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Judgment in S.C. No.8 of 2006

Received on

Registered on : 10­01­2006

: 04­01­2006

Decided on

: 15­11­2014

Duration

:

Y ­ M ­Days 08 ­10 ­11

IN THE COURT OF ADDITIONAL SESSIONS JUDGE­1, JALGAON (Presided over by D.J. Shegokar)

Sessions Case No.8 of 2006

Central Bureau of Investigation

Versus

}

Exh.No.737

COMPLAINANT

Raju Chintaman Sonawane (Mali) }

Age 28 Years. R/o Burhanpur

}

Dist.Burhanpur.

}

Madhya Pradesh State

}

ACCUSED

Mr. D.N.Salvi, Special Public Prosecutor for C.B.I Mr. S.K.Kaul, Advocate for Accused

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Charge u/s Section 302 & 120­B of the Indian Penal Code ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ J u d g m e n t ( Delivered on 15th November, 2014)

1] Accused Raju Chintaman Sonawane (Mali) is charged

for the offence punishable under sections 302 and 120­B of the

Indian Penal Code.

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Judgment in S.C. No.8 of 2006

2]

Briefly stated, the prosecution case is as under :­

That, Shri Vishram G. Patil (hereinafter referred as 'Victim ') was serving as a Professor in English at Nutan Maratha College, Jalgaon. He was also Leader of Congress­I Party. On 21­09­2005 at about 7.15 a.m., victim left house, for going to College by Maruti Car No. MH­19­R­05. The Car was proceeding by Kuchha road leading towards Jalgaon­Dhule National Highway. In the way, near Netra­Deep Provisions, at Manraj Park, two unknown persons ( who are later identified as accused Raju Chintaman Sonawane and accused Raju Pundlik Malil ) pelted stone on the Car. When the victim got down from the Car, one of them caught hold the victim. The another gave blows of knife on the abdomen, chest and neck of the victim, as a result of which he sustained injuries and collapsed on ground. Thereafter, both the assailants fled away from the Spot on a Hero Honda Motorcycle. One Mahendra Panditrao Mahajan and Rambhau Gobru Pawar witnessed the incident. The crowd gathered on the Spot of incident. Mahendra Panditrao Mahajan rushed to the house of victim and gave information about the incident to his wife Smt.Rajani Patil. She immediately came to the Spot of Incident. With the help of some persons, Smt.Rajani Patil took the injured to Hospital of Dr.Bhangale, then to the Trauma Center of Dr.Rajesh Jain. Lastly the injured was taken to Civil Hospital Jalgaon, where Medical Officer declared him dead.

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Judgment in S.C. No.8 of 2006

3] On the basis of Complaint filed by Mahendra Panditrao Mahajan, an offence punishable u/s 302 r/w section 34 of the Indian Penal Code came to be registered at Jilha Peth Police Station,Jalgaon vide Crime No.242 of 2005 against two unknown persons. The Police started investigation of the crime. A .P .I Mr.S.G.Shinde visited the Spot of Incident. One Slipper (i.e., Footwear ) of right leg, one Handkerchief, Yellow Metal Bracelet and three pieces of black colour Helmet of Commando Company were found lying on the Spot. API Shinde prepared Spot Panchnama and seized the aforesaid articles in presence of Panchas. The samples of blood mixed soil and plain soil were collected from the Spot. An Inquest Panchnama of the Dead Body of victim was prepared in presence of Panchas. As per the requisition of Police, the Medical Officer conducted postmortem of the dead body of victim. The Medical Officer opined that the Victim '' died due to shock due to hemorrhage due to multiple injuries ''. The Panchnama of Maruti Car of the Victim was prepared in presence of Panchas. The Investigation Officer seized one Slipper ( i.e., Footwear) of left leg and a File containing papers from the said Maruti Car under the same Panchnama. The statements of witnesses came to be recorded. Accused Raju Chintaman Sonawane and accused Raju Pundlik Mali ( now deceased ) were arrested on 25­09­2005 under Arrest Panchnamas.

4]

was in Police Custody.

On 27­09­2005 accused Raju Mali (now deceased )

He voluntary made disclosure statement

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Judgment in S.C. No.8 of 2006

before the Investigating Officer in presence of Panchas. On the basis of said disclosure statement, Knife used for commission of Crime was discovered and seized in presence of Panchas. On the same day, he voluntarily made disclosure statement in presence of Panchas . On the basis of it, the Motorcycle used in commission of offence was discovered and seized from the Parking Place of Railway Station, Bhusawal.

5] The Investigating Officer collected CDR of Public Call Center of village Kingaon from the BSNL Office. According to prosecution, it was revealed therefrom that after commission of offence, accused Raju Pundlik Mali ( now deceased ) and accused Raju Chintaman Sonawane were in telephonic contact with accused Liladhar Purushottam Narkhede and Damodar Jagnnath Lokhande. According to prosecution, it was also transpired in the investigation that, the Motorcycle purchased by accused Liladhar Purushottam Narkhede was used for commission of crime. Therefore, accused Liladhar Purushottam Narkhede and Damodar Jagnnath Lokhande came to be arrested on 22­12­2005.

6] According to prosecution, it was transpired in the investigation that, accused Liladhar Purushottam Narkhede and Damodar Jagnnath Lokhande had given contract of commission of murder of Victim to accused Raju Pundlik Mali and accused Raju Chintaman Sonawane. Hence, C.I.D. Nashik filed Charge­ Sheet against accused Raju Pundlijk Mali (now deceased), Raju Chintaman Sonawane, Liladhar Purushottam Narkhede and

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Damodar Jagnnath Lokhande u/s 302 and 120­B of the Indian Penal Code as well as u/s 3 r/w section 25 of the Arms Act on

22­12­2005.

7] As per order passed in Application No.298 of 2006 and 3331 of 2005 dated 03­02­2006, the Hon'ble High Court pleased to quash the proceedings filed by CID Nashik against accused Liladhar Purushottam Narkhede and Damodar Jagnnath Lokhande.

8] The widow of Victim filed Writ Petition No.646 of 2005 before the Hon'ble High Court. As per the Order dated 27­02­2007 passed therein, the directions of further investigation u/s 173 (8) of the Code of Criminal Procedure were given and the investigation of the crime was entrusted to Central Bureau of Investigation ( hereinafter referred as C.B.I. ). Accordingly, C.B.I. registered FIR No. BSI/2007/S/002 on 15­03­2007. The C.B.I started further investigation in the Crime.

9] In view of Writ Petition No.1278 of 2008 (filed by Smt.Rajani Patil), the Hon'ble High Court started monitoring the investigation of the crime.

10] In the meantime, accused Raju Pundlik Mali reported to be dead on 06­04­2007. Therefore, my learned Predecessor Smt.U.S.Thakre abated the trial against him by passing Order on Exh.No.1 dated 30­04­2007.

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Judgment in S.C. No.8 of 2006

11] The C.B.I filed First Supplementary Charge Sheet on 10­06­2008 and Second Supplementary Charge­Sheet on 06­10­2008 u/s 302 and 120­B of the Indian Penal Code. According to C.B.I., it was transpired in the investigation that accused Raju Chintaman Sonawane, Raju Pundlik Mali (Now deceased ), Liladhar Purushottam Narkhede and Damodar Jagnnath Lokhande made conspiracy and committed murder of the victim.

12] As per Order passed on Application Exh.No.610 dated 07­07­2014, Gajendrasing Narayan Patil and Ulhas Vasudeo Patil have been arrayed as accused u/s 302 and 120­B of the Indian Penal Code.

13] The newly arrayed accused Gajendrasing Narayan Patil and Dr. Ulhas Vasudeo Patil have challenged the legality of the Order u/s 319 of the Code of Criminal Procedure passed against them before the Hon'ble High Court vide Criminal Revision Application Nos.165 of 2014 and 166 of 2014 respectively., As per the interim Orders passed by Hon'ble High Court therein dated 15­07­2014 and 18­07­2014, the proceedings against the newly arrayed accused are stayed till this date.

14] By passing Order on Exh.No.1 dated 12­03­2009, my learned Predecessor ( Smt.U.S.Thakre ) separated the trial of accused Raju Chintaman Sonawane from accused Liladhar Purushottam Narkhede & Damodar Jagnnath Lokhande.

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Judgment in S.C. No.8 of 2006

15] On 15­10­2009, my learned Predecessor (Shri R.S.Kharkar ) framed Charge against accused Raju Chintaman Sonawane u/s 302,120­B of the Indian Penal Code. The Charge was read over and explained to him in Marathi. He pleaded not guilty and claimed for trial. The defence of accused Raju Chintaman Sonawane is that he is falsely involved in the Crime.

16]

prosecution has examined in all 46 witnesses.

In

order to bring home

guilt to the accused, the

17] As per the order passed by my Predecessor ( Mr.P. D.Ambekar ) on Application Exh.No.523 dated 30­04­2013, the evidence of widow of victim Smt.Rajani Vishram Patil and one Shridhar Vishnu Chaudhari has been recorded as Court Witness Nos.1 and 2 at Exh.Nos.575 & 589 respectively.,

18] Accused Raju Chintaman Sonawane did not enter into witness Box. However, he has filed some documents along with List Exh.No.701. These documents are (i) Affidavit of Police Inspector N.S.Gughe dated 15­04­2009 filed before Hon'ble High Court; (ii) Copy of the Statement of Smt.Rajani Vishram Patil dated 21­09­2005; (iii) Copies of information supplied under the Right to Information Act; (iv) the Issue of Daily Marathi Newspaper 'Lokmat' dated 22­10­2005; (v) Public Complaint filed before Collector, Dhule dated 06­09­2009. However, Accused Raju Sonawane did not examine any witness for proving those documents.

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19] Accused Raju Chintaman Sonawane has examined Sunil Bhimsen Khade in his defence as DW No.1 at Exh.No.706. The evidence of this witness is on the point of the location of Gujral Petrol Pump, the distance between Manraj Park and Gujral Petrol Pump and the roads going towards Pimprala from Gujral Petrol Pump.

20] As per the Common Order passed on Application Exh.Nos.709 and 715 ( filed by Accused Raju Chintaman Sonawane ) dated 30­09­2014, the Court has conducted Local Inspection of the Spot of Incident on 09­10­2014. The Memorandum of Local Inspection accompanied with Sketch Map is at Exh.No.718.

21] The Written Notes of Arguments filed by Mr.Salvi, learned Special Public Prosecutor for CBI are at Exh.No.738 and 732. The sum and substance of arguments is that the prosecution has proved charge u/s 302 and 120­B of the Indian Penal Code against accused Raju Chintaman Sonawane, beyond all reasonable doubts. Therefore, he is liable for conviction.

22] The Written Note of Arguments filed by Mr.S.K.Kaul, learned Advocate for accused Raju Chintaman Sonawane is at Exh.No.729. The sum and substance of his arguments is that the prosecution has failed to prove charge against accused Raju Chintaman Sonawane, beyond all reasonable doubts. Therefore, he is entitled for acquittal.

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23] The following points arise for my determination. I

have recorded findings thereto along with reasons as under : ­

 

Points

Findings

(1)

Whether the prosecution has proved that Prof.Vishram G.Patil died homicidal death on 21­09­2005 ?

Yes

(2)

Whether the Prosecution has proved that on 21­09­2005 at about 7.30 a.m. near Netra­Deep Provisions at Manraj Park, Jalgaon accused Raju Chintaman Sonawane and accused Raju Pundlik Mali ( now deceased ) assaulted Prof. Vishram G.Patil by knife and intentionally or knowingly caused his death ?

Yes

(3)

Whether Prosecution has proved that accused Raju Chintaman Sonawane and accused Raju Pundlik Mali ( Now deceased ) hatched conspiracy and caused the death of Prof. Vishram G. Patil ?

Yes

(4)

What Order ?

As per

R E A S O N S

final Order.

As to Point No.1

It is not in dispute that in the morning of 21­09­2005,

Victim sustained multiple injuries on vital parts of his body and

succumbed to it within few minutes. The Prosecution has

produced the Inquest Panchnama of the condition of the dead

24]

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body of victim at Exh.No.302. This Inquest Pandchnama is proved by PW No.3 Manoj Narayan Wani (Exh.No.301) . This witness has testified that, the dead body of Professor V.G.Patil was kept on a cement platform in the Postmortem Room at Civil Hospital, Jalgaon. The clothes on the dead body were stained with blood. The Neharu Shirt (Art.''2'') on the dead body was removed. Below the Neharu Shirt, there was Baniyan ( Art.9). Thereafter, Payjama (Art.10) on the dead body was removed . Thereafter, the Underwear ( Art.11) of the dead body was also removed. It is in the evidence of PW No.3 Manoj Wani that, there were injuries above, on the center below chest, above the naval, and the abdomen. There was also cut injury on the neck. The postmortem of the dead body was conducted. It is in the evidence of PW No.3 Manoj Vani that Inquest Panchnama Exh.No.302 was prepared before him and it bears his signature. PW No.39 Police Inspector Y.D.Patil (Exh.No.414) has testified that the Inquest Panchnama of dead body of Victim was prepared by him. Thus the Prosecution has duly proved the Inquest Panchnama of the dead body of Victim.

25] PW.No.28 Dr.Pankaj Uttamrao Saindane (Exh.No.383) is Autopsy Surgeon. He is M.B.B.S ( D Artho ). He was serving as Medical Officer at Civil Hospital, Jalgaon at the relevant time. This witness has testified that :­ '' On 21­09­2005, the dead body of deceased V.G.Patil was received at Civil Hospital, Jalgaon at about 10.40 hours. It was identified by one Vijay Narayan Wani. He carried out

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postmortem on the dead body on the same day between 10.45 to

11.45 hours. As per evidence of Dr.Pankaj Saindane, the following

seven external injuries were found on the dead body of deceased

Vishram G. Patil :­

(1)

Stab wound on neck anteriorly

size about 7 inches x 1.1/2 inches

x

3 Cm deep. Edges clean.

(2)

Stab wound on neck anteriorly below No.(1) Injury size about 2.3/4 inches long & superficial.

(3)

Stab wound on abdomen just below the Xipisternum size about 1 inch

x

½ cm. Peritoneum deep.

(4)

Stab wound on abdomen on left side size ½ inches x ½ cm.

(5)

Stab wound on abdomen just above umbilicus. Size 1.1/2 inches x ½ Cm. Part of intestine protruding out of the wound. Peritoneum deep.

