Rupesh Tukaram Kumbhar vs The State Of Maharashtra
2023 Latest Caselaw 2226 Bom

                               SAT                                                   201-APEAL-43-2021.doc




                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                              CRIMINAL APPEAL NO. 43 OF 2021
                                                           WITH
                                           INTERIM APPLICATION NO. 1071 OF 2022
                                                           WITH
                                           INTERIM APPLICATION NO. 1282 OF 2020
                                                           WITH
                                            INTERIM APPLICATION NO. 958 OF 2019
                                                           WITH
                                           INTERIM APPLICATION NO. 1283 OF 2020
                                                            IN
                                              CRIMINAL APPEAL NO. 43 OF 2021
                               Rupesh Tukaram Kumbhar,
                               Age : 40 Years, Occu : Service,
                               R/o. Velamb, Taluka - Guhagar,
                               District : Ratnagiri                             ...Appellant
                                     Versus
                               The State of Maharashtra,
                               Through Guhagar Police Station,
                               C.R. No.I-05/2006                                ...Respondent

                               Mr. Dheeraj Panchange, Advocate appointed for Appellant.
                               Ms. S.D. Shinde, APP for the Respondent-State.

                                                       CORAM          : A.S. GADKARI AND
                                                                        PRAKASH D. NAIK, JJ.

RESERVED ON : 30th NOVEMBER, 2022.

PRONOUNCED ON : 8th MARCH, 2023.

JUDGMENT - (PER : PRAKASH D. NAIK, J.) :-

1. This is an appeal under Section 374 of Code of Criminal

Procedure challenging the Judgment and Order dated 10th October, Digitally signed by SUNNY SUNNY 2008 passed by Additional Sessions Judge, Khed in Sessions Case ANKUSHRAO ANKUSHRAO THOTE THOTE Date: 2023.03.08 17:47:02 +0530

No.14 of 2006 convicting the Appellant (Accused No.2) for offence

SAT 201-APEAL-43-2021.doc

under Section 302 r/w 34 of Indian Penal Code (for short 'IPC')

and sentencing him to suffer imprisonment for life.

2. The case of the prosecution is that deceased Yashwant

Chavan was missing. His son Vishal Chavan lodged the missing

complaint with Ratnagiri Rural Police Station on 11 th January,

2006. Yashwant Chavan was a rickshaw driver. He was plying

rickshaw from Nivali rickshaw stand. On 10th January, 2006, he left

the house with rickshaw and did not return home. His family

members tried to locate him but could not succeed. Person named

Shitap had disclosed that, he met Yashwant Chavan at Sambre

Phata and he had informed him that, he is going towards Jakadevi.

Attempt was made to trace him at Jakadevi but he could not be

found. Police tried to search him. On 21 st January, 2006, the

brother of the deceased Dattaram Shivram Chavan learnt that, the

rickshaw belonging to Yashwant Chavan is recovered by Police.

Hence, he visited Ratnagiri City Police Station. Accused Pravin

Kumbhar was in custody of Police. It was revealed that, Accused

Pravin Kumbhar and his brother Rupesh Kumbhar (Appellant) has

committed murder of Yashwant Chavan near Kapsi river. The Police

team proceeded to river Kapsi. Dead body of Yashwant Chavan was

located. On the basis of documents found on his person identity of

deceased was confirmed. It was noted that, the head and face of

SAT 201-APEAL-43-2021.doc

the deceased was smashed with stones. The body was decomposed.

FIR was lodged vide C.R. No.5 of 2006. Investigation was

conducted by Police Sub-Inspector Vilas Deshmukh. Inquest

Panchanama was prepared. Driving lenience was found in the

pocket of deceased. The dead body was handed over to family

members. Spot Panchanama was recorded. Stones filled with blood

were recovered. Photographs of spot were clicked. Pant of the

deceased was recovered. Documents relating to auto rickshaw of

deceased were called from the office of R.T.O. Pravin Kumbhar was

arrested. On his disclosure statement number plates of rickshaw

were recovered from Parshuram Ghat. Test identification parade of

Pravin Kumbhar was conducted by Special Executive Magistrate.

