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2019 Supreme(Bom) 1692
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. DHARMADHIKARI, SANDEEP K. SHINDE, JJ.
Prajakta Shyam Shelar & Another – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal Nos. 124, 125 of 2013
Decided on : 02-12-2019
For the Appellants :Payoshi Roy i/by Dr. Yug Mohit Chaudhary, Advocates.
For the Respondent: Arfan Sait, APP.
Headnote:
Indian Penal Code - Section 302, 201, 379 IPC read with 34 - Life imprisonment - Evidence of neighbors – Offence of murder – Injury - Bag was in front of temple and information was given by some unknown person also learnt about it when the police reached the spot & he also went there. As per his version at he was coming in his Auto rickshaw and was proceeding to his house. He reached Road when two persons stopped him. One bag was kept on the ground and they were standing by its side. They told him that they were going to and to carry them till the place where his auto rickshaw was going. Accordingly he dropped them at temple. These two persons told the watchman of the temple to keep an eye on that bag and they would come back after taking dinner - They again sat in his auto rickshaw and told him to drop them at the place where they could have food. He left them at Chinese hotel situated near temple which was found closed - They paid him and asked him to go – Held, This evidence therefore shows that this witness had talk with accused who thereafter placed bag near a tree and both accused persons vanished. In very same bag dead body of was found on the next day. This witness was not knowing either deceased or accused persons and has no reason to depose falsely. Police has recorded his statement immediately and as such there is no question of any embellishment in his statement - Even if we accept that no of Flat No.302 to show stay of accused or no of to show it as a crime spot is drawn, the prosecution has succeeded in showing their occupation of said flat. It is true that nobody saw deceased visiting Flat leaving it, the fact that his body was found in the suitcase with which the accused were seen leaving the flat. Said suitcase was bought by them from police did not collect any incriminating material like weapon, fingerprints in Flat or details of last call by - Father to deceased not there, these are not material defects which can exonerate accused. Same can be said about the golden chain or the golden ring alleged to be with the deceased or the accused using it to arrange funds or the police not explaining missing or mobile of the deceased. These circumstances do not break the chain of incriminating circumstances at all - Circumstances like previous acquaintance between the deceased and accused, Accused purchasing a large suitcase & then leaving Apartment” with it, they going all the way to the Temple and abandoning that suitcase there, Police finding body of deceased in that suitcase near temple on next day in the morning are all proved. It is also clear that for going to Shirdi for a day, it was not necessary for them to purchase such a large suitcase & to travel right up to Temple situated at the long distance & vanishing after dropping the suitcase there, all show the oblique motive which induced the accused-appellants – Appeal dismissed
JUDGMENT:
B.P. Dharmadhikari, J.
1. Accused no.1 is appellant in Criminal Appeal No.125 of 2013 while accused no.2 has filed Criminal Appeal No.124 of 2013. These appeals are directed against the judgment and order dated 21/12/2012 delivered by 2nd Additional Sessions Judge, Thane in Sessions Case No. 59 of 2011. Accused no.1 was at the time of commission of offence aged about 21 years while accused no. 2 was aged about 20 years.
2. They have been sentenced to life imprisonment for committing offence punishable under section 302, 201 and 379 read with 34 of IPC for killing deceased Nilesh with the help of a string on 23/10/2010. His body was then put into a suitcase which was then abandoned with an intention to cause the evidence to disappear and to screen themselves. A golden chain on his person is also claimed to have been stolen. Thus both the accused persons are convicted under section 302, 201, 379 IPC read with 34 IPC.
3. The incident occurred on 23/10/2010 at about 4.00 hrs in the afternoon and police got the knowledge on 24/10/2010 when in the morning report of an abandoned bag was received by them. The bag was in front of Pimpaleshwar Mahadev temple and information was given by some unknown person. PW-1 Sunil (the informant) also learnt about it when the police reached the spot & he also went there. As per his version at about 10 pm on 23/10/2010, he i.e. Sunil Patil was coming in his Auto rickshaw and was proceeding to his house. He reached Katai Pipeline, Kalyan Sheel Road when two persons stopped him. One bag was kept on the ground and they were standing by its side. They told him that they were going to Shirdi and to carry them till the place where his auto rickshaw was going. Accordingly he dropped them at Pimpaleshwar Mahadev temple. These two persons told the watchman of the temple to keep an eye on that bag and they would come back after taking dinner. They again sat in his auto rickshaw and told him to drop them at the place where they could have food. He left them at Chinese hotel situated near Shani temple which was found closed. They paid him Rs.100/- and asked him to go.
4. On the next day i.e. on 24/10/2010 neighbour of Sunil told him that police were doing panchanama of a bag found near the temple. Sunil therefore came near Pimpaleshwar temple and identified the bag. He informed the police accordingly. The bag was opened and a male body aged about 18 to 19 years with hands and legs tied by rope was found in it. The private parts of the deceased were in burnt condition.
5. Informant Sunil was therefore, taken to Manpada police station where he lodged Exh. 31 FIR. The case papers were then made over to Mr. Dattatraya Pandhare, PW 29 for investigation. Mr. Pandhare came to the spot near the gate of Pimpaleshwar Mahadev temple at about 9.30 am and saw one black colour suitcase lying there. He opened the suitcase in the presence of pancha witnesses and noticed an unidentified dead body of a male dead body in it. PW 3 Digambar Gavade took photographs which are at Exh. 34 to 36. An inquest panchanama was drawn. The bag contained some clothes. The suitcase, clothes, cello tape and a rope were seized by police and panchanama was drawn accordingly vide Exh. 38. The dead body was then sent for post mortem.
6. The investigation revealed that another auto rickshaw driver by name Rahul Chavan, PW 20 had brought accused no. 2 in his auto rickshaw to Yash Apartment and thereafter carried him to accused no. 1 and one bag upto Davdi naka. Then police reached at Yash Apartment and enquiry there from the neighbours disclosed that the bag was taken out of Flat No. 302 in Yash Apartment by accused persons. Parents of accused no. 2 were residing in Pantnagar, Ghatkopar. On enquiry Sham Shelar, father of accused no. 2 told the police that both the accused had gone to Shirdi and due to return in the evening. Accused persons returned in the night on 24/10/2010 to the house of accused no.2 and were taken in custody by Manpada police. Pa
