Case: Gopinath Vitthal Sable Vs. The State of Maharashtra

to say about it, answered that it is true that Vishwas Waman Borade is my relative. I do not know that the house of Shivaji Pardhi [PW7] is adjacent to the house of Vishwas Waman Borade.21. Thus, the prosecution has proved that Vishwas Waman Borade is relative of Accused Gopinath, and Shivaji Pardhi [PW7], who is residing adjacent to the house of said Vishwas, has purchased the aforesaid mobile set from the Accused Gopinath. It appears that the trial Court summoned Suresh Mangilal Khandelwal as Court Witness. Mr.Suresh [Court Witness No.1] deposed that, he was owner and proprietor of the shop, named and styled as JM Moile Shoppe up to 2007. He used to sell mobiles from the said shop. He closed the said shop in the year 2007. He produced the certificate of CA to show that he was running the said shop till the year 20042005. He tried to search for the original cash and credit memo bearing No.1201 dated 25th December 2005. However, since his shop is closed he could not locate the original cash and credit memo. However, upon going through the photocopy of the said memo placed on record by the prosecution, he stated that the said cash and credit memo was issued from his shop. A perusal of original record shows that the photocopy of the cash or credit memo was placed on record by the prosecution at Article A. We have carefully perused the certificate at Exh.124 which is part of record, wherein it is mentioned as under :This is to certify that Mr.Suresh Mangilal Khandelwal is proprietor of M/s.J.M.Mobile Shopee and below mentioned bill entry has been duly made in the books of accounts for the previous year 20042005 of j m mobile shoppe.1. Bill no.1201 customer name : cash/ajai kadu Model no nokia 1100 amount at 2550/incl taxes.Further it is stated that the whole bill book not found for above series under the custody of proprietor.This certificate is issued on specific request of proprietor. (underlines added)22. We have discussed herein above the evidence of Mohan Barve[PW8], Shivaji Pardhi [PW.7] and court witnessSuresh Khandelwal. It has come in the evidence of Amar Kadu [PW4] that the said mobile handset was shown to him, and he identified the said mobile set, which belonged to Ajay. The prosecution by examining Mohan Barve [PW8], Shivaji Nathu Pardhi [PW7] and Suresh Mangilal Khandelwal as Court Witness and the API, Milind Vasantrao Gaikwad [PW11] has led the satisfactory evidence, and proved that, Accused Gopinath immediately after the incident of homicidal death of Ajay was found in the custody of mobile phone [the Article 1], which was possessed by deceased Ajay prior to his death and also on relevant day and time of the incident.23. In order to prove another incriminating circumstance against the Accused Gopinath that, on immediately after the incident of homicidal death of Ajay Kadu, Accused Gopinath was found in custody and control of gold ring [at Article 3], the prosecution examined Satish Javedchand Solanki [PW6], Amar Sakharam Kadu [PW4] and also the Investigating officer.24. Satish [PW6] deposed before the Court that, he is having business of gold smith at Thane. He knows Gopinath Vitthal Sable. He had been to his shop along with his brother. Brother of Gopinath is his regular customer. Accused Gopinath had been to his shop. He disclosed him that wife of his brother is admitted in the hospital for delivery and he is in need of money. Accused Gopinath gave gold ring to him. He gave Rs.1600/to Gopinath. Since then neither Gopinath nor his brother came to him. The gold ring remained with him. In the month of January 2007 Accused Gopinath along with police came to his shop. Satish Solanki [PW6] returned the said gold ring to police. Accordingly police seized the said gold ring under panchanama. The said gold ring was identified by Amar Kadu [PW4] brother of deceased Ajay. It is necessary to mention that aforesaid gold ring was recovered pursuant to memorandum statement of Accused Gopinath that he had sold the said gold ring to Satish Solanki [PW6].25. We have carefully perused the findings recorded by the trial Court, the trial Court has discussed in detail, the evidence in relation to aforesaid incriminating circumstances and reached to the conclusion that the Appellant Gopinath is guilty of offence punishable under section 302 read with section 34 of Indian Penal Code and also section 394 of the Indian Penal Code. Upon reappreciation of entire evidence we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such. The view taken by the trial Court, and confirmed by us is fortified by the exposition of law, in Mukund alias Kundu Mishra and another Vs. State of Madhya Pradesh (AIR 1997 Supreme Court 2622), wherein stolen properties were recovered at the behest of the Accused in a prosecution for the offences of robbery and murder in one and same transaction. The Supreme Court held that presumption can be drawn not only of the fact that the person in whose possession the stolen articles were found committed robbery but also that he committed murder. Though we have confirmed the finding of the trial Court, we have noticed that out of four accused tried before the trial Court, only Appellant has been convicted. Therefore, the question of conviction of Appellant Gopinath Vitthal Sable, being only convicted accused by invoking section 34 of Indian Penal Code would not arise. In that view of the matter, we hold the Appellant Gopinath Vitthal Sable guilty of the offences punishable simplicitor under Section 302 and 394 of the Indian Penal Code, instead of under Section 302 read with section 34 and Section 394 read with section 34 of the Indian Penal Code, as held by the trial Court.26. In the light of discussion in aforegoing paragraphs, we are of the opinion that the Appeal is devoid of any merits.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Upon reappreciation of entire evidence we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such. The view taken by the trial Court, and confirmed by us is fortified by the exposition of law, in Mukund alias Kundu Mishra and another Vs. State of Madhya Pradesh (AIR 1997 Supreme Court 2622), wherein stolen properties were recovered at the behest of the Accused in a prosecution for the offences of robbery and murder in one and same transaction. The Supreme Court held that presumption can be drawn not only of the fact that the person in whose possession the stolen articles were found committed robbery but also that he committed murder. Though we have confirmed the finding of the trial Court, we have noticed that out of four accused tried before the trial Court, only Appellant has been convicted. Therefore, the question of conviction of Appellant Gopinath Vitthal Sable, being only convicted accused by invoking section 34 of Indian Penal Code would not arise. In that view of the matter, we hold the Appellant Gopinath Vitthal Sable guilty of the offences punishable simplicitor under Section 302 and 394 of the Indian Penal Code, instead of under Section 302 read with section 34 and Section 394 read with section 34 of the Indian Penal Code, as held by the trial Court.26. In the light of discussion in aforegoing paragraphs, we are of the opinion that the Appeal is devoid of any merits.