Appaji @ Narendra Marotrao Gade ... vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 9604 Bom

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                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR.

                            CRIMINAL APPEAL NO. 65 OF 2017

(1) Appaji @ Narendra Marotrao Gade 
      C-9315 detained in Central Prison, Nagpur,
      Aged about 45 years, Occu. :- Driver, 
      R/o Katpur, Taluka - Morshi, 
      District - Amravati. 

(2) Kailas Rameshwar Rathod
      C-9313 detained in Central Prison, Nagpur,
      Aged about 23 years, Occu. :- Driver, 
      R/o Ranawadi, Post Talegaon, Taluka - Arvi, 
      District : Nagpur.                                       ... Appellants

             VERSUS

State of Maharashtra, 
Through P.S.O. Khaparkheda, 
Police Station Aheri, Distt : Gadchiroli.                                                   ... Respondent
-------------------------------------------------------------------------------------------------
Shri R. M. Daruvala,  Advocate for the appellants (appointed)
Shri N. S. Rao, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 27/11/2017.

Date of pronouncing the judgment : 14/12/2017

Judgment (Per : M.G. Giratkar, J)

Both the appellants challenged their conviction for the

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offences punishable under Sections 302, 324 and 393 read with Section

34 of the Indian Penal Code in Sessions Case No. 52/2014 passed by the

Sessions Judge, Gadchiroli by judgment dated 4-5-2016.

2. The case of the prosecution against the appellants in short

is as under.

(i) Mahadev Kathane, Manohar Korde and deceased Ruprao Korde

started their business of sale - purchase of cotton. They started their

business from the year 2014. They used to take truck on hire from

Nagpur and used to go to Sironcha. They used to purchase cotton at

Sironcha and sell it at Narkhed and Pandhurna. Since last one month

from the time of incident, they used to hire truck of Mohan Road

Careers. Accused Kailash Rathod and Appaji were the drivers on the

said truck. They always used to go with the complainant Manohar

Korde and his companions to Sironcha with their truck. They were

knowing that deceased Ruprao Korde, Mahadev Kathane and Manohar

Korde were always having money for purchasing cotton.

(ii)             On 31-3-2014, complainant and his companions purchased

cotton   at   Sironcha.     They   sold   cotton.     Thereafter,   they   hired   truck





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no. MH-40-N-6688. In the night of 2-4-2014, they started to go to

Sironcha. Accused Appaji (driver) came at about 10.00 p.m.

Complainant Manohar Korde, deceased Ruprao Korde and Mahadev

Kathane started their journey in the truck. They were having

Rs. 3.50 Lakhs. All three were sitting in the lorry. The said truck

reached Nagpur at about 12.00 in the night.

(iii) Accused no. 2 Kailas seated in the cabin of the truck. He was

having one plastic bag. In the night of 3-4-2014, they started journey

towards Sironcha. When said truck reached Ghot turning point at about

3.30 a.m., accused no. 1 stopped the truck.

(iv) Accused no. 1 Appaji, accused no. 2 Kailas Rathod, deceased

Ruprao Korde and Mahadev Kathane alighted from the truck. They get

the tea. The complainant was sitting in the lorry. Accused no. 1,

accused no. 2 and deceased Ruprao seated in the cabin of the truck.

Mahadev Kathane seated on the backside of the truck along with the

complainant Manohar Korde.

(v) At about 4.00 a.m., Manohar Korde and and Mahadev Kathane

heard the cry of deceased Ruprao Korde in the cabin. They pipped from

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the glass of the cabin. Then they found that accused no. 2 Kailas was

stabbing the deceased by knife. Deceased was resisting the accused

no. 2. Mahadev Kathane and Manohar Korde were requesting Appaji

(accused no. 1) to stop the truck but he did not stop the truck. Accused

Kailas searched the person of deceased but he did not find any money

with deceased. Thereafter accused Appaji slow down the speed of

truck. Accused Kailas entered in the lorry of the truck. He threw chilly

powder towards the complainant and Mahadev Kathane. Accused

Kailas directed Mahadev Kathane and the complainant to handover all

the money otherwise he would kill them.

