Advocates:
['GHULEPATIL AMOL P', '', 'Ghanekar Nilesh S', 'Chatterji Joydeep', 'ADV JOYDEEP CHATTERJI AND N S GHANEKAR', 'ADV AMOL P GHULE PATIL', 'COPY SERVED ON PP']

Judgment Cr.Apeal.511.2019.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 511 OF 2019

1.

Somnath s/o Balu Tambe,

Age 20 years, Occ : Agri,

r/o Dongaon Tambe, Taluka

Paithan, district Aurangabad.

2.

Shiru @ Shriram s/o Dattu

Tambe,

Age 22 years, Occ : Agri,

r/o Dongaon Tambe, Taluka

Paithan, district Aurangabad.

)

)

)

)

)

)

)

)

)

)

...Appellants

Versus

State of Maharashtra

)

...Respondent

***

Mr. Joydeep Chatterji, Advocate a/w Mr. R.A. Jaiswal,

Advocate for the Appellants.

Mr. R.B. Bagul, APP for Respondent – State.

***

CORAM:R.G. AVACHAT &

R.M. JOSHI, JJ.

DATE:DECEMBER 05, 2022

JUDGMENT (PER R.M. JOSHI, J)

1.

Out of 3 accused put on trial in Sessions Case

no. 38 of 2015, present Appellants are convicted for

the offences punishable under Section 302 of Indian

Penal Code, 1860 by the impugned judgment and order

dated 02.05.2019 passed by Additional Sessions Judge,

Aurangabad. One of the accused stood acquitted against

whom no appeal is preferred by the State.

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Judgment Cr.Apeal.511.2019.doc

2.

As per the report of Satyabhamabai (PW 1),

wife of deceased Abasaheb, on 06.11.2014 at about 08.30

pm Shiru Tambe and Sominath, Appellants herein, came to

her house and invited Aba for mutton treat. Though she

opposed Aba going with them but still he went along

with them and did not return in the night. On the next

day, dead body of Aba was found in the well.

Thereafter, the postmortem was conducted on the dead

body and when it was found that Aba died due to injury

to his head, report was given to concerned police

station. On the basis of the said report C.R. No.

106/14 came to be registered with MIDC Paithan Police

Station.

3.

Investigation into the said crime was done by

PSI Dongare. During investigation he visited the spot

and panchnama was drawn in presence of witnesses.

Similarly, statements of witnesses were recorded. On

completion of investigation charge-sheet came to be

filed. On committal of the case it came to be

registered as Sessions Case No. 36 of 2015. Charge was

framed against the accused vide Exhibit 45. On denial

of the charge, they were tried.

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Judgment Cr.Apeal.511.2019.doc

4.

According to learned Advocate for the

Appellant - accused there is no conclusive evidence to

show that the deceased died homicidal death and hence

present prosecution must fail. It is also argued that

testimonies of Satyabhamabai (PW 1) and Nanasaheb (PW

2) are inconsistent on material aspects and also in

view of the fact that initially report was given to the

police of accidental death of deceased, it is after 2

days report was lodged against the Accused, it is an

afterthought and false case of implication. It is also

argued that in absence of any inimical terms between

Appellants and deceased, they had no motive to kill him

and when from the evidence of medical officer who

conducted autopsy it is clear that the possibility of

accidental death is not ruled out, the judgment of

conviction cannot sustain.

5.

Learned APP supported the impugned judgment

and order by citing evidence of Satyabhamabai and

Nanasaheb. According to him, prosecution has proved

that accused were seen together with the deceased and

shortly thereafter deceased died and hence, the burden

is on the accused to explain the circumstance in which

Page 3 of 12

Judgment Cr.Apeal.511.2019.doc

the death of deceased is occurred. According to him,

therefore, it is not a fit case to cause interference

in the impugned judgment.

6.

Satyabhamabai (PW 1), wife of the deceased,

deposed that on 06.11.2014 at around 08 to 08.30 pm

Sominath and Shiru came to her house calling Aba for

mutton party and in spite of her opposition Aba went

along with them by taking a pot, two plates, four

Bhakaris and onions. He did not return home in the

night and on the next day his dead body was found in

the well. As per her testimony, Nanasaheb (PW 2)

informed her that in the postmortem report it has come

on record that deceased died du