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2014 Supreme(Bom) 1980
IN THE HIGH COURT OF BOMBAY
P.V. Hardas & Anuja Prabhudesai, JJ.
Shamrao Bhimrao Mhaske and Others – Appellants
Vs.
State of Maharashtra – Respondent
Criminal Appeal No. 441 of 2008
Decided On : 25.8.2014
For Appellant/Petitioner/Plaintiff:Arfan Sait, Advocate.
For Respondents/Defendant: H.J. Dedhia, A.P.P.
Headnote:[INDIAN] PENAL CODE, 1860 - Sections 302, 363 and 34 Conviction for kidnapping & murder. Since chain of circumstances clearly pointing towards guilt of accused persons, is complete, hence accused persons rightly convicted under Section 302/363/34, IPC. The evidence on record therefore, leads to only one hypothesis that it is the appellants and the appellants alone had committed murder of deceased. Moreover, deceased was a small boy who was aged 8 years. Even if he had been allowed to go by his kidnappers, deceased Naresh would have retuned home and his dead body would not be found at that place. Deceased would not have wandered to the place where his dead body was found. The evidence on record therefore, points to the involvement of the present appellants and the only hypothesis that is available on the basis of the evidence on record is that it is the appellants and the appellants alone have committed murder of deceased.
It true that in cases resting on circumstantial evidence, motive as a circumstance is extremely important and assumes importance in forging of the chain of circumstances.
Thus, after considering the submissions advanced before Court by the counsel for the parties, according to us, prosecution has proved the offence against the appellants beyond reasonable doubt. the appeal filed by the appellants therefore being sans merit is dismissed confirming the conviction and sentence.
P.V. Hardas, J.
1. The Appellants/Original Accused Nos. 1 and 2, who stand convicted for an offence punishable under Section 302 read with Section 34 and Section 363 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life and to each accused to pay a fine of Rs. 5000/- in default of which to undergo further SI for six months and RI for three years and each accused to pay a fine of Rs. 5000/- in default of which to undergo further SI for six months, with a direction that the Appellants would be entitled for set off and that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Karad, by judgment dated 27.03.2008, in Sessions Case No. 48 of 2005, by this Appeal question the correctness of their conviction and sentence. Facts, as are necessary for the decision of this appeal, may briefly be stated thus:-
PW-21 ASI Jagannath Bhakare, who on 8.4.2005, was attached to the Karad City Police Station and was on duty, recorded the report of PW-13 Vikas Mhaske regarding missing of Naresh, a 8 year old boy. The said missing report is at Exhibit 97. The investigation of the said missing report was then entrusted to PW-22 ASI Dilip Gajare.
PW-22 ASI Dilip Gajare, who was also attached to the Karad City Police Station was entrusted with the investigation of Missing Report No. 10 of 2005. He therefore went to the Adarsha Primary School at Karad and took search of Naresh, a boy aged 8 years. Naresh however was not found. In the missing complaint there was a reference to one person by name Mhaske Kaka and therefore, PW-22 ASI Gajare went to the house of Naresh and learnt the name of "Mhaske Kaka" as accused Shamrao Mhaske. He therefore went to the house of accused Shamrao Mhaske but the accused was not present in his house. On 9.4.2005, he again went to the school at about 7.00 a.m. and recorded the statement of PW-12 Prachi Gadekar. Accused Shamrao was not present in the school. The school bag of Naresh was produced and was accordingly seized in the presence of panchas under seizure memorandum at Exhibit 43. He, thereafter, handed over the investigation to PW-23 API Rajendra Mulik.
PW-23 API Rajendra Mulik, who was also attached to the Karad City Police Station was entrusted with the investigation of the Missing Report No. 10 of 2005 on 9.4.2005. He also went to the school and took search of Naresh but did not find the whereabouts of Naresh. He recorded the statement of PW-10 Jagdish Patel, Subhash Patil, Shanta Sapre, Bhagwat Bhosale and others. The search of the house of accused was taken in order to find out the whereabouts of Naresh. A watch was kept on the school as well as at the house of accused Shamrao. Meanwhile, PW-20 Ravindra Mhaske, father of deceased Naresh lodged his report at Exhibit 122. On the basis of the said report, an offence punishable under Section 363 of the Indian Penal Code was registered against unknown persons. The investigation of Crime No. 109 of 2005 was therefore entrusted to PW-23 API Rajendra Mulik on 10.4.2005. He recorded the statements of PW-8 Sandhya Mhaske, PW-9 Nikita Mhaske, PW-11 Anil Sawant, PW-12 Prachi Gadekar, PW-17 Ravindra Mhaske and PW-3 Sajid Shaikh and others. Separate squads were appointed for tracing the whereabouts of Naresh. On 11.4.2005 he recorded the statement of PW-14 Hanmant Pawar and thereafter, handed over the investigation to PW-24 PI Mahadeo Gavade.
PW-24 PI Mahadev Gavade, who was attached to the Karad City Police Station was entrusted with the investigation of Crime No. 109 of 2005 on 11.4.2005. On the same day at about 7.00 p.m. API Patil of Police Station Umbraj informed that a dead body of child was found lying in the Kalgaon Area. PW-24 PI Gavade accordingly rushed to the scene of the incident alongwith the staff and on seeing the dead body gave instructions for calling the relatives of Naresh for identification of the dead body. Accordingly, the dead body was identified by PW-11 Anil Sawant, uncle of deceased Nar
