Bombay High Court

Amin Hiraji Tamboli vs The State Of Maharashtra on 21 November, 2017

Bench: S.S. Shinde

                                                                 cria317.13
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.317 OF 2013


 Amin s/o Hiraji Tamboli,
 Age-30 years, Occu:Driver,
 R/o-Bhise-Wagholi, 
 Tq. & Dist-Latur.
                                 ...APPELLANT 
        VERSUS             

 The State of Maharashtra   
                                 ...RESPONDENT

                      ...
    Mr. V.P. Golewar Advocate appointed through
    Legal Aid for Appellant.
    Mr. M.M. Nerlikar, A.P.P. for Respondent. 
                      ...

               CORAM:   S.S. SHINDE AND
                        MANGESH S. PATIL, JJ.

DATE OF RESERVING JUDGMENT : 9TH NOVEMBER, 2017

DATE OF PRONOUNCING JUDGMENT: 21ST NOVEMBER, 2017

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

Judgment and order dated 4th July 2013, passed by

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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 accused-

appellant was a driver on a truck bearing No.MH-

17-T-9856, owned by Pandurang Bhawar, resident of

village Dev-Daithan, Tq-Shrirampur, Dist-

Ahmednagar, 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

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driver, and the deceased, as a cleaner, on the

truck bearing afore-stated number, left village

Dev-Daithan, Tq-Shrirampur, Dist-Ahmednagar. 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.

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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, Dist-Osmanabad,

for the delivery of the remaining cement bags to a

trader at village Kallam, Dist-Osmanabad.

E) It is alleged against the accused that he

wanted to sell remaining cement bags, instead of

its delivery to a trader at Kallam, Dist-Osmanabad

and, as such, he took the truck loaded with cement

bags to his native place village Bhise-Wagholi,

Tq. & Dist-Latur. 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

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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 Bhise-Wagholi 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

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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, Dist-Osmanabad. 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, Dist-Osmanabad, 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

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such they all went to police station, Dhoki and

Yermala, Dist-Osmanabad, and lodged the report

that the truck driver/accused and the

cleaner/deceased went missing.

I) As the accused is the resident of village

Bhise-Wagholi, Tq. & Dist-Latur, the owner of the

truck, his two sons and their neighbour went to

village Bhise-Wagholi. In the evening of 26th

August 2011, they reached village Bhise-Wagholi.

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 Bhise-Wagholi 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 Bhise-Wagholi. As such

they all went to the K.T. Weir and they found the

truck loaded with cement bags, stationed near the

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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

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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

post-mortem 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

charge-sheet 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

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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 vernacular.

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 accused-appellant 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 afore-

stated. Hence this Appeal by the accused Amin.

4. Mr. Golewar, learned counsel appearing

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for the Appellant submitted that there was no eye

witness to the incident and the case of the

prosecution is based on the circumstantial

evidence only. There is no direct evidence against

the accused. He further submitted that the chain

of circumstances on which reliance was placed by

the prosecution, has not been established beyond

reasonable doubt by the prosecution. He further

submitted that there are several contradictions,

omissions, discrepancies and improvements in the

evidence of the prosecution witnesses in respect

of various circumstances and therefore reliance

could not be placed on the oral testimony of

witnesses. Learned counsel further submitted that

there is no direct evidence to connect accused

with crime and there was no enmity between accused

and deceased and therefore the sole circumstance

that deceased was last seen in the company of the

accused, is not sufficient to convict the accused.

Therefore, learned counsel prays that the Appeal

may be allowed.

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5. In the alternative, learned counsel for

the Appellant-accused contended that keeping in

view the single blow given on the head, and the

nature of injury and the incident as alleged, it

is clear that there was no intention on the part

of the Appellant to commit murder. Therefore, it

is submitted that, instead of life imprisonment,

sentence may be brought down under Section 304

Part II of the I.P. Code.

6. On the other hand, learned A.P.P.

appearing for the State, submitted that the case

of the prosecution is based on the circumstantial

evidence and the chain of circumstances on which

reliance was placed by the prosecution has been

established beyond reasonable doubt. He further

submitted that after considering the entire

evidence on record the trial Court has convicted

the accused and the findings recorded are in

consonance with the evidence brought on record.

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He, therefore submitted that the Appeal may be

dismissed.

7. To prove the fact that Mahavir died

homicidal death, the prosecution has examined PW-4

Dr. Jakera Yahiyakhan Kelgaonkar. PW-4 Dr. Jakera

deposed that on 27th August 2011 she was Medical

Officer in Rural Hospital, at Murud, Dist-latur.