(6)

CLW on right knee below patella size 1.1/2 inches x 1 cm.

(7)

Stab wound on abdomen on right side. Size 1.1/4 inch x ½ cm. Peritoneum deep.

Edges of all stab wound were clean.

26] As per evidence of Dr.Pankaj Saindane, the following

internal injuries were found on the dead body :

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(1) Pleura ­ Pale, haemothorax on left side.

(2) Larynx, trachea and bronchi ­ Pale, Trachea transected at thyroid cartilage level due to Wound No.1. (3) Left lung ­ Pale, left lung lacerated due to stab Would No.3, Left lung collapsed.

(4) Large Vessels ­ Right Corotid Ortery transected due to Injury No.1.

(5) Walls ­

Stab wound present on abdomen mentioned in Column No.17.

(6) Peritoneum ­ Pale, iliac mesentry tear.

(7) Cavity ­ haemo peritoneum.

(8) Desophagus ­ Transected due to Injury No.1.

(9) Small intestines and its contents ­ Through and through perforation due to stab wound on abdomen.

(10)

Large intestine and its contents ­ Through and through perforation due to stab wound at coecum level.

27]

described in Memorandum of Postmortem Examination ( Exh.No.

The above mentioned External and Internal Injuries are

384 ). It is duly proved by PW No.28 Dr.Pankaj Saindane.

28] PW No.28 Dr. Pankaj Saindane has testified that the

injuries sustained by deceased V.G.Patil were ante­mortem in

nature. The external and internal injuries were interlinked with

each other. PW No.28 Dr.Pankaj Saindane has testified that the

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injuries sustained by victim Prof. V. G. Patil were sufficient to cause his death in the ordinary course of nature. PW No.28 Dr.Pankaj Saindane has also proved the Death Certificate Exh.No.385. As per the opinion given by PW No.28 Dr.Pankaj Saindane, the deceased died due to shock due to hemorrhage due to above multiple injuries. It is not the case of defence that the death of Victim is accidental or suicidal. Therefore, I have no hesitation to hold that, the prosecution has proved that, the victim died homicidal death on 21­09­2005. Thus, I record affirmative finding to Point No.1.

As to Point No.2

29] As discussed above, the prosecution has proved that victim died homicidal death on 21­09­2005. Therefore, the crucial question which arises for determination is, who inflicted the injuries on the person of victim. On this point, the Prosecution has examined two eye witnesses i.e., PW No.1 Mahendra Panditrao Mahajan and PW No.16 Rambhau Gobru Pawar.

30] PW No.1 Mahendra Panditrao Mahajan (Exh.No.255) is First Informant. According to Prosecution, he is also eye witness to the incident. This witness has testified that :

''The incident took place on 21 st September, 2005. On that day, after completion of duty, I was going to my house by bicycle. I was proceeding from

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Premnagar area of Jalgaon city. At Premnagar area, the road was high, therefore, I got down from bicycle and started going by road along with my bicycle. At that time, I was towards Manraj Park Complex. I saw one Maruti White Car was standing there and in front of the said Car, three persons were fighting with each others. Amongst them, one person was wearing Nehru Shirt and Paijama. At that time, by highway trucks were passing, therefore, I could not see what happened there. After reducing traffic, I crossed highway and had gone to other side of highway. That time, I saw two persons were coming on Hero Honda Motorcycle. My bicycle crossed their Hero Honda Motorcycle. Out of two, one has told me, Sarak Madarchod (ljd eknjpksn). Therefore, I saw towards the person who were sitting on Motorcycle. Out of them, the person who was driving the Motorcycle was tall and the person who was sitting as pillion rider had wear white colour Helmet. The said pillion rider was holding knife which was stained with blood. Thereafter, I saw towards Maruti Car and then I saw that the person who was wearing Nehru Shirt and Payjama was lying on the ground near Maruti Car. Thereafter, I gave call to stop to the persons who were proceeding on Hero Honda Motorcycle, but

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the said persons have drove their Motorcycle towards Gujrah Petrol Pump. Thereafter, I have gone to the Spot where the person wearing Payjama and Nehru Shirt was lying. I was intending to take that injured person to hospital. But I saw that intestine of the said person has come out of stomach. Thereafter, I put intestine of said person in stomach and tried to lift him, at that time, I noticed that the neck of said person was cut. Thereafter, I chased the said Hero Honda Motorcycle. On the number plate of Motorcycle, mud was affixed. When I was chasing said Hero Honda Motorcycle by Highway, I was crying ''Tyana Pakda, Tyani Khun Kela'',(R;kauk idMk] R;kauh

[kwu dsyk) but nobody helped me. I chased the said Hero Honda Moorcycle up to the Board of name of Colony Shriratna Colony. Thereafter, said Motorcycle had gone towards Gujral Petrol Pump, so I stopped chasing said Motorcycle. Thereafter, I returned to the Spot where murder had taken place. Mob was gathered there. From the said mob, the voices were coming ''V.G.Tatya­ V.G.Tatya” (Ogh th rkR;k] Ogh th rkR;k). Thereafter I came to know that it is same person V.G.Patil

whose murder has taken place and to whom I was knowing by name. Then I requested the persons of the Mob to help me to take injured to the

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hospital, but none of them helped me. Thereafter,

I was knowing the house of V.G.Patil, so I had gone

to his house by bicycle. Wife of V.G.Patil opened the door and I informed her that two persons had assaulted upon V.G.Patil and ran away. Thereafter, wife of V.G.Patil and myself were coming to the Spot by crying'' Tatyana Marle ­ Tatyana Marle”

'' (rkR;kauk ekjys] rkR;kauk ekjys). Thereafter wife

of V.G.Patil has taken V.G.Patil in the Car to the hospital of Dr.Bhangale and I remained on the

Spot. Police inquired about the incident, that time

I have shown my readiness to give my Complaint.

I informed to police that injured was taken to hospital. Thereafter, police vehicle proceeded towards hospital. In the hospital of Dr.Bhangale we were informed that injured was taken to Civil Hospital,Jalgaon. Then I reached to Civil Hospital, Jalgaon. In Civil Hospital,Jalgaon police recorded my Complaint''.

31] As discussed above, PW No.1 Mahendra Panditrao Mahajan has fully corroborated and proved the contents of the First Information Report Exh.No.256.

32]

Mahendra Panditrao Mahajan that he witnessed the incident from

the distance of 200 to 250 feet. He saw three persons while

It has come in cross examination of PW No.1

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assaulting each other. He is unable to state out of three, who was assaulting to whom. This witness has denied the suggestion put to him by defence that he did not witness the incident.

33] PW No.16 Rambhau Gobru Pawar (Exh.No.351) testified as under :­ '' Incident took place on 21­09­2005. I boarded S.T.Bus on above day at Anchale Tanda to go to village Mukti, which is 3 Km away from my village. Thereafter, I came to Jalgaon in a truck from Mukti. I came to Jalgaon at 7.00 a.m. at Gujrah Petrol Pump. Anil Mistry was a Meson who is my relative and he was residing at Pimprala,Jalgaon which is ½ Km away from Gujral Petrol Pump. While I was going by walk at Pimprala, on the way near Netradeep Provisions, I saw a white Maruti Car. I saw two Helmet wearing persons quarreling with another person who wore Kurta and Payjama. Out of two Helmet wearing persons, one was tall and another was short. The person wearing Kurta Payjama was asking the other two persons as to why he was being assaulted by them. Thereafter, Helmet wearing short person by means of knife assaulted on the abdomen of the person wearing Kurta Payjama, as a result of which the said victim fell on ground. The two persons wearing Helmets tried to bow down and in their said attempt, their Helmets fell on the ground. Therefore,

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I could see their faces vividly. The tall person caught hold both the hands of the injured and made him to stand and he then asked another person saying ''jktq

ekj] ;nh ;g cp x;k rks viuk lkjk jkt [kqy tk;sxk vkSj

viu Hkh ugh cpsaxs ” I tried to intervene, but I was threatened by the short person. The short person namely Raju asked me to leave the Spot and he threatened me that if I failed to leave the Spot, then I would be similarly assaulted by them like the injured. The person namely Raju who was short, again came near the injured, and cut the neck (throat) of the injured by means of knife. I tried to intervene the above incident, but short person namely Raju threatened me that he would assault me like the injured. The tall person asked me to leave the Spot saying that many big leaders were behind him namely Ulhas Patil, G.N.Patil and Ramesh Chaudhari. Thereafter, both the persons left the Spot on Hero Honda Motorcycle.

34]

PW No.16 Rambhau Pawar testified that :

''One person riding on bicycle also tried to obstruct the persons who assaulted the injured, but he was also abused by them and, therefore, he kept quite. Many persons gathered there. One lady wearing Saree also came there and she took the injured along with her in the same Maruti Car. There was whispering on the

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spot that the lady was the wife of the injured. Injured was taken to Civil hospital. Police also gathered in the Civil hospital and I disclosed the incident to police. I was taken in the police station on same day by police''.

35] PW No.36 Police Head Constable namely Gopal Baliram Chaudhari has testified that he resides at Plot No.28, Manraj Park, Jalgaon. On 21­09­2005 at about 7.30 hours, he was fetching water. He heard noise from the side of Shopping Center, near Manraj Park. Therefore, he rushed there. He found that Professor V.G.Patil was lying in the pool of blood. He had sustained sharp cutting injuries on his abdomen and throat. Rajanitai and her relatives were gathered on the Spot. He carried Professor V.G.Patil in a Car at the hospital of Dr.Bhangale. On the say of Dr.Bhangale, he carried the injured at Trauma Center of Dr.Rajesh Jain. Dr.Rajesh Jain and Dr.Rajesh Bhangale examined injured V.G.Patil and declared that he was no more. Thereafter, the body of V.G.Patil was taken to Civil Hospital, Jalgaon. He gave said information from his Cell­Phone to the Police Officials at Jilha Peth Police Station and Local Crime Branch,Jalgaon.

36] The Court Witness No.1 Smt.Rajani Patil ( Exh.No. 575 ) is wife of victim. She has testified that on 21­09­2005 at about 7.15 a.m., her husband ( i.e., victim ) left the house for going to Nutan Maratha College by Car bearing registration No. MH­19/R­05. After his departure, within 10 minutes, one Mahendra Pandit Mahajan came to her house. He gave

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information to her that her husband has been murdered in the way at some distance from her house. Therefore, she rushed to the Spot of Incident. She noticed that her husband was lying by the side of road in injured condition. There was cut injury to his neck. There were also multiple injures on his abdomen and chest. With the help of some persons, she put victim in his own Car and took him to the hospital of Dr.Bhangale. Dr.Bhangale examined the victim in the Car itself. Dr.Bhangale advised her for taking the victim to Rajesh Trauma Center. Accordingly, she took the victim at Rajesh Trauma Center, Jalgaon. Some persons took the victim inside the hospital. After some time, she learnt that her husband is no more. The aforesaid evidence of Court Witness No.1 Smt.Rajani Patil has gone un­rebutted during her cross examination.

37] PW No.39 Police Inspector, Yadavrao Damu Patil (Exh.No.414) has testified that he was attached to Jilha Peth Police Station,Jalgaon from 31­12­2004 to 31­05­2006. On 21­09­2005, at about 7.30 hours., he received a telephonic message from Police Constable Gopal Chaudhari that, Professor V.G.Patil has been assaulted by some unknown persons at the corner of Manraj Park. The condition of Professor V.G.Patil is critical and he has been taken to the hospital of Dr.Bhangale. Police Head Constable Vikas Patil also gave similar information to him. Therefore, he rushed to the Spot of Incident in Police Jeep along with PSI Chaudhari and other staff.

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38] PW No.39 Police Inspector Shri Y.D.Patil has further testified that '' on reaching to the Spot, he was apprised by one eye witness that the incident was seen by him and the two unknown persons who assaulted Prof.V.G.Patil left the Spot on Hero Honda Motorcycle towards Gujral Petrol Pump. He also gave brief description of the person who was sitting pillion rider on the Motorcycle that he had wore red colour shirt and was armed with Jambiya. The said person spoke that he tried to stop the Motorcycle of those two persons, but they took Motorcycle speedily towards Petrol Pump . I asked the name of the above person and he disclosed that he was Mahendra Pandit Mahajan. ''

39] PW No.39 Police Inspector Shri Y.D.Patil has further testified that Policemen were appointed to guard the Spot of Offence. The Informant Mahendra Mahajan was taken to the hospital of Dr.Bhangale. Later on, he learnt that the injured was referred to Trauma Center and lastly at Civil Hospital, Jalgaon. The Doctors examined Professor V.G.Patil that declared that he is dead.

40] PW No.39 Police Inspector Shri Y.D.Patil has further testified that the Report given by Mahendra Mahajan was reduced into writing as per his say vide Exh.No.256. On the basis of it, the offence vide Crime No.242 of 2005 u/s 302 r/w section 34 of I.P.Code was registered. It is in the evidence of PW No.39 that API Shinde was directed to prepare the Spot Panchnama. PW No.39 has proved Inquest Panchnama Exh.No.302.

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41] PW No.20 Police Constable B.No.1586 Jayant Bhanudas Chaudhari ( Exh.No.360) is Photographer of Police Department. As per evidence of this witness, as per directions of Police Inspector Y.D.Patil, he took 13 Photographs of the dead body of the victim and 9 photographs of the Spot of Incident, by Digital Camera. This witness has proved all these 22 Photographs which are collectively marked at Art.''18.

42] PW No.9 Ranjit Sandu Khadke (Exh.No.319) is a Panch on Panchnamas Exh.No.320 & 321. This witness has testified that, one Maruti Car was seen by him in the premises of Zilla Peth Police Station. It's front Wind Sheet was found broken. One Slipper ( i.e.,Art.'3') and Plastic Bags containing some Files were seized by Police from the said Car. Accordingly, Panchnama was prepared before him vide Exh.No.320. It is in the evidence of PW No.9 that on the same day, Police also seized the clothes of deceased Prof.V.G.Patil before him, under Panchnama Exh.No.321. This witness has identified Baniyan Art.'9' and Payjama Art.'10' before the Court. The evidence of this witness has gone un­ rebutted during the cross examination. Hence, I find no reason to disbelieve the same.

43] PW No.42 Police Head Constable B.No.2112 namely Bashir Najir Tadvi, (Exh.No.432) has testified that on 21­09­2005, he was attached to Jilha Peth Police Station, Jalgaon. As per Order Exh.433, he was present on duty at Civil Hospital, Jalgaon on that day. After postmortem, he handed over the dead body of

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Judgment in S.C. No.8 of 2006

Professor

acknowledgment Exh.No.434.

