STATE OF MAHARASHTRA Vs. ARVIND GHANSHYAM AJABE

JUDGEMENT

(1.) Criminal Appeal under/Sec.374 (2) of Code of Criminal Procedure, 1973, preferred by original accused Nos.1 and 2, challenging death and life sentence and reference by III Adhoc Additional Sessions Judge, Ahmednagar under Section 366 of the Code of Criminal Procedure, 1973, for confirmation of the death sentence, both arising from his judgment and order passed on 21st October 2008, in Sessions Case No. 160 of 2005, are being disposed of by this common judgment. As many as five accused persons, including the two appellants, were charge- sheeted for the offences punishable under Sections 120-B and 302 read with Section 34 of I.P.C., by Police Station, Karjat, District Ahmednagar. Accused No.5 Navnath Kale was absconding, when the Judicial Magistrate, First Class, Karjat, committed the case under Section 209 of Code of Criminal Procedure, 1973, to the court of Sessions. Hence, the learned Magistrate directed police to file fresh charge- sheet against accused No.5, as and when he is traced and committed the case to the court of sessions for trial of accused Nos.1 to 4. Naturally, learned Adhoc Additional Sessions Judge charged only four accused persons for offences punishable under Sections 120-B and 302 read with Section 34 of IPC. We believe that, by amendment of the charge on 10.4.2008 (by order below Exh.192), learned Additional Sessions Judge has substituted second charge head, by which accused were initially charged for offence punishable under Section 120-B read with 34 of IPC, by only charge for offence under section 120-B, although it is not so specifically said below Exhibit 18. At the conclusion of the tnal, the learned Judge has held accused Nos.1 and 2 (present appellants) guilty for offence punishable under Section 302 read with 34, IPC i.e. for having committed murders of Dr. Vijay Aajbe and Abasaheb Aajbe, in furtherance of their common intention. He has recorded a negative finding on the issue of criminal conspiracy. He has also, by implication; recorded a negative finding, so far as involvement of accused Nos.3 and 4 is concerned, in the commission of murders. Accused No. 1 Dr. Arvind Aajbe is sentenced to death, fine Rs.2,000/-, in default, simple imprisonment for one month. However, accused No.2 Suresh is sentenced only to life imprisonment and fine Rs.2,000/-, in default, simple imprisonment for one month. As a result of death penalty imposed upon accused No.1, record and proceeding is submitted by the learned Adhoc Additional Sessions Judge to this court for confirmation of the same, as required by Section 366 of Cr.P.C. and both the accuOrdered accordingly<FV>Ordered accordingly</FV>sed have challenged finding of guilty, conviction and sentence by appeal under Section 374(2) of Cr.P.C.

(2.) The prosecution story can be narrated as follows: Complainant PW-1 Bhanudas Lokhande (Exh.46), who set the criminal law in motion by FIR (Exh.47) lodged with Karjat Police Station on 30.3.2005 at 22.45 hours, is father- in-law of deceased Dr. Vijay. Deceased Dr. Vijay was practising at village Shiral, Taluka Ashti, District Beed. Accused No.1 is also a Medical Practitioner at the same place and accused No.2 was running his pharmacy (Medical Store), also at Shiral. It is said that the deceased Vijay and accused No. 1 Arvind are distant relatives <IMG>judgement_1281_allmr(cri)_2009_nv1281(1)_ALLMR(CRI)_2009.jpg</IMG> Admittedly, Dr. Arvind (Accused No. 1) had started his medical practice at village Shiral, 3-4 years prior to Dr. Vijay (deceased). Starting of medical practice by Dr. Vijay at Shiral had adverse effect on the practice of Dr. Arvind. It is said that, pharmacy of accused No.2 Suresh was also required to be closed down about 7-8 months prior to the alleged incident. At the material time, construction of the hospital of deceased Dr. Vijay at Shiral was nearing completion. In fact, hospital was to be inaugurated on 9.4.2005. Due to adverse effect on their professions, accused Nos. 1 and 2 had started threatening Dr. Vijay. They had desired Dr. Vijay to shift his medical practice elsewhere and they were also threatening to kill him, if he does not do so. About 3-4 months prior to the alleged incident, they had threatened Dr. Vijay, through hired gundas. On 30.3.2005, deceased Dr. Vijay along with second deceased Abasaheb Aajbe had been to Ahmednagar, for delivering invitation cards, regarding inauguration of his hospital. They are said to have been killed, while they were travelling back on motorcycle Bajaj Calliber, having registration No.MH-23/G-7019 in Kokangaon Shivar, on Ahmednagar-Solapur road. Swati (daughter of complainant Bhanudas and widow of Dr. Vijay) telephoned Bapurao (brother of complainant) from Shiral, on 30.3.2005 at about 8.00 p.m. and informed that, there was some mishap involving Dr. Vijay on Ahmednagar-Solapur road. Brother Bapurao, in turn; gave the same message to complainant Bhanudas. Complainant along with his relatives, immediately proceeded to the place of occurrence. At the location, he was informed by some inhabitants of Ingawade locality that they had seen a white Tata Sumo going towards Mirajgaon, after the incident. It struck the complainant that accused No. 1 Dr. Arvind Aajbe owns a white Sumo. The motorcycle of the deceased was lying in a ditch, by the road side. There were blood stains on the ground and on the stones. The complainant believed that the deceased Vijay and his cousin Abasaheb were killed by repeated blows with the help of stones and hence, he registered his complaint which was reduced to writing, by Police Head Constable Gafar Ibrahim Shaikh of Karj at Police Station (PW-15). Entire investigation is carried out by Police Inspector Dagadu Deshmukh (PW-19). In fact, it is the claim of PI Deshmukh that at about 8.30 p.m., Police Head Constable Pandharinath Bhos from Mirajgaon police out post, had informed on telephone that persons from a white coloured Tata Sumo had killed two persons and the victims were thrown by the road side. Hence, PI Deshmukh had immediately visited the spot along with other police staff.