On that day she herself and Dr. Shinde conducted

the autopsy over the dead body of deceased Mahavir

Waghmare after the receipt of the requisition from

the police for conducting the post-mortem

examination. The dead body was swollen and the

clothes over the dead body were wet. On external

examination of the dead body, contused lacerated

wound over the right parietal region of the scalp,

oblique in direction, size 6 X 2 X 0.5 cm., scalp

deep was found. On palpation, depressed fracture

underneath the above mentioned CLW was found.

Further on removing the scalp, open fracture

underneath contused lacerated wound (stated supra)

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was found.

. PW-4 Dr. Jakera further deposed that on

internal examination of the dead body, the

depressed fracture over the right parietal region

of size 5 X 2 cm. was found. The evidence of open

fracture over the right parietal region obliquely

directed, depth extending up-to brain matter was

found. The brain covering was found torn at above

mentioned site inside the brain. The brain matter

was found congested and decomposed at the site of

the above injury. The cause of death of the

deceased was sudden cardio respiratory arrest due

to head injury. She proved the post-mortem report

Exhibit-34. She further deposed that the injury

found over the skull of the deceased could be

caused by hard and blunt object like iron rod.

When iron rod Article-1 was shown to the witness,

she stated that by the said iron rod the injury

found over the scalp of the deceased was possible

or could be caused.

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. During the course of cross-examination,

PW-4 Dr. Jakera stated that while examining the

dead body, she did not find identification marks.

She denied the suggestion that the injury which

was found over the dead body of the deceased could

be sustained by fall over the stones having edges.

The dead body was black. She was unable to opine

whether the deceased had a motion before his

death, since in the abdomen the fluid and food

contents were found. She further stated that since

the cloths over the dead body of the deceased were

not found stained, the deceased had no vomiting.

She further stated that no smell of alcohol was

found in stomach contents. 150 ml. food material

was found in the stomach, which was not smelling

of alcohol. While examining the dead body, she did

not find that the deceased had ailment. The dead

body might be under water for more than 24 hours.

NO water was found in lungs. Not a single drop of

water was found in the stomach. The decomposition

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of the body had already began. She had not

received the report of Chemical Analyzer in

respect of viscera, therefore she was unable to

opine whether the poisonous substance was found in

the viscera. PW-4 denied the suggestion that cause

of death of the deceased was asphyxia. The rigor

mortis was found in the upper part of the body.

The blood in veins was not found black. No foreign

material was found during internal examination of

the dead body. Nothing was found inside the palm

of the deceased. Nothing abnormal was found in the

heart. The lungs were found intact, without any

injury and the water therein. The witness further

stated that her opinion as to the cause of death

of the deceased was based on the injury found over

the scalp. For want of viscera report, she could

not give the final opinion as to cause of death of

deceased. PW-4 denied the suggestion that the

deceased suffered the death by drowning.

8. Thus, from the perusal of the evidence of

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PW-4 Dr. Jakera, it is crystal clear that the

death of Mahavir was homicidal. PW-4 further

stated that cause of death of Mahavir was sudden

cardio respiratory arrest due to head injury. She

specifically stated that no smell of alcohol was

found in stomach contents. She further stated that

no water was found in lungs and not a single drop

of water was found in the stomach. Thus the

possibility of deceased falling down in the water

under the influence of alcohol and drowning

accidentally, as contended by the learned counsel

for the Appellant, is completely ruled out. Thus,

we are of the opinion that the prosecution has

proved that death of Mahavir was homicidal one.

9. Now we will discuss the evidence of other

prosecution witnesses. The prosecution examined

PW-1 Jagannath Prabhakar Waghmare, who is

informant in this case. He deposed that the

deceased Mahavir was his younger brother. The

deceased at the material time, was a cleaner on a

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truck, owned by one Pandurang Bhawar. The deceased

was residing at Pimpari Chinchwad, Pune. At about

12 to 13 months back from the date of recording

his evidence, in between 10.00 p.m. to 10.30 p.m.

he received a telephone from Mr. Sharad Shinde,

his relative, who told that he received a

telephonic message from Murud police station that

the dead body of Mahavir was found floating in the

K.T. Weir at village Bhise-Wagholi. On the next

day, the informant and his neighbour Shankar

Gangadhar Swami went to Murud police station. The

police took them to the Government Hospital at

Murud and showed him a dead body of male and it

was his younger brother Mahavir. He further

deposed that cloths over the dead body of the

Mahavir were found wet. The injury to the back of

the skull was found. The blood was found oozing

out from the said injury and through ears. He

further deposed that after making inquiry, it was

revealed to him that on truck, the accused and the

deceased were working as a driver and cleaner

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respectively. Further it was revealed that, at the

time of incident, the cement bags were being

transported from one place to another and on that

truck the accused was driver and the deceased was

cleaner. He further deposed that he lodged report

in respect of death of Mahavir in Murud Police

Station. He proved the report Exhibit-28.

