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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL No.166/2013
Sunil s/o Ramesh Sakharkar,
aged about 37 years, Occ. Nil,
R/o Amatha Ward, Padoli (Morwa),
Tq. Dist. Chanddrapur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through,
Police Station Officer, Ghuggus,
Dist. Chandrapur. ...RESPONDENT
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Shri S. P. Bhandarkar, Advocate for appellant.
Shri V. A. Thakare, Additional Public Prosecutor for respondent.
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AND
CRIMINAL APPEAL No.215/2013
Shehnaj Sheikh Salim Sheikh,
aged about 45 years, Occ. Household,
R/o Tadoli, T Point (Nago Redlawar Dhaba)
Tq. Dist. Chanddrapur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through,
Police Station Officer, Ghuggus,
Dist. Chandrapur. ...RESPONDENT
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Shri R. M. Daga, Advocate for appellant.
Shri V. A. Thakare, Additional Public Prosecutor for respondent.
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AND
CRIMINAL APPEAL No.406/2013
Nago Rushi Redlawar,
aged about 52 years, Occ. Transport Business,
R/o Bapat Nagar, Chandarpur .....APPELLANT
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...V E R S U S...
The State of Maharashtra through,
Police Station Officer, Ghuggus,
Dist. Chandrapur. ...RESPONDENT
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Shri R. M. Daga, Advocate for appellant.
Shri V. A. Thakre, Additional Public Prosecutor for respondent.
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CORAM:- B. P. DHARMADHIKARI &
V. M. DESHPANDE, JJ.
DATED :-
FEBRUARY 29, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. These three appeals, since arise out of the judgment and order of conviction passed by the learned Sessions Judge, Chandrapur in Sessions Case No. 158/2011 dated 31.01.2013, they are decided by this common judgment.
2. By the impugned judgment, these three appellants are convicted by the learned Judge of the Court below for the offence punishable under Section 302 read with Section 34 of the IPC and all of them are directed to suffer imprisonment for life and to pay a fine of Rs.25,000/- by each of them and in default to suffer rigorous imprisonment for one year.
Criminal Appeal No.166/2013 is filed by accused no.2-Sunil Ramesh Sakharkar. Criminal Appeal No.215/2013 is preferred by ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 3 apeal166.215.406.13.odt accused no.3-Shehnaj Shaikh Salim Shaikh, whereas Criminal Appeal No. 406/2013 is filed by accused no.1-Nago Redlawar.
These appellants are convicted for the homicidal deaths of one Chandu Kamble and his wife Sunita Kamble.
3. The prosecution case in nutshell is as under.
Pitambar Jadhav, Police Sub Inspector who is examined by the prosecution as its witness No.12 was serving at Ghuggus Police Station. On 17.08.2011, he was on his duty at outpost Padoli of Ghuggus Police Station jurisdiction. At 7.30 p.m. on the said date, it was informed telephonically to him that the accused no.1-Nago Redlawar has caused injuries to two persons by means of knife. It was also informed to him that the incident has occurred near Shruti T-
point.
On getting such an information, he along with police personnel reached to the spot by police jeep. Noticing their presence, Premshankar Jha (PW2) and Ku. Papita (PW4) came near to him from the railway track.
Pitambar Jadhav (PW12) noticed that Chandu Kamble and his wife were laying in the injured condition at about 10 ft. distance from Shruti T-point dhaba. He immediately put them in the police jeep along with Premshankar Jha and Papita and proceeded to the ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 4 apeal166.215.406.13.odt Government Hospital. Before his departure to the hospital from the spot, PSI Jadhav gave an intimation to Police Station Officer, Police Inspector Ajit Lakde (PW11).
On reaching to the hospital, the injured persons were admitted for medical assistance. Sunita Kamble was declared 'brought dead'. Though, the medical treatment for about 45 minutes was given to Chandu Kamble, he too succumbed to his injuries. In the meanwhile, PI Lakde reached to the hospital.
4. Premshankar Jha (PW2) lodged the oral report. The said is at Exh.-30 on the record. It was lodged on 17.08.2011 itself. The said report was reduced into writing as per his say and the crime was registered against the appellants for the offence punishable under Section 302 read with Section 34 of the IPC vide Crime No. 100/2011.