Charge-sheet was filed against Pravin Kumbhar. After the period

about eight to ten months Rupesh Kumhar (Appellant) was

arrested. On the basis of statement made by Appellant/Accused

wrist watch of deceased was recovered on the banks of river Kapsi.

Test identification parade for identifying the Appellant/Accused

was conducted. Charge-sheet was filed against Appellant.

3. Charge was framed on 8th September, 2006 against

Accused No.1 Pravin Kumbhar. Subsequently, joint charge was

framed against Accused No.1 and Appellant for offences under

Sections 364 r/w 34 of IPC, 394 r/w 397 of IPC and 302 r/w 34 of

SAT 201-APEAL-43-2021.doc

IPC on 10th July, 2007. Both Accused were convicted for offence

under Section 302 r/w 34 of IPC and acquitted for offences under

Sections 364 r/w 34 of IPC and 394 r/w 397 of IPC.

4. Accused No.1 Pravin Tukaram Kumbhar challenged the

Judgment of conviction by preferring Criminal Appeal No.875 of

2009. Appellant did not prefer an appeal at that point of time. The

said appeal was heard by the Division Bench of this Court and vide

Judgment and Order dated 20th August, 2014, the appeal was

dismissed.

5. Accused No.1 Pravin Kumbhar challenged the Judgment of

the trial Court and this Court by preferring Special Leave Petition

No.5076 of 2020 before Hon'ble Supreme Court. The said petition

was dismissed vide Order dated 2nd March, 2020.

6. Appellant preferred present appeal. Considering the fact

that, Appellant was in custody for substantial period of time and

the appeal preferred by the co-accused was dismissed by this Court,

it was directed that this appeal be listed for final hearing.

7. Learned Advocate Mr. Dheeraj Panchange appointed by

Legal-Aid Committee to represent Appellant has submitted that,

there is no evidence to convict the Appellant for the offence under

Section 302 of IPC. The appeal preferred by Accused No.1 has

been dismissed on the basis of evidence against him. The case is

SAT 201-APEAL-43-2021.doc

based on circumstantial evidence as there is no eye witness to the

incident. The case of Appellant can be distinguished from Accused

No.1. The dead body was discovered at the instance of Accused

No.1. The auto rickshaw was discovered at the instance of Accused

No.1. The only evidence against Appellant is recovery of wrist

watch and circumstances of last seen together with deceased. Both

the circumstances are not strong enough to convict the Appellant.

The complainant had not stated before Police that, the deceased

was wearing wrist watch. Identity of deceased is doubtful. The

prosecution has failed to prove that, Appellant was involved in

commission of offence. Madhukar Ramchandra Salunke (PW-6)

did not identify the Appellant. The test identification parade was

defective. The evidence of identification parade has been discarded

by the trial Court. Pramod Dhondiraj Damle and Subhash

Ramchandra Jadhav were not examine. Appellant was allegedly

identified by Police Constable Sankarshan Dhondu Ambre. At the

time of test identification parade policeman was present in

identification parade room. The guidelines to conduct the parade

were not followed. The identity of Appellant as a person who was

in company of the deceased is not established. The case would not

fall under Section 302 of IPC. The incident is without

premeditation. The evidence of witnesses do not inspire

SAT 201-APEAL-43-2021.doc

confidence. Benefit of doubt has to be given to the Appellant.

8. Learned APP submitted that, both Accused are brothers.

Although the case is based on circumstantial evidence, the

prosecution has brought on record strong circumstances to

establish the involvement of Appellant and the co-accused in the

crime. Appellant was last seen with deceased by the witness whose

evidence cannot be discarded. There is recovery of wrist watch at

the instance of Appellant. The wrist watch belongs to deceased.

The appeal preferred by Accused No.1 has been dismissed by this

Court and the said Order is confirmed by Apex Court. The

prosecution has examined sixteen witnesses to prove its case. The

defense could not demolish the prosecution case. The trial Court

has analyzed the evidence and convicted the Accused by assigning

cogent reasons. There is no reason to disturb the findings of trial

Court. The victim was brutely killed by Accused. Appellant was

absconding. The prosecution has proved its case beyond

reasonable doubts.

