J. N. Patel. J. - (1.) HEARD Shri. M. R. Daga, learned Counsel for the appellants and Shri. Kothari, learned A. P. P. for Respondent State.
(2.) THIS is an appeal against conviction. On 30 08. 1996, the Additional Sessions Judge, Gadchiroli delivered judgment and order in which he found that the appellants are guilty of having committed offence punishable under section302, read with 34 I. P. C. and convicted and sentenced them to suffer life imprisonment and to pay fine of Rs. 500/- each, in default to undergo further rigorous imprisonment for three months, on a charge that in furtherance of their common intention they murdered Vithal Fakira Dahale, on16. 05. 1992 between 1000 hours to 1400 hours at mouza Ghot, Tahsil Chamorshi, District Gadchiroli. The murder came to light when a report came to be lodged by Sayeeda Begum Mahboobkhan Pathan (P. W.1) at Police Out Post, Ghot under the jurisdiction of Chamorshi police Station. In her report Exh. 62, which was given on16. 05. 1992, she has stated that she is resident of Village Ghot, and that she is residing with her husband and in part of the house, appellant Yakubkhan Pathan, who is her brother-in-law is residing. According to her when she returned to her house about half an hour back, from Chandrapur she noticed Ramesh Upadhyay and Yakubkhan Pathan were burning garbage near the Tembhurn tree in Sandhwadi, and the same was emitting smell like burning of clothes. She also stated that as three persons were of gunda nature, there was possibility that they would beat her on prohibiting them from doing so, and she has came to lodge the report, and action be taken against them. The report came to be taken down by P. S. I. Arve, found two persons in drunken condition in Sandhwadi and some garbage was found burning and therefore he enquired from those persons their names and they disclosed their names as Yakubkhan Pathan and Ramesh Dattatraya Upadhyay. P. S. I. Arve noted that ash like burnt clothes missing, therefore he asked Sayeeda Begum to remove the chain of the door of the room in occupation of Yakubkhan. On this Sayeeda Begum and Head Constable Mankar opened the door of the room of Yakubkhan Pathan, and P. S. I. Arve noted that one dead body was lying on the ground inside his room. There were injuries to ear, chest and back and head of the dead body. An axe was found kept resting with the well and its blade and handle stained with blood, he also found blood on the ground, and therefore, he kept Head Constable Mankar on the spot, and returned along with Sayeeda Begum and both the accused to the Police Out Post, Ghot, there again he recorded report of Sayeeda Begum, which was treated as F. I. R. (Exh. 64 ). Then he registered occurrence report no.15/1992 under section302 read with 34 I. P. C. vide Exh. 65, and gave wireless message to P. S. O. Chamorshi about the murder. On this P. S. O. Deshmukh, arrived immediately and both the appellants / accused were sent for medical examination and further investigation was taken over by P. I. Deshmukh (P. W.12 ). P. I. Deshmukh, then visited the spot and prepared Inquest Panchnama (Exh. 9) and so also panchnama of the spot of occurrence (Exh. 43) in the presence of panchas. The mother of deceased by name Warlibai, identified the dead body as that of her son Vithal Dahale. The police also seized panchnama (Exh. 44), and the dead body was sent for post mortem examination to Rural Hospital, Chamorshi. P. I. Deshmukh, caused arrest of both the appellants accused, he seized Pant worn by appellant / accused Ramesh Upadhyay vide Exh. 30, before panchas as the bottom of the said pant was found stained with blood. P. I. Deshmukh found that the appellant / accused Yakubkhan, was having injury on his shoulder. According to him both the accused were drunk and under influence of liquor and, therefore, he sent them for medical examination. In the course of investigation P. I. Deshmukh, recorded statement of witness. On completing the investigation he submitted charge sheet in the Court of Chief Judicial Magistrate. Gadchiroli, who in turn committed the case to the court of Additional Sessions Judge, Gadchiroli, for trial. The appellants / accused were charged for having committed murder of Vithal Fakira Dahale and they pleaded not guilty and came to be tried. The appellants / accused denied the case against them, and did not take any specific defence.
(3.) THE prosecution examined in all 15 witness in support of their case, and most of them turned hostile including Sayeeda Begum, who has lodged report (Exh. 62 and 64) with the Police Station. THE trial court found that the prosecution has proved that the death of Vithal Dahale, was homicidal and that the appellants / accused in furtherance of their common intention have caused his death, and that is how the appellants / accused are convicted and sentence for committing offence under section302 read with 34 I. P. C. Mr. Daga, the learned Counsel appearing for the appellants / accused submitted that the case of the prosecution rests on the circumstance brought on the record is sufficient to show the complicity of the appellants/ accused in the crime. Mr. Daga, the learned counsel further submitted that as most of the witness have turned hostile, it may be most unsafe to rely on the evidence of the police officer to convict the appellants / accused. Mr. Daga, submitted that at the most the prosecution has proved that the appellants / accused were sitting together and burning some garbage, which by itself does not establish anything to show that the appellants / accused have committed the murder. Mr. Daga, further submitted that the prosecution has not lead any evidence to show that the room from where the dead body of Vithal Dahale, was found belonged to the appellant / accused - Yakubkhan Pathan, and therefore, this cannot be taken as a circumstance against Yakubkhan Pathan, and even if it is accepted that the dead body was found in the room of Yakubkhan Pathan, still as there is no other evidence to connect Yakubkhan with the murder of the deceased, it cannot be said that Yakubkhan is responsible for committing his murder. Mr. Daga submitted that it is just probable that some body might have assaulted the deceased and thrown/placed his body in the room of Yakubkhan Pathan, therefore, this circumstance by itself is not sufficient to convict the appellant / accused Yakubkhan for committing murder of Vitthal Dahale.;