. During the course of cross-examination,

PW-1 Jagannath stated that on 26th August, 2011 in

between 10.00 p.m. to 10.30 p.m. his relative

Shankar Shinde told him on telephone about the

floating of the dead body of Mahavir. On the next

day at about 6.00 a.m., he himself and his

neighbour left their village for Murud police

station. He denied the suggestion that at the

material time he was not knowing the occupation of

the deceased. He stated that the deceased used to

tell him that he was a cleaner on a truck owned by

Mr. Sandip Bhawar. He was unable to state

registration number of the truck on which the

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deceased was working as a cleaner. He stated that

when the dead body of Mahavir was shown to him,

his neighbour and two police officers were

present. He further stated that he did not know

whether the deceased used to consume liquor. He

denied the suggestion that the deceased under the

influence of liquor slipped into the K.T. Weir and

died accidentally.

. Thus, from careful perusal of the

evidence of the informant PW-1 Jagannath, it is

clear that he deposed about the information

received by him about the death of his brother,

and that he identified the dead body of his

brother Mahavir. He further deposed that clothes

over the dead body were wet. There was injury to

the back of the skull and blood was oozing from

the said injury and through ears of deceased.

10. The prosecution examined PW-2 Ashruba

Goroba Bhise, panch to the spot panchnama Exhibit-

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30. He deposed that on 27th August, 2011, in the

noon the police had called him at K.T. Weir at

village Bhise-Waghioli. One Dnyaneshwar Wankhede

was also called at K.T. Weir. One Yogiraj Sakhare

was present at K.T. Weir at village Bhise-Wagholi.

One dead body of a male was found floating in the

said Weir. One truck loaded with cement bags was

found by the side of the K.T. Weir. The police

prepared the panchnama of K.T. Weir and obtained

their signatures. He proved spot panchnama

Exhibit-30. This witness was cross-examined by the

defence.

. Thus, it is clear from the perusal of the

evidence of PW-2 Ashruba that he has proved the

spot panchnama. He deposed that one dead body of a

male was found floating in the K.T. Weir and one

truck loaded with cement bags was found by the

side of K.T. Weir.

11. The prosecution examined PW-3 Goroba

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Ganpatrao Alte, witness to the inquest panchnama

Exhibit-32. He deposed that on 27th August 2011,

police had called him at K.T. Weir at village

Bhise-Wagholi. One Dagdu Khose was also called at

the said Weir. At the said Weir one dead body of a

male was found. The dead body was found wet. One

injury on the rear side of skull was found. The

witness proved inquest panchnama Exhibit-32.

During the course of cross-examination, he deposed

that it was his first time to act as a panch to

the inquest panchnama. He always put his signature

in English. He denied that he had good relations

with police. He denied the suggestion that he

signed the inquest panchnama on the say of police.

12. The prosecution examined PW-5 Nanasaheb

Tanaji Pawar. He deposed that at village Yedshi,

Tq. & Dist-Osmanabad he was carrying on the

business of building raw materials, under the name

and style "Yeshwant Traders". As this witness

turned hostile, the learned A.P.P. after seeking

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permission from the trial Court, cross-examined

this witness. During the course of cross-

examination by the learned A.P.P., PW-5 Nanasaheb

admitted that, on the relevant day, the cement

bags were loaded in a truck bearing No. MH-17-T-

9856. He further stated that on the said

day,Bhimrao Taur, Chandrakant Lokhande and Baburao

Pawar had unloaded the truck. During unloading of

the truck, the cleaner and the driver working on

the truck, had gone towards country liquor shop.

