KASIM BABAMIYA SHAIKH MISTRI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY means of this Criminal appeal, the appellant challenges the Judgment and order dated 4-6-1993 passed by the Additional Sessions Judge, Pune in Sessions Case No. 438 of 1992 convicting and sentencing him to undergo imprisonment for life under section 302 IPC and to five years R. I. under section 201 IPC; the substantive sentences to run concurrently.

(2.) THE prosecution case in brief runs as follows:- The appellant and the deceased Mohammed Nazir Mistry were employed as masons by Shrikrishna Narcndra Hawal, P. W. 1 in constructing building near Akashwani, Hadapsar, Pune. It is alleged that at the aforesaid building, the appellant and the deceased were working form about three months prior to the incident giving rise to this case. It is said that the building had been nearly completed. It is also alleged that the appellant and the deceased were staying in one room of the aforesaid building and were eating together. One Dilip Savlaram Jadhav P. W. 3 is alleged to be looking after the work as Supervisor (Mukadam) of the aforesaid building. It was his job to make payment to the labourers working in the aforesaid building. Payments were to be made every Saturday. According to the prosecution, on 16-111991, at about 7 p. m. P. W. 3 Dilip Savlaram Jadhav mad the usual weekly payment to the appellant and the deceased. At that time, the contractor P. W. 1 Shrikrishna Narendra Hawal was present. After receiving the payment the appellant is alleged to have told the deceased that he was going home. Consequently, he came to Swargate, S. T. Stand. However, as no bus was available there, the appellant decided to see a film called Jungle ki Rani. in Srikrishna Talkies in 9 p. m. to 12 hours show. After seeing the film, the appellant returned to the construction site wherein a room, he and the deceased used to live. There, a quarrel between him and the deceased Mohammed Nazir took place in which both of them assaulted each other. Mohammed Nazir is alleged to have raised a kitchen knife towards the appellant, who thereupon caught hold of his hand and strangulated him. As a result of the aforesaid strangulation, Mohammed Nazir is alleged to have died. Since Mohammed Nazir had died, appellant got frightened and collected pieces of wood which were lying nearby. He covered the corpse of the deceased by bed sheets and after putting pieces of wood on top of it set it on fire. The burning of the corpse went on till the early hours of morning of 17-11-1991. On 17 -11-1991, early in the morning, the appellant caught the first bus from Hadapsar and come to Swargate. From Swargate, he come to Shivajinagar and from there, in a bus he left for his native place Jintur and he reached Jintur the same evening at about 6 p. m. On 18-11-91, at about 8 a. m. the police arrested him from near Jintur vegetable market. At the time of arresting him, the police is said to have questioned him about the murder of Mohammed Nazir and he is alleged to have confessed before it that he had killed him by pressing his neck.

(3.) IN the meantime, at about 1. 30 a. m. on the night of 16th and 17th November, 1991, P. W. 7 PSI Madare got a telephone message from an unknown person that there was a fire near S. T. Quarters of All India Radio at Hadapsar. Immediately, he contacted the fire brigade and reached the spot. It was near that place, the construction work of the building of Shrikrishna Haval P. W. 1 was going on. There PSI Madare saw that a human body was burning. After extinguishing the fire, he took out the dead body from the heap of material. In the meantime, Shrikrishna Raval P. W. 1 and Dilip Jadav, P. W. 3 reached there. They identified the dead body as that of deceased Mohammed Nazir. PSI Madare prepared the spot panchanama Exh 15. He prepared the inquest panchanama of the deceased Exh 10. Thereafter, he went to Wanwadi police station and lodged a complaint Exh 27. On the basis of the complaint, Crime no. 508/1991 under section 302/201 IPC was registered against a unknown person. He thereafter, sent the dead body of Mohammed Nazir for autopsy to sasoon Hospital, Pune. He prepared a separate panchanam Exh 29 of the room where the appellant and the deceased used to reside and from there recovered some documents and photographs.