The printed FIR is at Exh.-31.
The FIR discloses that the first informant was running a Dhaba of accused no.1 Nago Redlawar on rent. Nago Redlawar is having his house adjacent to the dhaba and in the said house, truck driver of Nago Redlawar that is the deceased Chandu Kamble was residing on rent along with his deceased wife Sunita and daughter Papita and his son.
It is stated in the FIR that on the day of the incident, at ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 5 apeal166.215.406.13.odt about 7.30 p.m., accused no.1-Nago came to dhaba from the side of Padoli and made inquiries about the deceased Chandu. In the meanwhile, the deceased Chandu also came there on motorcycle. He parked his motorcycle. Thereafter, the deceased Chadu demanded his three months salary from Nago Redlawar. That time, accused no.1-
Nago Redlawar replied that he should immediately vacate the room and thereafter gave a slap to Chandu resulting into his fall on the ground. When Chandu stood, that time the son in law the accused no.1 i.e. accused no.2 Sunil Sakharkar, rushed to the spot from Pan thela and then caught hold of the hands of Chandu. Thereafter, immediately, Nago Redlawar dealt knife blows on Chandu. Chandu raised an alarm and cried for help. Due to that, his wife the deceased Sunita came there. She was followed by accused no.3-Shehnaj and when Sunita was trying to save Chandu, at that time, Shehnaj caught hold hairs of Sunita and that time Nago inflicted knife blows on Sunita. In the meanwhile, the first informant tried to intervene. On that, Nago Redlawar also tried to make attack on him due to which Premshankar Jha also received injuries on his hands. At the time of incident, Papita was also standing on the spot. Accused no.1 and accused no.2 chased Premshankar Jha. That time, one Sanju Soni who was also present there, asked to Premshankar to take away Papita and, therefore, Premshankar along with Papita ran towards the railway ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 6 apeal166.215.406.13.odt crossing. From there, Premshankar gave intimation to police on telephone and on arrival of police to the spot, Premshankar along with Papita came near them.
5. Ajit Lakde (PW11) took the investigation. He directed Pitambar Jadhav (PW12) to do the inquest on the dead bodies.
Accordingly, inquest was done in presence of the pancha witness Prakash and another witness Anil Raikwar. The inquest panchanama of Chandu is at Exh.23 whereas inquest panchanama of Sunita is at Exh.-24. The Investigating Officer, PI Lakde noticed injury on the first informant Premshankar Jha and, therefore, he was sent for medical examination on the requisition letter Exh.-66. He also seized his clothes under seizure memo Exh.-50. He arrested all the three accused persons on 18.08.2011 under Ehx.56 to 58. At the time of arrest, the Investigation Officer noticed blood stains on the clothes of accused Nago. The clothes were therefore seized in presence of Pancha witness Kishor Sadahnkar (PW6). The said seizure memo is at Exh.-47. At the same time, the clothes of accused no.2-Sunil were also seized under seizure memo Exh.-48. All the seized articles were duly sealed in presence of Kishor (PW6) On the morning of 18.08.2011, the Investigating Officer in presence of panchas drew the spot panchanama Exh.-54.
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6. During the course of police custody on 19.08.2011, accused no.1-Nago Redlawar made a disclosure statement in presence of the prosecution witness no.5-Pranit Tawade and he agreed to show the place where the weapon of the offence is concealed. The admissible portion of the statement of accused no.1-Nago is at Exh.-44. The weapon was seized at the behest of accused no.1 from the place shown by the accused no.1 and it was seized and sealed in presence of Pranit Tawade, the panch witness and the said recovery memo is at Exh.44-A.
A motorcycle was also seized on the memorandum statement of accused no.2-Sunil. The memorandum statement is at Exh.-45 and the recovery panchanama of the said motorcycle is at Exh.45-A.
The Investigating Officer also recorded statements of witnesses. All the articles seized during the course of investigation were sent to the Chemical Analyser under the requisition Exh.-77. The statement of witnesses were also recorded under Section 164 of the Code of Criminal Procedure by Mr. Uday Joshi (PW8), the learned Magistrate. After completion of the investigation, the Investigating Officer filed the charge-sheet before the court of law.
