T. K. CHANDRASHEKHARA DAS, J. - (1.) THIS appeal has been preferred by the State of Maharashtra against the acquittal of the respondent of offence punishable under Sec. 395 or Section 396 of I. P. C. passed by the Additional Sessions Judge, Thane on 31.8 . 1984 in Sessions Case No.35 of 1984.
(2.) THE respondent and other four persons stood charged for committing offence under Section 395 and 396 I. P. C. by committing the murder of one Chandulal Shah at9.45 p. m. on 11.10. 1983 on the road in the area known as Kanhere, Taluka Bhiwandi, District Thane. THE respondent committed the murder of Chandulal Shah and committed dacoity of property worth Rs. 29,980/- along with one calculator, 2 cheques, one mangalsutra and documents belonging to the complainant Shantilal Shah. According to the prosecution, one Harakchand Shah and Virchand Shah, who are brothers were running a grocery shop known as New Janta Stores at Kanhere, at Bhiwandi, District Thane. They were assisted by Shantilal Shah and deceased Chandulal Shah, who were relatives of the said two brothers. All the four are staying in a building known as Raman Patel Building about 500 ft. away from the shop. The grocery shop opens at 8.00 AM in the morning and closes at about 10. 00 p. m. daily. On 11.10. 1983, complainant Shantilal Shah and Virchand Shah were in the shop. Harakhchand was also in the shop till 8.00 p. m. At about 8 . 00 p. m. he went home and therefrom he went to different places along with his mother for offering condolences at two different houses. Shantilal, Chandulal and along with Virchand closed the shop at 9.45 p. m. On closing the shop, they also took cash amount of Rs. 29,980/- and kept in a leather bag along with a mangalsutra, one calculator, one kaccha cash book, bills and two cheques, one of Rs. 1000/- and another of Rs. 825/ -. The mangalsutra was weighing around one tola belonged to one Gangaram who had pledged it with the shop as he could not clear of his dues. All these articles were kept in a leather bag and the leather bag was kept in one cotton satchel. They closed the shop and Virchand gave that satchel to the complainant Shantilal. Virchand asked the complainant Shantilal and deceased Chandulal to go to home. Having said this, he himself proceeded to one hotel for making delivery of the goods. After Virchand left, complainant Shantilal and the deceased Chandulal proceeded towards their house Raman Patel Building. As both of them reached near the gate of the compound of the building, it is alleged by the prosecution that one auto rickshaw came from behind. One person while sitting in rickshaw, caught hold of the satchel which was in the hand of complainant Shantilal and started snatching it, Shantilal resisted. The person sitting in the rickshaw came out and Chandulal caught hold of him. During these movements, that person was through out holding the satchel which was in the hand of Shantilal. It is further alleged that the culprit assaulted Chandulal on his chest with a knife and snatched away the satchel. The same moment the culprit sat in the rickshaw and the rickshaw speeded away.
(3.) HAVING found Chandulal sustaining bleeding injuries on his chest and some one from the crowd which was collected there having advised Shantilal to bring a doctor, he went to Dr. Sadanand who was residing in the adjoining building and brought him to the spot. After leaving the doctor at the spot, Shantilal himself went to the house searching for Harakchand. Harakchand however, was not in the house. He, therefore, went to the house of one Devchand Nepasa where it was reported that Harakhchand had gone. But Harakhchand was not there. He, therefore, went back to the spot. From there, he took a bicycle and proceeded along with one Hitesh in search of Harakhchand. Harakhchand met him on way. He narrated the entire incident to Harakhchand. From therefore, all of them went to the spot. At that time, it seems that the matter was reported to the police by someone and police had already reached the spot. It is thereafter that Shantilal and Harakhchand went to Kumbharwada Police station and Shantilal lodged a complaint with the police. P. I. Soni was then attached to Kumbharwada Police station. At about 10. 00 p. m. of October 11, 1983 while he was in the police station, he received a telephone message from Bhoiwada police station that some person was assaulted with a knife in front of Payal talkies. Accordingly, he made a station diary entry and proceeded to the scene of offence. By that time, Chandulal was dead, and his body was kept on the spot covered with white sheet of cloth. P. I. Soni then drew inquest panchanama of the dead body (Exh. 25) and sent it for post mortem examination. He returned to the police station. Thereafter, he recorded the complaint of Shantilal at about 11. 20 p. m. and registered the offence at C. R. No. I 268/83. He kept a watch at the scene of offence through out the night. The next morning he drew panchanama of the scene of offence which was shown to him by Shantilal (Exh. 26 ). At the time of drawing panchanama of the scene of offence he also attached blood stained mud and the clothes of complainant which were also stained with blood (Exh. 28 ). On the very same day, he recorded the statements of some six witnesses and kept a search for the accused. He then sent the blood stained mud to the Chemical Analyst under his forwarding letter dt. 13.10. 1983. In pursuance of the order from the D. C. P. he handed over the charge of investigation to P. I. Mirokhe.;