Bombay High Court
Rahul Rameshchandra Zade & Anor vs State O Fmah. Thru. P.S.O on 5 July, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande
apeal186.08.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.186/2008
APPELLANTS: 1. Rahul s/o Rameshchandra Zade
Aged about a 24 years.
2. Sunil @ Sani Rameshchandra Zade,
Aged about 22 years.
Both resident of Sai Nagar,
Tah. Wardha, District - Wardha.
...VERSUS...
RESPONDENT: State of Maharashtra,
through Police Station Officer,
Wardha, District - Wardha.
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Shri Shriniwas Deshpande, Counsel (appointed) for appellants.
Shri A.M. Joshi, A.P.P. for respondent
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CORAM : R.K. DESHPANDE AND
ARUN D. UPADHYE, JJ.
Date of reserving the judgment : 15/06/2018
Date of pronouncing the judgment : 05/07/2018
J U D G M E N T (PER : ARUN D. UPADHYE, J.)
1. Being aggrieved by the judgment and order dated 25/2/2008 passed by the Ad hoc Sessions Judge - 2, Wardha in Sessions Trial No.166/2006, the appellants/accused have preferred this appeal. By the impugned judgment and order, the accused nos.1 ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 2 and 2 are convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to suffer imprisonment for life. They are convicted for the offence punishable under Section 201 read with Section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.2500/-, in default, they shall suffer simple imprisonment for six months. Both the substantive sentences are directed to run concurrently. The brief facts of the case are as under :-
2. The deceased Vipin was working with Tirupati Daily Collection. The complainant Ramaji Patil was residing along with his family in new house at Shankar Ice Factory road, Wardha. His old house is situated on Vikramsheela Nagar. On 26/5/2005, accused no.1 Rahul approached him and requested for giving the said old house on rent basis. At that time, the accused Rahul told him that he is L.I.C. agent and his marriage is fixed in the month of January, 2006. The complainant therefore agreed to let out the old house on monthly rent of Rs.650/- and accordingly, the accused started residing there. According to the prosecution, on 20/1/2006 at about 11:00 a.m. to 1:30 p.m. the sister of deceased Vipin by name Renuka had seen the accused persons taking Vipin from her house ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 3 on the motorcycle. At that time, one Vikky Ghumad was also along with accused and deceased Vipin. However, the accused persons have dropped Vipin near Saraswati Learning Point and thereafter both accused along with deceased Vipin went to the rented room. The prosecution case is that one Swati Landge and Swati Brahmne the neighbours of the tenanted room have seen three boys entering in the rented room and after some time they have heard loud voice from the said premises. Both these ladies have witnessed both accused leaving the tenanted premises. Thereafter, these ladies have informed the incident on telephone to the landlord Ramaji and Chhayabai. The complainant along with wife had been to the spot and they have seen the dead body from window. Thereafter, Ramaji Patil filed the report vide Exh.40 in the police station. The police registered F.I.R. No.25/2006 against the unknown persons for the offence punishable under Sections 302 and 201 read with 34 of Indian Penal Code.
3. During the course of investigation, the police broke the lock of the house and found dead body below the cot. Police prepared spot panchanama vide Exh.44, inquest panchanama of the dead body was also prepared. There were 36 stab injuries on the ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 4 body of the deceased. The police referred the dead body for post mortem examination. Police seized blood stained clothes and articles, blood stained cement concrete from floor, one gunny bag stained with blood, handle of Gupti, plastic chappal stained with blood and three condom packets. The police also seized from another room one yellow colour shirt stained with blood, blood stained Gupti and one white colour shirt.
4. During the course of investigation police recorded the statements of the witnesses. Both accused were arrested. Their blood samples were collected. The police referred the seized Gupti to the Doctor for query. In the investigation, it is transpired that according to the prosecution case, deceased was acquainted with accused. On 20/1/2006 both the accused took the deceased Vipin in the rented room and there was quarrel with deceased on account of Tirupati Daily Collection and they have assaulted to him by means of Gupti and caused multiple stab injuries and committed murder. The accused persons kept the dead body inside the cot in the said room and thereafter by locking the same left the place.
5. After completion of necessary investigation and receipt of Chemical Analyzer's reports and medical reports the police ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 5 submitted charge-sheet against the accused for the offence punishable under Sections 302 and 201 read with 34 of Indian Penal Code before the Court of Chief Judicial Magistrate, Wardha. The offence punishable under Section 302 of Indian Penal Code is exclusive triable by the Court of Session. Therefore, the learned Chief Judicial Magistrate, Wardha committed the case to the Court of Session.