V.G.Patil

to

his

brother

Sadashiv

Patil,

as

per

44]

PW No.16 Rambhau Gobru Pawar further testified that :

''On 8­11­2005, I was called in Sub Jail for test identification parade purpose. I was taken in identification room in Sub Jail where 7 persons were found standing, besides the Magistrate and Panchas. In the Parade, I identified one Raju Mali who had taken position at Sr.No.2 in the row of dummies who had caught hold both the hands of the injured and asked the other person to assault the injured. The said Raju is not present today before the Court. I was then taken out of the identification room and again after 20 minutes, I was brought inside the identification room. At the 2 nd time, I viewed the Parade and after observing the parade, I identified the person who was standing at Sr.No.4 of the row and he was accused Raju who had assaulted the injured on his abdomen and neck (throat) by knife ([katj) . The said Raju is present today before the Court ''.

45] PW No.16 Rambhau Pawar has identified accused Raju Chintaman Sonawane before Court and testified that he is the same person who assaulted victim by means of knife on his

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Judgment in S.C. No.8 of 2006

abdomen, chest and throat. PW No.16 has also identified the Knife (Art.15) before Court and testified that it is the same knife which was used in the commission of offence. This witness has also identified seized Kurta & Payjama of the victim before Court.

46] It has come in the cross examination of PW No.16 Rambhau Pawar, that he saw the incident from the distance of 9 to 10 feet. He went from Gujral Petrol Pump towards Netra­Deep Provisions by walk. He denied the suggestion that before holding of Test Identification Parade, he had seen the photograph of accused in newspaper. He denied the suggestion that he is habitual witness of Police. It has come in cross examination of PW No.16 Rambhau Pawar that, while leaving the Spot, the tall person was driving the Motorcycle and he was Raju Mali. It has come in the evidence of PW No.16 Rambhau Pawar that, the incident dated 21­09­2005 is a special incident in his life and as such he has noted down the same in his Diary.

47] PW No.19 Jaywant Kailash Patil (Exh.No.359) has testified that :

''In the year 2005, I was taking education in 1 st year Polytechnic Mechanical in Suresh Dada Jain Polytechnic College, Jalgaon. I used to go to College at 7.30 hours and it used to be closed at 1.30 pm. I used to attend College on bike of my friend. I used to go to the College through Vidyanagar by Kaccha road on bike of my friend.

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Judgment in S.C. No.8 of 2006

On the day of incident, I started going to College at 7.00 a.m. with my friend Amol Patil. At about 7.00 a.m., when we reached Vidhya Nagar, we found two persons on the Varandah of Netradeep Provisions. One of the persons was wearing Helmet and another was found standing and he was looking towards Mobile or wrist watch. The person who was found sitting on the Varandah was less in height than the person who was found standing.

48]

PW No.19 Jaywant Kailash Patil has further testified

that :

''After 22­25 days, I was called in Sub Jail by the Police to act as a witness in test identification parade. It was noon time. Accused Raju Mali was identified by me from 7 persons who were standing in row. I was again called in the Sub Jail and at that time, accused Raju Sonawane was identified by me from the dummies. Accused Raju Sonawane is today present before the Court, who was found sitting on the Varandah near Netradeep Provisions ''.

49] It has come in cross examination of PW No.19 Jaywant Patil that he saw both the persons within a minute. He denied the suggestion that he frequently used to meet Police Inspector Y.D.Patil in connection with the incident. He denied the

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Judgment in S.C. No.8 of 2006

suggestion that he used to attend the Court whenever accused were produced before Court for seeking their remand. He denied the suggestion that he could not see the faces of the two persons as they worn Helmets on their heads. He denied the suggestion that one of the Panch gave hint to him and, therefore, he identifed accused Raju Sonawane in T.I.Parade. He denied the suggestion that the victim was his relative and,therefore,he is deposing false.

50] PW No.27 Balasaheb Murlidhar Wagchaure (Exh.No.379) has testified that, he was serving as a Tahsildar at Jalgaon in the year 2005. As per the letter dated 10­10­2005, he hold Test Identification Parade at District Prison, Jalgaon on 15­10­2005. A room named as Kaladalan was made available by Jailor for holding the Test Identification Parade. This witness has further testified that six Dummies looking similar to accused Raju Mali were selected from Prisoners for the Test Identification Parade. They were asked to stand in row. Accused Raju Mali was also asked to take his position in the row. The witness Jaywant Patil was outside the T.I.Parade Room. He was called through Panch Witness. Witness Jaywant Patil was asked to identify the suspect. He identified accused Raju Mali, who was standing in the row at Serial No.4. The witness stated that accused Raju Mali was standing near Netra­Deep Provisions on the day of incident, at the relevant time. The witness was asked to leave the T.I Parade Room. Thereafter, accused Raju Mali was informed that he can change his clothes and also change his position in the row of Dummies. Accused Raju Mali changed his place in dummies, but

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Judgment in S.C. No.8 of 2006

did not change his clothes. The next witness Mahendra Mahajan was brought in the identification Room, but he could not identify the suspect. Thereafter, accused Raju Mali was sent back to Prison and Dummies were also asked. PW No.27 Balasaheb Murlidhar Wagchaure has further testified that thereafter accused Raju Sonawane was brought to T.I.Parade Room. A precaution was taken that he could not be seen by the witnesses. The dummies similar looking to accused Raju Sonawane were selected from the Prisoners and were brought to T.I.Parade Room. The dummies were asked to stand in row and accused Raju Sonawane was asked to take his position in the dummies. Initially, witness Jaywant Patil was brought in the Identification Room. He identified accused Raju Sonawane, who was standing at Sr.No.2 in the row. The witness Jaywant Patil told that accused Raju Sonawane was found sitting along with accused Raju Mali on the day of incident near Netra­Deep Provisions. The witness Jaywant Patil added that he was originally resident of the set up of the face of accused Raju Sonawane. The witness Jaywant Patil was asked to leave the T.I Parade Room. In the meantime, accused Raju Sonawane was informed that he can change his clothes and his place in the Dummies. The next witness Mahendra Mahajan was brought in the Identification Room by the Panch. But he could not identify the culprit. It is in the evidence of PW No.27 Balasaheb Waghchaure that he prepared the Memorandum of this Test Identification Parade vide Exh.No.380 and its contents are true & correct ''.

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Judgment in S.C. No.8 of 2006

51] PW No.27 Balasaheb Murlidhar Wagchaure has further testified that, on the request of Investigating Officer, the next T.I.Parade was taken by him in Kaladalan Room of District Prison, Jalgaon. The witness was asked to sit in the Office of Jailor. He and Panchas went in the T.I.Parade Room. Accused Raju Mali was brought in T.I.Parade Room. The Six dummies looking similar to accused Raju Mali were selected from Prisoners. The dummies were asked to stand in row. Accused Raju Mali was asked to take his position in the dummies. He was also asked to change his clothes. Thereafter, witness Rambhau Gobru Pawar was brought in the T.I.Parade Room by one of the Panchas. He identified accused Raju Mali who was standing at Serial No.2 in the row. The witness Rambhau Gobru Pawar said that accused Raju Mali was the same person, who caught hold the hands of victim from back side and was giving directions to his Associate by saying '' ekj jktq ekj] cpuk ugh pkfg, ''. Witness Rambhau was asked to sit in the Jailor's Room and accused Raju Mali was sent back to Prison. Thereafter, accused Raju Sonawane brought to the T.I.Parade Room. Six dummies looking similar to his face were selected from the Prisoners. Accused Raju Sonawane was asked to take his position in dummies. One of the Panch was asked to bring witness Rambhau in T.I.Parade Room. The witness Rambhau Pawar identified accused Raju Sonawane who was standing at Sr.No.4. The witness Rambhau Pawar said that accused Raju Sonawane is the same person who assaulted the victim by means of knife on his neck and abdomen. It is in the evidence of PW No.27 Balasaheb Wagchaure that accordingly he

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Judgment in S.C. No.8 of 2006

prepared Memorandum of Test Identification Parade vide Exh. No.374. It bears his signature and its contents are correct.

52] PW No.27 Tahsildar & Executive Magistrate Shri Balasaheb Waghchaure identified accused Raju Sonawane before the Court.

53] PW No.30 Dharmraj Bhagwan Sonawane (Exh.No.388 ) is the witness on Test Identification Parade. This witness has testified that before about five years, he was called to act as a Panch at District Prison, Jalgaon. The Test Identification Parade was taken before him in a Hall inside the Jail. One person identified the person who was standing at Sr.No.2 in the row. As per evidence of this witness, in the second part of T.I.Parade, one witness identified the suspect who was standing at Sr.No.4 in the row. It is in the evidence of PW No.30 Dharamraj Sonawane that the Magistrate prepared Memorandum of T.I Parade vide Exh.No.374. It bears his signature and its contents are true and correct.

54] PW No.30 Dharamraj Sonawane identified Accused Raju Sonawane before the Court and testified that he is the same person who was standing at Serial No.4 in the row and was identified by the witness in T.I Parade.

55] PW No.25 Mohan Shiwaji Sonawane (Exh.No.373) & PW No.29 Rajesh Bhalerao Gurav (Exh.No.387) are Panch

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Judgment in S.C. No.8 of 2006

Witnesses of Test Identification Parade. They have supported the prosecution on the point of holding of Test Identification Parade of accused Raju Pundlik Mali ( now deceased ) and Raju Chintaman Sonawane at District Prison, Jalgaon

56] PW No.38 Madhukar Kisan Chaudhari (Exh.No.412) is a retired Police­sub­Inspector. This witness has testified that on 21­09­2005, he was Police Station Officer at Jilha Peth Police Station. On that day, at about 7.25 hours, Police Head Constable Vilas Patil gave information to him on telephone that, one person has been assaulted by means of knife, behind Manraj Park. Therefore, he rushed to the Spot by Police Jeep along with Police Constable Marathe. Mob gathered on the Spot. On inquiry, he learnt that the injured was taken to Civil Hospital, Jalgaon. Therefore, they immediately rushed to Civil Hospital, Jalgaon. Injured V.G.Patil was declared dead there. It is in evidence of PW No.38 Madhukar Chaudhari that, Mob gathered at Civil Hospital. One Mahendra Mahajan (I.e., PW No.1) claimed himself as eye witness. Therefore, he recorded Report of Mahendra Mahajan in the premises of Civil Hospital premises itself vide Exh.No.256. PW No.38 Madhukar Chaudhari has further testified that as per the directions given by Police Inspector Y.D.Patil, on the basis of Report Exh.No.256, he registered offence vide Crime No.242 of 2005 u/s 302 r/w section 34 of the Indian Penal Code. PW No.38 Madhukar Chaudhari has further testified that Car of V.G.Patil was parked in the premises of Jilha Peth Police Station. As per directions given by Police Inspector Shri Ghuge, he

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Judgment in S.C. No.8 of 2006

seized it in presence of Panchas, as per Panchnama Exh.No.302. PW No.38 added that the front glass of the Car was found broken. One File containing some documents and one Slipper ( Footwear ) also found in the same Car.

57] It has come in cross examination of PW No.38 PSI Madhukar Chaudhari that no blood stains were noticed by him inside or outside the Car. It has further come in the cross examination of this witness that he does not know whether the investigation of the crime was handed over to Local Crime Branch on 21­09­2005 at 17.40 hours. It has also come in cross examination of this witness that many persons were present when he recorded FIR of Mahendra Mahajan at Civil Hospital.

58] PW No.41 Police Sub Inspector Shivnath Gangaram Shinde ( Exh.No.424 ) has testified that on 21­09­2005, he was attached to Zilla Peth Police Station, Jalgaon. On that day, he prepared the Panchnama of the Spot in Crime No.242 of 2005 in presence of two Panchas vide Exh.No.299. It is in the evidence of PW No.41 PSI Shinde, that one Helmet, one Slipper of right leg, one Handkerchief and one Bracelet were found lying on the Spot and those were seized in presence of Panchas. He added that the blood stains were also found on the Spot and the sample of blood mixed Soil was taken. It is in the evidence of PW No.41 PSI Shinde that he seized Payjama, Nicker, Baniyan and Shirt of the deceased in presence of Panchas as per Seizure Panchnama

Exh.No.321.

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Judgment in S.C. No.8 of 2006

59] It has come in cross examination of PW No.41 API Shinde that no blood stains were noticed on the Helmet, Slipper, Handkerchief and Bracelet which were seized from the Spot of Incident. It has further come in cross examination of this witness that P.C.Bashir told him that the clothes seized by him under seizure Panchnama Exh.No.321 were of Victim.

60] PW No.2 Vijay Nimbraj Sonar (Exh.No.298) is a Panch on Spot Panchnama. This witness works as a Mechanic on a Garage, situated at Shop No.1 Shopping Complex at Manraj Park. PW No.2 has testified that API Shinde called him for acting as a Panch. One Security Guard namely Mahajan shown the Spot of Incident, where Professor V.G.Patil was murdered. The Spot of Incident is situated towards eastern side of the house of one Lunkad. There were 5 to 6 bushes and small Gutter on the Spot. Two big floor tiles were kept on the Gutter. He noticed blood stains on the Wall adjacent to the Spot of Incident. He also noticed blood stains beneath the bushes. It is in the evidence of PW No.2 Vijay Sonar that one broken Helmet, one Handkerchief, one yellow metal Bracelet, one Slipper of right leg, were found lying on the Spot. The police seized all those articles before him. The police also took measurements of the Spot of incident. They also collected samples of blood mixed soil and plain soil from the Spot. It is in the evidence of PW No.2 Vijay Sonar that police prepared Spot Panchnama vide Exh.No.299 before him and he signed the same on the Spot.

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Judgment in S.C. No.8 of 2006

61] In cross­examination, PW No.2 Vijay Sonar denied the suggestion that no blood stains were found on shrubs and grass. He admitted the suggestion that there were blood dots on the Handkerchief. This witness has admitted that the Slipper was of grey colour.

62] PW No.46 Nanarao s/o Sakharam Ghuge (Exh.No.452) is Investigating Officer. At the relevant time, he was Police Inspector at L.C.B.,Jalgaon. This witness has testified that the investigation of Crime No.242 of 2005 registered at Jilha Peth Police Station, Jalgaon was handed over to him on 21­09­2005. He recorded statement of some witnesses. He arrested accused Raju Pundlik Mali and accused Raju Chintaman Sonawane on 25­09­2005 by making Arrest Panchnamas vide Exh Nos. 311 and 312.

