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2019 Supreme(Bom) 1687
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Z.A. Haq, Vinay Joshi, JJ.
Lalit – Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 503 of 2013, 507 of 2013, 572 of 2013, 278 of 2014, 279 of 2014
Decided On : 05-09-2019
R.M. Daga, Adv., S.M. Ukey, Adv., M.P. Khajanchi, Adv., R.S. Akbari, Adv., R.P. Joshi, Adv.
Headnote:
Indian Penal Code - Section 120B - Arms Act - Code of Criminal Procedure - Section 313 - Challenged the acquittal- Appeal against conviction - Trial Court - When they met accused and made enquiries, the later gave evasive answers, therefore, they took accused Police Station, where Sadhana lodged a missing report. While the missing report was reduced into writing, at that time then P.S.I. Mane, received a telephonic message that two bodies were found in Forest within the jurisdiction of Virur Police Station. Thereafter brother of brother of informant Sadhana, went to the place and identified the dead bodies as of Advocate Nalamwar and Vijay Bisne. Since the dead bodies were found within the jurisdiction of Police Station, informant P.W.9-Sadhana Nalamwar went to Virur Police Station and lodged report – Held, On careful assessment of entire material, we can safely note that the prosecution has proved that both deceased died of bullet injury caused by country made pistol, meaning thereby it was homicidal death. The weapon seized from accused no.1 Rajik was used in the commission of crime which is duly established by the evidence of ballistic expert (PW.32). Bullets which are recovered from brain matter of both deceased were examined and found that they were fired by the same weapon viz. Country made pistol (Article "AV"). It is also established that prior to the incident, accused no.1 Rajik contacted deceased Nalamwar under the pretext of a case of land dispute. In pursuance of the conspiracy, which was hatched between accused nos.4 and 3, accused nos.1, 7 and 8 on the date of incident 5.9.2009 committed murder of deceased Nalamwar - Facts and chain of circumstances firmly established by the prosecution leads to draw only conclusion of guilt against the accused. The facts established are consistent with the only hypothesis of guilt of accused, that is to say, they are not explainable or any other hypothesis, except that accused no.1, 3, 4, 7 and 8 are responsible for the death of Advocate Nalamwar and Vijay Bisne - Having held so, the last aspect which remain to be answered is about what offence has been committed by the accused on proved facts. It is amply established that both deceased died homicidal death due to bullet injury on their head. The nature of weapon and part of the body on which injuries were found, are the prime indicators to gather the intention of the accused. Both the deceased were done to death by firing bullets from close range by country made pistol. The said very act, conspicuously discloses that the accused very much carried intention to cause death or with a knowledge that their act would in all probabilities cause death of the victim – Appeal dismissed
JUDGMENT :
Vinay Joshi, J.
These appeals arise out of a judgment and order of conviction dated 30.07.2013, passed in Sessions Trial No. 14/2000 by the learned Additional Sessions Judge, Warora. Accused were charged for criminal conspiracy, abduction, abatement and murder of Advocate Pradeep Nalamwar and Vijay Bisne. One of the accused was also charged for the offence punishable under the Arms Act. After holding trial, the Court below has convicted accused nos. 1, 3, 4, 7 and 8 for criminal conspiracy punishable under Section 120B of the Indian Penal Code, and for Murder, punishable under Section 302 of the Indian Penal Code. Accused Nos.1, 7 and 8 are also convicted for the offence punishable under Section 364 read with Section 109 of the Indian Penal Code. Besides that Accused no.1 is convicted also for the offence punishable under Section 3 read with Section 25 of the Arms Act. However, the trial Court has acquitted accused nos. 2, 3 and 6 of all the charges.
2. Being aggrieved and dissatisfied by the said judgment and order of conviction, the accused nos. 1, 3, 4, 7 and 8 have preferred separate appeals, challenging their conviction on almost similar grounds. For the sake of convenience we prefer to decide all these appeals by this common judgment. The State Government has neither challenged the acquittal of accused nos. 2, 5 and 6, nor sought for enhancement of sentence of the convicted accused.
3. In the course of trial, the prosecution has examined as many as 38 witnesses, besides exhibiting large number of documents. The statement of accused in terms of Section 313 of the Code of Criminal Procedure has been recorded to obtain explanation of accused on incriminating material. At the conclusion of the trial, while accused nos. 2, 5 and 6 are exonerated of the charges leveled against them, the rest have been convicted as aforesaid and are sentenced to undergo separate punishment for each proved offence.
4. Briefly stated, the case of prosecution is that deceased Pradeep Nalamwar was an Advocate by profession and at the relevant time was living with his wife at Sarkar Nagar area in Chandrapur. Advocate Nalamwar was earlier residing in Swami Compound owned by the accused no.4 Swami. Though later on Advocate Nalamwar shifted his residence at Sarkar Nagar, however, he continued his office at Swami Compound, and was attending the office daily. On the fateful day i.e. on 05.09.2009, Advocate Nalamwar returned to his house around 5.30 to 6 p.m. and was attending some clients at his residence, where also he asked to attend the clients. Wife of Advocate Nalamwar, P.W.9- Sadhana Nalamwar, was present at their residence. At that time, Advocate Nalamwar received a phone call from Rajik and talked to him. Within short time, accused no.1 Rajik arrived at the residence of Advocate Nalamwar. Informant P.W.9- Sadhana Nalamwar, while preparing tea, noticed from kitchen that a sumo vehicle had stopped near the house from which accused no.1 Rajik had alighted, whilst one person was sitting on the driver seat and another was sitting beside the driver's seat. Advocate Nalamwar had a talk with accused no.1 Rajik for short while and then he informed to his wife P.W.9- Sadhana Nalamwar, that he was going to Rajura for Rajik's work, and had left the house. While Advocate Nalamwar was leaving the house, P.W.9- Sadhana Nalamwar and neighbouring lady P.W. 12 Harsha Dharamsare, followed him upto the gate, where Advocate Nalamwar sat in the sumo vehicle and all four went away.
5. Around 1 a.m. in the midnight, P.W.9- Sadhana Nalamwar received a phone call from P.W.14-Sadhana Bisne (wife of deceased Vijay Bisne), informing that her husband Vijay Bisne had gone with Advocate Nalamwar by sumo vehicle towards Rajura, but, had not return. Informant Sadhana Nalamwar tried to telephonically contact her husband as well as Vijay Bisne, but, their phones were not r
