PRALHAD DYANOBA GAJBHIYE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 6-2-1993 passed by 8th Additional Sessions Judge, Nagpur, in Sessions Trial No. 918/1991 convicting the appellant for the offence punishable under sections 302 and 201 of I. P. C. and sentencing him imprisonment for life.

(2.) SHORTLY stated the facts of the prosecution case are as under. Bhimrao Patil, since deceased, was married to Mainabai daughter of Dnyanoba Gajbhiye (original accused No,1) in the year 1984. After marriage, they were Residing at Mowad. The incident in this case is alleged to have been taken place in the night intervening between 3rd and 4th, 1991 in Narkhed at the house of original accused No. 1 Dnyanoba. The appellant and other acquitted accused Ramesh are the sons of accused No. 1 Dnyanoba. They were residing jointly in the house at Narkhed. Some one month or so prior to the incident Mainabai w/o Bhimrao was taken to her material house at Narked and Bhimrao had gone to Raisen in Madhya Pradesh in search of work. On 21-5-1991, Mainabai sustained burn injuries in these house of her father. She was takin to Indira Gandhil Medical lhospital, Nagpur where she was admiltted and received the treatment. Bhimraao Patil returned to his villlage Mowad around 1st of June, 1991 when he was informed by his father P. W. 7 Gajanan and brother P. W. 5 Sukdeo about burning incident of Mainabai at Narkhed and hence it is alleged that immediately Bhimrao went to Narkhed. The prosecution case further is that Bhimrao and Mainabai were not pulling on well together. Their relations were strained and accused had a grudge against Bhimrao because of ill- treatment by him to Mainabai and , therefore, in the night the accused assaulted Bhimrao throughout the night by sticks and other weapon by tying his hands and legs by rope. He died. For a day, the body was concealed in the house of the accused and in the night of 4th and 5th June, 1991, the accused tied the big stone with the coconut rope on the dead body and it was thrown in manhole of the septic tank and manhole was closed. As Bhimrao did not return to Mowad, his brother P. W. 5 Sukdeo came to Narkhed, made inquiries about Bhimrao but he could not get any trace. He wrote a letter (Exh. 55) to his brother-in-law on 17-6-1991 showing his suspicion that the accused killed Bhimrao. As the foul smell was emitting from the Gutter, the information was given to Nagar Parishad. The dead body was taken out and information was given to Police Station Narkhed. P. W. 13 Ganpat Padole, Head Constable, was deputed to make inquiry. Along with Police staff and panchas,he went on the spot. He has drawn the inquest panchanama Exh. 26 on 18-6-1991. Head was cut and severed from the body. Big stone was tied over the body. Nobody identified the body and the body could not be identified. As the body was highly in a decomposed state, P. W. 13 Padole, has requested the doctors of the Primary Health Centre, Narkhed, to perform the post mortem examination over the dead body on the spot. Accordingly doctors came on spot and performed post mortem examination in between 6. 20 to 6. 50 p. m. and gave report Exh. 37. In thes meanwhile P. W. 13 Ganpat Padole has drawn an identification panchanama Exh. 43 in between 16. 30 to 17 hours before panchas to the effect that P. W. 5 Sukdeo has identified the dead body to be that of his brother Bhimrao, as there was old scar on the body because of fall from the tree and from the clothes which were on the person of the dead body. On the basis of the inquiry report (Exh. 79) of P. W. 13 Ganpat Pandole. P. W. 14 P. S. I. Askar resgistered an offence vide Crime No. 131/91 under section 302 of I. P. C. against the accused persons. He went on spot i. e the house of accused and during search, one sword, one coir and one cloth were seized from the house of the accused. All the accused were arrested on 19-6-1991 vide arrest panchanama Exh. 33 and they were in police custody up to 26-6-1991. During investigation, a stick from the thrust ceiling of the house was discovered on the memorandum of appellant and one golden chain was recovered on the memorandum of acquitted accused Ramesh. Of course the trial Court has disbelieved the evidence of this discovery. The Investigation Officer has recorded the statements of the witnesses including the neighbours of the accused and the relatives of deceased Bhimrao. On 26-6-1991, the Police produced the accused before the Judicial Magistrate, Narkhed and requested for further police custody. The Judicial Magistrate, however, declined to grant further police custody and remanded the accused to magisterial custody. On the same day, the Investigating Officer has given requisition (Exh. 61) to the Judicial Magistrate for recording the confession of the appellant accused and acquitted accused Ramesh under section 164 of Cr. P. C. The Judicial Magistrate, First Class granted permission and directed that the accused should be produced on the next day i. e. on 27-6-1991 before him. On 27-6-1991, the Judicial Magistrate P. W. 6 Prakash Ambekar, recorded the confessional statements of appellant accused and another accused Ramesh. It is alleged that both the accused have admitted their guilt. The seized property in this case was sent to Chemical Analyser for analysis and after necessary completion of investigation, the charges-sheet came to be filed.

(3.) DURING trial, the prosecution has examined in all 14 witnesses. In short evidence of these witnesses is as under. P. W. 1 Maroti peon of Nagar Parishad, Narkhed gave a complaint regarding the dead body to Police Station, Narkhed. P. W. 2 Abdul Majid is a panch on identification panchanama Exhibit 43 who has stated that the dead body was recovered from the Gutter and relatives have identified it but in cross-examination he states that the dead body could not be identified. P. W. 3 Jaipal is a panch on the spot panchanama Exhibit 45 of the house of the accused. P. W. 4 Suresh is also a panch on the memorandum of accused appellant Exhibit 47 in pursuant of which the stick was seized as per seizure Exhibit 48 and on the recovery of golden chain Exhibit 52 at the instance of accused Ramesh. He has not supported the prosecution case. Therefore, he was cross-examined by the prosecution. P. W. 9 Vitthal, P. W. 10 Chandrabhan and P. W. 11 Mahendra are examined as eye witnessses but they have not supported the prosecution. Hence they were cross-examined. Nothing is elicited in support of prosecution in their cross-examination. P. W. 7 Gajanan Patil, father of Bhimrao, has stated that the relations between Bhimrao and Mainabai were cordial. He has also identified the clothes over the dead body to be that of Bhimrao. P. W. 8 Narendra Arkhel has removed the dead body from Gutter. He has given the description of the clothes over the dead body and he has identified the clothes before the Court. He has stated that the legs of the dead body were tied with the rope of coconut. P. W. 12 is Raju Furve, Photographer, who has taken the photographs of the dead body and the spot. He has proved the photographs Exhibit 72 to 77. P. W. 13 Ganpat Padole has conducted the inquiry and submitted his report Exhibit 79 and P. W. 14 Namdeo Asker. P. S. I. is Investigating Officer