- (1.)THE appellant has questioned the correctness of the judgment and order dated 21.11.2009 passed by the learned Ad -Hoc Additional Judge -2, Niphad, in Sessions Case No.42 of 2005, thereby convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.500/ -, in default of payment of fine, he has been ordered to suffer further RI for 6 months, and under Section 379 of IPC sentenced him to suffer RI for 3 years and to pay fine of Rs.500/ - and in default of payment of fine to suffer further RI for 6 months. It has been ordered that both sentences shall run concurrently.
(2.)THE facts in brief, as enumerated from the record, are as under:
(i) PW -3 Khanderao Sayaji Pagar, is an agriculturist and resident of Khadak Ozar Taluka -Chandwad, District -Nashik and is also a trustee of the temple of Kedrayi Mandir. On 7.12.2004, the said PW -3 Khanderao went to the temple for darshan of the goddess 'Kedrayi when two persons namely, Ramzan Pathan and Dattu Laxman Pagar told him that the dead body of old man is lying in the tin -shed of the temple trust. The blanket was placed on the dead body. PW -3 Khanderao has stated that it is revealed to him that stone was hurled on the head of the said old man for killing him. A stone stained with blood was lying near the head of the said old man. After verifying the said fact, he lodged a police complaint with Wadali Bhoyi police outpost and the said complaint was noted as occurrence reported no.156 of 2004 by Wadali Bhoyi police outpost, Chandwad

(ii) PW -11 Police Havaldar Shri Ramrao Shankar Wanjul then attached to Wadner Bhairav police station. He has stated that on 7.12.2004, when he was on duty as a police station officer from 8am to 8pm, the complainant one police constable Kushare came along with complainant i.e. PW -3 Khanderao Pagar with Occurrence Report No.156 of 2004. PW - 11 Police Havaldar Wanjul accordingly registered a crime at about 10.30 am on 7.12.2004 bearing CR No.102 of 2004 under Section 302 of IPC and thereafter PW -13 API Kalyanrao Vidhate took over the investigation. The said complaint is at Exhibit 30 on the record. The further investigation was taken over by PW -13 Shri Kalyanrao Vidhate then attached to Wadner Bhairav police station. The said PW -13 has also proved in his evidence the earlier occurrence report which was registered at Wadali Bhoyi police outpost which is Exhibit 60 on the record. PW -13 along with his staff went to the Kedrayi devasthan, inspected the dead body and surrounding area of the spot of incident. PW -13 Shri Vidhate prepared inquest panchanams of the dead body in presence of the panchas. The said inquest panchanama is at Exhibit 18 on the record. He sent the dead body for conducting postmortem. PW -13 Shri Vidhate thereafter prepared spot panchanama of the scene of the offence in presence of the panchas. The said spot panchanama is at Exhibit 28 on the record. PW -13 Shri Vidhate also drew rough sketch of the spot of incident which is at Exhibit 62. The clothes of the deceased were seized under seizure panchanama which is at Exhibit 19. From the articles which were found on the person of the deceased, the identity of the deceased was established as 'Mavanji Kurade'. PW -13 Shri Vidhate thereafter called the relatives of the deceased. Accordingly, PW -5 -Walmik Mavanji Kurade, the son of the deceased came to the police station and identified the dead body of the deceased Mavanji Kurade. PW - 13 Shri Vidhate thereafter recorded the statement of the son of the deceased i.e PW -5 Walmik Kurade.

(iii) During the course of the investigation, it is revealed to the PW - 13 Shri Vidhate that the deceased Mavanji had withdrawn an amount of Rs.92,400/ - from his account from Gautram Sahakari Bank, at Kolpewadi, Taluka -Kopargaon on 25.8.2004. During the course of investigation, PW - 13 Shri Vidhate had recovered an amount of Rs.15,100/ - from the accusedappellant. PW -13 Shri Vidhate thereafter recording the statements of witnesses and after completion of the investigation submitted chargesheet in the competent Court having jurisdiction.

(iv) The leaned Trial Court had framed the charge below Exhibit 12. The said charge was read over to the appellant. The appellant denied the same and claimed to be tried.

(v) Miss. Dhamale, the learned Counsel appearing for the appellant submitted before us that the deceased because of his ailment, instead of walking used to slide himself by tying rubber tube to his waist and it was a distinctive feature to identify him. Because of the distinct feature of the deceased Mavanji, it was natural for the witnesses to identify him, however, this was not a case with the appellant. The learned Counsel for the appellant submitted that PW -7 Shaikh Bashir and PW -8 Rajendra Thombare though have seen lastly appellant with the deceased, their evidence is full of exaggeration in view of the fact that in the crossexamination they have admitted that they used to see many witnesses every day and it is not possible to remember each and every person. It was further submitted by the learned Counsel for the appellant that the currency notes which alleged to have been seized at the instance of the appellant were not having any specific identification mark so as to say that the same currency notes were stolen from the person of the deceased and/or it was the same currency which was withdrawn from the said bank by the deceased prior to the date of incident. It was further submitted that in view of the facts and circumstances of the case, the appellant is entitled for the benefit of doubt.

(vi) The learned APP in her arguments supported the judgment of the Trial Court and urged before us that the present appeal may be dismissed and the conviction and sentence awarded by the Trial Court be confirmed.

(3.)IN order to deal effectively with the submissions advanced before us by Miss. Dhamale, the learned Counsel for the appellant and Mrs. Shinde, the learned APP, it would be useful to scrutinize minutely the evidence of the prosecution witnesses.
Pw -1 Dadaji N. Ahire is the panch -witness to the recovery of the cash of Rs.15100/ - and the clothes of the appellant at the instance of the appellant. Pw -1 Shri Ahire has stated that on 15.12.2004 Pw -13 API Shri Vidhate of Wadner Bhairav police station called him at Wadali Bhoyi where the appellant was present. The appellant thereafter put signature on the memorandum of statement which is at Exhibit - 23, and expressed his willingness to show the place where he had concealed the cash amount stolen from the person from the deceased. The appellant also showed his wiliness to show the place where he had kept the clothes which he wore on the day of incident. Thereafter the appellant took the police and the panchwitnesses to his house where the appellant opened iron box/kothi and pointed out a cash of Rs.15100/ - which were of Rs.100/ denomination. The accused also produced the clothes which were kept for drying on the rope in the courtyard of his house. There were some blood stains on the shirt and pant of the accused. Pw -13 API Shri Vidhate thereafter seized the clothes and the currency notes of Rs.15100/ -under seizure panchanama. The said seizure panchanama is at Exhibit 24 on the record.