Case: Gopinath Vitthal Sable Vs. The State of Maharashtra

2. The prosecution case, in brief, is as under:A) Ajay s/o Sakharam Kadu [Ajay for sake of brevity hereinafter would be referred as the deceased] resident of D.P Road, Aundh, Pune was working as a car driver with Mr.Makhariya who operates tourist centre from Pune. On 8th April 2006 deceased Ajay was deputed by Mr.Makhariya on a passenger car bearing No.MH-14/ V7309 of Tata Indica make. The said car was hired by Praveen Krishnaswaroop Singhal [PW2] as a passenger to Sahara AirPort, Mumbai. Accordingly, deceased Ajay with the aforesaid Indica car arrived at Sahara AirPort, Mumbai and left Praveen Singhal [PW2] and started returning to Pune. However, he did not reach at Pune either at his house or place of his employer. Hence his father Sakharam Seetaram Kadu [PW1] filed missing complaint on 19th September 2006 with Chaturshringi Police Station. However deceased Ajay could not be traced out for considerable period and therefore, again with some details a second missing complaint was filed on 23rd September 2006 by Sakharam Kadu [PW1]. The further search of deceased Ajay was continued.3. It is further the prosecution case that in the meantime dead body of one unknown young person was found by Panvel Police Station by the side of the road near village Nere, on Nere Panvel road on 9th April 2006 i.e. on the next day of date of missing of Ajay Kadu. The Panvel police had therefore, registered the case as accidental death case. The Inquest panchanama was executed by the Police in presence of the panch witnesses. There were no external injuries found on the person of said dead body. Police as well as pancha thought that deceased died due to some illness. However since the dead body was found in suspicious condition by the side of the road and since the accidental death case was registered, the dead body was sent for postmortem examination. The postmortem was conducted by Dr.Swati Bharat Naik [PW9] on 9th April 2006. On examination Dr.Swati Naik [PW9] found that the deceased was 4535 years old. There were external injuries and abrasion around lower lip measuring 1 cm x 1 cm. Besides this the medical officer found fracture of thyroid cartilage and hyperamia and congestion of trachea, swelling of scrotum and contusion over testes was found and in the situation the medical officer opined that death had occurred due to cardial arrest and shock with asphyxia due to throttling and injury to testes. The clothes which were on the person of the deceased were seized by Panvel police in presence of the panch witnesses on 14 April 2006.4. It is further the case of the prosecution that police from Chaturshringi Police Station continued the search. Parallel to the investigation of Chaturshringi Police station, the Crime Branch Pune also started investigation. During the investigation A.P.I. Milind Vasantrao Gaikwad [PW11] came to know that deceased Ajay was carrying with him mobile handset bearing IMEI No.357593009655302. In the said mobile phone a SIM card bearing No.9922057920 was also there. Police Officer gave the number of the mobile phone as well as Sim card to Idea Company. After some days, it was found that the mobile phone was used by somebody. Therefore, Police InspectorMilind Gaikwad [PW11] contacted mobile Company and obtained the name and address of the user. From the said Company he found that Mohan Maruti Barve [PW8] resident of village Chas, taluka Ambegaon, District Pune was the user of the mobile. Therefore, on 7th January 2007, P.I Gaikwad [PW11] along with panch witness went to said village. It was revealed from Mohan Barve [PW8] that he had purchased the said mobile from Shivaji Nathu Pardhi [PW7] of his own village. Therefore, the police reached said Shivaji. From him they gathered the information that he had purchased the said mobile from Accused No.3 Gopinath Vitthal Sable i.e. Appellant herein. It is further the prosecution case that Mohan Barve [PW8] himself had received a SIM card of B.S.N.L from Shivaji Pardhi [PW7]. Accordingly, the mobile and SIM card were seized.5. Accused Gopinath Sable i.e. Appellant herein, was arrested on 7th January 2007 and further investigation was continued which ultimately resulted into recovery of gold ring of the deceased. During the course of investigation, the P.I. of Chaturshringi