9. The trial Court has observed that, there is defect in the

test identification parade of Pravin Kumbhar and Rupesh Kumbhar

since one official was present in the parade room at the time of test

identification parade.

SAT 201-APEAL-43-2021.doc

10. In Paragraph No.16 of the Judgment and Order dated 20 th

August, 2014 convicting Accused No.1 the Division Bench of this

Court has dealt with the submission of the learned Advocate for

Appellant that, the discovery of wrist watch at the behest of

Accused No.2 is extremely belated and therefore, no reliance at all

can be placed. It was observed that, Accused No.2 was absconding

and arrested after nearly ten to eleven months of the arrest of

Accused No.1. The wrist watch has been identified by PW-1 Vishal

as a wrist watch belonging to his father. Omission to state in the

missing report at Exh.36 that deceased Yashwant Chavan was

wearing a wrist watch would not affect the identification of wrist

watch. In Paragraph No.17 of the said decision it was observed

that, even if the test identification parade is left out of

consideration, PW-5 Madhukar had ample opportunity of observing

Accused and infact Accused No.1 was arrested by Police while

attempting to remove the auto rickshaw. The evidence against

Accused therefore is conclusive and proves the offence beyond

reasonable doubt. Failure of the prosecution to prove motive

would not be fatal in each and every case. Particularly when there

is overwhelming evidence which establishes the culpability of

Accused. The decision of this Court was challenged before the

Apex Court and the petition challenging the said decision was

SAT 201-APEAL-43-2021.doc

dismissed by the Apex Court.

11. Although the appeal preferred by Accused No.1 has been

dismissed by this Court vide Judgment and Order dated 20 th

August, 2014 and the said Order is confirmed by the Apex Court,

we have scrutinized and independently examined the nature of

evidence against Appellant while adjudicating the present appeal.

12. The prosecution has examined sixteen witnesses. PW-1

Vishal Yashwant Chavan is the son of deceased. He filed missing

report. PW-2 Dattaram Chavan is the informant and elder brother

of deceased. PW-3 Rajendra Ramesh Sawant is the Panch for

seizure of auto rickshaw. PW-4 Suresh Gopinath Khadpe is the

Panch for seizure of clothes of Appellant and recovery of number

plate of rickshaw. PW-5 Dilip Pandurang Salvi is the Panch witness

of seizure of auto rickshaw. PW-6 Mahdhukar Ramchandra Salunke

is the person near whose house the auto rickshaw was parked by

Accused. PW-7 Sankarshan Dhondu Ambre is the Police Constable

whose duty was to check the auto rickshaw on the road. PW-8 Dr.

Vinod Sadashiv Sangvikar is the Medical Officer who conducted

postmortem. PW-9 Dilawar Mehmood Khan is the owner of Dhaba.

PW-10 Chandrakant Moreshwar Phatak is Panch for test

identification. PW-11 Anilkumar Shamrao Valiv is the Deputy R.T.O.

PW-12 Deepak Ganpati Madhale is the P.S.I. attached to Ratnagiri

SAT 201-APEAL-43-2021.doc

Police Station. PW-13 Vijay Damodhar Ranade is Tahesildar and

Executive Magistrate. PW-14 Ashok Dhondiba Naik is Tahesildar

and Executive Magistrate. PW-15 Sanjivan Rajaram Bhosale is

Panch witness during seizure of wrist watch and spot of incident.

PW-16 Vilas Deshmukh is the Police Sub-Inspector posted at

Guhagar Police Station, he is the Investigating Officer.

13. The defence of Accused No.1 Pravin Kumbhar is that,

Police have filed a false case against him. Witnesses are deposing at

the instance of Police. There was liquor business of his uncle,

hence Police were on inimical terms. Accused No.2 (Appellant) in

his statement under Section 313 of Cr.P.C. has pleaded similar

defence.

14. We have scrutinized the evidence of witnesses minutely.

We are conscious of the fact that, there is no eye witness to the

incident and the case is based on circumstantial evidence. The law

relating to circumstantial evidence is no more res integra. In the

cases based on circumstantial evidence, there must be chain of

evidence so complete not to leave any reasonable ground for

conclusion consistent with the innocence of Accused and must

show that, in all human probability the act must have been

committed by Accused.

