Smt. V. K. Tahilramani, J. - (1.)The Appellant-State of Maharashtra has preferred this appeal against the judgment and order of acquittal of Respondent Nos. 1 to 4 (original accused Nos. 2 to 5) dated 21-10-2005 passed by the 1st Ad-hoc Additional Sessions Judge, Thane in Sessions Case No. 238 of 2003. Pending the hearing of the appeal, Respondent No. 1-original accused No. 2 expired, hence, the appeal against him abates.
(2.)By the impugned judgment and order the present Respondents/original accused Nos. 2 to 5 were acquitted for the offences punishable under sections 302, 364, 342, 384 and 201 read with section 34 of Indian Penal Code and punishable under section 25(c) of the Indian Arms Act and section 37(1) read with section 135 of Bombay Police Act.
(3.)The case of the prosecution, briefly stated, is as under : Dilip Panse (deceased) was working at Marol Depot of BEST. On 3-2- 2003 he had left for his work as usual but did not return back to his home at any time thereafter. According to his wife Smt. Meenal Panse (PW-4), on the next day she received a telephone call purported to have been made by her husband Dilip Panse mentioning to her that he has not attended the work and was going to Miraj for taking treatment for AIDS disease contracted by him. According to PW-4 she was also informed over telephone not to tell this fact to their daughters and he will return back home only when he is cured and if he survives. Thereafter on the same day, according to PW-4, she received another phone call and the caller gave his name as Krishna Bondre and stated that he was speaking from Khopoli and apparently working as some security personnel in one company and also gave name of the company. According to PW-4 that time on her intimation regarding missing of her husband Dilip, one PW-5 Vinod a friend of the Dilip was present at her house. He took the telephone and had a talk with the person who gave his name as Krishna Bondre. Over the telephone it was informed that said Krishna Bondre had met the deceased at Khopoli Railway Station and he found the deceased Dilip weeping and on enquiries said deceased has told him that he was going to Madras for treatment of AIDS. On earlier evening, noticing that the victim was missing and his whereabouts could not be found, PW-4 called her brother PW-1 Dilip Avachat and also brother of the victim PW-19 Sanjay Panse to her home. Enquiries were made with the relatives, but, in vain and there was no clue as to where Dilip Panse had gone. Thereafter on 4-2-2003 a missing complaint (Exh.19) was lodged with Arey Police Station. There was no trace of the victim and nothing was heard by PW-4 and her relatives so also the police were clueless. However, according to police there was a breakthrough in the said missing complaint due to alleged voluntary statement made by the original accused No. 1 Shirish Khot. It may be stated here that he has been convicted under sections 302 and 201 of Indian Penal Code by the trial Court and in appeal he has been acquitted by this Court. Said voluntary statement was allegedly made by original accused No. 1 on 13-2-2003, during the interrogation in another case i.e. C.R. No. 35 of 200 According to police on 12-2-2003 original accused No. 1 and Respondents 1 to 3 i.e. original accused Nos. 2 to 4 along with some of their associates were apprehended at Ushma Petrol Pump by Manpada police. A trap was laid near the petrol pump on the alleged information received by the Sr.PI of Manpada police station regarding some persons assembling to commit dacoity after making preparation to commit dacoity. As such initially on 12-2- 2003 original accused No. 1 and original accused Nos. 2 to 4 i.e. Respondent Nos. 1 to 3 were arrested in the said Manpada police station C.R. No. 35 of 2003 in the matter of offence punishable under sections 399 and 402 of Indian Penal Code. At this juncture, it must be mentioned that said matter was committed to the Court of Sessions vide Sessions Case No. 141 of 2003 and it ended in acquittal. This is an admitted position.