MAKBOOL ABDUL RAZZAK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal arises from the order of conviction and sentence dated 1 -3-2001 passed by the learned Additional Sessions Judge at Osmanabad in Sessions Case No. 70 of 2000 whereby the appellants (origi-116 nal accused Nos. 1 and 2 ) have been convicted for the offences punishable under sections 302, 120-B, 404 and 201 r/w 34 of the Indian Penal Code. The prosecution case briefly stated is as under.

(2.) DECEASED Shivshankar Swami was residing at Omerga town and was running an Adat shop there. The accused No. 1 Makbool owned him some money (about Rs. 15,000/-) and Shivshankar was reminding him for repayment of the same. On 24-11-1999, the accused No. 1 went to Shivshankar in his Adat shop with an auto rickshaw bearing Registration No. MH-25/8660 along with its driver Malhari Katakdhond (accused No. 3 turned approver)and informed the deceased that the amount of Rs. 15. 000/- could be returned to him at village Wadgaon (Ganja) as Makbool was intending to borrow the said amount from his brother-in-law Raju alias Ahmed Ismail Sayyed accused No. 2. Shivshankar agree for the same and along with Mahadeo swami (P. W. 3), joined Makbool to go to Wadgaon (Ganja ). The distance between Omerga town and Wadgaon (Ganja) is about 23 kms. They went to village Wadgaon (Ganja) and stopped the rickshaw opposite the grocery shop of Revansiddha Bele (P. W. 4 ). Makbool went to look for his brother-in-law in his house and came back saying that he was in the agricultural field. The deceased asked Makbool to go with Mahadeo Swami and bring accused No. 2 of the amount. Within half an hour, they returned to the rickshaw where the deceased and Malhari (P. W. 2) were present. The deceased was informed that the amount would be given to him at Ashta turn where a third a person was waiting with the money in a jeep. The rickshaw went there also and they saw a standing jeep. By now, it was about 6 p. m. and, therefore, Mahadeo Swami (P. W. 4) as suggested by the deceased, went to his own village thus leaving behind the deceased and the two accused as well as the rickshaw driver. There was no hope of receiving the money and, therefore, the deceased asked the rickshaw driver to return of Omerga. On the way, accused No. 2 spread chilly powder in the eyes of Shivshankar and accused No. 1 took out a rope. Shivshankar Swami started shouting and, therefore, the rickshaw driver looked back on the rear side where all the three were sitting. He noticed that both the accused were strangulating the deceased with a nylon rope and when they noticed that the driver has seen them, part of the rope was thrown around his neck as well and he was told that if he looked back or stopped the rickshaw or made any noise, he would be dealt with in the same manner. After some time, the movements of the deceased stopped and the rickshaw driver to stop the rickshaw near the land of Champabai Mahadeo Shelke (P. W. 12) in the territory of village Bhusni. The accused took out the dead body of Shivshankar and carried it about 50 to 60 ft. inside in the standing crop and dropped there. They asked the rickshaw driver to proceed to Murum and from there, they procured some kerosene, came back to the site and went to the place where the dead body was dumped. They poured kerosene on the dead body and set it on fire. The rickshaw driver was under threats and, therefore, he has no alternative but to wait as a mute spectator. They got into the rickshaw and asked the driver to proceed towards Omerga and in a chowk, they stopped near Nagu's hotel. They offered dinner to the rickshaw driver as well but he did not have dinner and after their dinner was over, they came back with the rickshaw driver to Omerga town by about 9. 30 p. m. While getting down from the rickshaw, they again threatened the driver not to mention about the incident to anyone else not only he but all his family members would be eliminated in the same way as Shivshankar Swami was killed.

(3.) ON the next day i. e. on 25-11-1999, Champabai (P. W. 12) when she sent to her agricultural land, noticed a dead body in the land with standing crops and, therefore, she went to the Police Station and filed a report at Exh. 70 on the basis of which A. D. No. 40 of 1999 was registered at about 11. 30 a. m. The A. D. enquiry was handed over to P. S. I. Shaikh. (P. W. 24) P. S. I. Mohiddin Maheboob Shaikh was in-charge of Murum Police Station as the regular P. S. I. Shri Bangar (P. W. 26) was on leave on that day. The police went to the agricultural land of Champabai (P. W. 12), enquired with some persons regarding identity of the deceased and as nobody could identify the dead body, it was directed to be buried after the spot panchanama was drawn and the articles on the persons of the deceased were recovered by drawing a recovery panchanama. On the same day, Basawraj Swami (P. W. 19) cousin brother along with Mallinath the real brother of the deceased and some others went to the Police Station of Murum and made enquiries regarding the unidentified dead body. They were shown the shoes of the deceased and other belongings recovered from the spot, on the basis of which they identified that it was the dead body of Shivshankar. They were taken to the spot. The Tahsildar was resummoned and in his presence, the dead body was extricated. (P. W. 1)Dr. Vivek Bhole, Medical Officer was also requested to come to the spot and accordingly, he reached there and performed the post-mortem. The probable cause of death in the post-mortem notes (Exh. 38) was shown as "asphyxia due to strangulation". The dead body was handed over to Basawraj Swami and others. The police swung into action for further investigation and after recording the statements of the relations and family members of the deceased, they caused the arrest of the rickshaw driver Malhari (P. W. 2) at about 2. 30 p. m. The other accused were also taken into custody on 26-11-1999 from village Wadgaon (Ganja) whereas Malhari was picked up from village Gunjoti. The rickshaw was also seized in the presence of Shivshankar Wakade (P. W. 11) under panchnama at Exh. 70. On completion of the investigation, charge-sheet was submitted in the Court of the learned Judicial Magistrate, First class, Omerga who subsequently committed the case.