Police Station called Amar Kadu [PW4], the elder brother of the deceased Ajay, on 9th January 2007. They informed him about death of deceased Ajay and took Amar Kadu [PW4] to Panvel Police Station. There at Panvel Police Station the clothes of the deceased were identified by Amar Kadu [PW4]. On the basis of identification that said clothes are of deceased Ajay, by his brother Amar Kadu [PW4], the Investigating Officer confirmed that the dead body which was found by Panvel Police was of deceased Ajay.6. It is further the case of the prosecution that on 10th January 2007, Accused Gopinath Sable made a statement before the police and the panch witnesses that he is ready to produce the gold ring of the deceased. Eventually he led the police and the panch witnesses to Thane to the jewellery shop of Satish Solanki [PW6]. Satish Solanki [PW6] upon seeing the Accused, produced the gold ring and gave information that Accused No.3 Gopinath i.e. Appellant herein, had kept the said gold ring with him by obtaining amount of Rs.1,600/. The necessary panchanamas under section 27 of the Evidence Act were recorded and prepared. It further appears that Accused No.4Raju Namdeo Dandekar was also arrested on 7th January 2007. It is further the prosecution case that on 11th January 2007, Accused No.4 Raju Namdeo Dandekar made a statement leading to the recovery of wrist watch of Maxima make which according to the relatives of the deceased, was on the person of deceased Ajay Kadu at the relevant time. The said wrist watch was recovered from his house at Mangaon, District Raigad and accordingly, the panchanama was prepared i.e. Exhibit-39.7. It is further the case of the prosecution that Accused No.1Selvan Kumar was arrested on 24th January 2007. On 26th January 2007, Accused No.1Selvan Kumar also made a statement leading to recovery of Car tape from his house situated in Andheri, Mumbai which was in the Indica car. Accordingly, the panchanamas at Exhibit 41 and 42 were recorded. Accused No.2Iranna was arrested on 8th January 2007 from his village Nagarhalle in Andhra Pradesh State. It is further case of the prosecution that on 9th January 2007, Accused No.2Iranna alias Shivappa Inchnal while in police custody also made a statement leading to the discovery of the place where the deceased was killed and also the place where the Tata Indica car was kept. The Accused showed the place as on the road leading towards Nere where the dead body was found by Nerul Police Station. It is further case of the prosecution that pursuant to the statement of AccusedIranna, the Indica car was found in Vikhroli area of Mumbai, on 9th January 2007.8. After the investigation was over chargesheet was filed. The learned Judicial Magistrate (First Class) found the case exclusively triable by the Sessions Court and committed the case to Session Court, Pune. The then Adhoc Additional Session Judge, Pune framed the charge against all the four Accused vide Exhibit 2, for the offences punishable under section 302 read with section 34 and under Section 394 read with 34 of the Indian Penal Code. The Accused did not plead guilty and claimed to be tried. Accordingly after framing the charge the Accused were tried and by the impugned Judgment and Order the trial Court was pleased to acquit Accused No.1-Selwan Kumar Chandran, Accused No.2-Iranna alias Shivappa Inchnal and Accused No.4Raju Namdev Dandekar. However trial Court convicted Accused No.3 Gopinath Sable (i.e Appellant herein) for the offences punishable under section 302 read with 34 of the Indian Penal Code as per section 235 of the Code of Criminal Procedure and he was sentenced to suffer imprisonment for life and also to pay a fine of Rs.1,000/- in default of payment of fine he was directed to suffer further imprisonment for a period of one year. He was also convicted for the offence punishable under section 394 read with 34 of the Indian Penal Code as per section 235 of Code of Criminal Procedure and he was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.500/- and in default of payment of fine he was directed to suffer further imprisonment for six months. However, the trial Court ordered both the substantive sentences shall run concurrently. Hence, this Appeal by the convicted Accused Gopinath Sable.

Court's reasoning:
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.