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Judgment
 M.G.Giratkar, J
Criminal Appeal No.413 of 2017 is filed by appellant Ramkrishna s/o. Sitaram Darwate challenging his conviction by the learned Additional
Sessions Judge, Nagpur vide Judgment and Order dt.19.7.2017 passed in Sessions Trial No.301 of 2014, by which he is convicted of the offence
punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/Â, in
default to undergo further rigorous imprisonment for one year. Appellant Ramkrishna is also convicted for the offence punishable under Section 394 of
the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.10,000/Â, in default to undergo rigorous
imprisonment for six months. Criminal Appeal No.366 of 2017 is filed by appellant Jugnu s/o. Sewalal Shahu challenging his conviction for the offence
punishable under Section 411 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of
Rs.10,000/Â in default to undergo rigorous imprisonment for six months.
The case of prosecution against the appellants, in short, is as under :
On 13th March, 2014, deceased Nilesh loaded zinc from L.G. Company in Truck No.MHÂ31/APÂ7821 to unload it at Uttam Value Service,
Bhugaon, Wardha. The said truck was owned by complainant Kola Shriniwas Rao (PWÂ1). After unloading Zinc at Uttam Value Service, the truck
was further loaded with Zinc and Copper scrap for unloading at L.G. Company, Hingna, Nagpur.
Appellant Ramkrishna was knowing Nilesh. He was knowing that Nilesh was to unload truck at Hingna. He made a plan to sell the scrap material
to appellant Jugnu. Deceased brought the said truck from Wardha. Appellant Ramkrishna talked with deceased. Appellant with a preÂplan went to
Wardha at about 5.00 p.m. Thereafter, he went to Waigaon square. He was waiting for the deceased. At about 8.30 p.m., deceased came with the
truck.
Appellant stopped the said truck. Deceased was driving the said truck and one Bharat Bansod was in the truck. Appellant Ramkrishna took the
driver seat. He talked with the deceased saying that they would sell the scrap material and divide the sale price between them, but the deceased was
not ready. On the Wardha border, truck was stopped. Deceased purchased liquor. They both consumed liquor. Near Borkhedi camp, appellant
Ramkrishna stopped the truck by the side of bridge. He again asked the deceased to sell the said material and divide the sale price between them. But,
again, he denied. Appellant Ramkrishna took out knives and stabbed the deceased.
The truck was not reached to the destination. Therefore, owner of the truck searched the said truck. The said truck was found near New
Mangaldham Society, Bajrangnagar, Wadi, Nagpur. Appellant Ramkrishna was driving the said truck. Complainant Kola Shriniwas Rao inquired with
appellant Ramkrishna. He gave evasive replies.
Kola Shriniwas Rao lodged report (Exh.20). Appellant Ramkrishna was arrested. He confessed to show the place where he sold the scrap
material. Accordingly, his confessional statement was recorded. As per his confessional statement, scrap material worth Rs.14 Lacs was recovered
from the place belonging to appellant Jugnu. Thereafter, appellant Jugnu was arrested for the offence punishable under Section 411 of the Indian
Penal Code.
API Pravin Madhukarrao Kale (PWÂ23) investigated the crime. After complete investigation, filed charge sheet before the Judicial Magistrate,
First Class for the offences punishable under
Sections 302, 394, 411 r/w. 34 of the Indian Penal Code, who, in turn, committed the case to the Court of Sessions, Nagpur.
Charge was framed at Exh.5. Prosecution has examined in all 23 witnesses. After conclusion of trial, learned trial Court convicted both the
appellants as mentioned above.
Heard Mr.C.R.Thakur, learned Counsel for the appellants. He has submitted that the case of prosecution is based only on the circumstantial
evidence i.e. 1) appellant Ramkrishna was last seen with the deceased, 2) recovery of scrap material as per confessional statement, 3) recovery of
weapon and 4) CCTV footage at Toll Booth gate.
Learned Counsel has submitted that one Bharat Bansod was sitting in the cabin of truck at the time of incident. As per evidence of Ajay Salunke
(PWÂ19), Computer Engineer, four persons were visible in the cabin of truck in CCTV footage. Therefore, last seen theory is not applicable. Those
persons were not examined by prosecution. There might be possibility of killing the deceased by those persons. Recovery of scrap material was not
from appellant Jugnu. There is no evidence to show that appellant Jugnu purchased the said scrap material. Recovery of weapons was from the open
space. Hence, prosecution has miserably failed to prove the guilt. Learned trial Court has wrongly convicted both the appellants. Therefore, prayed to
allow the appeal.
Heard Mr.T.A.Mirza, learned A.P.P. for the Respondent/State. He has submitted that evidence of Dr.Nilesh Keshav Tumram (PWÂ15) shows
that death of the deceased was homicidal. CCTV footage proved by Ajay Salunke (PWÂ19) shows that appellant was driving the said truck. Dead
body was discovered at the instance of the appellant Ramkrishna. Weapons were recovered as per the confessional statement. All this evidence
shows that appellant Ramkrishna killed the deceased. Appellant Jugnu purchased the theft material. Those were seized from his premises. Both the
appellants were rightly convicted. Hence, the appeal is liable to be dismissed.
From the perusal of evidence, there is no dispute that death of deceased was homicidal. Dr.Nilesh Tumram (PWÂ15) has conducted post mortem.
As per his opinion, death was due to stab injury.
In respect of involvement of appellant Ramkrishna, prosecution has led evidence of last seen together with the deceased. It is pertinent to note that
one Bharat Bansod was sitting in the cabin when the truck started from Wardha. As per evidence of Ajay Salunke (PWÂ19), Computer Engineer, on
examination of CCTV footage, he found that four persons were sitting in the cabin of truck at Toll booth gate. No evidence was adduced by the
prosecution to show that accused was only person in the company of deceased. Possibility of other persons, who were sitting in the truck, committing
murder of deceased cannot be ruled out. Recovery of weapons was from the open space and therefore, not useful to the prosecution. Recovery of
theft material from the premises of appellant Jugnu itself do not show that he was purchaser of stolen property. No evidence to show that premises
belongs to accused Jugna. No other evidence was led by prosecution to show that appellant Jugnu purchased the theft material from appellant
Ramkrishna. The circumstances which are relied by the trial Court are not sufficient to convict both the appellants. Hence, we allow both the appeals
and proceed to pass the following order.
ORDER :
Criminal Appeal Nos.413 of 2017 and 366 of 2017 are hereby allowed.
Appellant Ramkrishna s/o. Sitaram Darwate is acquitted of the offences punishable under Sections 302 and 394 of the Indian Penal Code. Appellant
Jugnu s/o. Sewalal Shahu is acquitted of the offence punishable under Section 411 of the Indian Penal Code.
Appellant Ramkrishna s/o. Sitaram Darwate is in jail. He be released forthwith, if not required in any other crime or case.
Bail bonds of appellant Jugnu s/o. Sewalal Shahu shall stand cancelled.