SAT 201-APEAL-43-2021.doc

15. PW-1 Vishal Yashwant Chavan has stated that his father

was driving auto rickshaw. The Rickshaw No.MH-08-E-4700 was

owned by him. He left the house on 10 th January, 2006. There was

gold chain on his person. He was wearing wrist watch on his wrist.

It was of Titan company having black dial. His father used to

return home at 8:30 p.m. He did not return home. On 11 th January,

2006 his mother came to Ratnagiri and informed him that his

father did not return home on the night of 10 th January, 2006. He

made inquiry at Nivali Phata where his father used to halt his

rickshaw. He was informed that his father carried passengers in his

rickshaw at about 4:30 p.m. and he had gone towards Ganpati

Pule. He made inquiries. He could not get any information about

where about of is father. One Shitap told him that he met his

father on 10th January, 2006 at 5:30 p.m. near Chambrewadi Phata.

He also told that, two persons were sitting in the auto rickshaw.

His father had disclosed that, he is going to Jakadevi. He lodged

missing report. Dead body of his father was traced. He identified

dead body of his father. He identified wrist watch used by his

father. He identified the pieces of bush shirt of his father and the

pant on the person of his father. He was cross-examined by

Accused. He stated that, in the missing report and in the statement

he did not state that his father was using Titan company wrist

SAT 201-APEAL-43-2021.doc

watch. He cannot assign any reason why Police have not written

the color of the shirt on the person of the deceased in the missing

report. Except the omission as above the cross-examination at the

instance of Accused could not affect the version of this witness. PW-

2 Dattaram Chavan has deposed that, on 10th January, 2006 his

brother Yashawant Chavan had gone with his auto rickshaw and

did not return home. On 21st January, 2006, he came to know that

the auto rickshaw of his brother was recovered and Police have

arrested Pravin Tukaram Kumbhar. The arrested Accused had

shown the spot near Kapsi river where dead body of Yashwant

Chavan was found. It was in decomposed condition. Driving license

of the deceased was found in the pocket of the pant. The dead body

was identified. He lodged the complaint with the Police. It was

marked at Exh.38. The driving license was exhibited in evidence.

In the cross-examination it is stated that, the body of the deceased

was in decomposed condition. There is nothing in the cross-

examination to doubt the version of PW-2 about the complaint

lodged by him or identity of the victim. PW-3 Rajendra Sawant has

deposed that, he was called at Ratnagiri City Police Station to act as

Panch witness. Auto rickshaw bearing no. MH-08-E-4700 was

stationed near one house. The inmates of the house informed that,

two persons have kept the auto rickshaw by stating that, the petrol

SAT 201-APEAL-43-2021.doc

tank is empty and they would return after purchasing petrol. The

Police waited at spot to trap the Accused. One person came there

and he was filling the petrol in the petrol tank of rickshaw. Police

caught him. Due to lapse of time he is unable to identify that

person. Police inquired with that person about the possession of

auto rickshaw and whereabouts of owner. He disclosed that, the

rickshaw was taken from Nevali Phata. He also disclosed that, one

person was killed near river. Police seized the auto rickshaw.

Accused showed the river. Police seized the chain of yellow metal at

the spot. At the instance of Accused No.1 dead body was traced. It

was in decomposed condition. Panchanama was prepared. Learned

APP was permitted to put leading questions to the witness. The

witness stated that, the person was asked to disclose his name and

he disclosed his name as Pravin Tukaram Kumbhar. That person

also stated that, he and his brother has committed murder of the

said person near Kapasi river. He cannot identified Pravin Kumbhar.

He was cross-examined at the instance of Accused. The defence

could not elicit any admission from the witness to disbelieve him.