6. Both accused appeared before the Court of Session and charge came to be framed vide Exh.5 for the aforesaid offence. After recording the evidence in the matter and after hearing both the sides, the learned Ad hoc Sessions Judge - 2, Wardha convicted both the accused for the aforesaid offence and sentenced them accordingly by impugned judgment.
7. Shri Shriniwas Deshpande, the learned Counsel for the appellants has submitted that there is delay in lodging the F.I.R., however, the learned Sessions Judge has failed to appreciate the said fact. He further submitted that the prosecution has failed to establish the case beyond doubt and therefore, the learned Sessions Judge ought to have given benefit of doubt and acquitted the accused. The findings recorded by the learned Sessions Judge are ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 6 based on erroneous assumption of facts and law and liable to be quashed and set aside. He further submitted that if two views are possible, the view favourable to the accused should be accepted. Lastly, it is submitted that the impugned judgment and order is liable to be quashed and set aside. The appeal therefore be allowed.
8. Shri Joshi, the learned Additional Public Prosecutor for the respondent has submitted that the learned Sessions Judge has considered the evidence on record in proper perspective and rightly convicted the accused persons. No interference of this Court is called for. The criminal appeal therefore be dismissed.
9. Considering the submissions of respective sides, we have perused the evidence on record with the help of learned Counsel for the parties. After perusal of the record of the case, one thing is clear that the deceased Vipin met with homicidal death. The evidence adduced by the prosecution clearly shows that the dead body of Vipin was found in the house of P.W.1 - Ramaji Patil and at the relevant time, the house was in possession of accused no.1 - Rahul. The prosecution has relied upon the evidence of P.W.2- Rajendra Salve on spot panchanama, inquest panchanama and seizure panchanama (Exhs.44 to 46) and evidence of P.W.15 - Dr. ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 7 Mohan Bhaimare on post mortem report (Exh.85).
10. P.W.2 - Rajendra is panch witness on inquest panchanama (Eh.45). As per the said panchanama, the dead body of Vipin was lying below the iron cot and after examining the same, it was found that there were so many injuries on his persons and blood stains were found on the clothes of the deceased. Several injuries of grievous nature were on the dead body. The dead body was referred for post mortem.
11. The prosecution has examined P.W.15 - Dr. Mohan Bhaimare to prove the post mortem report (Exh.85). On 21/1/2006 he was serving as Medical Officer in Civil Hospital, Wardha and he received dead body of Vipin for post mortem brought by P.C. Dinesh Kamble. Dr. Mohan Bhaimare in his evidence has deposed that on 21/1/2006 at about 11:15 a.m. he started the post mortem of dead body and completed it at 12:20 p.m. He found following injuries :-
"i. About 25 stab injuries over chest wall of size about 3 x 1 x 4 cm.
ii. About 25 stab injury over abdomen of size 3 x 1 x 1 cm.::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 :::
apeal186.08.odt 8 iii. 3 stab injuries of size 2 x 1 x 2 cm. over left arm.
iv. 3 stab wound noted over forearm of size 3 x 2 x 3 cm.
iv. One stab injury of size 3 x 1 x 2 cm. over right hand.
v. Incised wound of size 6 x 2 x 2 cm over right forearm."
Doctor opined that all injuries were ante-mortem injuries. However, he has not found any fracture. During internal examination, he found following internal injuries :-
" i. 10 stabs piercing the pleaura.
ii. About 10 stabs injuries were noted
over both lungs of size 2 x ½ x 1 cm.
iii. About 5 stabs piercing the
pericardium of heart and 4 on left ventricle.
iv. 5 stabs about 4 on left ventricle of size
2 x 2 x 2 cm. Piercing the ventricle.
vi. 25 stab injuries noted over the
abdomen wall about 16 stab injury piercing the pericardium.
::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 9 vii. 4 stab injuries were noted in stomach of size 2 x 1 x 2 cm. viii. 4 stab injuries were noted were small intestine of size 2 x 1 x 2 cm. ix. About 6 stabs noted in the liver of size 3 x 1 x 2 cm."
