.1. They are residing in the same area where

P.W.1 Dinesh and deceased Vishram were residing. Hence they

were knowing each other quite well. P.W.1 Dinesh is married to

Jasubai, the cousin sister of accused Nos 2 to 4, despite their

opposition. Hence to some extent, the relations were spoiled

between the parties. Moreover on 10.12.1981 in the evening

Page No.2 of 24

OJ APEAL 329 OF 1994.doc

Keshav, the brother of accused No.1 Palji, had inflicted a blow

of knife on P.W.4 Heerubai the wife of Vishram, as she

intervened when Keshav was attempting to extort money from

one boy. P.W.4 Heerubai, hence lodged complaint against

Keshav. Therefore, Keshav was arrested. Hence accused No.1

Palji was having grievance against P.W.4 Heerubai and her

family members. On that count he had also threatened her

husband, Vishram and his family members of dire

consequences, on the night before.

3.

In this backdrop, the incident giving rise to this

case took place on 11.12.1981. On that day at about 6.00

p.m. when P.W.1 Dinesh, his brother Vishram and their friend

P.W.5 Khimji were standing near panshop on the road of

Squatters Colony, accused Nos. 1 to 4 came there and

confronted Vishram as to why his wife P.W. 4 Heerubai has

lodged complaint against his brother Keshav. While accused

No.1 Palji was talking with Vishram, accused No.2 Lalji held

Vishram from behind, accused No.3 held right hand of

Vishram; whereas accused No.4 Jaising caught his left hand.

Accused No.1 then took out knife from his pant pocket and

stabbed Vishram on the left side of his chest. When P.W.1

Page No.3 of 24

OJ APEAL 329 OF 1994.doc

Dinesh attempted to rescue Vishram, he sustained injury near

his right thumb. At that time his mother, P.W. 2 Galabai and

Vishram's wife P.W.4 Heerubai also reached to the spot. Seeing

them, accused No.2 Lalji hit P.W.2 Galabai with piece of wood

on her upper arm, due to which she fell down. During said

commotion, all the four accused ran away from the spot. P. W.

4 Heerubai and P.W.5 Khimji took victim Vishram to Cooper

Hospital where he was declared dead. P. W. 4 Heerubai, then

returned to the house and informed about the same to P.W.1

Dinesh, who then went to Jogeshwari police station and lodged

complaint vide Exh.9 against the ac