(1.) The Appeal is directed against the judgment and order of the Additional sessions Judge, Greater Bombay dated 17. 4. 2004. The Sessions Court has convicted accused No. 1 i. e. , the appellant herein under section 302 r/w 34 of the Indian penal Code and sentenced him to suffer imprisonment for life. The appellant-accused no. 1 has also been directed to pay a fine of Rs. 10000/ -. Accused Nos. 2, 3 and 4 are absconding and, therefore, the trial was conducted only against accused No. 1.
(2.) The prosecution story is that the victim, who was a 70 year old woman, was residing with her daughter Pan in a bungalow known as Pink bungalow. Some construction work was undertaken in the compound of this bungalow and was in progress for about 20 - 22 days prior to the incident. About 3 or 4 workers were engaged for the job. On 18. 6. 2001, the complainant, who resided in a building adjacent to the Pink bungalow, was sitting in his STD booth at about 10,30 am when Pari informed him that her mother had fallen down and had sustained bleeding injuries. Pari was well acquainted with the complainant as she often played with his daughter. The complainant first went to Dr. Modi who was practising in the vicinity and requested him to accompany him to the Pink bungalow. The victim was found lying in a pool of blood near the entrance of her bedroom. Both her legs were tied with rope. Her mouth and neck were also tied with clothes. The Doctor accompanying the complainant declared that the victim was dead. The complainant then lodged a complaint which was treated as an FIR with the police station. A case was registered under section 302 of the Indian penal Code against unknown persons. The spot cum inquest panchanama of the place of offence at Pink bungalow was drawn. The police officer who drew up this panchanama also seized two blood stained towels, a rope and hair. The blood stained clothes of the deceased were also taken charge of. It appears that investigations proceeded for more than a year. Statements of various witnesses were recorded by the police including that of Pari. The accused was arrested on 3. 8. 2002. The prosecution has alleged that on interrogating him, the appellant disclosed the names of three other persons who are the accused in this case. Recovery of a Rampuri knife at the instance of the accused has been noted in the disclosure panchanama on 7. 8,2002. A Test identification Parade was held on 23. 8. 2002. The appellant was identified by the witnesses. The appellant was charged with having committed an offence punishable under section 302 of the Indian Penal code. The trial was committed to Sessions. The Sessions Court has convicted and sentenced the appellant as aforesaid.
(3.) Ten witnesses have been examined by the prosecution in support of its case that the appellant had committed a culpable homicide. P W. 9 is the child witness pari, the daughter of the deceased. A perusal of the evidence of this witness does not inspire any confidence. There are many contradictions in her testimony. She has admitted in her evidence that she had not seen the actual incident in which the victim was killed. She claims in her testimony that she had attended the Test Identification parade and had identified one person by the name Aslam (not the applicant's name). She pointed out to the appellant in court as the person whom she had identified at the Parade. The witness then claimed that the appellant had demanded the keys from the victim which the victim had refused to part with. She has admitted that the keys which were demanded by the appellant were those of the garage situated in the compound of Pink bungalow. She has also admitted in her cross-examination that the repair work had been completed about 4 to 5 days prior to the incident after which the appellant had stopped attending duty at the bungalow. Thus, this witness is not an eye witness to the incident.