12. Doctor opined that the internal injuries were corresponding to external injuries and the cause of death was due to multiple stab injuries to vital organ with shock. The post mortem report is at Exh.85. He also deposed that on 15/7/2006 he received the query requisition from Police Station, Wardha. He examined Gupti and reported that the said injuries mentioned in post mortem may be caused by the said weapon. The query report is at Exh.86. The Doctor was cross-examined at length. In the cross-examination, he stated that before post mortem he examined the requisition as well as inquest panchanama. In the cross-examination he stated that he has personally counted the number of injuries. He also stated that he has not mentioned in the post mortem report by which weapon the injuries might have caused. It was suggested to him that he has noted the number of injuries in the post mortem report without ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 10 counting it. In the cross-examination, he stated that the weapon was brought by the Police Inspector in sealed condition. However, he has not mentioned the same in the report that it was sealed. He stated that the post mortem report is of 21/1/2006 while he examined the weapon on 15/7/2007.
13. We have also perused the post mortem report on record as well as query report. From perusal of the post mortem report the cause of death is shown multiple stab injuries and stab injuries to vital organs and shock. In the query report he has clearly stated that injury nos.1 to 6 found on the deceased Vipin may be caused by the above said weapon. Besides the medical evidence on record there is also evidence on record to show that the dead body of Vipin was found below the cot. P.W.1 - Ramaji and P.W.7 - Chhayatai Patil who were the owners of the house have seen the dead body in injured condition.
14. Considering the evidence on record adduced by the prosecution, we are of the considered view that the prosecution has established the fact that the death of deceased was homicidal one. The learned Sessions Judge has rightly considered the evidence on record to that effect and given finding that the death of Vipin was ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 11 homicidal one. The said finding will have to be confirmed.
15. The next question to be considered is, who is the author of the death of Vipin. To prove this, the prosecution came with a case that the accused no.1 had obtained the tenanted house of the complainant P.W.1 - Ramaji on monthly rent of Rs.650/- on 26/12/2005 and at the time of incident he was in a possession of said premises. The prosecution has examined the landlord Ramaji Patil (P.W.1) at Exh.39 and Chhayabai (P.W.7) at Exh.64.
16. P.W.1 - Ramaji has lodged the report in the police station vide Exh.40 and on the basis of the said report the F.I.R. is registered vide Exh.41. In the evidence P.W.1 - Ramaji deposed that on 26/12/2005 accused no.1 Rahul came to him and requested for giving his old house situated at Vikramsheela Nagar on rent basis. The accused told him that he is L.I.C. agent and would perform marriage in the month of January, 2006 and therefore, he let out the premises on monthly rent of Rs.650/-. In the evidence he also deposed that on 20/1/2006 he was present in the office and he received telephonic message from his wife at 1:30 p.m. that in the old house there is some quarrel and therefore he went there along with his wife. When he reached there, some persons were gathered ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 12 and the said house was closed and he saw from the window that the dead body of one man was below the cot and therefore, he went to the police station and filed report. He was cross-examined at length. In the cross-examination, he stated that when accused Rahul came to him and requested for accommodation on rent he did not enquire his L.I.C. agent number. It was suggested to him that he had kept his old house vacant for the purpose of study of children but he denied. It was suggested to him that accused no.1 never came to him and requested for the house on rent and obtained the same on rent basis. It was suggested to him that on the day of incident there was his own lock to the old house, but he denied.
17. If the evidence of this witness is considered in proper perspective, there is no reason to disbelieve him that he had given his old house on rent basis to accused no.1 - Rahul. Mere suggestion that the accused has not obtained the premises on rent basis is not enough. This witness has also lodged the report in the police station in the name of unknown persons. At that time he was not knowing who has caused the death of the deceased Vipin.
