(1.) This Appeal is directed against the Judgment and order dated 4th July 2013, passed by the Sessions Judge, Latur in Sessions Case No.26 of 2012 thereby convicting accused/Appellant Amin Hiraji Tamboli for the offence punishable under Section 302 of the Indian Penal Code (for short "I.P. Code") and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1000/ and in default to suffer rigorous imprisonment for two months.
(2.) The prosecution case, in brief, is as under:
A) At the material time, the accusedappellant was a driver on a truck bearing No.MH17T9856, owned by Pandurang Bhawar, resident of village DevDaithan, TqShrirampur, DistAhmednagar, who was the transporter by occupation.
On the said truck deceased Mahavir Prabhakar Waghmare was a cleaner.
B) On 22nd August 2011, the accused as a driver, and the deceased, as a cleaner, on the truck bearing aforestated number, left village DevDaithan, TqShrirampur, DistAhmednagar. On the same day, in the evening, the truck was loaded at Ahmednagar and then the accused and the deceased transported the goods to Solapur. At Solapur, the truck was unloaded and then it was taken to the Office of Hindustan Transport, at Solapur. At Solapur, the truck was loaded with cement bags, which were to be delivered at village Yedshi and village Kallam, in Osmanabad District.
C) It is alleged that after loading the truck with cement bags at Solapur, the accused and the deceased proceeded to village Yedshi, in Osmanabad District. On 25th August 2011, in the morning, the truck was partly unloaded by delivering the cement bags to Nanasaheb Pawar, who does the business of building materials, under the name and style "Yeshwant Traders" at Yedshi.
D) It is the further case of the prosecution that while the truck was being unloaded at Yedshi, the accused and the deceased went to country liquor shop. After some time, they returned back to the truck. Nanasaheb Pawar, to whom the bags of cement were delivered, issued an acknowledgement of the receipt of the cement bags to the accused.
Thereafter, the accused and the deceased, in the said truck, left village Yedshi, DistOsmanabad, for the delivery of the remaining cement bags to a trader at village Kallam, DistOsmanabad.
E) It is alleged against the accused that he wanted to sell remaining cement bags, instead of its delivery to a trader at Kallam, DistOsmanabad and, as such, he took the truck loaded with cement bags to his native place village BhiseWagholi, Tq. & DistLatur. It is further alleged that the deceased Mahavir, who was a cleaner on the truck, objected the sale of the cement bags and, therefore, the accused apprehended that the deceased would disclose his plan of selling of the cement bags to his employer and, as such he decided to kill the deceased.
F) It is further alleged that the accused took the truck, loaded with cement bags, to K.T. Weir, which is outside village BhiseWagholi and parked the said truck near the K.T. Weir.
Thereafter, the accused in between 25th August 2011 and 26th August 2011, is alleged to have hit the deceased by iron rod on his head, as a result, the deceased sustained a depressed fracture over right parietal region. The deceased, after sustaining head injuries, died on the spot. The accused threw the dead body of the deceased in weir water with an intention to destroy or cause disappearance of the evidence of murder.
G) The prosecution has alleged that the accused, after causing death of the deceased, wanted to sell the cement bags but wheels of the truck rooted into the mud or mire, and as such the accused could not move the truck to a suitable place for sale of cement bags.
H) The accused, after the incident, absconded. His employer, from 25th August onwards, contacted him on the cellphone, but the cellphone of the accused was switched off. In the meantime the office of Hindustan Transport, at Solapur, informed the employer of the accused that the accused did not deliver the cement bags at village Kallam, DistOsmanabad. Therefore, on 26th August 2011, the owner of the truck, Pandurang Bhawar, his two sons, namely Sunil and Sandip and their neighbour, namely Ashok Jadhav, went to village Kallam, DistOsmanabad, in order to meet the proprietor of Dnyaneshwar Traders, to whom the remaining cement bags were to be delivered. On enquiry with the proprietor of Dnyaneshwar Traders, they came to know that the truck, loaded with cement bags, did not come to his shop, as such they all went to police station, Dhoki and Yermala, DistOsmanabad, and lodged the report that the truck driver/accused and the cleaner/deceased went missing.
I) As the accused is the resident of village BhiseWagholi, Tq. & DistLatur, the owner of the truck, his two sons and their neighbour went to village BhiseWagholi. In the evening of 26th August 2011, they reached village BhiseWagholi.
At that time, they noticed religious function in the temple and, therefore, they went to the temple and disclosed the purpose of their visit to the villagers. One Yogiraj Sakhare, resident of village BhiseWagholi and the chairman of the committee constituted for dispute free village, informed them that one truck, loaded with cement bags, for past two days had been stationed near the K.T. Weir, at village BhiseWagholi. As such they all went to the K.T. Weir and they found the truck loaded with cement bags, stationed near the K.T. Weir. The owner of the said truck identified the truck as belonged to him. While the truck was being inspected, they all noticed the dead body of a male person floating in the K.T. Weir. So they decided to report the incident to police station, Murud.
J) On 26th August 2011, Yogiraj Sakhare lodged the written report in police station Murud that the dead body of an unknown person was floating in the K.T. Weir. On 26th August 2011, in the evening the dead body was taken out by the police which was identified by Pandurang Bhawar, employer of the accused and deceased, and his two sons, to be that of Mahavir. The brother of deceased Mahavir was informed about the death of Mahavir.
K) On 27th August 2011, Jagannath Waghmare, brother of the deceased, in the noon reached police station, Murud. The dead body of the deceased was shown to his brother, who identified the same to be of his brother Mahavir Waghmare. Then the autopsy was conducted.
L) Dr. Jakera Kelgaonkar who conducted the postmortem over the dead body of the deceased, opined that the deceased died because of sudden cardio respiratory arrest due to head inujury.
M) On the same day, Jagannath Waghmare, brother of the deceased, lodged the report against the accused that he committed murder of Mahavir.
On the basis of the report, the offence punishable under Sections 302, 201 of the I.P. Code came to be registered against the accused. The Investigating Officer investigated the crime and on completion of investigation, submitted the chargesheet for the offence punishable under Section 302, 201 of the I.P. Code, before the Court of C.J.M., Latur. The learned C.J.M., Latur committed the case to the Court of Sessions at Latur, as the offence punishable under Section 302 of the I.P. Code is exclusively triable by the Court of Sessions.
N) The charge for the offence punishable under Sections 302, 201 of the I.P. Code was framed against the accused. The charge was read over and explained to the accused in verna-cular. The accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial.
(3.) After recording the evidence and conducting full fledged trial, the trial Court convicted accusedappellant Amin s/o Hiraji Tamboli for the offence punishable under Section 302 of the I.P. Code and sentenced him to suffer imprisonment for life and to pay a fine, as aforestated. Hence this Appeal by the accused Amin.;