(vi) Mahadev Kathane and the complainant refused to give money.

Accused Kailas Rathod taken out knife and started stabbing Mahadev

Kathane. Mahadev Kathane and Manohar resisted accused Kailas.

Thereafter Kailas jumped from the truck and ran away with knife.

Accused Appaji also jumped from the truck and ran away. Thereafter

complainant and Mahadev Kathane saw the deceased in the cabin of

truck lying in dead condition. They went to APMC Naka at Village Bori.

With the help of villagers, Mahadev Kathane was taken to the hospital

for medical treatment and Manohar Korde was taken to the Police

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Station. Manohar Korde lodged the report. Crime was registered by

Police Inspector Shri Dhawle.

(vii) Mahadev Kathane was serious. He was sent to Nagpur but

looking to his seriousness, he was sent to Mumbai. Mahadev Kathane

was in JT Hospital, Mumbai for about 25 days as a indoor patient.

(viii) On the report of Manohar Korde, crime was registered

against the accused Appaji and Kailas. During the investigation,

Investigating Officer suspected complainant about his conspiracy,

therefore, he was made accused. Accused nos. 1 and 2 were arrested.

Accused no. 1 shown clothes, those clothes were seized as per seizure

panchanama, Exhibit 36. Accused no. 2 Kailas gave memorandum

statement to show knife used in the crime. Accused no. 2 shown the

knife. It was seized. Investigating Officer recorded the statements of

witnesses and after complete investigation, submitted charge-sheet to

the Court of Judicial Magistrate First Class, Aheri. As offences were

exclusively triable by the Sessions Court, therefore, case was committed

to the Court of Sessions.

(ix) Charge was framed against the accused at Exhibit 12. Same was

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readover and explained to the accused. Accused pleaded not guilty and

claimed to be tried. Their defence appears to be of total denial.

(x) The prosecution has examined following witnesses.

(1) P.W. 1 Pravin Laxmanrao Balpande (Exhibit 27) (2) P.W. 2 Mahadev Pandurang Kathane (Exhibit 30) (3) P.W. 3 Panjab Nathhuji Korde (Exhibit 31) (4) P.W. 4 Sunil Pundlikrao Navghare (Exhibit 32) (5) P.W. 5 Laxminarayan Nanayya Raut (Exhibit 34) (6) P.W. 6 Ravi Ratnayya Nelkudri (Exhibit 37) (7) P.W. 7 Govind Rajkumar Bishwas (Exhibit 42) (8) P.W. 8 Gajanan Wamanrao Tule (Exhibit 46) (9) P.W. 9 Heera Rupraoji Korde (Exhibit 49) (10) P.W. 10 Santosh Maranna Padala (Exhibit 50) (11) P.W. 11 Subhash Murlidhar Dhawle (Exhibit 51) and (12) P.W. 12 Pandurang Tukdyadas Ramteke (Exhibit 59)

(xi) After hearing the prosecution and defence, learned trial

Court convicted the accused nos. 1 and 2 i.e. appellants for the offences

punishable under Sections 302, 324, 394 read with Section 34 of the

Indian Penal Code. Accused nos. 1 and 2 are convicted for the offence

punishable under Section 302 read with Section 34 of the Indian Penal

Code and sentenced to suffer imprisonment for life each and to pay fine

of Rs. 2,000/- each, in default to suffer R. I. for three months each.

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They are convicted for the offence punishable under Section 324 read

with Section 34 of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for two years each and to pay fine of Rs. 2,000/-

each, in default to suffer R. I. for three months each. They are also

convicted for the offence punishable under Section 393 read with

Section 34 of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for five years each and to pay fine of Rs. 2,000/- each, in

default to suffer R. I. for three months each. Substantive sentence of

accused nos. 1 and 2 to run concurrently.

