Jagdish vs State of Maharashtra

P.B. Gaikwad, J.—Accused Jagdish s/o Tukaram Telang being dissatisfied with the order of conviction and sentence passed by Second Additional Sessions Judge, Yavatmal, dated 21.7.2000 in Sessions Case No. 108/99 convicting the appellant for the offence punishable u/s 302 of Indian Penal Code and directing him to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default of payment of fine R.I. for 6 months and also convicting the appellant for the offence punishable u/s 380 of Indian Penal Code and directing him to suffer R.I. for two years and to pay fine of Rs.500/-, in default of fine R.I. for one month, filed present appeal.

The facts in nutshell leading to the present appeal are that:

Complainant PW1 - Govind Pandurang Jadhaw was serving as Engineer in Irrigation Department at Yavatmal in the year 1999 and was residing in rented premises at Bele Layout, Yavatma, belonging to one Madhykar Zade, along with his wife Nalini and two sons namely Aniket, aged about 4 years and Paritosh, aged about 2 years. PW1 purchased a plot at Tukdoji Layout, which is adjacent to Bele Layout and the construction on the said plot was in progress in the month of February 1999.

The incident took place on 19.2.1999 approximately between 12 Noon to 1.30 p.m. at the house of complainant at Bele Layout, Yavatmal. Complainant approximately at about 11 or 11.30 a.m. left the house to attend the office, Nalini the wife of complainant along with her two sons - Aniket and Paritosh were at house. PW2 Prabhakar Meshram is a neighbour having his own house in front of the house of complainant in Bele Layout, Yavatmal. Son of complainant namely Aniket had been to the house of Prabhakar approximately at about 1 p.m. on the day of incident. Daughter of Prabhakar accompanied with Aniket came to the house of complainant and thereafter she informed her father about the condition of Nalini. Prabhakar PW2 visited the house of complainant and found that Nalini was lying on the ground, a rope was to her neck and he, therefore, immediately proceeded to the office of PW1 and informed him about the condition of his wife-Nalini. Both Prabhakar and Govind then returned to the Bele Layout at the house of complainant. PW1 found rope around the neck of Nalini and was under the impression that she may be alive, he removed the rope and immediately took her to the Hospital at Yavatmal. However, Doctors after examining Nalini informed that she was dead. PW1 accordingly made a report to the Police Station and on the basis of the said report, Crime No. 114/99 is accordingly registered. The F.I.R. is at Exh.22. PW9, A.P.I. Pawar then visited the place of incident, prepared the Spot Panchanama which is at Exh.25, held inquest of dead body - Exh. 18, referred the same to the Medical Officer for post-mortem. The clothes which were on the person of deceased were attached under Exh. 19 and the Articles i.e. rope which were found around the neck of Nalini and the clothes of deceased were attached.

The appellant/accused was serving with the complainant on his construction work and used to visit the house of the complainant. He also resides at Yavatmal. On 22.2.1999, PW10, to whom the investigation was handed over, visited the house of accused along with 2 panchas, took the house search and certain articles in respect of which theft is committed from the house of complainant is attached under Panchanama Exh.29. On 25.2.1999, the accused took Panchas and Police to the shop of one Lashkare Jewellers from Yavatmal from where two ear-rings were attached by the police at the instance of accused under Panchanama-Exh.32. On 26.2.1999 the attached articles from the house of accused under Panchanama Exh.29 were mixed in certain articles and identification parade of articles was held in presence of Panchas. Panchanama to that effect is prepared at Exh.34. The clothes which were on the person of the accused were attached under Exh.52. PW10, P1 who was incharge of investigation of the above crime made a query to the Medical Officer by letter Exh.51 as to whether the death of Nalini is on account of strangulation by rope. The Medical Officer has accordingly given opinion Exh.47 and vide Exh.46 informed that death is due to strangulation and strangulation is possible by rope as per query made by Investigating Officer. On 9.3.1999 the investigation was handed over to.PW7 Martand Patil, P.I., who accordingly referred the attached articles to C.A., the office copy of letter is at Exhs. 40 & 41. After completing investigation, PW7 submitted charge-sheet against the accused for the offences punishable under Sections 302 and 380 of Indian Penal Code.

The Judicial Magistrate, First Class, Yavatmal, committed the case to the Court of Sessions as the offence u/s 302 is exclusively triable by the Court of Sessions. The said case is accordingly made over to Second Additional Sessions Judge, Yavatmal, who accordingly framed charge against the accused for the offences punishable under Sections 302 and 380 of Indian Penal Code on 17.12.1999. The particulars of charge were read over and explained to the accused, however, he denied the charge and claimed to be tried.