7. After the case being committed to the Court of Sessions, the learned Sessions Judge on 14.06.2012 framed charge against the ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 8 apeal166.215.406.13.odt accused persons for the offence punishable under Section 302 read with Section 34 of the IPC.
8. In order to bring home the guilt of the accused persons, the prosecution has examined in all 12 witnesses. All the accused persons' statements under Section 313 of the Cr. P. C. were also recorded. The accused persons also examined two witnesses as defence witnesses.
The learned Sessions Judge, on appreciation of the prosecution case and after scanning the evidence brought on record, found that all the accused persons are guilty and consequently passed the impugned judgment and order of conviction and sentence.
9. Before this Court, accused no.1-Nago Redlawar is represented by learned counsel Mr. S. V. Sirpurkar, accused no.2-Sunil Sakharkar is represented by learned counsel Mr. S. P. Bhandarkar and accused no.3-Shahnaj was represented by learned counsel Mr. R. M.
Daga. In all these three appeals, State was represented by Shri V. A.
Thakre, Additional Public Prosecutor. With the able assistance of all these counsel, we have examined the entire record and proceedings for reappreciation of the prosecution case. All the learned counsel submitted that the respective appellants cannot be held guilty as found by the Court below and prayed for their acquittal.
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10. The learned counsel for the accused no.1, though made feeble attempt for securing acquittal, his submissions mainly revolve around for lesser punishment by submitting that the offence in question can be scaled down to Section 304-I of the Indian Penal Code.
In order to buttress his point, he kept reliance on various judgments of the Hon'ble Supreme Court. According to him, the incident in question has occurred in a spur of moment. He submitted that both the deceased suffered single injury and, therefore, it is fit case wherein this Court should scale down the offence to Section 304-I of the IPC.
11. As per the submissions of the learned counsel Shri Bhandarkar, no specific role of assault is attributed against accused no.2-Sunil and the only role that is attributed to him is that he caught hold of the hands of the deceased Chandu and, therefore, he cannot be held responsible for his death and it is only Nago, accused no.1 who is responsible for the knife blow. Shri Daga, the learned counsel for accused no.3-Shahnaj also reiterated the said arguments by submitting that the role against Shahnaj is that she caught hold of hairs of the deceased Sunita. It is also submitted on behalf of the learned counsel that the prosecution has not proved that Shehnaj is wife of accused no.1 Nago Redlawar as claimed by the prosecution.
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12. Per contra, the learned Additional Public Prosecutor Mr.Thakre vehemently submitted that the case of the prosecution is fully proved in view of the evidence of the three eye witnesses namely;
Premshankar Jha (PW2), Mahendrasingh Randhava (PW3) and Papita (PW4). He also submitted that there is a corroborative piece of evidence in the nature of the scientific evidence. He pointed out that human blood stains were found on the clothes of Nago, accused no.1.
He also submitted that the weapon that was seized at the instance of appellant-Nago was also stained with human blood. He also invited our attention to the fact that the clothes of Premshankar Jha (PW2) were also stained with blood. He pointed out that accused no.3-
Shahnaj has admitted her presence on the spot. He replied to the submissions of the learned counsel Mr. Daga, which was in consonance with the statement of the accused no.3 under Section 313 of the Cr.P.C. As per her statement, Shahnaj was the eye witness and she is falsely implicated in the crime. It is the submission of learned A.P.P.
that it is the figment of imagination of accused no.3-Shahnaj. The learned A.P.P. Mr. Thakare submitted that there was no reason for the prosecution to falsely implicate the said accused-Shahnaj in the crime.
He, therefore, submitted that the appeals be dismissed.
13. Dr. Nagsen Sakhare (PW10) was the Medical Officer at ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 11 apeal166.215.406.13.odt General Hospital, Chandrapur. The evidence of Dr. Sakhare, discloses that he has conducted more than 250 post mortems.