63] The evidence of PW No.46 Police Inspector N.S. Ghuge about the arrest of accused Raju Pundlik Mali ( now deceased ) and Raju Chintaman Sonawane under Arrest Panchnamas Exh.No.311 and 312 respectively., are corroborated by PW No.4 Dnyaneshwar Bansi Sapke (Exh.No.303) and PW No.5 Pradeep Dinkar Chaudhari (Exh.No.310). Thus the prosecution has proved that accused Raju Pundlik Mali ( now deceased ) and Raju Chintaman Sonawane were arrested on

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Judgment in S.C. No.8 of 2006

64] PW No.46 Police Inspector N.S.Ghuge has further testified that, on 27­09­2005 accused Raju Mali was in his custody. He voluntarily gave statement in presence of Panchas to the effect that he is ready to produce Knife, Helmet and Clothes. Accordingly, the Memorandum Panchnama was prepared vide Exh.No.453 in presence of Panchas. Thereafter, accused Raju Mali took himself and Panchas towards a temple of Lord Datta situated at the Bank of Girna River within the vicinity of village Nimkhedi. Accused Raju Mali produced Knife, Helmet, Clothes and one Handkerchief. He seized these Articles under Seizure Panchnana Exh.No.454 in presence of Panchas.

65] PW No.46 Police Inspector N.S.Ghuge has further testified that, accused Raju Mali also gave another disclosure statement in presence of Panchas vide Exh.No.455. Thereafter, accused Raju Mali took him towards Railway Bridge at Shiwaji Nagar, Jalgaon. One Mobile Phone was concealed in a grass below the Railway Bridge. Accused Raju Mali took out the same. He seized said Mobile Phone in presence of Panchas under Seizure Panchnama Exh.No.456.

66] PW 46 Police Inspector N.S.Ghuge has further testified that on 29­09­2005, accused Raju Mali made disclosure statement

in presence of Panchas. It was reduced into writing vide Exh.No.

457. Accused Raju Mali took him near Datta Temple at village

Nimkhedi. One Country made Revolver and Four Cartridges which were concealed in a ditch near Datta Temple at village

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Judgment in S.C. No.8 of 2006

Nimkhedi

were

seized

by

him,

under

Panchnama

Exh.No.458.

67] It is in the evidence of PW No.46 Police Inspector N.S.Ghuge that, on 27­09­2005, accused Raju Pundlik Mali ( now deceased) made another disclosure statement before him that he has parked Motorcycle bearing No. MH­15/AP­1341 at the Parking Place of Bhusawal Railway Station. He is ready to produce the same. It is in the evidence of Police Inspector N.S.Ghuge that accused Raju Mali then took him to Parking Place of Bhusawal Railway Station and pointed out the aforesaid Motorcycle to him. He seized the said Motorcycle in presence of Panchas as per Panchnama Exh.No.318.

68] PW No.8 Vilas Rambhau Kandare (Exh.No.317) is a Panch witness on Panchnama Exh.No.318. This witness has testified that in the month of September­2005, he went near Bhusawal Railway Station along with P.I Shri Ghuge, other police staff and accused Raju Mali. Accused Raju Mali took them to the Parking Place of the Railway Station. One Hero Honda Splender of black Colour was parked there. Accused Raju Mali told that he had parked said Motorcycle there.Accordingly, the police prepared Panchnama before him vide Exh.No.318. PW No.8 Vilas Kandare identified Motorcycle Art.No.13, before the Court. The evidence of PW No.8 about the seizure of Motorcycle on the basis of disclosure statement made by Accused Raju Pundlik Mali has gone unrebutted during cross examination. Hence, I find no reason to disbelieve this witness.

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Judgment in S.C. No.8 of 2006

69] PW No.23 Ramesh Chaudhari (Exh.No.363) has testified that, in the year 2005, Chandrakant Janardhan Chaudhari had taken contract of parking of vehicles at Railway Station, Bhusawal. He and one Sayeed Kureshi were serving at the said Parking Stand. The entries regarding the parking of the vehicles

at the Parking Stand were being taken in a Register Art.''19''. On 17­12­2005, police seized said Register in his presence from the possession of Sayeed Kureshi under Seizure Panchnama Exh.No.

364. The evidence of this witness has gone unrebutted during the

cross examination. Hence, I find no reason to disbelieve the same.

70] Thus by adducing evidence of PW Nos.46 Police Inspector N.S.Ghuge, PW No.8 Vilas Rambhau Kandare and PW No.23 Ramesh Shantarm Chaudhari, the prosecution has proved that the Motorcycle bearing No. MH­15/AP­1341 was used in the commission by accused Raju Pundlik Mali ( Now deceased ) and Raju Chintaman Sonawane and they parked the same at Parking Place of Railway Station, Bhusawal.

71] PW No.46 Police Inspector Shri Ghuge identified Knife (Art.''15), Cellphone ( Art.'22'), Two Shirts and Pant ( Art.23,24 and 25) and Handkerchief (Art.26 ) before the Court.

72] It is pertinent to note that the learned Advocate for accused Mr.Kaul, has cross examined PW No.46 Police Inspector N.S.Ghuge. But his cross examination is limited up to the

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Judgment in S.C. No.8 of 2006

non­recording of statements of Dr.Rajesh Jain, Dr.Bhangale and the wife of victim and non arranging of Test Identification Parade by this witness. It is limited up to non existence of blood stains in the Car of deceased and about forwarding the copies of Case Diaries to the Office of Superintendent of Police, Jalgaon. It is pertinent to note that Mr.Kaul Advocate has not put any question to Police Inspector N.S.Ghuge about the contents of Arrest Panchnamas Exh.Nos.311 and 312. He has not put any question to Police Inspector Mr.N.S.Ghuge about the discovery and seizure of Knife (Art No.15), Helmet, Clothes and Handkerchief on the basis of disclosure statement made by deceased accused. He has not put any question to Police Inspector Mr.N.S.Ghuge about the discovery and seizure of Motorcycle bearing No. MH­15/AP­1341 from the Parking Place of Railway Station, Bhusawal, on the basis of disclosure statement made by deceased accused Raju Chintaman Mali. Consequently, the Arrest Panchnamas Exh.Nos. 311, 312, Memorandum cum Seizure Panchnamas Exh.Nos. 318, 453, 454 455, 456, 457 and 458 have gone unchallenged. The evidence regarding the seizure of Knife (Art.15) and the seizure of Motorcycle, Mobile Phone, Country­made Revolver, Cartridges on the basis of disclosure statement made by accused Raju Pundlik Mali, has gone unchallenged during the cross­examination of Police Inspector N.S.Ghuge. Therefore, even though the Panch Witnesses PW No.32 Satish Prakash Sapkale (Exh.No.397) and PW No.43 Jitendra Rajendra Salunkhe (Exh.No.435) have turned hostile. I believe the evidence of Police Inspector N.S.Ghuge as true and hold that the Prosecution has proved that on the basis of

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Judgment in S.C. No.8 of 2006

disclosure statements made by accused Raju Pundlik Mali ( now dead ), Knife (Art.15), Motorcycle Mobile Phone, Revolver and Cartridges were discovered and seized.

73] PW No.26 Sachin Amarnath Mahajan (Exh.No.378) is brother of wife of accused Raju Sonawane. He sells goods in Railway train running between Nashik Road and Igatpuri Stations. This witness has testified that, before about 3 to 4 years, accused Raju Sonawane met him at Nashik Road. He was accompanying with accused Raju Mali. They came to Nashik Road by Pawan Express at about 3.30 p.m., Accused Raju Sonawane said to him that there was quarrel in between himself and M.L.A Patil of Jalgaon on the earlier day and he himself and his colleague have decided to surrender before police. It is in the evidence of Sachin Amarnath Mahajan, that accused Raju Sonawane directed him to take his sister Durga to his house at Burhanpur to Nashik Road. It is in the evidence of this witness that his brother in law accused Raju Sonawane and accused Raju Mali met him only for 15 minutes at Nashik Road and they immediately returned back by Kamayani Express.

74] It is true that, the evidence of PW No.26 is too vague. He is unable to state the exact date, month or year when accused Raju Chintaman Sonawane and deceased accused Raju Pundlik Mali met him. It is also worth to note that, accused Raju Chintaman Sonawane has not given Extra Judicial Confession in clear words about the commission of Murder of professor V.G.Patil

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Judgment in S.C. No.8 of 2006

before PW No.26. I am aware that, the evidence of Extra Judicial Confession is weak type of evidence. Such confessions must get corroboration from the other surrounding circumstances. In the case in hand, it cannot be forgotten that, PW No.26 Sachin Mahajan was not stranger to accused Raju Chintaman Sonawane. He is real brother of the wife of accused Raju Chintaman Sonawane. Furthermore, the post conduct of the accused Raju Chintaman Sonawane and his co­accused Raju Mali ( now dead) is relevant under the Indian Evidence Act. The defence could not bring on record the reason as to why PW No.26 deposed false. Therefore, I believe evidence of PW No.26 Sachin Mahajan as true, to the extent that accused Raju Chintaman Sonawane met him at Nashik Road and told him that he and his co­accused wanted to surrender before Police, because of quarrel with M.L.A Patil of Jalgaon on the earlier day. As per evidence of PW No.26 Sachin Mahajan, later on he came to know from the reading of Newspaper that, Professor V.G.Patil was murdered at Jalgaon and in connection of it, his brother in law Raju Sonawane and his cousin brother Raju Mali were arrested.

75] PW No.44 Shantaram Gaikwad ( Exh.No.436 ) is Investigating Officer. He was Dy.S.P at State C.I.D Crime, Flying Squad, Nashik at the relevant time. This witness has testified that as per the directions given by Superintendent of Police, C.I.D Crime, Nashik, on 30­09­2005, he took investigation of Crime No. 242 of 2005, registered at Jilha Peth Police Station, Jalgaon from Police Inspector Ghuge. On 7­10­2005, accused Raju Mali gave

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Judgment in S.C. No.8 of 2006

information in presence of Panchas that he has purchased Bracelet and Knife from the Shops situated at Fule Market, Jalgaon and he is ready to show those Shops. The said Statement was recorded into writing in presence of Panchas vide Exh.No.361. It is in the evidence of PW 44 Dy.S.P.Gaikwad that, accused Raju Mali took himself and Panchas to the Shop of Rajesh Madhan. The seized knife was shown to Rajesh Madhan and he was asked whether it was sold by him to Raju Mali and he replied that it was same knife, which was sold by him to accused Raju Mali. However, accused Raju Mali was not identified by Rajesh Madhan. It is in the evidence of Dy.S.P. Gaikwad, that the seized knife was shown to the Doctor, who conducted Postmortem of deceased V.G.Patil. The Doctor was asked to give opinion as to whether the injury found on the person of Professor V.G.Patil, are possible by Knife Art.''15. The Medical Officer gave Opinion vide Exh.No.386 that the injuries found on the person of Professor V.G.Patil could be inflicted by Knife Art.''15''. The Knife was thereafter sealed in presence of Panchas. PW No.44 Shantaram Panditrao Gaikwad has further testified that the clothes of deceased and accused persons and their blood samples were sent to C.A Office, Nashik through Police Constable Shantaram Patil, B.No.775. The Revolver and four live Cartridges seized from accused Raju Mali were sent to Ballistic Expert, Mumbai. The Test Identification Parade of accused Raju Mali and Raju Sonawane was conducted at District Prison, Jalgaon on 15­10­2005 through Executive Magistrate. Witness Jayant Patil identified accused Raju Mali and Raju Sonawane in the Test Identification Parade. PW No.16 Rambhau

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Judgment in S.C. No.8 of 2006

Gobru Pawar had gone to Bhopal. He was not available at the time of conduction of First Test Identification Parade dated 15­10­2005. Therefore, his presence was secured and another Test Identification Parade was conducted on 8­11­2005 at District Prison, Jalgaon. Witness Rambhau Pawar identified both the accused in the said T.I.Parade. The statements of Narayan Badgujar, Firoz Tadvi, Madhukar Chaudhari, Mahesh Supdu Mahajan were recorded. The record of the Calls from Coin Box vide Exh.No.423 was made available by Telecom Engineer Ravindra Tupe. The Hero Honda Motorcycle parked by accused Raju Mali and Raju Sonawane in the parking plot of Bhusawal Railway Station was seized. After due investigation, he filed Charge­sheet against accused Raju Mali, Raju Sonawane, Liladhar Narkhede and Damodar Lokhande on 22­12­2005.

76] PW No.45 Rajendrasing s/o Shri Ramswarupsing Panwar (Exh.No.444) is Investigating Officer. He was serving as Additional S.P in Special Crime Branch at C.B.I Mumbai, at the relevant time. He has testified that,as per Order passed by the Hon'ble High Court in Writ Petition No.6467 of 2005, the investigation of the Crime was handed over to C.B.I. in February 2007. The case was registered at Special Crime Branch,Mumbai vide R.C.No.2/S/2007 on 15 th March, 2007. It's investigation was handed over to him. He recorded statements of near about 100 witnesses including eye witness Rambhau Gobru Pawar. He also recorded statement of Shaligram Onkar Mankar on 01­10­2007 and 14­02­2008, as per his say. He seized Personal Diary

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Judgment in S.C. No.8 of 2006

(Art.'20') of Rambhau Gobru Pawar under a Seizure Panchnama. He also collected 13 Photographs ( Art.'7') of deceased V.G.Patil from Police Photographer. On 10­06­2008, he filed Charge­sheet against accused Raju Mali and Raju Sonawane. He filed another Charge­sheet against accused Damodar Lokhande and Liladhar Narkhede on 6­10­2008.

77] PW No.33 Pranav Vishram Patil ( Exh.No.400) is son of deceased Professor Shri V.G.Patil. This witness has testified that the CBI had given directions to him for production of the proof regarding the blood group of his father. Therefore, he handed over the Driving Licence ( Exh.No.401) before the CBI Officials. It is in the evidence of PW No.33 Pranav Patil that, as per the Driving Licence Exh.No.401, the blood group of his father deceased V.G.Patil was 'O'' Positive. The evidence of PW No.33 Pranav Patil about the handing over of Driving Licence of victim ( Exh.No.401 ) to Investigating Officer has gone un­rebutted in his cross examination. I find no reason to disbelieve the evidence of this witness.

