KAILASH SHANKAR NAVEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present appellant/accused is convicted by the Sessions Court for an offence punishable under Section 302 of I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/-, in default to pay the fine, to undergo further rigorous imprisonment for one month. He is also convicted for an offence punishable under Section 376 of I.P.C. and is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/-, in default of payment, to undergo further rigorous imprisonment for one month. He is also convicted for offence punishable under Section 201 of I.P.C. and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.200/-, in default to pay fine, to undergo further rigorous imprisonment for 15 days. All the substantive sentences were directed to run concurrently.

(2.) Mr. Thorat, learned counsel submits that, complaint was filed against unknown person. As per the complaint lodged by father of the deceased girl aged 9 years, the deceased had gone to market on 05.06.2006 in the afternoon at 3.00 p.m. As she did not return, a complaint was lodged with the Police Station on 06.06.2006. On 06.06.2006, at night, the complainant received a phone call from his brother about the dead body lying at Shenni. The complainant went there and identified the same to be of his daughter. On 07.06.2006, complaint was registered against unknown person. The present appellant was arrested in another crime for similar offence on 01.09.2006. As the present appellant was arrested in similar crime on 01.09.2006, he was made accused in the present case also. According to the learned counsel, case of prosecution rests on the evidence of P.W.6 and P.W.11. P.W.6 and P.W.11 have stated that they had last seen the deceased with the accused at about 5 to 5.30 p.m. on Ahmedpur-Nanded road on 05.06.2006. According to the learned counsel, these P.W.6 and P.W.11 have stated that, on 08.06.2006, they had been to the spot of the offence, however, they did not tell the Police that they had seen this girl being taken by any person on 05.06.2006. Their statements are recorded by the Investigating Officer after three months i.e. on 05.09.2006. The learned counsel submits that P.W.6 and P.W.11 were not knowing the appellant. The appellant is from a different village and not from Ahmedpur. According to the learned counsel, no identification parade was conducted. For the first time, these witnesses identified the appellant in the Court. Such identification does not carry any meaning. The learned counsel relies on a Judgment of the Apex Court in a case of Ramesh v/s State of Karnataka, 2009 AIR(SC) 2189 and another judgment of the Apex Court in a case of State of U.P. v/s Shri Krishan, 2005 CrLJ 892. The learned counsel submits that, discovery of the spot of offence at the behest of accused is of no relevance. The body was already recovered from the spot of offence on 07.06.2006. The appellant was arrested three months latter to the date of offence. In such circumstances, discovery of spot of offence at the behest of appellant after three months would carry no meaning. The learned counsel relies on the judgment of the Apex Court in a case of Vijender v/s State of Nct of Delhi, 1997 6 SCC 171.

(3.) The leaned counsel submits that P.W.6 and P.W.11 are got up witnesses. Their evidence is not trustworthy. The learned counsel submits that the case is based on the theory of last seen together. Such a theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead, is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. The learned counsel relies on the judgment of the Apex Court in a case of Bodhraj Alias Bodha and Others v/s State of Jammu and Kashmir, 2002 AIR(SC) 3164 so also another judgment of the Apex Court in a case of Hanuman Govind Nargundkar and another v/s State of M.P., 1952 AIR(SC) 343.