On 18.08.2011, dead bodies were referred to him for autopsy. The autopsy surgeon Dr. Nagsen Sakhare found following external injuries on the dead body of Chandu Kamble:
"Puncutred incised wound, elliptical in shape, located at 9th and 10th ribs, left side at anterior axillary line to mid-axillary line. Vertically oriented of size 6 cm long and 3 cm wide of skin surface.
Track is about 13 cm deep, evenly cut, directed from left to right, slightly downward, track perforated abdominal wall and penetrates the spleen."
On internal examination, he noticed the following injuries:
"Fracture 9th and 10th ribs at mid axillary line. Perforated abdominal wall left side. Perforated peritoneum left side with dark red brown coloured blood and blood clots present of about 1500 to 1800 m. Laceration over convex surface of spleen (penetrated laceration of spleen)."He proved the post mortem report of Chandu Exh.-71.
According to the autopsy surgeon, internal and external injuries were corresponding to each other.
Dr. Sakhare also performed post mortem on the dead body of Sunita Kamble and, he noticed the following external injuries on her dead body:
::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 :::12 apeal166.215.406.13.odt "Punctured incised wound, elliptical in shape located 2 cm. below xyphysternum at epigastric region 2 cm lateral to mid line, vertically oriented of size 5 cm long and 3 cm wide of skin surface.
Track of wound is about 10-12 cm deep. Evenly cut, directed from front to back slightly downward. Track perforated abdominal wall and penetrates liver and stomach."
He also noticed following internal injuries:
"Performated abdominal wall of epigastric region. Peritoneum was perforated. Dark red brown coloured blood and blood clots present of about 1200 to 1500 ml. Perforation of greater curvature and fundus of stomach. Laceration over right superior-anterior border of liver."
The doctor proved the post mortem report of the deceased Sunita and it is at Exh.-72. According to Dr. Sakhare, both the deceased died due to injury to the vital organs and according to him, the injuries were due to the sharp weapon like knife.
14. In view of the post mortem report and the evidence of Dr.Sakhare, it is established by the prosecution that the couple died by homicidal death.
Dr. Sakhare also examined the knife which was referred to him by the Investigating Officer. The report of the examination of ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 13 apeal166.215.406.13.odt weapon is duly proved by Dr. Sakhare and it is at Exh.-74. The said report shows that the weapon is having blade of 19 cm. in length, 4 cm. in breadth and having thickness of 3 cm. apart from having the handle of 22 cm. Dr. Sakhare has also expressed his opinion that the weapon which was sent to him is responsible for the injuries as noticed by him while conducting the post mortem. After examination of the weapon in a sealed condition, the weapon was returned to the Investigating Officer which was ultimately sent to the Chemical Analysis for its examination.
15. Three witnesses have witnessed the actual assault on both the deceased. They are Premshankar Jna (PW2), Mahendrasingh Randhava (PW3) and Papita (PW4).
Premshankar (PW2) is also the first informant. From the FIR and from his evidence and from the spot panchanama, it is clear that the incident in question has occurred in front of the dhaba run by Premshankar, which is known as Shruti T-Ponit Dhaba. The incident in question has occurred at 7.30 p.m. Therefore, the presence of Premshankar (PW2) is the most natural. The evidence of the eye witness Premshankar and Mahendrasingh is attacked by the defence counsel that these two witnesses are introduced by the prosecution to suit its case at the behest of one Gyani Sheth. According to them, from ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 14 apeal166.215.406.13.odt the line of cross-examination, it is really doubtful that these witnesses are independent witnesses.
The evidence of these two witnesses are also attached on the ground that there is a variance in the version of these two witnesses on the point of reaching of accused no.1 Nago Redlawar on the motorcycle on the spot.
16. The evidence of Premshankar Jha shows that when he was present at the Dhaba, accused Nago came there and he made inquiries with him regarding the deceased Chandu. At that time, the deceased Chandu came there on a two wheeler and he demanded salary of three months from the accused no.1-Nago Redlawar. At that time, accused Nago slapped Chandu since he demanded the salary and also asked Chandu to vacate the premises, which is adjacent to the dhaba in which Chandu was residing. The evidence of Premshankar discloses that thereafter he wiped off a big knife from his waist and at that time accused no.2-Sunil ran towards the spot from the nearby pan thela and he caught hold of the deceased Chandu thereafter Nago gave the knife blows. Immediately, wife of Chandu reached to the spot and she raised shouts for help and at that time the accused no.3 caught hairs of Sunita from backside and then Sunita was assaulted by knife by Nago Redlawar.