18. P.W.7 - Chhayatai is wife of complainant Ramaji Patil. In her evidence she deposed that in the year 2005 accused no.1 - ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 :::
apeal186.08.odt 13 Rahul had been to her new house and requested to let out the old house on rent. She also deposed that at that time the accused told them that he is L.I.C. agent and he is going to marry in the month of January and therefore her old house was given on rent basis of Rs.650/-. She further deposed that on 20/1/2006 at 11:30 a.m. she received telephonic message from Swati who resides near her old house and informed her that something is going on in their old house and she called her. She also deposed that she went there and saw persons were gathered. Accused no.1 - Rahul was about to leave her house on motorcycle and she informed him that she has to show the house to customer and at that time he told that room is locked and the key is taken by his friend and he will bring it and left the premises. She also deposed that her neighbour Brahimnabai informed her that in the room of accused no.1, three persons had entered but only two persons came out from the said room. She heard noise from the said room and thereafter two persons had come out from the room and went away. She also deposed that thereafter she saw inside the room through window and one dead body was below the cot and thereafter she informed to her husband on telephone and then her husband came and lodged report. She ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 14 was cross-examined at length. In the cross-examination, it was suggested to her that they were not letting out the old premises on rent as same was kept vacant for studying their sons but she denied. In the cross-examination she admitted that no rent receipt was issued to the accused. No name plate was installed in front of the said house. It was suggested to her that she is deposing falsely that they have let out the old house to the accused no.1 on rent but she denied. If the evidence of this witness is considered in proper perspective, one thing is clear that her old house was given on rent to accused no.1 - Rahul and on information received she had been to her old house and saw the dead body from the window and thereafter she informed the said fact to his husband Ramaji Patil. In the F.I.R. no names are mentioned by P.W.1- Ramaji. The F.I.R. was lodged on 20/1/2006 at about 3:00 p.m. The alleged offence took place on 20/1/2006 between 11:00 p.m. to 12 'O' clock.
19. Considering the fact that after the incident the F.I.R. is registered on the same day after three hours, there is no delay in lodging the report. Submission put forth on behalf of the learned Counsel for the appellants that there is delay in lodging the report and the learned Sessions Jude has not appreciated the said fact ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 15 therefore cannot be considered.
20. P.W.3 - Dilip Ramgirkar is father of the deceased Vipin. The evidence of this witness indicates that on 20/1/2006 he received information from his brother Chandrashekhar that his son Vipin is admitted in the hospital, Wardha. He therefore went in the hospital and saw Vipin in dead condition. His daughter Renuka was present in the hospital and told him that at about 11:00 to 11.30 a.m. their neighbour Vikky Ghumad came to house and took Vipin on motorcycle. She also told him that at that time another two boys were present outside the house on motorcycle. In the cross- examination it was suggested to him that his daughter Renuka had not told anything to him but he denied.
21. The prosecution has examined Renuka and Vikky in this case. Their evidence will have to be considered. P.W. 6 - Renuka Ramgirkar is sister of the deceased Vipin. According to her version, on 20/1/2006 at about 10:00 to 10:15 a.m. Vikky came to her house and talked to her brother Vipin. Thereafter, they went out of the house. She further deposed that at that time she saw two persons on motorcycle and they took her brother Vipin on their motorcycle. She further deposed that her statement was recorded by ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 16 the police on 22/1/2006. This witness has identified the accused persons in the Court as she knew them because they were visiting to her brother in connection with Tirupati Daily Collection.
22. She was cross-examined at length by the defence. In her cross-examination, she stated that she was knowing both the accused by their names prior to the incident. She stated that she disclosed their names to the police in the statement but she cannot assign any reason why same is not mentioned in her statement. In her cross-examination, it is brought on record that she has not stated to the police that the accused persons were visiting to her brother in connection with Tirupati Daily Collection. It was suggested to her that she has not seen the accused persons while taking her brother on motorcycle and deposing falsely, but she denied.
23. P.W.8 - Jayant @ Vikky Ghumad has deposed that deceased Vipin was his friend and residing near his house. On 20/1/2006 at about 10:30 a.m. he went to the house of Vipin. Both accused were present near the house of Vipin. He was knowing the accused persons because he had seen them with Vipin. He further deposed that accused and Vipin were talking about amount of lucky ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 17 draw scheme and there were altercations between them in that respect. Thereafter, both accused and Vipin proceeded towards Vikramsheela Nagar where room of the accused was situated. He also deposed that when they were proceeded towards Vikramsheela Nagar, he was dropped on the way near Saraswati Learning Point and thereafter the accused and Vipin proceeded towards Vikramsheela Nagar. He was cross-examined at length. In the cross- examination he stated that the accused persons have a big house at Sai Nagar. The parents and brothers of Rahul are residing there. It was suggested to him that the accused Rahul has not taken any house on rent, but he denied. It was suggested to him that he is deposing falsely that quarrel took place between accused and Vipin but he denied. It was suggested to him that he had quarrelled with accused on that day and therefore deposing falsely but he denied.