78] The Prosecution has produced Driving Licence of the Victim at Exh.No.401. As per the Driving Licence the blood of the Victim was ''O'' Positive. This Driving Licence has been issued by RTO in the year 1990. I find no reason to disbelieve the entries in the Driving Licence . Thus, the prosecution has proved that blood Group of Victim was ''O'' Positive.

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Judgment in S.C. No.8 of 2006

79] PW. No.31 P.C.Buckle No.1728 Sanjay Bhimda Sapkale ( Exh.No.395 ) and PW No.35 Police Constable Shantaram Vana Patil (Exh.No.404) are the Carriers. These witnesses have testified that they carried the seized articles in this Crime in sealed packets and deposited the same in the Office of Regional Forensic, Science Laboratory. The Defence has not seriously challenged testimony of these witnesses.

80] PW No.17 Damodar Shrawan Kapde (Exh.No.352) was serving as a Chemical Analyzer at Regional Forensic, Science Laboratory at Nashik at the relevant time. This witness has testified that he was serving as Assistant Chemical Analyzer at Regional Forensic, Science Laboratory, Nashik. This witness has testified that on 10­10­2005, Police Constable B.No.775 of Jilha Peth Police Station, Jalgaon has produced six Sealed Parcels and Five Sealed Packets along with forwarding letter dated 09­10­2005 to him. This letter was signed by Dy.S.P.,D.C.P., CID Camp, Jalgaon. He also issued one sealed Carton from Medical Officer, Civil Hospital, Jalgaon along with Forwarding Letter.

81] PW No.17 Damodar Kapde has further testified that on 11­10­2005, he started analysis of the samples. On opening of the sealed parcels, he found (1) Baniyan sleeves (Cut) wrapped in paper, (2) Underwear wrapped in paper, (3) Payjama wrapped in paper (4) Nehru Shirt (Cut) wrapped in paper, (5) Surat (Knife) in a packet (6) Handkerchief in a packet, (7) Half bush Shirt in a Packet, (8) Full Pant in a packet (9) Full bush shirt in a Packet

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Judgment in S.C. No.8 of 2006

(10) Earth in a Polythene Bag wrapped in a paper and (11) earth wrapped in polythene bag.

82] PW No.17 Damodar Kapde has testified that, all Exhibits were found stained with blood except Exh.No.11. All blood samples were of human origin. Exh.Nos.1,3,4 and 5 were of ''O'' group and rest of the exhibits could not be classified, as the results were inconclusive. The sample of the blood of the deceased was analyzed on 11­10­2005, but the report was inconclusive. The blood sample of accused Nos.1 and 2 were analyzed on 1­20­2005 and it was found that the blood group of accused No.1 Raju Mali was 'A' and blood group of Accused No.2 Raju Sonawane was ''B''. He further testified that as their Section could not analyze the sample of soil, therefore, soil samples were sent to General Analytic Division of their Office.

83] PW No.18 Chandrahans Rajaram Bodkhe (Exh.No.357) is Assistant Chemical Analyst at Regional Forensic Laboratory, Aurangabad. This witness has testified that on 22­11­2005, D.C.P ,CID Camp, Jalgaon had sent Soil sample to his Office, for analysis. He analyzed the samples of Soil

84] As discussed above, PW Nos.17 Damodar Kapde and PW No.18 Chandrahans Bodkhe have duly proved the C.A Reports Exh.Nos.353 to 357.

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Judgment in S.C. No.8 of 2006

85]

'O' was detected on the seized Knife Art.'15.

As per C.A Report Exh.No.353, human blood of Group

86] As per C.A Report Exh.No.356, the Blood Group of accused Raju Chintaman Sonawane is ''B''. As per C.A Report Exh.No.355, the Blood Group of accused Raju Pundlik Mali ( now dead ) is ''A''. There is nothing on record to show that accused Raju Pundlik Mali ( now dead) and Raju Chintaman Sonawane had sustained any injury on the day of incident.

87] As per C.A Report Exh.No.353, the seized Baniyan and Neharu Shirt of Victim were stained with human blood of Group ''O''.

88] Thus the prosecution has proved that, the Blood Group found on the seized Knife Art.15 and clothes of deceased was of one and the same i.e.,Group ''O'', which was the Blood Group of Victim.

89] Thus, the prosecution has proved beyond doubt that the Knife Art.'15' as well as Banian and Nehru Shirt of the Victim were stained with blood of ''O'' Group, which is the Blood Group of victim.

90] PW No.28 Dr.Pankaj Saindane has testified that on 7­10­2005, the Investigation Officer produced Knife Art.''15'' before him. The Investigation Officer made query to him as to

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Judgment in S.C. No.8 of 2006

whether the injuries mentioned in Column No.17 of the Memorandum of Postmortem Examination Exh.No.384, were possible by the said Knife. It is in the evidence of Dr.Pankaj Saindane that he seen the Knife. Thereafter, he gave opinion to that effect that the injury sustained by deceased V.G.Patil were possible by the Knife Art.''15''. PW No.28 Dr.Pankaj Saindane has proved the Certificate of Opinion Exh.No.386.

91] The Defence Witness No.1 Sunil Bhimsen Khade ( Exh.No.706 ) is Ex Zilla Parishad Engineer. At present he works as a Building Contractor. This witness has testified that National Highway No.6 passes through Jalgaon City. It is known as Dhule­Nagpur Road. Gujral Petrol Pump is adjacent to National Highway No.6. Manraj Park is towards the East of Gujral Petrol Pump at the distance 500 to 750 Meters. Netra­Deep Provisions is situated at the distance of 100 feet from Manraj Park towards southern side. The distance between Pimprala Gaon and Gujral Petrol Pump is 500 Meters approximately. It is situated towards the southern side of Gujral Petrol Pump. There is Tar Road of the width of 40 Feet which emerges from Gujral Petrol Pump and proceeds towards Pimprala.

92] In the cross examination, DW No.1 Sunil Khade has admitted that he has not seen the Spot of Incident. One another road also goes to Pimprala Gaon which passes from in front of Manraj Park. The width of this Road is 30 feet. It has also come in cross examination of DW No.1 that there are several roads

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Judgment in S.C. No.8 of 2006

having width of 20 Feet for going towards Pimprala Gaon. These Roads start from Gujral Petrol Pump locality and passes through Manraj Park.

93] PW No.7 Abhay Gulabsing Shisode (Exh.No.315) has testified that, Dy.S.P Shri Gaikwad called him at CID Office. One Knife and Bracelet were shown to him. Dy.S.P. Gaikwad asked accused Raju Mali where from he has purchased the said knife and Bracelet. Thereon, accused Raju Mali replied that, he has purchased Bracelet from Shringar Jewelers. As per evidence of PW No.7 Abhay Shisode, accused Raju Mali took them to Shringar Jewelers situated at Fule Market. The owner of the Shop Rajwani was present there. Dy.S.P. Gaikwad shown Bracelet to Rajwani. Thereon, Rajwani said that accused Raju Mali has purchased the said Bracelet from his Shop for Rs.250/­. PW No.7 added that the Shop owner was knowing accused Raju Mali, because he is is regular Customer. PW No.7 has further testified that thereafter Raju Mali took them at Shri Amar Metals. The owner of the Shop namely Mandhan was present there. The Knife was shown to the Shop Owner. On inquiry, the Shop owner told that, the said Knife was purchased by accused Raju Mali from his Shop. It is in the evidence of PW No.7 that the words '' Lord Original made in Germany Rust Proof Stainless still '' was embossed on the said Knife. PW No.7 has further testified that, from Fule Market, they returned back to CID Office and accused Raju Mali was kept in Lockup. PW No.7 Abhay Shisode has identified Bracelet Art.5­A & Knife Art.15 before the Court.

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Judgment in S.C. No.8 of 2006

94] The evidence of PW No.7 Abhay Shisode is not helpful to the prosecution, because it is vague. He has not stated date when accused Raju Mali was taken to Shringar Jewellers and Shri Amar Metals. The Investigation Officer has not prepared any Panchnama about the Disclosure Statement allegedly made by accused Raju Mali about the purchase of Bracelet and Knife from Shringar Jewellers and Shri Amar Metals. Furthermore, the evidence of this witness is also not supported by the owners of aforesaid Shops. Therefore, it is liable to be discarded.

95] PW No.21 Rajesh Manohar Mandan (Exh.No.361) is Proprietor of Utensil Shop namely Shri Amar metals, situated at Fule Market, Jalgaon. This witness has testified that before about 5 years, police brought accused Mali to his Shop. The Police asked him as well as his servants as to whether they identify the said accused. It is in the evidence of PW No.21 that he could not identify the said accused. This witness has further testified that police had shown Knife of Lords Company to him. After examining said Knife, he told to police that the said knives of said Company made in Germany were available in his Shop. He also said to police that the Knife Art.'15' might have been purchased from his Shop. It has came in cross examination of PW No.21 that the Knife like Art.15 are avilable in the Market. Therefore, the evidence of PW No.21 Rajesh Manohar Madan is not useful to the prosecution on the point of the purchase of Knife Art.15 from Shri Amar Metals.

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Judgment in S.C. No.8 of 2006

96] It is pertinent to note that, there is direct evidence of PW No.16 Rambhau Pawar to the effect that accused Raju Chintaman Sonawane gave blows by Knife Art.'15' to the Victim. The fact of purchase of said Knife is within the special knowledge of accused. The prosecution is not bound to prove how the said Knife came in possession of accused. Therefore, though the evidence of PW No.7 Abhay Shisode and PW No.21 Rajesh Madan does not help the prosecution, it cannot destroy it's case.

97] PW No.22 Ramesh Bhagwandas Rajwani (Exh.No.362) is Proprietor of Shringar Jewelers, situated at Shop No.118, Central Fule Market, Jalgaon. This witness has testified that before about five years, one person was brought to his Shop and he was asked to identify him. He said to police that the said person had came to his Shop 2­3 times for purchasing Mangalsutra and the Bentex Jewelery. Said person had also purchased Bracelet and Finger Ring. It is in the evidence of PW No.22 that one Bracelet Art.'5' was shown to him by police. He identified the same and testified that, it was sold from his Shop for Rs.90/­. It is most important to note that PW No.22 Ramesh Rajwani has neither stated the name of accused Raju Chintaman Sonawane nor identified him before the Court. There is no evidence on record to indicate that, seized Bracelet was being used by accused Raju Chintaman Sonawane or by deceased accused. The Bracelet found on the Spot is a general Article of Commerce. It is not used for commission of crime. Therefore,

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Judgment in S.C. No.8 of 2006

though the evidence of PW No.22 Ramesh Bhagwandas Rajwani does not help the prosecution, it cannot destroy it's case.

98] PW No.10 Rajendra Bhivsan Koli (Exh.No.343), PW No.11 Narayan Ganpat Badgujar (Exh.No.44) , PW No.12 Kailash Wamanrao Patil (Exh.No.345) and PW No.15 Shaligram Onkar Malkar (Exh.No.350) are examined by the prosecution, on the point of their cheating by accused Raju Pundlik Mali ( now dead ). The sum and substances of evidence of these witnesses is that, deceased accused grabbed huge amounts from them on the pretext of getting their work done from Mantralaya, Mumbai and Police Department. Therefore,the evidence of these witnesses is not helpful to prove charge against accused Raju Chintaman Sonawane.

99] The evidence of PW No.13 Shabbir Shaha Ajij Shaha is about the seizure of Receipt Book Art.14 from Darga. There is nothing on record to indicate that the accused Raju Chintaman Sonawane has any concern with the said Receipt Book. Therefore,the evidence of this witness is not helpful to prove charge against accused Raju Chintaman Sonawane.

100] PW No.14 Devprakash Ramkisan Pawar and PW No. 34 Arjun Babarao Rathod are examined by the prosecution, on the point of purchase of Hero Honda Motorcycle bearing Registration

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Judgment in S.C. No.8 of 2006

No. MH­15/AP­1341 by accused Liladhar Narkhede under the Sale Receipt Exh.No.349 from them. The trial against accused Liladhar Narkhede is yet to be commenced. Therefore, the evidence of these witnesses is not cannot be appreciated at this stage.

101] As per prosecution case, PW No.24 Manohar Dayaram Mahajan (Exh.No.365 ) provided old Dresses to Accused Raju Chintaman Sonawane and Raju Pundlik Mali (now deceased ) on their demand. However, this witness has not supported the prosecution at all. Consequently, his evidence is not helpful to the prosecution.

102] PW No.37 Ashok Vasudeoprasad Shrivastav, ( Exh.No. 411) is serving as a Police­sub­Inspector at Lalbag Police Station, Burhanpur. As per evidence of this witness, Crime No.98 of 2002 u/s 294, 506 r/w Section 34 of I.P.Code and Crime No.100 of 2002 u/s 25 of Arms Act are registered against accused Raju Sonawane at Lalbag Police Station, Burhanpur in the State of Madhya Pradesh. Besides this, Chapter Proceeding u/s 107 of the Code of Criminal Procedure was also initiated against him in the year 2002. The evidence of PW No.37 about the aforesaid Criminal History of accused Raju Chintaman Sonawane has no relevancy, because there is nothing on record to show that he is convicted by the competent Court for the alleged offences.

103]

(Exh.No.421) is on the point of Calls made on the Mobile Phone

The evidence of PW No.40 Ravindra Hari Tupey

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Judgment in S.C. No.8 of 2006

of other accused from P.C.O.No.267721 of Kingaon. As per prosecution case, after commission of the offence, accused Raju Chintaman Sonawane and Raju Pundlik Mali ( now dead ) made calls from the aforesaid P.C.O to other accused in this Case. The trial against the other accused is yet to be commenced. Therefore, the evidence of this witness cannot be appreciated at this stage.

104] PW No.43 Jitendra Rajendra Solunke (Exh.No.435) is a Panch witness on the Memorandum cum Seizure Panchnama of Knife along with other Articles. However, this witness has not supported the prosecution at all. The Special P. P for C.B.I declared that PW No.43 Jitendra turned hostile and cross­examined him at a length, but nothing came on record to substantiate the charge. Therefore, the evidence of this not helpful to prosecution.

105] PW No.32 Satish Sapkale (Exh.No.397) is a Panch Witness on Memorandum Cum Seizure Panchnama. According to prosecution case, as per disclosure statement of accused Raju Mali, the Knife used for commission of offence along with some other Articles was discovered and seized, in presence of this witness. However PW No.32 Satish Prakash Sapkale has not supported the prosecution. The Special P.P declared that this witness has turned hostile and cross examined him at length, but nothing came on record to substantiate the charge. Therefore, the evidence of PW No.32 is not helpful to prosecution.