It is pertinent to note that there was a gap between the incident

and deposition and merely on the ground that, the Panch witness

could not identify the Accused No.1, the witness should not be

disbelieved. PW-4 Suresh Khadpe is the Panch witness. According

SAT 201-APEAL-43-2021.doc

to him, he was called at Guhagar Police Station on 28th January,

2006. Accused present at the Police Station gave his name as

Pravin Tukaram Kumbhar. He produced full pant and full shirt. He

identified the clothes. The clothes were marked as Articles 12 and

13. He was again called at Guhagar Police Station on 30 th January,

2006. Accused No.1 disclosed that, he took out the front and rear

side number plate of auto rickshaw and hidden them at Parshuram

Ghat. He volunteered to disclose the spot and produce the number

plates. Accused produced the number plates from bushes. The

Articles were seized. Panchanama was recorded on 4 th November,

2006. He was again called by the Police at Guhagar Police Station.

Accused No.2 (Appellant) was present at Police Station. Police took

his personal search and seized one wrist watch and cash amount.

He was arrested. He denied the suggestions of the defence. There is

no reason to doubt his version. PW-5 Dilip Pandurang Salvi is the

Panch witness. He referred to seizure of auto rickshaw. He referred

to arrest of Accused No.1 who came near the auto rickshaw and

filling the petrol. He could not identify Accused in the Court. He

also referred to recovery of gold chain near the spot of incident. He

was cross-examined. The cross-examination is not effective to

discard his evidence. PW-6 Madhukar Salunke is the resident of

Patan, Dist. Satara. He stated that, on 12th January, 2006 auto

SAT 201-APEAL-43-2021.doc

rickshaw was stopped near his house. Two persons aged about 24

to 25 years came near the compound of his house. They told him

that, the petrol tank of rickshaw is empty and they would halt the

rickshaw near his house. They would purchase the petrol and

return to spot. They kept the rickshaw at that spot and left the

place. He identified those two persons in the Court as Accused Nos.

1 and 2. He identified auto rickshaw parked by the said Accused.

On 19th January, 2006 one person came near the auto rickshaw. He

was one of those two persons who had kept the rickshaw near his

house. He identified Accused No.1. He identified that person as

Rupesh Kumbhar. The witness told him that, he cannot take

rickshaw and he should visit Koyna Nagar Police Station. The said

person disclosed his name as Rupesh Kamble. On 21 st January,

2016, Police came to the spot and inquired about the auto

rickshaw. The Accused No.1 came to the spot, he was caught by

Police. He was identified as of of the two persons present in the

Court. He identified Accused Pravin Kumbhar in the parade. He

identified Rupesh Kumbhar in the identification parade. He was

cross-examined by the defence. He stated that, there is always

traffic for 24 hours on Chiplun Karhad Road. If any vehicle stops

near the road they do not make inquiry with the person who

stopped the vehicle. The rickshaw was parked outside the

SAT 201-APEAL-43-2021.doc

compound wall. We do not find anything in the cross-examination

to disbelieve the said witness. PW-7 Sankarshan Ambre was

attached to Guhagar Police Station. He used to check the vehicles

which were passing from the road. According to him one rickshaw

came on 10th January, 2006 from Ratnagiri side. It was bearing

registration No. MH-08-E-4700. Yashwant Shivram Chavan was

the driver of that rickshaw. He told him that he will drop the

passengers and return again. Two passengers were sitting on the

back seat. Those persons were culprits on the record of Police

Station. They were Pravin Tukaram Kumbhar and Rupesh Tukaram

Kumbhar. He identified them in the Court. Yashwant Chavan went

towards Sawarde side. He did not return. He was called for

identification parade at Ratnagiri Special Prison. He identified

Accused No.1 in the parade. He was again called for parade on 16th

January, 2007. He identified Accused No.2. He also identified both

the Accused in the Court. In the cross-examination by defense, he

stated that, he has not taken the entry of rickshaw MH-08-E-4700

in register. The statement was recorded by Police on 28 th January,

2006. He referred to the procedure adopted during identification

parade. It is pertinent to note that, this witness has deposed that,

both the Accused were culprits on the record of Police Station. Thus

assuming that there is defect in the test identification parade, there

SAT 201-APEAL-43-2021.doc

is no reason to discard the evidence of this witness or doubt the

identity of Accused. Apart from that the witness had sufficient

opportunity to witness the Accused who sitting in the auto

rickshaw. It is relevant to note that the witness was a policeman

and his work was to make a note of auto rickshaw's passing

through the road. He has identified Accused in the Court. This is a

strong circumstance against Appellant having seen him in the

company of the deceased before he went missing and found dead.