24. After considering the evidence of these two witnesses P.W.6 and P.W.8 the prosecution has successfully proved that on 20/1/2006 the accused persons had come to the house of deceased Vipin and took him on motorcycle towards the room situated at Vikramsheela Nagar. The fact that Renuka had not disclosed the name of accused persons to the police in the statement does not ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 18 affect her version. The evidence of Renuka is corroborated by P.W. 8
- Vikky in this aspect. There is no reason to discard the evidence of these two witnesses. It is to be noted that the house of Vikky is situated near the house of deceased Vipin. He has clearly deposed that he had seen the accused while taking Vipin towards their room at Vikramsheela Nagar when he was dropped near the learning point. This circumstance is established by the prosecution pointing out that the accused persons had taken deceased Vipin to their room at Vikramsheela Nagar.
25. P.W.9 - Swati Brahmane in her evidence has deposed that she is residing in rented room of one Khairkar at Vikramsheela Nagar. She further deposed that in front of her house there is house owned by Shri Patil. The accused Rahul was coming frequently. On 20/1/2006 at about 11:30 a.m. when she was waiting for her daughter outside her house, she saw three persons entered in the house of Shri Patil. After five minutes she heard shouts from the room where Rahul Zade was residing. Thereafter ladies from locality gathered there and went there. She noticed that something is going on there, therefore, she asked Swati Landge to inform the said fact to Mrs. Patil. She also deposed that one person came out from the ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 19 room who is accused no.2 present in the Court. At that time, Mrs. Patil also came there and accused no.1 Rahul came out from the room and started going outside. Mrs. Patil talked with him but he left the place. Thereafter, they saw from the window as door was locked. Mr. Patil then came there and thereafter lodged the report.
26. She was cross-examined at length. However, defence was not able to elicit something in the cross-examination to disbelieve her version. There is no reason for her to depose falsely against these accused persons. She had seen three persons entered in the house of Shri Patil. She also saw accused persons came out from the house. It was suggested to her that she is first time seeing the accused persons in the Court but she denied.
27. P.W.10 - Swati Landge has corroborated the version of P.W.9 - Swati Brahmane on material count. This witness is also residing near the house of Shri Patil. She has informed Mrs. Patil about the incident. In the cross-examination it was suggested to her that the house of Shri Patil was not given on rent, but she denied.
28. Considering the evidence of these two witnesses, the presence of accused persons is established by the prosecution at the relevant time. The accused persons were also seen while coming out ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 20 from the room. This circumstance is established by the prosecution by cogent evidence.
29. P.W.13 - Prakash Dhoke and P.W.14- Shivram Dhengale are panch witnesses on memorandum panchanama and seizure panchanama at Exh.92 to 95. Both these witnesses are turned hostile and they have not supported to the prosecution.
30. P.W.16 - Ramprasad Ghule - Investigating Officer has deposed that he investigated the case and on 7/6/2006 the accused Sunil made a statement in presence of panchas that he will produce the clothes kept in his house and his Scooty Pep which is sold at Yavatmal. Accordingly, memorandum (Exh.92) was prepared. Then they went to the house of accused Sunil and he produced the clothes kept in the bathroom in a plastic bag. The clothes were stained with blood and seized vide panchanama Exh.93. He further deposed that on 11/6/2006 accused Rahul made a statement that he has kept clothes and Gupti in rented house and accordingly memorandum (Exh.94) was prepared. Thereafter, they went in the rented house. Already clothes and Gupti were seized under panchanama (Exh.46) and thereafter seizure panchanama vide Exh.95 was prepared. This witness is cross-examined at length. So far as disclosure statement of ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 21 Rahul Zade is concerned, the police have already seized the clothes and weapon under panchanama (Exh.46) and there is no question of recovery and the disclosure statement made by accused. There is no compliance of Section 27 of the Evidence Act, therefore, this cannot be used against the accused Rahul. So far as seizure at the instance of the accused Sunil Zade is concerned, this witness has proved the memorandum and seizure panchanama. There is no reason to disbelieve him, so far as seizure of clothes of accused Sunil at his instance is concerned.