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17. As per the version of Premshankar Jha (PW2), at the time of the incident, when he tried to intervene, the accused Nago Redlawar moved the knife in his direction resulting into the minor injuries on his body.
As the Investigating Officer noticed injury on the person of Premshankar, he was referred to the Doctor. Premshankar was duly examined by Dr. Sulbhewar (PW9), who gave injury certificate, which is at Exh.-67. Also, the clothes of Premshankar, which were stained with blood were also seized under the seizure memo Exh.-50 which were sent to the Chemical Analsyser and the report Exh.-82 shows the presence of the blood on the clothes of Premshankar Jha (PW2). The injury on the person of Premshankar lends credence about the version of this witness. Further, in a lengthy cross-examination, the core of the testimony of the evidence of Premshankar about actual assault on both the deceased has remained unshaken. It is also brought on record that in front of Shruti T-Point, there is an electric pole and it is also having its reference in the spot Panchanama Exh.54.
18. The witness Mahendrasingh Randhava (PW3) has also witnessed the incident in question from the shop of repairing of tyre near dhaba. The evidence of Mahendrasingh (PW3) and the evidence ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 16 apeal166.215.406.13.odt of Premshankar (PW2) corroborates each other on the actual assault.
His evidence has also remained unshattered at the hands of the learned cross-examiners.
19. Another witness is Ku. Papita (PW4). She is the daughter of the unfortunate couple. Before administering oath to this witness, the learned Judge of the Court below found that the age of this child witness is between 14 years and she understands the sanctity of oath and, therefore, oath was administered to her. Her evidence discloses that her house is adjoining to the dhaba. The house is owned by accused Nago Redlawar. As per her evidence when she was laying in the courtyard of the house near dhaba at that time accused Nago came on motorcycle and he asked her father to vacate the room immediately. Thereafter, when her father demanded the salary for three months, accused Nago gave a slap and at that time Sunil, who is referred to as son in law of Nago, had caught hold of hands of her father and, thereafter, Nago dealt with knife blows. Her evidence is also in conformity with the evidence of Premshankar (PW2) and Mahendrasingh (PW2) in respect of the assault on her mother. She has identified all the three accused persons during her evidence as identified by other two witnesses. Her evidence is attacked mainly on the ground that she being the daughter of the deceased, she is an ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 17 apeal166.215.406.13.odt interested witness and, therefore, her evidence be discarded. We are afraid of accepting the said submission made by the learned counsel for the defence especially when there is nothing in the cross-
examination to disbelieve this witness on the point of assault.
Curiously, only to this child witness, the suggestions are given by the accused no.1 about the conversation between Nago and Chandu that the deceased Chandu was having sexual relations with his wife and he also questioned the potency of Nago and, therefore, Nago has made a murderous assault on him. These suggestions are stoutly denied by this witness.
20. According to the leaned counsel for accused no.3-Shahnaj, it is not established by the prosecution that she is wife of Nago. The evidence which is available shows that she was residing in the house situated behind the dhaba and the house is owned by Nago Redlawar.
From the evidence, it is clear that she was staying with Nago.
Therefore, there is nothing unusual on the part of the prosecution if they are referring Shahnaj as the wife of Nago. Further, the evidence of Mohd. Ansari (DW1) shows that though he is not aware about the relations between Shahnaj and accused Nago but they resided in one house.
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21. Admittedly, both the deceased were actually assaulted by accused no.1-Nago. From the prosecution evidence it is clear that Nago demanded vacation of the room and upon that when Chandu demanded his three month's salary, he was assaulted by means of knife. It is established on record that Nago took out a big knife from his waist. Looking to the nature of the injury, as observed by the Doctor and looking to the fact that when Sunita tried to save her husband that time she was assaulted by Nago, we are of the firm view that no leniency can be shown to the accused Nago by scaling down the offence from Section 302 to Section 304-A of the IPC as submitted by the learned counsel for the accused no.1-Nago.