He denied the suggestion that during unloading of

the truck, the driver and the cleaner working on

the truck came in front of his shop and that time

there was exchange of words between them, over

spending of money on food/lunch. He further stated

that while issuing acknowledgement regarding the

receipt of cement bags, he asked the driver about

his name, who, in turn, told that he was a

resident of village Bhise-Wagholi. He further

stated that the driver told him that he would take

the cement bags to Kallam, Dist-Osmanabad, for

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delivery of cement bags. He denied various

suggestions put to him. He further stated that

accused before the Court was the same person who

on the concerned day was a driver on a truck

loaded with cement bags.

. During the course of cross-examination by

the defence, PW-5 Nanasaheb denied various

suggestions put to him. He stated that he

identified the accused on the basis of his face

features.

13. Upon perusal of entire evidence of PW-5

Nanasaheb, it is clear that though this witness

turned hostile and did not support the prosecution

case, the prosecution has brought on record,

through the evidence of this witness that

on the relevant day accused and deceased, the

driver and cleaner working on the truck, came to

the shop of this witness for unloading cement

bags. PW-5 Nanasaheb specifically admitted that

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during unloading of the truck, the cleaner and

driver working on the truck had gone towards

country liquor shop. Thus, evidence of this

witness supports the case of the prosecution that

under the influence of alcohol, there was quarrel

between accused and deceased and their relations

were strained. Through the evidence of PW-5

Nanasaheb, the prosecution has proved that

deceased was last seen in the company of the

accused.

14. The prosecution examined PW-6 Shivaji

Sopan Dudhbhate, panch witness to the seizure

panchnama of the clothes, which were found over

the dead body of the deceased Mahavir. He proved

seizure panchnama Exhibit-37.

15. The prosecution examined PW-7

Harishchandra Narsing Zadke, to prove the recovery

of the iron rod, the weapon used in the crime, at

the instance of the accused in pursuance of his

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memorandum statement. But this witness turned

hostile and did not support the prosecution case.

16. PW-8 Suresh Baburao Ustarge deposed that

since last four years he was working as a Head

Constable in Murud police station. On 27th August

2011, the inquiry of the accidental death of a

unknown male person was assigned to him.

Thereafter he himself and 10 to 15 persons went to

K.T. Weir. In the weir water, the dead body of a

male was found floating. He took out the dead body

with the help of other persons, who were present

there and prepared inquest panchnama Exhibit-32.

Thereafter he drew the spot panchnama Exhibit-30.

He further deposed that the dead body of Mahavir

was sent for post-mortem examination. Then he

obtained provisional certificate, as to the cause

of the death of Mahavir, from the doctor. Further

investigation was carried out by A.P.I. Mr.

Kulkarni.

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. During the course of cross-examination,

PW-8 Suresh denied the suggestion that he prepared

the spot panchnama in the police station. He

denied the suggestion that he had not prepared the

spot panchnama as per the actual position.

17. The prosecution examined PW-9 Yogiraj

Ramrao Sakhare. He deposed that since 2010 he was

the chairman of the committee constituted for

dispute free village, at village Bhise-Wagholi,

Tq. & Dist-Latur. On 26th August 2011, at about

4.00 p.m., 2 to 3 persons, who were resident of

village Dev-daithan, Tq-Shrigonda, Dist-

Ahmednagar, had come to village Bhise-Wagholi in

search of a truck, loaded with cement bags. He

told them that, one truck had been stationing near

K.T. Weir. He took those persons to K.T. Weir. On

reaching K.T. Weir, they noticed one truck

stationed near the weir. It was loaded with cement

bags. At the same time, they noticed a dead body

of a male floating on the weir water. Thereafter

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he went to Murud police station and lodged the

report Exhibit-42, stating therein that the dead

body of a male was found in the weir. This witness

was thoroughly cross-examined by the defence but

nothing contrary to his examination-in-chief was

brought on record.

. Thus, through the evidence of this

witness PW-9 Yogiraj, the prosecution has proved

that dead body of Mahavir was recovered from the

K.T. Weir water. The truck on which the deceased

was working as cleaner, was stationed near the

said K.T. Weir. Thus, evidence of this witness

supports the prosecution case.

18. The prosecution examined PW-10 Sunil

Pandurang Bhawar. He deposed that he knows the

accused. The accused is the resident of village

Bhise-Wagholi, Tq. & Dist-Latur. He himself, his

brothers and father were residing jointly. His

father was a transporter. His father possessed a

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truck bearing registration No. MH-17-T-9856. He

further deposed that he was aware of the affairs

of transport business, carried on by his father.

