AADAM KASAM SHAIKH Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) Learned Additional sessions Judge, Ahmednagar convicted appellants of the offence punishable under sections 302, 201 read with Section 34 of the Indian Penal Code (for short "ipc"). Appellants were sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000 each, in default, to suffer SI for one year for the offence punishable under Section 302 read with Section 34 IPC. They were further sentenced to suffer RI for five years and to pay a fine of Rs. 1,000/ -. In default to suffer SI for one year for the offence punishable under Section 201. In addition, the learned Trial Judge convicted appellant No. 1 for offence punishable under Section 407 of the IPC and sentenced him to suffer RI for five years and to pay a fine of Rs. 1,000/ -. in default to suffer RI for one year. Appellants have impugned this order dated 22nd august, 1997, in the present appeal.

(2.) Prosecution case stated in brief is that prakash Bankar (PW 10) purchased truck bearing No. MH 09 A-9905 from Bhanudas alhat. However as the transaction was not complete the documents were not submitted to R. T. O. for registration of vehicle in the name of PW 10. PW 10 was doing business only with one truck, as such, generally, he used to accompany the Driver himself. However, in his absence, the Driver was allowed to enlist services of any one who was available for the trip. PW 10 knew appellant no. 1 and had employed him as a Driver. Goods used to be transported at various places including Chandrapur, Nagpur, nanded, Ulhasnagar and Bangalore. The last trip of PW 10 was at Ulhasnagar. He returned to Pune on 7-1-1997. At Pune, he came to know that goods are available for transportation, with Suyog Transport. Ahmednagar, pw 10 had sustained injury to his teeth, therefore, he sent appellant No. 1 to ahmednagar. At Ahmednagar, appellant no. 1 was told that onions were to be loaded from Karmala and delivered to Shivam transport at Bangalore. Appellant No. 1 found that Sahebrao Rokde (PW 8) , a boy of 18 years was available for the trip. He therefore, took Sahebrao as a Cleaner and went to Karmala. Onions were loaded at Karmala and were delivered to Shivam Transport at bangalore. Shivam Transport gave another assignment to appellant No. 1 for transporting groundnuts from Gudibanda District, ariantpur (A. P. ) to Nanded. Appellant No. 1, reached Gudibanda on 10-1-1997. Nasiroddin (PW 3) is owner of Shahanwaz industries which undertakes unshelling and sale of groundnuts. His factory which was closed for some time, had opened recently and was dispatching first consignment of 152 groundnut bags to Kasatwar Seeds and fertilizers, Nanded. Each bag contained 80 kg. of groundnuts. Govind Rajalu (PW 13) and Chand Pasha (deceased) were working for Nasiroddin. On the night of 10th, PW 13 loaded 152 bags of groundnuts in the truck with the help of Hamals in the presence of appellant No. 1 and Cleaner of the truck. On the next day, two credit bills, way bills etc. were prepared in respect of the assignment of 152 bags for Rs. 2,50,000/- including sales Tax, AMC tax etc. Chand Pasha was to accompany the goods and collect payment from Kasatwar Seeds and Fertilizers at nanded. Relevant documents and money for expenses were given to Chand Pasha. The truck left Gudibanda on 11-1-1997 at about 11. 00 a. m. and entered Maharashtra via solapur. Appellant No. 1 is the native of dhanegaon. He, therefore, took a detour and went to Dhanegaon for visiting his family. They reached Dhanegaon at about 12. 00 noon. While returning, appellant No. 1 brought appellant No. 2 with him. The truck left Dhanegaon at about 6 O' clock in the evening. On their way, they collected the tyre which was given for repair at Kharda and commenced onward journey. At about 10. 00 to 11. 00 p. m. they reached Moharighat. While they were negotiating the Ghat, appellant No. 2 started throttling deceased chand Pasha who was sitting between himself and appellant No. 1, who was driving the truck. Appellant No. 1 stopped the truck and asked PW 8 to put stones under the wheels of the truck. Appellant No. 1 then hit the deceased on his head with iron tomy, while appellant No. 2 twisted testicles. Chand pasha succumbed to the injuries. His body was taken out and kept on the road. The appellant no. 1, again, dealt blow on the face of the depeased to disfigure it. All the garments except nicker were removed and the dead body was kept in a cement pipe under Wagh-Hira Bridge. Mouth of the pipe was closed with stones. Appellants and PW 8, then, started onward journey. After negotiating some distance appellant No. 1, again, stopped the truck and commanded PW 8 to conceal the clothes in the cement pipe under another small Bridge.

(3.) After the incident, the appellants stopped at village Pali at about 2. 30 a. m. on 14-1-1997. Appellant No. 1 went to the house of Akbar (PW 6) who is the husband of his wife sister and told him that the Transporter is not making payment, therefore, goods are detained. He requested Akbar to keep the goads for 2-3 days. As there was no place for storing the goods at his house, PW 6 took the appellant No. 1 to the house of Kisan yele (PW 5). PW 5 agreed to store the goods for 2-3 days on payment of Rs. 80. On the next day morning, 147 bags of groundnuts were unloaded at the house of PW 5. Five bags retained by appellant No. 1 were given to his relative Sikander Khan Pathan of yelam Ghat Tq. Beed for selling the groundnut at his shop. It was agreed that money realised would be given to appellant No. 1. During onward journey, the appellants stopped at a Dhaba on Latur-Barshi road. Appellants took meals at the Dhaba and were engaged in discussion about strength of the deceased and started conversing in low tone. PW 8, thus, suspected that they are planning to eliminate him. Therefore, when the appellants went to sleep in the truck, PW 8 climbed a tempo which had slowed down at speed breaker. This tempo came to Ahmednagar. From there, PW 8 returned to his village Wadgaon Sautal. Appellant No. 1 brought back the vehicle to the house of PW 10 at Moshi and informed pw 10 that, during the journey, the vehicle developed some technical snag, therefore, munimji of the consignor had shifted goods to another truck for making delivery at nanded. On the pretext of the death of his grandmother. Appellant No. 1 took leave and rs. 1,000/-from PW 10.