16. PW-8 Dr. Vinod Sangvikar conducted postmortem. He

referred to injuries on the person of the deceased. He noticed

external injuries mentioned by him in the postmortem report such

as Split laceration over right side of back extending from right side

of thoracic vertebra to right maxilla, right scapula is visible. Ribs

were visible, maxilla was fractured and separated out from base of

skull, Mandible was fractured at the level of neck and separated,

Dislocation of right shoulder, Posterior compartments were

exposed. The injuries were possible by hard and blunt object like

stone. The injuries in Column No.17 and the injuries Nos. 1, 2, 3

and 4 were ante-mortem and injuries nos. 5 and 6 were

postmortem. The injuries mentioned in Column No.17 can be

termed as homicide and death of a person due to such injuries is

possible. He also noticed internal injuries. He opined that the death

SAT 201-APEAL-43-2021.doc

of person had occurred due to shock due to hemorrhage. He was

cross-examined. He stated that, ante-mortem and postmortem

injuries can be identified from the color of injuries. There were

animal bite marks on the body of deceased. He conducted

postmortem at the spot where dead body was found on account

decomposition of body. Thus, the evidence of this witness discloses

that the death was homicidal. The cause of death is established. It

is also disclosed that the injuries are possible due to stone. PW-9

Dilawar Khan has stated that, he is conducting hotel business. On

30th January, 2006, Accused took out two number plates from

bushes. He identified the Accused. He gave his name as Pravin

Tukaram Kumbhar. The number plates were bearing number as

MH-08-E-4700. He identified the number plates. There was

nothing in the cross-examination to ignore his evidence. PW-10

Chandrakant Pathak conducted identification parade. He stated

that, the parade was conducted in jail. Witnesses Ambre and

Salunke were called for the parade. Both of them identified

Accused No.1 in the parade. Panchanama was written by Executive

Magistrate. At the time of parade no police official were present

there. Before identification parade Accused No.1 was not shown to

the witnesses. The persons in the parade were of same constitution.

Due to old age, he cannot remember the accused Pravin earlier and

SAT 201-APEAL-43-2021.doc

told a name as Rupesh, due to loss of memory he has stated that,

Police were present instead of Executive Magistrate. In the cross-

examination he deposed that, he do not remember the name of

police official who called him for parade. It is pertinent to note

that, witness is aged around 74 years at the time of his deposition.

PW-11 Anilkumar Valiv is attached to R.T.O. office Ratnagiri. The

office gave necessary information in respect of vehicle MH-08-E-

4700 to Guhagar Police. He admitted the contents of the

information in the Court. The registered owner of the rickshaw was

Yashwant Shivram Chavan. Thus, the identity of the rickshaw is

established and it is also proved that it belonged to the deceased

Yashwant Chavan. PW-12 Dipak Madhale was attached to Ratnagiri

Police Station. He stated that, on 21st January, 2006 information

was received that the auto rickshaw was located at Marul Tarphe

Patan. He went to the spot alongwith other officers. They found

auto rickshaw MH-08-E-4700 by the side of one house. The house

owner told them that on 12th January, 2006 two persons aged 25

years come to him and they parked the rickshaw by stating that

there was no petrol in the rickshaw. They saw one person. The

witness saw one person going towards rickshaw. He was caught. He

gave his name as Pravin Kumbhar. Accused No.1 was identified in

Court. Inquiry was made with Accused No.1 about owner of

SAT 201-APEAL-43-2021.doc

rickshaw. The vehicle was seized. Accused gave evasive answers.

Accused thereafter disclosed that, he killed the rickshaw driver

alongwith his brother. Accused No.1 showed the dead body of

rickshaw owner. He took them near Kapsi river. Dead body was

traced. One chain of yellow metal was found. The driving license

was found on the person of the deceased. Panchnama was

recorded. Inquest Panchanama was prepared. The witness was

cross-examined by the Advocate for Accused. He stated that, he did

not inquire with Ratnagiri Rural Police Station regarding missing of

auto rickshaw. The complaint of missing rickshaw was filed with

Ratnagiri Rural Police Station. PW-13 Vijay Ranade was working at

Tahesildar at Guhagar. He was instructed to conduct test

identification parade. It was arranged on 13 th February, 2006.

