PRASHANT DATTATRAYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Additional Sessions Judge, Kolhapur, by a judgment dated 16th April 2005, convicted the Appellants of offences punishable under Section 302 read with Section 34 of the Penal Code and sentenced them to imprisonment for life, to a fine of Rs.500/and in default, to suffer rigorous imprisonment for two months. The case of the prosecution is that the deceased, Mahesh, was engaged in the business of repairing two wheelers and resided at Mangalwar Peth in Kolhapur with his mother and two brothers. The accused Nishikant, Deepak and Prashant (the last two being the Appellants in these proceedings) had lent and advanced an amount of Rs.200/to Mahesh. The accused were allegedly visiting Mahesh for the repayment of the amount. On 17th November 2003, the three accused came to the residence of Mahesh at 5 p.m. and called for him. Mahesh was then on the first floor of the house. Nishikant, accused No.1, went to the first floor and brought Mahesh down to the ground floor. All the three accused and Mahesh thereupon went away. Mahesh was in the habit of returning home late at night and his dinner was kept in a room on the first floor. Mahesh and his brother Ravindra used the room on the first floor. When Ravindra woke up on 18th November 2003 at 7 a.m., he realised that Mahesh had not returned home and the dinner had not been consumed. At 8.45 a.m. the Police from Rajwada Police Station came to the house and informed Gajanan, the other brother of Mahesh that the dead body of Mahesh has been found at Gandhi Maindan. The body was removed to the CPR Hospital, Kolhapur. The deceased had suffered as many as nine injuries including contused lacerated wounds and incised wounds. The FIR was lodged on 18th November 2003 by Gajanan (PW 3) who was the brother of the deceased. Investigation was taken up and the accused were arrested on 18th November 2003. The clothes on the person of the accused were seized under a panchanama. A bottle of alcohol and a glass were found in close proximity to the place where the dead body had been found. The bottle and the glass were forwarded to a fingerprint Expert through the Superintendent of Police, Kolhapur, by a letter at Exh.72. Accused Nishikant furnished a statement to the Police which led to the discovery of a barber's razor (Vastara) which was found near a cement pipe in close proximity to a toilet at Gandhi Maidan where the body had been found. The muddemal properties were forwarded to the Chemical Analyser whose report was obtained. Three accused including the Appellants before this Court were tried on the charge of murder. The prosecution examined sixteen witnesses. The Additional Sessions Judge found the accused guilty under Section 302 read with Section 34 of the Penal Code and sentenced them to imprisonment for life.

(2.) On behalf of the Appellants, it has been submitted that the case of the prosecution has rested on circumstantial evidence. The chain of circumstances, it is urged, linking the accused with the commission of offence is not complete. It is submitted that the blood group of the deceased was not established; the role played by each of the accused was not proved and the body was found in a public Maidan. On the other hand, the Learned APP submitted that PW 3, the brother of the deceased and PW 10, the mother of the deceased consistently deposed to the fact that at 5 p.m. on 17th November 2003 the accused had come to their residence and that they had taken the deceased with them. It was urged that the motive was established since the accused had lent and advanced money to the deceased of which they were seeking repayment. The Learned APP urged that the accused were arrested soon after the offence on 18th November 2003; the clothes of the accused were seized under a seizure panchanama and were found to be bloodstained. The report of the Chemical Analyser shows that the clothes which were worn by accused Deepak (the Appellant in Appeal 962 of 2005) had bloodstains of blood group 'B' which corresponded to the blood which was found on the muddemal property, namely, the stone and the barber's razor. In so far as accused Prashant (the Appellant in Appeal 909 of 2005) is concerned, it was urged that the evidence of the fingerprint expert establishes the finger prints of the aforesaid accused on the wine bottle and glass which were found at the scene of offence. Neither of the Appellants have in their statements under Section 313 of the Code of Criminal Procedure, 1973 claimed that they had suffered injuries or that there was a scuffle or that they had exercised the right of self defence. In other words, it was not the contention of any of the accused that the blood on the bloodstained clothes was their own blood, due to injuries sustained during the course of a scuffle. Thus, it was urged that the oral evidence of PW 3 and PW 10 who had seen the accused taking away the deceased at 5 p.m. on 17th November 2003 coupled with the corroborative evidence of the fingerprint expert, PW 13, Atmaram Angre and the report of the Chemical Analyser would link the accused to the crime and establish the case of the prosecution beyond reasonable doubt. As many as nine injuries were found during the course of post mortem and the evidence of PW 11, Dr.Ruikar, was that these injuries were capable of being caused by a razor, or as the case may be, by a stone.

(3.) In assessing the merits of the rival contentions, it would be in order to advert to the salient aspects of the oral evidence. PW 3 Gajanan was the brother of the deceased. The deceased resided with PW 3 together with his mother and another brother. PW 3 deposed that at 5 p.m. on 17th November 2003, the accused had come to their house and had called for the deceased Mahesh, who was also known as Bajrang. P.W. 3 stated that he stood outside the house and had seen each of the accused who were friends of Mahesh. PW 3 deposed that a loan of Rs.200/was obtained by Mahesh from the accused and the accused had been visiting the house to take back that amount. On 17th November 2003, Nishikant, one of the three accused, went to the first floor and brought Mahesh down, after which the accused and Mahesh went away together. PW 3 was informed by the Police the next morning of the discovery of the dead body of Mahesh at Gandhi Maidan. PW 10, Vatsala, the mother of the deceased, was also present at home on 17th November 2003 and deposed in terms similar to what was stated by PW 3. The oral depositions of PW 3 and PW 10 have established that the accused were known to the deceased; that on 17th November 2003, the accused had come to the house of the deceased; that some amount had been borrowed by the deceased from the accused which the accused were demanding back and that at or about 5 p.m. the deceased had left home together with the accused, including the two Appellants.