CHANDRASHEKHAR RAMAN CHHATTIYAR Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order dated 19th September, 2002 passed by learned Sessions Judge, Nagpur, convicting the appellant -accused Chandrashekhar Chhattiyar of the offence punishable under Sec. 302, Indian Penal Code, and sentencing him to undergo Imprisonment for Life and to pay a fine of Rs. 5,000/ -, in default, to undergo further Rigorous Imprisonment for one year, the present appeal was filed by the Appellant -Accused in this Court.

(2.) Briefly stated, the case of the prosecution is that the deceased Kishore Sontakke residing at Chandrapur was the owner of Maruti Van MH -34/A -8545. He was running the said van as a taxi from Taxi Stand, Chandrapur. On 23rd March, 1992, in the evening, Kishore, as usual, was present with his van near S.T. Stand, Chandrapur. The Appellant -accused approached him and hired his van for going to Nagpur when Ravindra [PW 6] was present there. Ravindra [PW 6] also wanted to accompany them, but accused declined him to take in the van and as such he got down. In the same night, the accused and the deceased came from Chandrapur to Nagpur. On the next day, the accused finished his business at Nagpur and in the night between 24th and 25th March, 1992 at about 1.00 a.m., the deceased brought the accused by his van to Mayo Hospital Square, Nagpur. The accused thereafter strangulated the deceased by means of a string rope and inflicted blows of knife on the neck of deceased Kishore. Maheshkumar Gaur [PW 4], the auto rickshaw driver, had parked his auto rickshaw in the same square. He came to know about the incident and, therefore, he went there and saw the accused present at the scene of offence and the deceased having bleeding injuries to his neck. He went to the Police Outpost at Mayo Hospital, but was informed to go to Tahsil Police Station. He went to Bhagwaghar chowk and saw some policemen patrolling. He told them about the incident and then went to Tahsil Police Station at about 3.00 a.m., and lodged the report [Exh. 20]. During this period, Baliram Dakhore, API [PW 10], who was on a patrolling duty in police van, arrived at Mayo Hospital Square at about 1.00 a.m.. The attendant by name Wasudeo told him that there was a murder on the road and a Maruti van was parked there. He immediately rushed to the spot of incident. API Tambe also came there. They saw a white colour Maruti Van bearing registration No. MH -34/A -8545 was parked and the dead body of Kishore lying by the side. He prepared Spot, Inquest Panchanamas etc., and sent the body for post mortem. Thereafter dog squad was called. The blood stained knife was found on the spot and the dog was given the smell thereof and thereafter the accused was arrested who was present in the Police Station. The dog identified the accused and barked at him. Thereafter, all the formalities and the investigation were completed and the charge -sheet was filed in the Court. The charge was framed. The accused was sent on trial. Evidence was recorded and thereafter the Trial Judge convicted the appellant -accused of the offence in question and sentenced him to Life Imprisonment. Hence this appeal.

(3.) In support of the appeal, Mr. R.M. Patwardhan, learned counsel for the appellant, submitted that in the first place, the evidence tendered by the prosecution for holding the appellant guilty is incomplete and does not at all show that the appellant was the offender. The star witness relied upon by the prosecution, i.e., the Auto Rickshaw Driver - Maheshkumar [PW 4], even is not an eyewitness, as claimed by the prosecution and appears to be a chance witness or a witness planted by the police for somehow proving the prosecution case through him. He then submitted that except Maheshkumar [PW 4], there is no other evidence to hold the appellant guilty of the offence of murder for which he was convicted. In so far as the blood -stained clothes of the accused are concerned, so also other circumstances relied upon by the Trial Court, the appellant had stated the correct facts in respect of the incident which occurred on that day and the case of the defence was, in fact, strengthened and there was absolute no cause or reason to even look at the accused with suspicion and then convict him by suspecting that he must have committed murder of the deceased. Mr. Patwardhan invited our attention to the defence that was raised by the appellant. Mr. Patwardhan then submitted that it is not the case of the prosecuting agency that the appellant was having any record of committing thefts of vehicles and there is absolutely no evidence on record to show that the appellant could commit theft of a taxi in the wake of the fact that the prosecution case itself is that the appellant was a trader dealing in rubber and was moving from places to places. However, these probabilities and as to how a trader or a businessman from Chhatisgarh, who moves to places in Vidarbha Region, namely, Chandrapur, Akola etc., for his business for last so many years would ever think of committing a theft of a taxi, have not been considered by the Trial Court. The background of the appellant -accused was not such that he could be called a thief stealing cars or vans, as the case may be. Mr. Patwardhan then invited our attention to various circumstances and submitted that the Trial Court committed an error in relying on the dog identification parade which is worthless and no conviction could be recorded on such type of evidence. At any rate, according to Mr. Patwardhan, benefit of doubt must be extended to the accused rather than the prosecution.