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Judgment in S.C. No.8 of 2006

106] The Court Witness No.1 Smt.Rajani Patil (Exh.No.575) and Court Witness No.2 Shridhar Chaudhari (Exh.No.589 ) have deposed about the political enmity between the victim and newly arrayed accused Dr.Ulhas Vasudeo Patil and Gajendrasing Narayan Patil. It has also came in the evidence of DW No.2 Shridhar Chaudhari that prior to 4 to 5 days of the incident, accused Liladhar Narkhede and Damodar Lokhande had brought accused Raju Chintaman Sonawane and Raju Pundlik Mali (now dead ) to the Office of Congress­I Party at Jalgaon The trial against accused Liladhar Narkhede, Damodar Lokhande Dr.Ulhas Vasudeo Patil and Gajendrasing Narayan Patil, is yet to be commenced. Therefore, the evidence of Court Witness Nos.1 and 2 about the political enmity between Victim and other accused cannot be appreciated at this stage.

107] Mr.S.K.Kaul, the learned Advocate for accused Raju Chintaman Sonawane made attack on the evidence of PW No.16 Rambhau Gobru Pawar on various grounds. He submitted that PW No.16 Rambhau Pawar was not willing to give evidence. This witness was repeatedly summoned, but he deliberately avoided to appear before the Court. On 15­07­2010, he entered into Witness­ Box, but avoided to give evidence on the pretext of ill health. Therefore, on his oral request, the matter was fixed for evidence after two days. Inspite of it, this witness did not appear before Court for giving evidence. Therefore, Bailable Warrant was issued against him. On 6­08­2010, the bailable warrant was cancelled subject to penalty of Rs.300/­. From such conduct of

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Judgment in S.C. No.8 of 2006

PW No.16 Rambhau Pawar, he can be branded as a got up witness. The learned Defence Advocate further argued that, Pimprala is at the distance of half kilometer from Gujral Petrol Pump. There is a Tar road just opposite to Gujral Petrol Pump, which goes to Pimprala. There was no reason to PW No.16 for going towards the place of incident i.e., Manraj Park or Netra­Deep Provisions. PW No.16 is not resident of Jalgaon. He cannot have knowledge about Gujral Petrol Pump, Manraj Park etc. The learned Defence Advocate further argued that, as per evidence of PW No.16 Rambhau Pawar, he narrated the incident to police on the same day. Inspite of it, the statement of PW No.16 Rambhau Pawar is not treated as FIR by Police. The First Informant is PW No.1 Mahendra Mahajan. Therefore, the evidence of PW No.16 Rambhau Pawar that he narrated the incident to police on the same day, becomes doubtful. The learned Defence Advocate further submitted that, the photographs of the accused Raju Pundlik Mali (now dead) and Raju Chintaman Sonawane were already published in Local Newspapers. Therefore, both the Test Identification Parades have become meaningless. The learned Defence Advocate further argued that, the conduct of PW No.16 Rambhau Pawar is strange. He has not made complaint to Tahsildar though accused Raju Mali ( now dead ) threatened him after the Test Identification Parade. Therefore, the evidence of PW No.16 Rambhau Pawar about the identification of accused Raju Pundlik Mali (now dead ) and Raju Chintaman Sonawane becomes doubtful. The learned Defence Advocate further argued that, the Diary Art.'20 is not regularly written by PW No.16

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Judgment in S.C. No.8 of 2006

Rambhau Pawar. This fact is sufficient to infer that the entry of the incident dated 21­09­2005 in Diary Art.No.20 is fabricated. The learned Defence Advocate further argued that, PW No.16 Rambhau Pawar has criminal antecedents. In his cross­ examination, PW No.16 has admitted that, one Chapter Case was filed against him at Dhule. He has further admitted that on 30­07­2009 one Ramesh Patil and on 8­03­2009 one Ashok Marathe had filed complaints against him at Taluka Police Station,Dhule.

108] The learned Defence Advocate further argued that as per English Deposition, PW No.16 reached to Gujral Petrol Pump at 7.00 a.m. But as per the Marathi Deposition, he reached there at about 7.30 a.m. He argued that when there is variance between English Deposition and Marathi Deposition, the vernacular version would prevail. The learned Defence Advocate further argued that, that as per the evidence of PW No.36 Police Constable C.B.Chaudhari (Exh.No.406), he heard the noise from Manraj Park at about 7.30 a.m. As per the evidence of PW No.38 PSI M.K.Chaudhari, he received telephonic message regarding the attack on victim at about 7.25 a.m. As per the evidence of PW No.39, Police Inspector Mr.Y.D.Patil, he got information about the assault on victim at about 7.30 a.m. The learned Defence Advocate argued that as per Marathi version, PW No.16 alighted from truck near Gujral Petrol Pump at 7.30 a.m. The distance in between Netra­Deep Provisions and Gujral Petrol Pump is about ½ kilometer. The walking distance between

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Judgment in S.C. No.8 of 2006

Gujral Petrol and Netra­Deep Provisions is at least 10 minutes. Therefore, PW No.16 Rambhau Pawar cannot reach near Netra­Deep Provisions at 7.30 a.m. By that time, the incident might have over. Therefore, PW No.16 cannot have opportunity to witness the incident. Hence, PW No.16 is not witness of truth.

109] The learned Defence Advocate further argued that, PW No.19 Jaywant Kailash Patil is nephew of victim V.G.Patil. He is interested witness. The culprits were having full size Helmets on their heads. Therefore, it is hard to digest that PW No.19 had got opportunity to observe their faces. Furthermore, the photographs of accused Raju Sonawane and Raju Mali were published in Local Newspapers dated 26­09­2005 and 22­10­2005. Therefore, the evidence of PW No.19 Jaywant Patil about identification of accused Raju Chintaman Sonawane, comes under shadow of doubt.

110] The learned Defence Advocate further argued that, PWNo.27 Tahsildar Babasaheb Waghchaure has admitted in his cross examination that he has not made inquiry with the witnesses as to whether they had occasion to see the suspects prior to holding of the Test Identification Parade. He further admitted that he made no inquiry with the Police as to whether the photographs of the accused were published in the Local Newspaper. Accused Raju Sonawane has produced Local Newspaper dated 26­09­2005 and 22­10­2005. These Newspapers were shown to PW No.27 Mr.Waghchaure. This witness has

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Judgment in S.C. No.8 of 2006

admitted that photograph of accused Raju Mali (now dead) were published therein. P. W. No.27 has not conducted Test Identification Parade as per guidelines given in Criminal Manual. Therefore, both the Test Identification Parades conducted by PW No.27 have become meaningless.

111] The learned Defence Advocate also made attack on the evidence of First Informant PW No.1 Mahendra Panditrao Mahajan on various grounds. He argued that the evidence of PW No.1 Mahendra Mahajan is vague. He saw three persons while assaulting each others, but he is unable to state who was being assaulted and by whom. He has not identified the accused Raju Chintaman Sonawane or deceased accused Raju Mali in Test Identification Parade dated 15­10­2005. PW No.1 failed to identify accused Raju Chintaman Sonawane as assailant of victim before the Court. He has not identified the seized Helmet before the Court. There is no evidence on record about the height of Raju Chintaman Sonawane or deceased accused Raju Mali. Therefore, the prosecution failed to prove out of two assailants, who was tall and who was short. Therefore, according to learned Defence Advocate, the evidence of PW No.1 Mahendra Mahajan is not helpful to prosecution to prove the charge. The prosecution failed to prove the blood group of Victim, as the result of analysis of blood sample of Victim are inconclusive. The prosecution failed to prove the motive behind the Crime. The prosecution failed to prove the conspiracy amongst the accused. Lastly, he submitted that, the prosecution failed to prove charge of Criminal

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Judgment in S.C. No.8 of 2006

Conspiracy and Murder against accused Raju Chintaman Sonawane, beyond all reasonable doubts. Therefore, he is entitled for acquittal by giving benefit of doubt.

To support the above submissions, the learned Defence

Advocate Mr.S.K.Kaul has placed reliance on Karichery Chandran Nair ­Vs­ Edayillam Kunhambu Nair [ AIR 1982, Kerala 232 ) in which it is held that if the entries in Levi Demand Register are not

proved, it is not admissible in evidence for want of proof.

on Ravinder Singh Gorkhi ­Vs­ State of U.P [ 2006(2) Crimes 242 (SC) ] in which it is held that, The evidence Act does not make any

distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the

Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the Country in which, inter alia, such register is kept would be a relevant fact. '' He relied on State of Chhattisgarh Vs Lekhram

He relied

112]

[ 2006(2) Crimes

91 (SC) ] in which it is held that,

Entry in

school register regarding age of prosecutrix is not conclusive, but it has evidentiary value. He relied on Bemi Bewa Vs Krushna

Chandra Swain @ Gochhayat [ AIR 2004 Ori.14 ] in which it is observed that A document if admissible in accordance with Section 35 of the Evidence Act, will automatically not be credible simply because it has been admitted as evidence. A document admitted as evidence is to be considered subject to relevancy and by assessing the evidence as a whole and not in isolation. He relied on Abdullah

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Judgment in S.C. No.8 of 2006

is

observed that, An entry in the school register stating the fact in issue or relevant fact and made by a public servant in a discharge of his official duty or by any other person in performance of a duty specifically enjoined by the law upon him is relevant under Section 35 of the Evidence Act. He relied on Sait Tarajee Khimchand Vs Yelamarti Satyam @ Satteyya [ AIR 1971 SC 1865 ] in which it is observed that, The mere marking of an exhibit does not dispense with the proof of document. He relied on Bharat ­Vs­ State of M.P [ Unreported Judgment in Appeal (Cri) 488 of 1996 decided on 30­01­2003,] in which the Hon'ble Apex Court pleased to set aside conviction of the accused on the ground that, the Memorandum and Discovery Panchanama u/s 27 of the Evidence Act was not duly proved and there was no proper and legal identification of

ornaments.

Jogia Hajam

­Vs­ State of Rajasthan

[ AIR 1972

Raj ­272

]

in which it

He relied on Hari Charan Kurmi and

­Vs­ State of Bihar [ AIR 1964 SC ­ 1184 ] in which it is held that, a confession made by one accused cannot be treated as substantive evidence against his co­accused. He relied on Devanand s/o

[ 2011 ALL

Shalikram Wankhede ­Vs­ The State of Maharashtra

MR (Cri) 3507 ] in which it is observed that,

between vernacular and English deposition of witness, the vernacular version would prevail. He relied on The State of

Maharashtra ­Vs­ Bhaurao s/o Doma Udan [199 (1) Mh.L.J.,214 ] in which it is observed that When a question arises as to what exactly the witness had stated in his evidence, it is the Marathi deposition of the witness which had to be taken into account.

If there is variance

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Judgment in S.C. No.8 of 2006

the

Authorities cited by the learned Defence Advocate. But his arguments is not acceptable for various reasons.

113]

No

one

can

dispute

the

ratio

laid

down

in

114] The submission made by the learned Defence Advocate that PW No.16 Rambhau Gobru Pawar is brought up witness, is not acceptable. I say so because, PW No.16 Rambhau Pawar is not resident of Jalgaon District. He is resident of village Anchale Tanda in Dhule District. It clearly reveals from the evidence of PW No.16 that, he was not knowing the victim or his wife Smt Rajani Patil. He was also not knowing accused Raju Chintaman Sonawane or accused deceased accused Raju Mali. He saw both these accused and Victim for the first time on the Spot of incident. It reveals from the evidence of PW No.16 that, after happening of the incident, he learnt about the name of Victim as Professor V. G. Patil from the talk in the Mob gathered on the Spot. After arrival of Smt.Rajani Patil ( Court Witness No.1 ) on the Spot, he learnt from the talk in the Mob gathered on the Spot that, said woman is a wife of victim. There is nothing on record to show that PW No.16 was interested in local politics of Jalgaon. There is nothing on record to show that PW No.16 was having any kind of enmity with accused Raju Chintaman Sonawane or deceased accused Raju Pundlik Mali. Therefore, he has no reason to identify accused Raju Chintaman Sonawane and deceased accused Raju Pundlik Mali in the Test Identification Parade. He has no reason to identify accused Raju Chintaman Sonawane before Court as assailant of the victim. It is also

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Judgment in S.C. No.8 of 2006

pertinent to note that the Investigating Officer has recorded the statement of Rambhau Pawar u/s 161 of Code of the Criminal Procedure on the day of incident itself i.e., on 21­09­2005. At the cost of repetition, it may be mentioned here that PW No.16 is resident of a remote village in Dhule District. Therefore, it is hard to digest that the Investigation Officer called PW No.16 from his native place in Dhule District and recorded his statement on

21­09­2005.

115] It is true that as per English Deposition, PW No. 16 arrived near Gujral Petrol Pump at 7.00 a.m. Whereas as per his Marathi Deposition, he arrived there at 7.30 a.m. The general rule of recording of evidence is that, Judge should take care that the English and Vernacular Depositions tally with each other. Unfortunately, the Judge who recorded evidence of PW No.16, has not not taken such care. Due to mistake of Judge or perhaps typing mistake, two different timings of arrival of PW No.16 Rambhau Pawar at Gujral Petrol Pump have come on record. However, there is no vast difference in duration of time, in Marathi and English Depositions. The said difference consists of 30 minutes only.

116] It is our common knowledge that, generally each and every person does not set the timing of his Watch according to Standard Time. There is no guarantee that the Watch of every person runs accurately. Therefore, the time indicated by Watch of one person does not tally with Watch of another person. Many

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Judgment in S.C. No.8 of 2006

times, such difference may be of 10 to 15 minutes. PW No.16

made unsuccessful attempt to intervene. But, he was threatened

by accused Raju Chintaman Sonawane and Raju Pundlik Mali

( now dead ). The incident must have been lasted for 5 to 10

minutes. During the course of incident, the Helmets worn by the

aforesaid accused fell down. Therefore, PW No.16 got full

opportunity to observe their faces. There is nothing on record to

show that PW No.16 committed any mistake in identifying

accused Raju Pundlik Mali ( now dead ) and Raju Chintaman

Sonawane in Test Identification Parade. PW No.16 has also

identified accused Raju Chintaman Sonawane before the Court.