Accused No.1 was put up in the parade. No police official was

present at the spot. No chance was given to witnesses, to see the

Accused. Witness Ambre identified Pravin Kumbhar by touching

him. Witness Salunke identified Accused No.1. Witness Pramod

Damle could not identify the Accused. In the cross-examination he

stated that, the witness did not meet him prior to the parade. He

was not knowing the Panch witnesses. He did not meet the

witnesses prior to the parade. He denied that, the Guhagar Police

were present in the premises of jail at the time of identification

SAT 201-APEAL-43-2021.doc

parade. PW-14 was serving as Tahesildar and Executive Magistrate.

He was instructed to parade. Madhukar Salunke could not identify

Accused No.2. Witness Ambre identified Accused No.2. In the cross-

examination by the Advocate for Accused he stated that, he took

dummy persons from the campus of jail. He did not ask the jail

Superintendent to secure the presence of dummy persons. PW-15

Sanjivan Bhosale was called by the Police at Guhagar Police

Station. Accused No.2 was present at the Police Station. He

pointed out at the Accused No.2 in the Court. He stated that,

Accused No.2 made a statement that he is ready to show the spot

where the wrist watch of the deceased has been kept by him.

Accused No.2 took the Police to the spot where watch was

recovered. It was seized by the Police. He was cross-examined. He

denied the suggestion that, the wrist watch was not recovered at

the instance of Accused No.2. PW-16 Vilas Deshmukh was the

Police Sub-Inspector. He went to spot where the dead body was

found. He issued letter to Medical Officer to conduct postmortem at

the spot. Dead body was handed over to the relatives of deceased.

He obtained photographs of the spot. He collected documents from

R.T.O. He issued directions for conducting test identification

parade. Investigation was conducted. Various Panchanama were

recorded. Charge-sheet was filed. In the cross-examination several

SAT 201-APEAL-43-2021.doc

questions were put to him which did not shake his evidence.

17. On analyzing the evidence of aforesaid witnesses we are of

the considered opinion that, there are strong circumstances against

Appellant which establishes his involvement in the crime with

Accused No.1. The trial Court has rightly convicted Appellant for

the offence under Section 302 r/w 34 of IPC. The prosecution has

been able to prove that, the deceased was the owner of the subject

auto rickshaw. It was boarded by both Accused. The deceased was

last seen in the company of Accused. The witness Ambre had seen

both Accused in the company of deceased. The said witness could

identify the Appellant and co-accused. The rickshaw driver

thereafter went missing his body was recovered at the instance of

Accused No.1. The identity of deceased was established. It is

proved that the auto rickshaw belongs to deceased. The wrist

watch belonging to the deceased was recovered at the instance of

Appellant. The witness Ambre was knowing Accused as culprits on

record of Police Station. After the incident Appellant was

absconding. He was apprehended after about ten to eleven months

from the date of arrest of Accused No.1. The auto rickshaw was

parked infront of the house of witness by Accused. Accused parked

the auto rickshaw. Initially Accused No.2 tried to take away the

auto rickshaw from the spot. Thereafter, Accused No.1 went to the

SAT 201-APEAL-43-2021.doc

spot. He was apprehended by the Police while filling the petrol in

the auto rickshaw. Human blood was found on the clothes of the

accused, recovered during the investigation. There is no reason to

disbelieve the version of witnesses. The involvement of Appellant is

proved beyond doubt. Hence, the appeal is devoid of merits and

deserves to be dismissed.

ORDER

i. Criminal Appeal No.43 of 2021 is dismissed.

ii. The Impugned Judgment and Order dated 10th October, 2008

passed by Additional Sessions Judge, Khed in Sessions Case

No.14 of 2006 convicting Appellant for offence under Section

302 r/w 34 of IPC is confirmed.

iii. Interim Application Nos.1071 of 2022, 1282 of 2020, 958 of

2019 and 1283 of 2020 are accordingly disposed off.

[PRAKASH D. NAIK, J.]                          [A.S. GADKARI, J.]