DINESH RUPRAO BAND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Both these appeals are being disposed of by common Judgment since they arise out of the Judgment and order dated 30th December, 2003 passed by the 2nd Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial No. 126/2001. By the impugned Judgment and order the appellant in Criminal Appeal No. 198/2004 (hereinafter referred to as 'the accused ') has been convicted for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/in default to undergo R.I. for six months and to suffer R.I. for seven years and also to pay a fine of Rs. 1000/in default to undergo R.I. for three months respectively. Both the sentences have been ordered to run concurrently. By the said Judgment the appellant who was the original accused no.1 before the trial court has been acquitted of the offences punishable under Sections 363 and 364 of the Indian Penal Code. By the said Judgment the original accused no.2 Vinod Ruprao Band and original accused no. 3 Smt. Kusum Ruprao Band have been acquitted for the offences punishable under Sections 363, 364, 302 and 201 read with Section 34 of the Indian Penal Code. Criminal Appeal No. 198/2004 has been filed by the accused challenging his conviction and sentence imposed upon him whereas the Criminal Appeal No. 345/2004 has been filed the State challenging the acquittal of the the accused for the offences punishable under Sections 363 and 364 of the Indian Penal Code.

(2.) Briefly, the prosecution case is as follows: Informant Sunita Khole and her husband Prakash Khole own their house at Pachgade Layout, Bhosa Road, Yavatmal. They were residing with their two sons Swapnil and Shreyash @ Bitu, daughter Neha and parents of Prakash Khole. Shreyash at the relevant time was one year and ten months old and used to go to the School. Prakash along with his family used to live on the first floor of the house and five tenants were occupying different blocks on the ground floor of the said house. Accused Dinesh and his brother Vinod are the sons of Kusum who were arrayed as accused 1 to 3 respectively in the trial. The block occupied by the three accused was adjacent to the stair case by which informant and her family members used to pass. Prakash Khole was having vehicle Tata Sumo which was being driven by driver Nandu. About ten days before the incident which occurred on 2.1.2001 Prakash Khole had sold the said vehicle and he was in possession of the substantial cash generated from the sale of the said vehicle. Rambhau Khole father of Prakash Khole used to take deceased Shreyash and Swapnil Khole to the School in which they were studying.

(3.) On 2.1.2001 at about 11.15 a.m. as usual Swapnil got down from the first floor and on seeing him Rambhau enquired as to where Shreyash was to which Swapnil replied that Shreyash had already got down. Rambhau called name of Shreyash and since he was not traceable, searched for him. Since Shreyas was missing there was commotion in the house. Everybody started searching for him. They started inquiry with the driver Nandu and also made inquiries from the tenants including all the three accused but they claimed that they had not seen Shreyas. At about 1.30 p.m. on the same day there was a phone call received at the house of the informant stating that Shreyas was safe and they should come to Nasik S.T. Stand to collect him. Therefore, Sunita Khole lodged report about missing of her child and about the phone call to Police Station, Yavatmal City. Police registered the offences under Sections 363 and 364 of the Indian Penal Code against unknown persons. Police went to the spot and prepared spot panchanama. Investigation was taken up. During the investigation statements of several witnesses were recorded.