Therefore, there is no reason to doubt the evidence of PW No.16

on the point of correct identification of accused Raju Chintaman

Sonawane, before the Court.

117] In Bharwada Bhoginbhai Hirjibhai VS State of

Gujrath [ AIR 1983 SC 753 ], the Hon'ble Supreme Court

pleased to observe that ''Discrepancies which do not go to the root

of the matter and shake the basic version of the witnesses ,cannot be

annexed with undue importance. More so, when the all important

'probabilities factor ' echoes in favour of the version narrated by the

witnesses. The reasons are :

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen ;

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Judgment in S.C. No.8 of 2006

(2)

Ordinarily it so happens that a witness is overtaken by events. The witness could have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details ;

(3)

The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another;

(4)

By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, on the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the 'time­sense' of individuals which varies from person to person.

(6)

(7)

Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up, when interrogated later on;

A witness, though wholly truthful is liable to be overawed by the Court atmosphere and the piercing cross examination made by Counsel and out of nervousness mix up facts; get confused

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Judgment in S.C. No.8 of 2006

regarding sequence of events or fill up details

from imagination on the spur of moment.

subconscious mind of the witness sometimes so operates on account of the fear of looking foolish, or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him­Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment ''.

The

118]

I say

so, because it is not specifically mentioned in English Deposition

In the case in hand, PW No.16 must have stated the

time of his arrival near Gujral Petrol Pump approximately.

that,

PW No.16 reached near Gujral Petrol Pump at 7.00 a.m.

sharp.

So

also,

it

is

not

specially

mentioned

in

Marathi

Deposition that, he reached near Gujral Petrol Pump at 7.30 a.m.

sharp.

706 ) who is the witness of accused Raju Chintaman Sonawane,

himself has testified that the distance between Manraj Park is

towards East of Gujral Petrol Pump at the distance of 500 to 750

Meters only. It means that, the Spot of Incident is not far away

from Gujral Petrol Pump. The speed of walking defers from

person to person. Some persons walk fast and some persons walk

slow. The defence has not taken cross examination of PW No.16

about his walking speed. It is pertinent to note that, PW No.16

was serving in Para Military Force. Therefore, his walking speed

may be fast in comparison to common person. Therefore, he must

have crossed the distance of 500 to 750 Meters within 5 to 10

minutes. As discussed above, PW No.16 has given minute

Furthermore,

DW No.1 Sunil Bhmsen Khade ( Exh.No.

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Judgment in S.C. No.8 of 2006

details of the incident. He appears to be independent and truthful witness. The difference of time in English and Marathi Deposition is due to mistake of Court. Therefore, due to mistake of Court, the entire evidence of PW No.16 cannot be thrown away.

119] The learned Defence Advocate has not taken cross examination of PW No.16 Rambhau Gobru Pawar as to why he chosen the road passing by the side of Manraj Park for going to Pimprala. The fact as to why PW No.16 Rambhau Pawar did not choose the Tar Road of the width of 40 feet towards Pimiprala, was within the special knowledge of PW No.16 Rambhau Pawar. Therefore, the evidence of DW No.1 Sunil Bhimsen Khade about the existence of Tar Road of the width of 40 Feet for going to Pimprala, is not sufficient to deny the presence of PW No.16 Rambnau Pawar on the Spot of incident, at the relevant time. 120] It is pertinent to note that the learned Defence Advocate has not cross examined PW No.16 Rambhau Pawar as to why he did not give evidence before Court on 15­07­2010. There is no cross examination to this witness as to why he did not appear before Court till issuance of warrant against him. Therefore, PW No.16 could not get opportunity to give explanation about his absence before Court on given dates. It has came in the evidence of PW No.16 that after Test Identification Parade, two persons had gone to his house and made inquiry about him with his wife. After 2­3 days, an Offer was made to him on telephone for acceptance of Rs.10,00,000/­ and keeping himself away from

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Judgment in S.C. No.8 of 2006

this case. He denied the said offer. Therefore, threats were given to him. The Defence has not cross examined PW No.16 on these aspects. Therefore, the possibility of remaining absent before Court on the given dates by PW No.16 Rambhau Pawar, cannot be ruled out. It is true that some police complaints are filed against PW No.16. But there is nothing on record to show that he has been convicted for the same. Therefore, entire evidence of PW No.16 Rambhau Pawar cannot be thrown away, merely because somebody made Police Complaints against him. Consequently, the arguments of learned Defence Advocate that, PW No.16 Rambhau Pawar is a brought up, he has criminal backgrounds and was hesitant to give evidence before the Court, is not acceptable.

121] The argument of the learned Defence Advocate about the alleged irregularities in holding Test Identification Parade is also not acceptable. I say so, there is no presumption in law that Newspapers are regularly read by each and every person. There is nothing on record to show that before holding of the Test Identification Parade, PW No.16 or PW No.19 had any occasion to see accused Raju Chintaman Sonawane or deceased accused Raju Pundlik Mali or their photographs. PW No.16 and PW No.19 have flatly denied the suggestion put to them that, they had occasion to see the photographs of aforesaid accused published in the Newspaper.

122]

It is true that PW No.19 Jaywant Patil is relative

of

Victim.

However, there is no presumption in law that the

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Judgment in S.C. No.8 of 2006

evidence of relative witness is to be discarded in toto. The law says that, the evidence of relative witness should be dealt with due care and caution. In the case in hand, PW No.19 is a student. He regularly used to go to College by the road passing through Manraj Park at about 7.00 a.m. On the day of incident also, as usual he went by the said road and he had occasion to see accused Raju Pundlik Mali ( now dead ) and Raju Chintaman Sonawane on the Ota of Netra­Deep Provisions. If this witness had to talk false, then he could have deposed that he had actually seen the aforesaid accused while assaulting the victim. But the evidence of this witness is limited to the extent of seeing aforesaid culprits on the Ota of Netra Deep Provisions. Thus , there is ring of truth in the evidence of PW No.19 Jaywant Patil.

123] It is true that it has came in cross examination of PW No.27 Babasaheb Waghchaure (Executive Magistrate ) that at the time of Test Identification Parade, he did not ask PW No.16 and PW No.19 as to whether they had seen the culprits prior to incident. However, that cannot be a ground to discard the entire testimony of PW No.27. I say so because, the Memorandum of Test Identification Parade is a corroborative piece of evidence. Furthermore, it cannot be forgotten that PW No.16 Rambhau Pawar and PW No.19 Jaywant Patil have identified accused Raju Chintaman Sonawane before the Court also. The identification of accused Raju Chintaman Sonawane before the Court is substantive piece of evidence. Both these witnesses have specifically testified that they had no occasion to see the aforesaid

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Judgment in S.C. No.8 of 2006

accused prior to holding of Test Identification Parade. It is true

that there is delay in holding the Test Identification Parade.

However, it has been properly explained by the prosecution. It

has came in the evidence of Investigating Officer PW No.44

S.P.Gaikwad, that PW No.16 Rambhau Pawar had gone to Bhopal.

He was not available for Test Identification Parade. Therefore,

his presence was secured on 8­11­2005 for holding Test

Identification Parade. In the light of explanation given by

Investigating Officer Shri S.P. Gaikwad, it cannot be said that the

prosecution has deliberately delayed the Test Identification

Parade. Therefore, the delay in holding T.I.Parade dated

8­11­2005 is not fatal to the prosecution. For this, reliance can be

placed on Mulla Vs State of Uttar Pradesh [ AIR 2010 SC 942 ]

in which the Hon'ble Supreme Court held as under : ­

'' the evidence of test identification is admissible under section 9 of the Indian Evidence Act. The identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court. There is no provision in Cr.P.C entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court .

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Judgment in S.C. No.8 of 2006

The Hon'ble Supreme Court further observed that :­

''the necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act,1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If,

however,

circumstances

are

beyond

control

and

there

is

some

delay,

it

cannot

be

said

to

be

fatal

to

the

prosecution ''

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Judgment in S.C. No.8 of 2006

124] In Rameshwar Singh Vs State of J & K [ AIR 1972 SC 102 ] the Hon'ble Supreme Court pleased to observe that The identification during police investigation, it may be re­called, is not substantive evidence in law and it can only be used for corroborating and contradicting evidence of the witness concerned as given in Court. The identification proceeding, therefore, must be so conducted that the evidence with regard to them when given at the trial, enable the Court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in the Court of the identifying witness. ( Para No.6 )

125] The evidence on record shows that PW No.1 Mahendra Mahajan is serving as a Security Guard at Dharangaon Uban Co­operative Bank, Visanji Nagar Branch at Jalgaon. The Defence Advocate has not challenged version of this witness on the point of performing of his Night Shift Duty since 10.00 p.m of 20­09­2005 till 7.00 a.m. of 21­09­2005. The evidence of PW No.1 that, after completing Night Duty, he was returning to his house by Jalgaon Dhule National Highway No.6 on Bicycle, has gone un­rebutted during his cross­examination. Therefore, this witness appears to be most natural witness. It is true that PW No.1 Mahendra Mahajan is unable to state, out of three persons, who assaulted whom. However, it cannot be forgotten that this witness was not present on or near the Spot of Incident at the relevant time. He witnessed the incident from long distance, that too, while passing by National Highway No.6. The Spot Panchnama Exh.No.299 shows that National Highway No.6 runs East West. The Spot of

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Judgment in S.C. No.8 of 2006

incident is towards its Western Side of said National Highway. PW No.1 was proceeding by the Metal Strip of the National Highway from it Eastern Side. As per evidence of this witness, at the time of incident, the trucks were passing by the National Highway. Naturally, due to traffic, PW No.1 could not have been able to observe the occurrence in proper manner. The Spot Panchnama Exh.No.299 shows that, the distance in between the Spot of Incident and National Highway No.6 is half furlong. It means that PW No.1 was not much close to the Spot of Incident to identify the assailants or Victim. PW No.1 witnessed the incident from the distance of half furlong. The Motorcycle on which the assailants were riding passed by the side of PW No.1. He observed that one of the assailant was driving the Motorcycle and another was holding blood stained Knife in his hand. PW No.1 also cried '' Tynna Pakda, Tynni Khun Kela '' but nobody helped him. He also made an unsuccessful attempt to chase the Motorcycle of assailants. He also made attempt to take injured to hospital. When he learnt from the whispering of the persons gathered on the Spot that, the injured was Professor V. G. Patil, he immediately rushed to the house of victim and gave information about the incident to his wife Smt.Rajani Patil. The version of PW No.1 that, he gave information about the incident to her, is also corroborated by Court Witness No.1 Smt.Rajani Patil. Not only this, PW No.1 also remain present on the Spot, till the arrival of Police. PW No.1 also went at Civil Hospital, Jalgaon . The evidence on record shows that after going at Civil Hospital, Jalgaon, he filed Complaint about the incident before Police which

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Judgment in S.C. No.8 of 2006

was reduced into writing vide Exh.No.256. PW No.1 Mahendra

Mahajan is stick up to his Complaint Exh.No.256. PW No.1

appears to be a Chance Witness. If this witness had to depose

false, he could have deposed that he has actually seen two accused

Raju Pundlik Mali ( now dead) and Raju Chintaman Sonawane

while assaulting the Victim. But the evidence of PW No.1

Maheendra Mahajan is limited to the extent of observing the

incident from long distance and seeing the assailants while leaving

the Spot on Hero Honda Motorcycle. The evidence of PW No.1

Mahendra Mahajan is also supported by PW No.16 Rambhau

Pawar on material points. Therefore, the arguments of the

learned Defence Advocate that, the evidence of PW No.1 is not

trustworthy, cannot be accepted.

126] It is settled Principle of Law that no particular number

of witnesses are required to prove the charge. The evidence

should be weighed and not to be counted. In Chittar Lal Vs

State of Rajastan (AIR 2003 SC ­ 3590) ­ the Hon'ble Supreme

Court pleased to hold as under :­

'' Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard and fast rule that the names of all witnesses more particularly eye­witnesses should be indicated in the FIR. ''

The Hon'ble Supreme Court has further

observed that :­

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Judgment in S.C. No.8 of 2006

'' The legislative recognition of the fact that no

particular number of witnesses can be insisted upon is amply reflected in S.134 of the Indian Evidence Act,

1872 ( in short ' Evidence Act '). Administration of Justice can be affected and hampered if number of

witnesses were to be insisted upon. It is not seldom that

a crime has been committed in the presence of one

witness. Leaving aside those cases which are not of unknown occurrence where determination of guilt

depends entirely on circumstantial evidence. If plurality

of witnesses would have been the legislative intent cases

where the testimony of a single witness only could be available, in number of crimes offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions ''. ( Para No.7).

127] In Krishna Pillai Sree Kumar Vs State of Kerala

[ 1981 Cr.L.J 743, the Hon'ble Supreme Court pleased to observe

that, It is no doubt true that the prosecution evidence does suffer

from inconsistencies here and discrepancies there but that is a

shortcoming from which no criminal case is free. The main thing to

be seen is whether those inconsistencies. etc., go to the root of the

matter or pertain to insignificant aspects thereof. In the formal case,

the defence may be justified in seeking advantage of the incongruities

obtaining in the evidence. In the latter, however, no such benefit

may be available to it. That is a statutory method of appreciation of

evidence in criminal cases

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Judgment in S.C. No.8 of 2006

128] In the Case in hand, as discussed above, the evidence of PW No.16 Rambhau Pawar or PW No.1 Mahendra Mahajan, does not suffer from material discrepancies. Therefore, it inspires confidence in the mind of Court.

129] Now it is to be seen whether accused Raju Pundlik Mali ( now dead) and Raju Chintaman Sonawane had intention to kill the Victim or not. It is settled law that the ' intention to kill ' is to be gathered from the facts and circumstances of each Case.

130] In Pulicherla Nagaraju @ Nagaraja Vs State of Andhra Pradesh [ AIR 2006 SC 3010 ] the Hon'ble Supreme Court pleased to observe that '' the intention to cause death, can be gathered generally from a combination of a few or several of the following amount, other circumstances :­

i)

nature of the weapon used ;

ii)

whether the weapon was carried by the accused or was picked up from the spot ;

iii)

whether the blow is aimed at a vital part of the body;

iv)

the amount of force employed in causing injuries

v)

whether the act was in the course of sudden quarrel or sudden fight or free for all fight ;

vi)

whether the incident occurs by chance or whether there was any pre­mediation ;

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Judgment in S.C. No.8 of 2006

viii)

whether there was any grave or sudden provocation, and if so, the cause for such provocation ;

ix)

whether it was in the heat of passion;

x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner ;

xi) Whether the accused dealt a single blow or several blows.