3. Accused no. 3 Manohar Manikrao Korde came to be

acquitted. In fact accused no. 3 Manohar Korde lodged the report

immediately after the incident. Investigating Officer suspected him for

making conspiracy with accused no. 1 and 2 to kill Ruprao Karode and

to make a show that he was killed by naxalite. But all the evidence

adduced by the prosecution do not show that accused no. 3 Manohar

Korde made any conspiracy with any of accused nos. 1 and 2. There is

no evidence against accused no. 3, hence accused no. 3 Manohar Korde

is rightly acquitted by the trial Court. There is no appeal by the State

against accused no. 3, therefore, evidence adduced in respect of accused

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no. 3 need not to be discussed.

4. Heard learned counsel Shri Daruvala for the appellants. He

has submitted that Appaji not taken any part while inflicting injuries on

deceased, therefore, he is entitled for acquittal. Learned counsel has

submitted that evidence adduced by the prosecution against the

appellant nos. 1 and 2 is not sufficient to convict them, hence prayed to

allow the appeal.

5. Heard learned Additional Public Prosecutor Shri Rao for the

State/respondent. He has submitted that the evidence of P.W. 2 is well

supported by P.W. 5, P.W. 6, P.W. 7, P.W. 10 and P.W. 11. His evidence

is also supported by Chemical Analyser's Report, Exhibit 65 to 68.

Learned Additional Public Prosecutor has submitted that the impugned

judgment is well reasoned. There is sufficient evidence against the

appellants, therefore, appeal is liable to be dismissed.

6. Perused the evidence on record. P.W. 2 is the star witness

who was injured by the accused no. 2 at the time of incident. He has

stated in his evidence that he along with Manohar Korde and deceased

Ruprao Korde were doing the business of sale-purchase of cotton. They

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used to purchase cotton at Sironcha and used to sell it at Narkhed. It

was agreed between them to divide the profit after the season.

7. P.W. 2 has stated that on 31-3-2014, they transported

cotton from Sironcha to Narkhed. Thereafter on 2-4-2014, he along

with deceased Ruprao Korde and Manohar Korde proceeded towards

Sironcha for purchasing cotton. Accused no. 1 Appaji was the driver.

They started their journey at about 10.00 p.m. from Narkhed. They

were having Rs. 3,50,000/- to 4,00,000/-. All amount was of three

partners. When they went to Nagpur, accused Kailas sat in the cabin of

truck. He was having one sack. Accused Kailas and Appaji were sitting

in cabin of the truck. Manohar, Ruprao and he himself were sitting in

the lorry of the truck.

8. P.W. 2 has further stated that at about 3.30 a.m. to

4.00 a.m., driver of the truck stopped the truck at Ghot road. Then he

himself, Ruprao Korde and Appaji alighted from the truck. He asked the

driver why the truck was stopped. Then he told that he want to go for

nature's call. Thereafter Ruprao Korde along with two drivers sat in the

cabin. He along with Manohar Korde sat in the lorry. Vehicle was

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moving. They heard noise ' okpok & okpok'. Then he himself and

Manohar Korde pipped from the glass attached to the cabin. They saw

accused Kailas was assaulting Ruprao by knife. The driver Appaji raised

the speed of the vehicle and did not stop the truck in spite of their

repeated requests.

9. P.W. 2 has further stated that after some distance, Appaji

slow down the speed. Accused Kailas Rathod came in the lorry of the

truck. At that time, speed of the vehicle was 10 to 15 Km per hour.

After entry into the lorry, accused Kailas shown them blood stained

knife. He demanded money from them, otherwise, threatened to kill

them like Ruprao Korde. They refused to give money. Then accused

Kailas started to assault him by knife. He sustained bleeding injury to

neck and backside of right shoulder. He tried to avert the blow. When

he resisted his blow, accused Kailas jumped from the running truck.

Thereafter another driver Appaji stopped the truck and both of them ran

away.

