KISHOR KANIFNATH WARULE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant, original accused No.2, has challenged his conviction u/s 302 of the Indian Penal Code and sentence of Rigorous Imprisonment for life and to pay a fine of Rs.5000/-, in default to suffer Simple Imprisonment for one year, awarded by the Sessions Judge, Ahmednagar vide judgment and order dated 9th July 2010 passed in Sessions Case No.128/2009.

(2.) FACTS, in nutshell, which are necessary for the decision of this criminal appeal, may briefly be stated thus - a) On 29.03.2009 at about 2.00 p.m. complainant Rajendra Bhaskar Salvi, on receipt of information about assault on his uncle Peter Ratan Salvi, went to his house and noticed dead body of Peter with his mouth gaged with a piece of cloth. The incident was already informed to the police and hence API Sadanand Inamdar (PW-13) had arrived at the spot. The dead body was lying inside the room. API Inamdar (PW-13) had also noticed one TVS Scooty parked in front of the house of the deceased. The complainant suspected that due to property dispute his uncle might have been killed. Thereafter, Rajendra (PW-1) lodged report of the said incident with Topkhana Police Station, which was recorded by Police Head Constable, Gosavi and accordingly Crime No.135/2009 came to be registered on the basis of the said report. Thereafter API Inamdar (PW-13) prepared inquest Panchanama and the body was sent to Civil Hospital, Ahmednagar to conduct Postmortem. Accordingly, spot Panchanama (Exhibit-103) was also drawn and dickey of the said scooty was opened and one sickle (Article No.9) and one white rope (Article-10) were seized from the dickey of the said Scooty. During inquiry it revealed that some persons had seen one of the assailants running towards CQVT Army Building. Thereafter a dog squad was called, however the dog could not trace the assailants. On the same day inquiry was made with PW-3 Jhon Chakranarayan, who has stated that he had seen some persons running from the said Bungalow towards one Mala. Thereafter the investigation was handed over to Sub Divisional Police Officer, Darde (PW-12). SDPO collected information that the said scooty was registered in the name of Sunil Raymohkar (PW-9), however he had sold the same to PW-11 Kanifnath, father of the present appellant. PW-11 Kanifnath has stated that in the morning on 29th March 2010, the appellant had taken the said scooty from him. During investigation it revealed that the appellant was in service with a finance company, office of which is situated in the house of original accused No.4, Harjit Kaur. Thereafter details of incoming and outgoing calls of the cell phone of the appellant were checked and it revealed that some calls were received on the said mobile from one Abhijit Salvi, original accused No.3. There was property dispute between the deceased and father of original accused No.3, Bhalchandra Salvi. Thereafter the appellant and Ranjit Waydande-original accused No.1 were arrested from Saraswati Colony, Indapur with the help of location ascertained from the cell phone. It appears that thereafter original accused No.4 made disclosure statement that the clothes on the person of the present appellant and Waydande were handed over to her, which she had disposed of. Accordingly, disclosure memorandum was prepared and the spot was searched, however no clothes were recovered. From the interrogation of the appellant and accused Waydande, on 06.04.2009, it revealed that Sickle and rope were purchased from a shop in Mochi Galli. Accordingly memorandum Panchanama (Exhibit-107) was prepared. Thereafter, after completion of the investigation, charge sheet was filed against all the accused. Thereafter, further investigation was carried out and supplementary charge sheet was filed against Bhalchandra Salvi, who was later on discharged. b) After committal of the trial to the Sessions Court, charge was framed against the appellant and 3 others for the offence punishable u/s 120-B, 302, 201 r/w 34 of the Indian Penal Code, to which the appellant and other accused pleaded not guilty and claimed to be tried. c) It appears that during the trial, to substantiate the charge, the prosecution examined in all 14 witnesses. Prosecution witness No.1 Rajendra Bhaskar Salvi-complainant, PW-2 Kiran Peter Salvison of the deceased have stated nothing incriminating against the appellant. PW-3 John Ernest Chakranarayan-neighbour, PW-4 Subhash Shantvan Patole-another neighbour, have turned hostile, however nothing material is elucidated from their cross examination. PW-5 Haresh Mohandas Makhija and PW-6 Gafar Shaikh Vajir Shaikh both Pancha witnesses have also turned hostile. PW-7 Dada Uttam Salvi, was examined on the point of dispute over property between the deceased and his other relatives. Nothing incriminating has been revealed from the evidence of PW-8 Sayyad Chandbi w/o Sayyad Hameedmaid servant, who was working in the house of the deceased. PW-9, Sunil Raymohakar, in whose name the said scooty was registered, claimed that he had sold the same to the father of the appellant on 11.02.2009 through whom the delivery note about handing over the scooty was exhibited by the prosecution, however, in his cross-examination he has admitted that the said delivery note was handed over to him by an agent and the father of the appellant had not put his signature on the said delivery note. PW-10 Husain Merchant, is the owner of hardware shop from where the sickle and rope were allegedly purchased by the appellant and accused No.1. When the appellant and accused No.1 were confronted with this witness, he has not identified them and hence he was declared hostile. Prosecution witness No.11, Kanifnath father of the appellant, is also declared hostile. Prosecution witnesses No.12, 13 and 14 are the police officers.

(3.) ADMITTEDLY, the case of the prosecution rests on circumstantial evidence. The evidence discussed by the trial court in para No.27 to 31 of the impugned judgment relates to the scooty parked in front of the house of the deceased and hence the appellant was convicted.