The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may ''.

131]

the Hon'ble Supreme Court pleased to hold as under :­

In State of Rajasthan Vs Dhool Singh (AIR 2004 SC ­ 1264)

'' The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case, it is true that the respondent had dealt one single blow with a sword which is a sharp­ edged weapon measuring about 3 feet in length on a vital part of body namely the neck. This act of the respondent though solitary in number and had severed sternoclinoid muscle,external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp­ edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in

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Judgment in S.C. No.8 of 2006

causing the death of the victim, but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim ''.(Para No.13 )

132] As discussed above, the evidence of PW No.16

Rambhau Pawar that, deceased accused Raju Pundlik Mali caught

hold the victim and accused Raju Chintaman Sonawane gave

blows of knife on his abdomen, chest and throat, has gone

un­rebutted during his cross­examination. PW No.16 has

identified accused Raju Chintaman Sonawane and accused Raju

Pundlik Mali ( now dead ) in Test Identification Parade.

PW No.16 has also identified accused Raju Chintaman Sonawane

before the Court. The evidence of PW No.16 Rambhau Pawar

that, accused Raju Chintaman Sonawane gave blows of Knife on

the abdomen,chest and throat of the Victim, is also corroborated

by medical evidence. As per the Medical Evidence, the injuries

sustained by Victim were ante mortem in nature and were

sufficient to cause his death in the ordinary course of nature. The

prosecution has proved beyond doubt that, the Blood Group of

Victim was ''O'' and the blood of ''O'' Group was found on the

seized Knife Art.'15' as well as on the clothes of Victim. The Spot

of Incident is also duly proved.

133] There is ample evidence on record to indicate that

accused Raju Chintaman Soawane and deceased accused Raju

Pundlik Mali, both were present on the Spot. One of them caught

hold the Victim and another gave blows of knife on vital parts,

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Judgment in S.C. No.8 of 2006

of his body. It means that, there was collusion between Raju Pundlik Mali (now dead) and Raju Chintaman Sonawane to cause the death of Victim. Therefore, the the evidence of seizure of Knife Art.''15'' and Motorcycle which are used for commission of crime as per disclosure statement made by deceased accused Raju Pundlik Mali, can definitely be used against accused Raju Chintaman Sonawane.

134] As per Column No.9 of Arrest Panchnama Exh.305, the height of deceased accused Raju Pundlik Mali was 6 Feet i.e., 180 Cms. As per Column No.9 of Arrest Panchnama Exh.304 the height of present accused Raju Chintaman Sonawane is 163 Cms. It means that deceased accused Raju Pundlik Mali was taller in comparison to accused Raju Chintaman Sonawane.

135] Thus there is direct and circumstantial evidence on record to connect accused Raju Chintaman Sonawane with the murder of victim. Therefore, the prosecution need not prove the motive behind the crime.

136] For the reasons discussed above and considering the ratio laid down in Bharwada Bhoginbhai Hirjibhai, Mulla, Rameshwar Singh, Chittar Lal, Krishna Pillai Sree Kumar, Pulicherla Nagaraju @ Nagaraja and Dhool Singh (cited Supra), the prosecution has proved beyond all reasonable doubts that, in the morning of 21­09­2005 at Manraj Park, Jalgaon accused Raju Chintaman Sonawane and Raju Pundlik Mali

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Judgment in S.C. No.8 of 2006

( now dead ) made murderous attack by means of knife on the

Victim and they knowingly and intentionally caused his death.

Thus, I record affirmative finding to Point No.2.

As to Point No.3

137] While recording finding to Point No.2, I hold that ,

accused Raju Chintaman Sonawane and Raju Pundlik Mali

( now dead )both have intentionally or knowingly caused the

death of Prof. Vishram G. Patil. Therefore , it will have to examine

whether the act of these two accused falls under Section 34, or

under Section 107 , or under section 109 or under section 120­B

of the Indian Penal Code ?.

138] The Hon'ble Supreme Court had occasion to consider

the scope of Sections 34, 107, 109 and 120­B of the Indian Penal

Code in the following decisions :­

139]

of Maharashtra [ AIR 1972 SC­885 ] ­. The Hon'ble Apex Court

State

In Noor Mohammad Mohd Yusuf Momin Vs

pleased to observe as under :­

''So far S.34, Indian Penal Code is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence if that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109, Indian Penal Code on the other hand may be attracted even if the abettor is not present when the offence

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Judgment in S.C. No.8 of 2006

abetted is committed provided that he has instigated the commission of the offence or has engaged with one more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Turning to the charge under Section 120­B Indian Penal Code, Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal,means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is some what wider in amplitude than abement by conspiracy as contemplated by Sec.107 I.P.C. A conspiracy from its very nature is generally

hatched in secret.

It is, therefore, extremely rare that

direct

evidence

in

proof

of

conspiracy

can

be

forthcoming from wholly disinterested quarters or from

But, like other offences, criminal

conspiracy can be proved by circumstantial evidence.

Indeed in most cases, proof of conspiracy is largely

inferential though the inference must be founded on

solid facts. Surrounding circumstances and antecedent

utter strangers.

and

subsequent

conduct,

among

factors,

In fact because of the

other

constitute relevant material.

difficulties

in

having

direct

evidence

of

criminal

conspiracy,

once

reasonable

ground

is

shown

for

believing that two or more persons have conspired to commit an offence then anything done by anyone of

them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto''. (Para No.7)

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Judgment in S.C. No.8 of 2006

140]

1988 SC­1883 ] ­ the Hon'ble Supreme Court pleased to held as

In Kehar Singh Vs The State (Delhi Admn.) [ AIR

under :­

'' When an accused is a party to a criminal conspiracy which led to commission of offence (murder in instant cases) by other co­accused, it cannot be said that the accused (conspirator) who did not himself participate in the commission of the offence could not be sentenced for the main offence i.e., murder and that he could be sentenced only for abetment for the offence in absence of charge under S.109 against him. There is vital difference between (i) abetment in the conspiracy, (ii) criminal conspiracy. The former is defined under the second clause of S.107 and the latter is under S. 120A. The gist of the offence of criminal conspiracy created under S. 120A is a bare agreement to commit an offence. It has been made punishable under S.120B. The offence of abetment created under the second Clause of S.107 requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by the wordings of S.107 (Secondly) ''

for the doing of that

thing, if an act of illegal omission takes place in

pursuance of

punishments for these two categories of crimes are also quite different. S.109 IPC is concerned only with the punishment of abetments for which no express provision is made under the Penal Code. A charge under S.109 should, therefore, be along with some other substantive offence committed in consequence of abetment. The offence of criminal conspiracy is, on the other hand, an independent offence . It is made punishable under S.120B for which a Charge under S.109 IPC is unnecessary and indeed, inappropriate.

engages in any Conspiracy

that

conspiracy

''.

The

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The Hon'ble Supreme Court further observed that :

'' The most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable''.

141] In the following two Cases, the Hon'ble Supreme

Court had an occasion to consider what kind of evidence is

required to prove Criminal Conspiracy.

142]

1999 SC ­ 1086) ­ the Hon'ble Supreme Court pleased to held as

under :­

In Vijayan alias Ranjan Vs State of Kerala (AIR

'' To bring home the charge of conspiracy within the ambit of Section 120­B of the Indian Penal Code, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn, but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy''.

143]

SC­2433 ] ­ the Hon'ble Supreme Court pleased to observe as

In Yash Pal Mittal Vs State of Punjab [ AIR 1977

under :­

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''The offence of criminal conspiracy under S.120­A is a distinct offence introduced for the first time in 1913 Chapt. V­A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co­ conspirators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others ''.

144] In the Case in hand, there is un­rebutted testimony of

PW No.19 Jaywant Kailash Patil that, on the day of incident,

accused Raju Sonawane and Raju Mali ( now dead ) were present

near the Spot of Incident since 7.00 a.m. They had also brought

dangerous weapon like Knife with them. They were waiting for

the victim. As soon as victim reached to the Spot, they restrained

his Car and committed murderous attack on him by Knife . The

blows of Knife were given on the vital parts of body of victim i.e.,

neck, chest and abdomen. At the time of commission of offence,

accused Raju Pundlik Mali (now dead) and Raju Chintaman

Sonawane had taken care that, nobody should identify them. For

the said purpose, they wore Helmets. Unfortunately, during the

scuffle, their Helmets fell down. As a result of which, PW No.16

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Rambhau Pawar could observe their faces in broad day light from short distance. These accused used Hero Honda Motorcycle for coming to the spot of incident and fleeing away therefrom. There is nothing on record to show that, these accused were having previous enmity with the victim. It is pertinent to note that Victim was unarmed. It is not the case of defence that, there was provocation by deceased or there was sudden fight. It is also not the case of defence, they made attack on the Victim in their private defence. The motive behind the Crime is within special knowledge of accused Raju Chintaman Sonawane and Raju Pundlik Mali ( now dead). On this background, it cannot be said that, the act of accused Raju Pundlik Mali ( now dead) and Raju Chintaman Sonawane falls under sections 34, 107 or 109 of the Indian Penal Code. It definitely comes under section 120­B of the Indian Penal Code.

145] There cannot be direct evidence of Criminal Conspiracy in each and every case, because the conspiracies are hatched secretly. Therefore, the Criminal Conspiracy is to be gathered on the basis of facts and circumstances of each case.

146] Thus, I hold that accused Raju Chintaman Sonawane and accused Raju Pundlik Mali ( deceased ) hatched criminal conspiracy and committed the murder of Victim Professor Vishram G. Patil. Hence, I record affirmative finding to Point No.3.

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147] As discussed above, the Charge for the offence

punishable u/s 302 and 120­B of the Indian Penal Code is duly

proved against accused Raju Chintaman Sonawane, beyond all

reasonable doubts. Consequently, he is liable for conviction. He

must be heard on the point of sentence. Therefore, I pause here

for hearing accused Raju Chintaman Sonawane, on the point of

sentence.

Date :­ 14­11­2014.

( D. J. Shegokar ) Additional Sessions Judge­1, Jalgaon

148] At this juncture, the learned Advocate for C.B.I

Mr.Salvi submitted that, he wants time till tomorrow for making

arguments on the quantum of sentence. Similar request is made

by Mr.Kaul, learned defence. In view thereof, pronouncement of

sentence is reserved till tomorrow i.e. 15­11­2014 in order to hear

the prosecution and guilty accused on the point of sentence.

Date :­ 14­11­2014.

( D. J. Shegokar ) Additional Sessions Judge­1, Jalgaon

149] The Jail Authorities have produced accused Raju

Chintaman Sonawane before Court today i.e., on 15­11­2015.

I heard him on the point of sentence. He submitted that he has no

concern with this crime. He is detained in Jail since last 9 Years

and 45 Days. His mother is aged about 70 Years. He has two

daughters who are aged about 12 and 10 years. Nobody is

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available at his house for taking care of his old mother and minor daughters. Therefore, lenient view may kindly be taken while imposing the sentence.

150] Mr.Kaul, the learned Defence Advocate submitted that, accused Raju Chintaman Sonawane is young man. He should get opportunity of improving hmself. His mother is old. He has two minor daughters. He is only bread earner of his family. The case does not fall in the category of '' Rarest of Rare Case ''. The Imprisonment for Life is Rule and Capital Punishment is an Exception to it. Therefore, lenient view may be taken while imposing sentence against accused. He relied on Subhash

Ramkumar Bind @ Vakil Vs State of Maharashtra ( 2003 CRI. L.J. 443 SC ) and Prem Sagar Vs Dharambir ( 2004 CRI. L. J. 17 SC ) .

151] On the contrary, Mr.Salvi, learned Special Public Prosecutor for the C.B.I submitted that the Victim was Professor in English. He was elected as President of Congress­I Party for Jalgaon District. He had large number of followers in the District. There was no enmity in between accused Raju Chintaman Sonawane and Victim. Inspite of it, he committed cold blooded murder by hatching conspiracy. The case is' Rarest of Rare Case. Therefore, the accused is not entitled to leniency. He is liable for deterrent punishment like death sentence. In support of his contention, the learned Special Public Prosecutor place reliance on Machhi Singh Vs State of Punjab ( AIR 1983 SC ­ 957 ),

Krishna Mochi Vs State of Bihar (2002 (6) SCC 81 ).

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152] I have given thoughtful consideration to the

submissions made by learned Defence Advocate as well as the

Learned Special Public Prosecutor for C.B.I. The facts and

circumstances does not indicate that, this Case is a rarest of rare

one for imposing Death Sentence. It is settled Principle of Law

that Death Sentence is Exception and Imprisonment for Life is

Rule. Hence, I pass following order :­

O r d e r

(a)

Accused Raju Chintaman Sonawane (Mali) is hereby convicted u/s 235(2) of the Code of Criminal Procedure for the offence punishable u/s 302 of the Indian Penal Code and he is sentenced to suffer Imprisonment for Life and to pay Fine of Rs.5000/­ (Rs. Five thousand only), In default, to suffer R.I for One Year.

(b)

Accused Raju Chintaman Sonawane (Mali) is hereby further convicted u/s 235(2) of the Code of Criminal Procedure for the offence punishable u/s 120­B of the Indian Penal Code and he is sentenced to suffer Rigorous Imprisonment for a period of Ten Years and to pay Fine Rs.2000/­ (Rs. Two thousand only), In default, to suffer further R.I for Six Months.

(c)

The Substantive Sentences of Imprisonment shall run concurrently.

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Judgment in S.C. No.8 of 2006

(e)

The Trial of the Offence shall

proceed against Accused Liladhar Purushottam Narkhede & Damodar

Jagnnath Lokhande.

They shall

remain present before the Court on

8­12­2014.

(f)

The fate of Trial of newly Arrayed Accused namely Gajendrasing Narayan Patil & Ulhas Vasudeo Patil shall depend upon the decision of Criminal Revision Application Nos.165 of 2014 and 166 of 2014 pending before Hon'ble High Court of Judicature Bombay, Bench at Aurangabad.

(g)

The Seized Property be preserved for trial of remaining accused.

(h)

A Certified copy of the Judgment be supplied to Accused Raju Chintaman Sonawane, free of costs.

Date :­ 15­11­2014.

( D. J. Shegokar ) Additional Sessions Judge­1, Jalgaon

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