31. The seized property was sent to the Chemical Analyzer for analysis. The Chemical Analyzer's report is placed on record at Exh.22. As per the Chemical Analyzer's report, blood was found on Articles - 1 and 3 to 14 and the blood detected on Article - 1 and 3 to 12 is of human. The blood found on Article - 9 to 11 is of 'O' group. The blood detected on Exh.1, 3 to 5, 7, 8 and 12 cannot be determined as results are inconclusive. No blood was detected on Exh.2, 15, 16 and 17. Article - 1 is cement concrete mixture and Article - 3 is gunny bag. The blood found on the clothes of the deceased was of human and of 'O' group. The blood group of the accused was not detected because it was unsuitable for grouping. ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 :::
apeal186.08.odt 22 The blood found on the clothes of the accused was of human. However, blood group was not detected as results are inconclusive. The blood found on Gupti was of human. However, blood group was not detected as results are inconclusive.
32. It appears that the accused were absconding since the date of incident, i.e., 20/1/2006. Both the accused were arrested on 3/6/2006. The arrest panchanamas are filed on record and admitted by the accused persons and the same are at Exhs.90 and 91. No explanation is given by the accused why they were absconding for substantial period of more than five months. It appears that both these accused were referred for medical examination after arrest vide requisitions Exhs.72 and 73. The Medical Officers have given medical reports below the requisitions. As per the medical report of accused Rahul one bruise of 5x3 cm was found on his left forearm, duration of injury is 12 hours to 24 hours, the injury is caused by hard and blunt object and will heal in four to five days. The blood sample was also taken. So far as accused no.2 - Sunil is concerned, no injury was found on his person. However, his blood sample was taken. The injury found on the person of the accused has no nexus to the incident as he was arrested after five months. ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 :::
apeal186.08.odt 23
33. In the evidence of Investigating Officer (P.W.16 - Ramprasad) it has come on record that during the investigation he searched the house of the accused and found four bullets of AK-47 and registered separate offence against them. In the cross- examination only suggestion was given that he is deposing falsely about registration of offence of crime in respect of the seizure of bullets, however, he denied. There is no reason to disbelieve his version. This circumstance clearly shows that the accused persons have criminal background and this also goes against them.
34. In the statement recorded under Section 313 of the Code of Criminal Procedure, questions about having blood stains found on Gupti and clothes were put to them but they replied that they do not know about that. The accused persons have failed to explain the fact about the blood stains on their clothes and this circumstance goes against the accused. Gupti and clothes of the deceased were seized from the spot having blood on it which is of human. The body of the deceased was found in the room which is taken on rent by accused Rahul Zade. He has not explained how the dead body was in the house which is taken by him on rent. The prosecution has established the fact that the said house was given ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 24 on rent to him prior to the incident. The fact that the accused has his own house in the same city does not mean that he has not obtained the room on rent basis for him. The witnesses have stated that the accused Rahul was frequently coming to the room though he was not actually residing there. This circumstance goes against the accused.
35. After considering the evidence adduced by the prosecution, we are of the view that the prosecution has proved the guilt of the accused by circumstantial evidence. The circumstances relied upon by the prosecution are pointing out the guilt of the accused and the same are established by adducing the cogent evidence. The prosecution has also established the chain of the circumstances to bring home the guilt of the accused beyond the doubt for the offence charged. The accused have caused multiple stab injuries to deceased and have committed the murder. They have also disappeared the evidence in order to screen themselves from the punishment of the offence charged. The learned Sessions Judge has considered the evidence on record in proper perspective and held them guilty for the offence charged. No interference of this Court is called for in the impugned judgment. The appeal filed by ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:52:40 ::: apeal186.08.odt 25 the appellants is devoid of any merit and liable to be dismissed.
36. During the pendency of the appeal, the accused were released on parole and thereafter they are absconding and not returned to the jail. The learned Additional Public Prosecutor has taken time to file affidavit about what steps are taken by the police to arrest them. Thereafter, the matter was heard on merit. It is therefore necessary to direct the prosecution to arrest the accused persons to serve the sentence passed against them. Hence, we pass the following order.
O R D E R
(i) Criminal Appeal No.186/2008 is dismissed.
(ii) Both the accused are absconding. They be arrested and sent to jail to serve the sentence awarded against them.
(iii) Fees payable to the appointed learned Counsel Shri Shriniwas Deshpande for the appellants is quantified at Rs.5,000/- (Rupees Five Thousand Only).
(iv) Record and proceedings be sent back to the concerned Court immediately.
(Arun D. Upadhye, J.) (R.K. Deshpande, J.)
Wadkar, P.S.
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