22. In paragraph 22 of reported judgment in the case of Goudappa and others ..vs.. State of Karnataka (2013) 3 SCC 675, the apex court has observed as under:
"22. We have bestowed our consideration to the rival submissions and the submission made by Ms. Shenoy commend us. Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the Indian Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 19 apeal166.215.406.13.odt criminal act. The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Indian Penal Code thus lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence.
Therefore, if the act is the result of a common intention that every person who did the criminal act share, that common intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature and injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration."
23. Though, actually the assault is not attributed to accused no.2-Sunil and accused no.3-Shahnaj, from the evidence it is clear that ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 20 apeal166.215.406.13.odt accused no.3-Shahnaj came to the spot at the time of incident. In fact, this accused has also admitted her presence on the spot in her statement under Section 313 of the Cr. P. C. before the Court below.
Though she claims that she was, in fact, an eye witness, there is nothing on record to show that she is having any animosity with the police department and, there is any reason for the police to falsely implicate her. The evidence of the three eye witnesses shows that when the deceased Sunita tried to save her husband, that time she was pulled away by Shahnaj by pulling her hairs from the backside and at that time, Sunita was assaulted. It is established on record that she resides with Nago and Nago was demanding vacation of the house.
Further, the evidence does not show that she tried to prevent Nago from making assault. On the contrary, when Sunita was trying to save her husband, she was prevented by Shahnaj.
Further, accused no.2-Sunil caught hold of the deceased Chandu from backside and that has facilitated Nago to make assault on the deceased. It is established on record that initially a slap was given by Nago due to which Chandu fell down on the ground. The prosecution case clearly shows that when Chandu stood up, that time he never made any attempt to retaliate upon Nago. However, at that time, accused no.2-Sunil reached to the spot and immediately caught hold of his hands and thereafter knife blow was given to him. This ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 21 apeal166.215.406.13.odt clearly shows that accused no.2-Sunil is vicariously liable on the touchstone of Section 34 of the IPC.
24. The FIR is immediately lodged. Lodging of the FIR promptly rules out the false implication of the accused persons. All the accused persons are specifically named in the FIR. The role played by each of the accused is specifically mentioned in the FIR. The evidence of the eye witness is free from all exaggerations and they have given the actual account of the incident before the Court. There are no reasons to disbelieve these three eye witnesses. In our view, the learned Judge of the Court below has rightly believed the evidence of these eye witnesses. Further, there is also corroboration in the nature of scientific evidence i.e. the Chemcial Analyser's report, which shows that the knife, which was recovered at the discovery of the accused no.1 was having human blood. The clothes of Nago are also stained with human blood and no explanation is offered for the same. Though, no blood was found on the clothes of accused no.2-Sunil, it is hardly material since according to the prosecution witnesses, he caught hold of Chandu from back and Chandu was attacked in his stomach by Nago. Merely because the clothes of Shahnaj were not seized during the course of investigation that by itself does not render the entire prosecution case as untrustworthy. At the most, it will be a lapse on ::: Uploaded on - 04/05/2016 ::: Downloaded on - 31/07/2016 07:06:36 ::: 22 apeal166.215.406.13.odt the part of the Investigating Officer and for such lapse, the justice cannot be made a victim.
25. On reappreciation of the entire evidence as brought on record by the prosecution, we see no reason to interfere with the judgment and order of the learned trial Court. That leads us to pass the following order.
ig ORDER (1) Appellant Nago Rushi Redlawar (accused no.1) and appellant Sunil Ramesh Sakharkar (accused no.2) are rightly found guilty for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code insofar as murder of Chandu Kamble and his wife Sunita Kamble is concerned. Consequently, appeals filed by them are dismissed.
(2) Appellant Shehnaj (accused no.3) is found guilty of offence punishable under Section 302 read with Section 34 of the Indian Penal Code for murder of Sunita wife of Chandu Kamble. However, her conviction for murder of Chandu is quashed and set aside. Consequently, her appeal is also dismissed.
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(3) Muddemal property be dealt with as directed by
the Sessions Court after expiry of period of appeals.
JUDGE JUDGE
kahale
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