10. P.W. 2 has stated that truck was stopped near half

Kilometer away from Bori Village. After stopping the truck, he rushed

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to the office of bazar samittee, where some persons were present. He

did not see Ruprao Korde who was in the cabin. Some persons

informed to the police and hospital. After 20 minutes, ambulance

reached there and he was taken to hospital at Aheri. From Aheri, he

was referred to Nagpur. As the Neuro Surgeon was not available, he

was referred to Bombay. He was there as indoor patient for about 25

days.

11. P.W. 2 has further stated that in the business of sale-

purchase of cotton, he himself, Ruprao and Manohar equal in profit and

loss. He invested Rs. 95,000/- and Ruprao invested Rs. 1,50,000/- at

the relevant time in the business. The business of partnership was going

on from last 2 to 3 years prior to the incident. Manohar Korde was to

maintain the account of their business. Manohar Korde was doing the

business through Santosh Padalwar, resident of Sironcha. After

completion of the seasons, they decided to divide the profit of the

business.

12. This witness was cross-examined by the learned counsel for

accused nos. 1 and 3 but nothing is brought on record in his cross-

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examination to dis-believe his evidence. Evidence of P.W. 3, P.W. 4,

P.W. 8 and P.W. 9 is against accused no. 3 Manohar Korde. Their

evidence is not relevant against accused nos. 1 and 2. These witnesses

viz. P.W. 3, P.W. 4, P.W. 8 and P.W. 9 have stated that there was

business transactions between deceased Ruprao Korde, Mahadeo

Kathane and accused no. 3 Manohar. P.W. 2 himself not stated in his

evidence that accused no. 3 made any conspiracy with accused nos. 1

and 2. There is no evidence against accused no. 3 to show the

conspiracy with the accused nos. 1 and 2. He is rightly acquitted by the

trial Court.

13. Evidence of P.W. 2 who was injured by accused no. 2 is

sufficient to convict both the accused. Learned counsel for the

appellants has submitted that accused Appaji not taken any part while

beating deceased and P.W. 2, therefore, he is not liable. This argument

can not be considered because accused no. 1 Appaji was driving the

truck. As per the evidence of P.W. 2, deceased Ruprao was sitting in the

cabin along with appellants/accused no. 1 and 2. Accused Appaji was

driving the truck in high speed. Accused no. 2 Kailas started stabbing

deceased Ruprao by knife.

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14. P.W. 2 Mahadev Kathane and accused no. 3 Manohar Korde

requested accused no. 1 (Appaji) to stop the truck but he did not stop

the truck and on the other hand, he raised the speed of the truck. When

accused no. 2 killed Ruprao and searched his person, he did not find

any money with deceased. Thereafter accused no. 2 entered in the

lorry, that time, accused no. 1 slow down the speed of the truck. This

act of the accused no. 1 clearly shows that he had common intention

with accused no. 2 to rob deceased and P.W. 2. Therefore, accused

no. 1 is also equally liable for the act of accused no. 2. Evidence of

P.W. 2 is well supported by other evidence.

15. P.W. 5 has stated in his evidence that accused Appaji made

confessional statement to show his clothes. His confessional statement

was recorded as per Exhibit 35. Thereafter accused Appaji shown his

clothes hidden in the cabin of the truck. Those were seized as per

seizure panchanama, Exhibit 36. P.W. 6 Ravi Nelkudri has stated in his

evidence that accused Kailas was in the police station. He gave

confessional statement to show the knife used in the crime. Thereafter

accused no. 2 shown knife and it was seized as per recovery

panchanama, Exhibit 39.

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16. P.W. 7 Govind Bishvas has stated that on 3-4-2014, he was

called by PI Dhawle near Bori Village. There was one truck standing

and one dead body was found in the cabin. There was chilly powder,

one mobile and one Jeans pant in the cabin. Police shown the spot of

incident to him. Accordingly, spot panchanama, Exhibit 43 was

prepared in his presence.