On the truck owned by his father, the accused was

driver and the deceased Mahavir Waghmare was

cleaner. About 15 days prior to the incident, the

accused was employed as a driver on the said

truck. On 22nd August, 2011 the truck was sent to

Ahmednagar for loading. At that time, the accused

was a driver on the said truck and the deceased

was cleaner. The accused and the deceased with the

truck had gone to Ahmednagar. At about 4.00 p.m.

the accused on telephone informed that the truck

was loaded and he would carry the goods to

Solapur. On next day, at about 11.00 a.m., the

accused, on telephone, informed that the truck had

reached Solapur and it was unloaded. Thereafter

the accused took the truck to the office of

Hindusthan Transport at Solapur, for

transportation of goods. Then the accused told him

that he got an order of transportation of cement

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bags to Yedshi and Kallam, Dist-Osmanabad.

Thereafter the truck was loaded with cement bags

and it left Solapur.

. PW-10 Sunil further deposed that on the

next day, at about 12.00 noon, his father received

a telephonic call from the office of Hindusthan

Transport, Solapur that the truck did not reach to

Yedshi and Kallam. Then they all contacted the

accused on the cellphone, but the cellphone of the

accused was out of range. On 24th August, 2011 the

driver-accused informed that he delivered the

cement bags at Yedshi and told that he would carry

the cement bags to Kallam for its delivery. On

25th August, 2011 at about 4.00 p.m., the office

of Hindusthan Transport, Solapur informed that the

truck loaded with cement bags did not reach

Kallam though the distance between Kallam and

Yedshi is short. Then they contacted the accused

on his telephone, but it was switched off. As the

accused did not respond or react to their

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telephone calls, on 26th August 2011 he himself,

his brother, father and neighbour, namely, Ashok

Jadhav went to Kallam. At Kallam they made inquiry

with the proprietor of Dnyaneshwar Traders who

told that the truck loaded with cement bags did

not come to his shop. Thereafter they lodged the

oral report in Dhoki and Yermala police station

that the truck, driver and cleaner went missing.

Then from the police station, they went in search

of accused, cleaner and the truck, to village

Bhise-Wagholi.

. PW-10 Sunil further deposed that at

village Bhise-Wagholi, in the temple, a religious

function was going on, and as such they went to

the said temple for inquiry. On inquiry, the

persons present at the temple told that one truck

had been stationed near Masjid on Masla road.

Thereafter those persons took the witness to the

Masjid, situated on Masla road. Then, they noticed

the truck owned by his father. The said truck was

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found loaded with cement bags. The said truck was

found at a short distance from the weir water. One

dead body was found floating on the weir water.

Thereafter they all went to Murud police station

and the chairman of the Tantamukti committee

lodged the report. Thereafter at about 9.00 p.m.,

he himself, police and others visited the K.T.

Weir at Bhise-Wagholi. The police took out the

dead body from the K.T. Weir. They all identified

the dead body. It was of cleaner Mahavir Waghmare.

There was injury over the skull of the deceased

and the blood was oozing from the nostrils and

both ears.

. During the course of cross-examination,

PW-10 Sunil admitted that, at the material time,

his father was looking after transport business

and that time he was looking after the

agricultural land. He further stated that he knew

the accused since he was employed as a driver on

the truck owned by his father. The accused at the

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time of employment, had shown the driving licence

possessed by him. He further stated that in the

office of transport, there was noting of the name

of the accused as a driver on the truck. He knows

the names of the drivers who were employed on the

truck, from the date of its purchase. The names

of those drivers are - Namdeo Sathe, Sanjay Khanve

and the accused Amin. He was unable to tell the

names of the persons to whom they enquired at

Bhise-Wagholi about the missing of the truck. But

he stated that the Chairman of Tantamukti

Committee was one of those persons. He denied

various suggestions put to him.

19. PW-11 Anant Mahipatrao Kulkarni and PW-12

Aniruddha Sopan Kakade are the investigating

officers. They deposed about the manner in which

they have carried out the investigation of the

crime.

20. To prove the chain of circumstances, the

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prosecution has mainly relied upon the evidence of

PW-9 Yogiraj and PW-10 Sunil. Upon careful perusal

of the evidence of PW-9 Yogiraj and PW-10 Sunil,

it is clear that they corroborated the evidence

of each other and their evidence is consistent,

reliable and trustworthy. Through the evidence of

both these witnesses, the prosecution has proved

the chain of circumstances that after loading the

truck with cement bags at Solapur, the accused and

deceased proceeded to village Yedshi and some of

the cement bags were unloaded there. It is further

proved by the prosecution that the accused wanted

to sell remaining cement bags instead of its

delivery to the trader at Kallam and therefore the

accused took the truck loaded with cement bags, to

his native place i.e. village Bhise-Wagholi.

