SARDAR BASHIRKHAN PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both the appeals are arising out of the same judgment, hence, we propose to dispose of these appeals by this common judgment. Both the appellants are original accused Nos.1 and 2 respectively, who faced trial in Sessions Case No.110 of 2013 before the learned Additional Sessions Judge, Latur for the offence punishable under Sec. 302, 201 read with Sec. 34 of Indian Penal Code and they have been held guilt under those Ss. by judgment and order dtd. 17/3/2016.

(2.) The prosecution story in short is that P.W.2 Sunil Dande, who was the then Police Patil of village Selu, gave information to Ausa Police Station around 2.30 p.m. on 28/5/2013 that dead body of one unknown male person is floating on the water in the well in the field of one Sunil Bajaj. The said A.D. was recorded as A.D.R. No.28 of 2013 under Sec. 174 of the Code of Criminal Procedure and further inquiry was conducted by P.W.9 PHC Mohan Kamble. He went to the spot along with panch witnesses and photographer. The dead body was taken out of the well with the help of people. Photographs were taken. It was found that the hands and legs of the dead person were tied with long handkerchief locally called as Gamja. Panchanama of the spot as well as inquest panchanama was carried out and then the dead body was sent for the postmortem. Provisional death certificate was given disclosing that the cause of death is due to "head injuries" and, therefore, FIR was lodged by P.W.9 PHC Mohan Kamble on 29/5/2013 stating that unknown person has committed murder of unidentified youth. News was published by him making appeal to the public to identify the dead body. It is the further prosecution story that P.W.6 Dadasaheb Kamble along with some persons from Beed district went to Ausa police station on 30/5/2013 and they identified the dead body on the basis of tatto "Jaibheem" on the chest and the clothes on the person of the deceased. It was identified that the dead person is his elder brother Anand Sadashiv Kamble. Statement of said Dadasaheb was recorded after the last rites were over. The investigation was carried out by P.W.17 API Pujari. It was revealed that Anand was using two mobile numbers. The call details from both the sim cards were gathered. He found the IMEI number in respect of the handset and it was put on surveillance. P.W.4 Datta Kawle was found to be possessing the mobile handset of the said IMEI number. He disclosed that he has purchased the said mobile from accused No.2 Gopal. The said handset was then seized. After the arrest of accused No.2, names of other accused persons were revealed. They made certain discoveries in respect of the weapon that was used in the commission of the crime, vehicles those were used. It was further revealed that Anand was serving as a driver with one Vilas Jogdand. The accused persons posed themselves to be the customers who are in need of the vehicle on hire and after they had taken the vehicle, they had gone beyond Naldurg and then they went near Ausa. Thereupon, Anand was murdered and he was dumped in the well. Test Identification parade was arranged and then accused persons were identified by said Vilas Jogdand and another person who was serving with him as driver on another vehicle belonging to him. After the completion of the investigation, charge-sheet was filed.

(3.) After the committal of the case, charge was framed originally against three accused persons i.e. present appellants and one Vijay Uttam Narange for the offence punishable under Ss. 302 , 201 read with Sec. 34 of Indian Penal Code. It can be seen that prosecution has examined in all eighteen witnesses to bring home the guilt of the accused. After considering the evidence on record and hearing both sides, the learned Trial Judge has held accused Nos.1 and 2 guilty of committing offence punishable under Sec. 302 of Indian Penal Code. They have been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.3,000.00, in default to suffer simple imprisonment for three months. Further, they have been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000.00, in default to suffer simple imprisonment for three months for the offence punishable under Sec. 201 of Indian Penal Code. Set off has been granted under Sec. 428 of the Code of Criminal Procedure to both of them, as they were never released on bail. Accused No.3 has been acquitted of all the charges. Out of the fine amount, amount of Rs.8,000.00 was directed to be given to the legal heir of deceased Anand as compensation. This order is under challenge in both the appeals.