17. P.W. 10 Santosh Padala has stated in his evidence that he

know Mahadev Kathane, deceased Ruprao Korde and Manohar Korde.

He was working as a agent in the business of sale and purchase of

cotton since 2012 at Sironcha. Manohar Korde, Mahadev Kathane and

deceased Ruprao Korde were purchasing cotton from Sironcha. He used

to get commission of Rs. 3,000/- to 3500/- per trip. His evidence shows

that Mahadev Kathane, deceased Ruprao Korde and Manohar Korde

were doing the business of sale-purchase of cotton. P.W. 11 Police

Inspector Subhash Dhawle has stated about the investigation.

18. There is no dispute about the death of deceased Ruprao

Korde. Postmortem report, Exhibit 62 is admitted by the defence. As

per the postmortem report, near about 30 injuries were found on the

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dead body of Ruprao. Injury Certificate, Exhibit 61 in respect of P.W. 2

Mahadev Kathane was also admitted by the defence. Therefore, there is

no dispute that deceased Ruprao died due to homicidal death and

P.W. 2 sustained injuries.

19. There is no doubt about the evidence of P.W. 2. Nothing is

brought on record in his cross-examination to dis-believe his testimony.

P.W. 2 was injured. He is the eye witness of the incident. As per his

evidence, he along with Manohar Korde were sitting in the lorry of

truck, accused Appaji was driving the truck. They saw accused Kailas

stabbing the deceased Ruprao. Deceased was crying and requesting for

help. P.W. 2 and Manohar requested accused no. 1 to stop the truck,

but accused no. 1 instead of stopping the truck, raised the speed of

truck.

20. Evidence of P.W. 2 further shows that when Ruprao became

motionless, accused Kailas searched his person, but he did not find

anything with deceased. Thereafter accused Appaji slow down the

speed of truck. Accused no. 2 Kailas entered in the lorry. He

threatened P.W. 2 and Manohar Korde and directed them to handover

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money. When they refused, accused Kailas assaulted P.W. 2. Both of

them resisted. Thereafter accused no. 2 jumped from the truck.

Accused no. 1 also jumped and both of them ran away.

21. Evidence of P.W. 2 is well supported by other evidence.

Chemical Analyser's reports are on record at Exhibit 65 to 68. The

Chemical Analyser's report, Exhibit 65 shows that clothes of accused no.

2 stained with blood of blood group 'B'. Chemical Analyser's report,

Exhibit 66 shows that blood group of P.W. 2 was of 'B'. Blood group of

deceased Ruprao was of 'O'. As per Chemical Analyser's report, Exhibit

68, Exhibit Nos. 8 and 10 were stained with blood group 'B' as well as

'O'. From the Chemical Analyser's report, it is clear that the blood was

detected on knife. Knife was having blood of deceased Ruprao Korde

i.e. of blood group 'O' and blood of injured i.e. P.W. 2 i.e. blood goup 'B'.

The Chemical Analyser's reports corroborates the evidence of P.W. 2.

22. From the perusal of cross-examination of P.W. 2 and other

witnesses, nothing is brought on record to dis-believe his testimony.

Prosecution has proved beyond reasonable doubt that accused nos. 1

and 2 in furtherance of their common intention committed murder of

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deceased Ruprao Korde. Accused nos. 1 and 2 in furtherance of their

common intention voluntarily caused hurt to P.W. 2 Mahadev Kathane.

Both accused attempted to commit robbery and therefore, they are

rightly convicted for the offences punishable under Sections 302, 324

and 393 read with Section 34 of the Indian Penal Code by the trial

Court. We do not find any merit in the appeal. Hence, we pass the

following order.

                                       ORDER


         (i)     The appeal is dismissed.  


         (ii)  R & P be sent back to the trial Court. 

(iii) Fees of the learned counsel Shri R. M. Daruvala appointed

by the Legal Services Authority is quantified at Rs. 5,000/-.

                        JUDGE                                        JUDGE


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