Deceased Mahvir, who was a cleaner on the said

truck, objected the sale of the cement bags and

therefore, the accused apprehended that the

deceased would disclose his plan of selling the

cement bags to his employer and as such accused

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decided to kill the deceased. The prosecution has

proved the chain of circumstance that the accused

took the truck near the K.T. Weir and hit the

deceased by iron rod on his head, as a result of

which the deceased sustained head injuries and

died on the spot. The prosecution has proved the

further chain of circumstance that the accused

thereafter, threw the dead body of Mahavir in the

Weir water, as the dead body of the Mahavir was

floating on the Weir water, as noticed by PW-9 and

PW-10. As already observed, through the evidence

of PW-5 Nanasaheb, the prosecution has established

that deceased was 'last seen' in the company of

the accused. After considering the entire evidence

brought on record by the prosecution, we are of

the opinion that though the case of the

prosecution is based on the circumstantial

evidence, the chain of circumstances on which

reliance was placed by the prosecution has been

established beyond reasonable doubt by the

prosecution.

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21. In para 38 of the Judgment, the trial

Court has taken note of the circumstances relied

upon by the prosecution. After considering the

entire evidence brought on record, the trial Court

has observed in para 78 of the Judgment, that the

prosecution has proved all the circumstances,

except the circumstance of recovery of iron pipe.

Further in para 84 of the Judgment, the trial

Court has observed that, the proved circumstances

furnish a chain of evidence, showing that it was

the accused only, who caused the death of the

deceased. The said chain of evidence, at no point

of time, suggests the innocence of the accused. On

the other hand, the evidence furnished by proved

circumstances show that in all human probability,

the accused must have caused the death of Mahavir.

The trial Court has further observed that it finds

that the proved circumstances combinely furnish

the evidence that it was the accused who alone

caused the death of the deceased by giving him

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blows by hard and blunt object on his head.

22. In the given facts and circumstances, and

the evidence brought on record by the prosecution,

the only possible view was guilt of the accused.

Though there is no eye witness to the incident and

the prosecution case is based on circumstantial

evidence, the chain of circumstances has been

established beyond reasonable doubt by the

prosecution, and all the facts established are so

consistent with the only hypothesis of the guilt

of the accused.

23. In the light of discussion, herein above,

on independent and in-depth scrutiny of entire

evidence, we are of the opinion that the trial

Court has considered all the evidence brought on

record in its proper perspective and recorded the

findings which are in consonance with the evidence

on record and has rightly convicted the Appellant-

accused. The conclusions reached by the trial

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Court are in consonance with the evidence brought

on record by the prosecution. There is no

perversity as such.

24. The next question is, what offence is

proved by the prosecution and whether the present

case falls under any of the exceptions given in

Section 300 of the I.P. Code, as alternatively

argued by the learned counsel appearing for the

Applicant. In this respect, it would be useful to

refer to the recent pronouncement of the Supreme

Court in the case of Gandi Doddabasappa alias

Gandhi Basavaraj vs. State of Karnataka1. In

Para-28 of the Judgment, the Supreme Court has

observed that:

"The first exception, therefore, will

have no application. The second

exception will be attracted in cases

where the accused, in the exercise in

1 [2017(5) Mh.L.J.(Cri.)(S.C.)508]

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good faith of the right of private

defence, exceeds the power given to him

by law and caused injuries resulting in

death of the victim without

premeditation and without any intention

of doing more harm than is necessary

for the purpose of such defence. Even

this exception will have no application

to the fact situation of the present

case. The third exception will be

attracted in case of a public servant

or person aiding a public servant

acting for the advancement of public

justice. This exception has no

application to the present case. The

fourth exception is attracted when the

crime is committed without

premeditation in a sudden fight in the

heat of passion upon a sudden quarrel

and without the offender having taken

undue advantage or acted in a cruel or

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unusual manner. Even this exception has

no application to the fact situation of

the present case. The fifth exception

is attracted when the person whose

death is caused, being above the age of

18 years, suffers death or takes the

risk of death with his own consent.

Significantly, the defence of the

appellant as evinced from his statement

under Section 313 of Criminal Procedure

Code is of complete denial and being

falsely implicated."