(3.) Accused No. 1 Dr. Arvind, in his statement under Section 313 of Cr.P.C., admitted the complainant to be father-in-law of deceased Dr. Vijay. He also admitted that PW- 2 Dr. Shantilal is real cousin of Dr. Vijay. He also stated that he was arrested at about 9.00 p.m. on the spot by Mirajgaon Police. About all other details, he has pleaded ignorance or denial, by replying the questions, by saying," I do not know" or "It is false". However, he has filed a detailed written statement on 28.10.2008. He has pleaded that, they are falsely involved in the offence. On 30.3.2005, he was in his dispensary upto 8.30 p.m. There was discussion in the village Shiral that Dr. Vijay and Abasaheb Aajbe suffered accident at Mirajgaon road. Along with other villagers, he had been to the spot. Panchanama of the spot was drawn by the police while he was present there. Motorcycle, two victims, helmet and some invitation cards were the only articles lying on the spot, which the police seized (by implication; accused deny seizure of chappals and a diary from the location). PI, Deshmukh had not visited the spot, he appeared on the scene for the first time at Mirajgaon hospital, when dead bodies reached there. PW-1 Complainant Bhanudas and PW-2 Shantilal, so also eye-witness Pramod Shinde (PW-3), are close relatives of deceased Dr. Vijay. They are father-in-law, paternal cousin and maternal cousin respectively of the deceased. Accused has denied any recovery at his instance under Section 27 of the Indian Evidence Act. He has also challenged panchanama, regarding proceedings with the help of sniffer dog, as also identification parade, as false and fabricated evidence. According to him, at the instance of relatives of the deceased, PI, Deshmukh has framed the accused with false evidence. According to accused No.1, Dr. Vijay was his close friend; they attended many meetings of medical association together; there was no professional contest between the two nor any bitter feelings about each other. Taking into consideration the population in the area, not only these two doctors were earning sufficient, but couple of more doctors had started practice in the area, even they all could have earned well. According to accused No.1, Dr. Vijay had immoral relations with one Savita, wife of teacher Shantilal Gaware. Relatives of Savita had beaten Dr. Vijay, when they learnt about it. In order to avoid damage to the reputation, Dr. Vijay took treatment at Ahmednagar, by informing to have suffered an accident. Accused No.1 claims to have acted as a middleman between Dr. Vijay and relatives of Savita Gaware and settled the matter, by assurance that Dr. Vijay would maintain no relations with Savita, in future. According to accused No.1, after lapse of few days, Dr. Vijay had started again meeting said Savita and, therefore, her relatives had challenged Dr. Arvind (accused No.1) who, in turn, had reprimanded Dr. Vijay about the same. After that, accused No.1 Dr. Arvind had stopped visiting Dr. Vijay. Accused No. 1 claims that in order to avoid defamation, Dr. Vijay might have informed his relatives that accused No.1 is jealous about his (Dr. Vijay's) flourishing practice. While pleading that he has no concern with deaths of Dr. Vijay and Abasaheb, accused No.1 has said that the two might have suffered death, as a result of accident, it may be a road robbery or some third person might have killed them due to earlier enmity. Accused No.2 Suresh, apart from pleading total denial in his statement under Section 313 of Cr.P.C., has said that Dr. Vijay was his friend. He (Sure ;h) was getting benefit in his profession because of medical practice of Dr. Vijay. Deceased Abasaheb was having tea stall at a distance of 12 feet from his pharmacy and Abasaheb was also his good friend. In fact, accused No.2 used to order tea from the hotel of Abasaheb and had good relations with him. According to accused No.2, he had no reason to kill and he has not killed either Dr. Vijay or Abasaheb. Accused No.2 has narrated that, so far as video cassette is concerned, he was subjected to beating by police and was asked to depose as instructed by police, before the camera. He also pleads that all the witnesses are related to victim, false panchanamas are prepared and both the accused are involved in a false case. Dr. Mahadeo Nagargoje, a retired Medical Officer, is examined as a defence witness at Exhibit-189.