The prosecution to connect the accused with the above said crime filed application u/s 294 of Criminal Procedure Code and called upon the defence to admit the correctness and genuineness of certain documents. The defence has not disputed the correctness of inquest Exh. 18 and Panchanama as regards to attachment of clothes from the person of deceased Nalini Exh. 19 and Panchanama about collection of blood sample of accused Exh.20. As regards oral evidence, the prosecution examined near about 10 witnesses. PW1 is Govind Pandurang Jadhao, his evidence is at Exh.21 and through his evidence the report given by him on the basis of which crime is registered is numbered as Exh.22. PW2 is Prabhakar Haribhau Masram, neighbour of complainant and also a Panch witness about Spot Panchanama, his evidence is at Exh.24 while the spot panchanama which is proved through the evidence of this witness is at Exh.25. PW3 is Praveen Vishwanath Damkondawar, Panch witness about house search of accused. His evidence is at Exh.28 while the Panchanama of house search of accused and about attachment of articles from his house is at Exh.29. PW4 is Ravindra Devling Karnajkar, again a Panch witness and used to carry on business of tying golden ornaments in a thread, through his evidence the identity as regards the attachment of golden ring from the shop of Lashkare Jewellers is proved, which is at Exh.32. PW5 is Dadu Sawairam Pawar, again a Panch witness about the identification of articles. His evidence is at Exh.33 and Panchanama about identification of articles is at Exh.34. PW6 is Namdeo Raut, one of the labour, his evidence is at Exh.36 while PW7 is Martand Patil, P1, who submitted charge-sheet against the accused. His evidence is at Exh.39 PW8 is Dr. Aparna Ketan Baheti, who performed post-mortem over the dead body of Nalini alongwith another Doctor namely Dr. Batra. Evidence of this witness is at Exh.45, through her evidence post-mortem Report is proved which is at Exh.46 and the opinion given by the Doctor is at Exh.47. PW9 is A.P.I. Rajendra Paswar, who registered the crime, visited the place of incident, prepared spot panchanama, held inquest over the dead body. Evidence of this witness is at Exh.49 while the last witness is PW 10 Vinod Gaikwad, P.1., who took up the investigation on 21.2.1999.

Additional Sessions Judge after considering the oral and documentary evidence on record referred above concluded that Nalini met homicidal death, further concluded that the circumstances brought on record by the prosecution formed a complete chain so as to conclude that the accused committed murder of Nalini and that he also committed offence u/s 380 of Indian Penal Code, accordingly convicted the accused for the offences punishable under Sections 302 and 380 of Indian Penal Code and directed to suffer imprisonment for life for offence u/s 302 and imprisonment for two years for offence u/s 380 by order dated 21.7.2000. The same being challenged by filing present appeal.

In appeal we heard Shri Daga, Advocate, for the appellant and Shri Jichkar, Additional Public Prosecutor for the State at length. It is submitted by Shri Daga, Advocate, that the order of conviction and sentence is basically wrong. Firstly, according to him, the court below failed to scan and scrutinize the evidence on record in proper perspective and further also failed to see that there is no link to connect the accused/ appellant with the said crime. Secondly PW3 who is a Panch witness about house search of accused turned hostile and his evidence is not in any way helpful to the prosecution, still the court below relied upon the said evidence and convicted the accused/appellant. Thirdly, according to him, the curt below has wrongly considered the presumption u/s 114(A) of the Evidence Act so as to connect the accused with the said crime. Fourthly, according to him, the material witnesses have not been examined by the prosecution, particularly Aniket, the son of the complainant, who alleged to be present at the time of incident and who alleged to have informed his father about the offence being committed by the present appellant. Even the prosecution has not examined the Proprietor of Lashkare Jewellers from where the ear rings are attached at Panchanama Exh.32. Lastly according to him, the identification parade of the accused in Police Station and Panchanama to that effect Exh.35 has been wrongly relied by the Court below and finally, according to him, the evidence on record and more particularly that of PW1 & PW2 is not satisfactory, convicting, trustworthy and the court below has wrongly relied upon the said evidence though in fact there is material inconsistency in their evidence. According to him, the circumstances brought on record do not form a chain nor from those circumstances the guilt of accused can be inferred and therefore, he requests to allow the appeal and set aside the order of conviction in sentence. In support of his contention, he placed reliance on certain authorities i.e. Bharat Vs. State of M.P., , and Arjun s/o Sakharam Kulhad v. State of Maharashtra, 2003 All. MR (Cri.)452. Relying on the ratio laid down by the above authorities, according to him, the circumstance brought on record are not sufficient to convict the accused, those circumstances are not of conclusive tendency and further that the evidence of PW3 being wrongly relied upon by the court below.

On the other hand, it is submitted by Jichkar, Additional Public Prosecutor that the prosecution succeeded in proving that Nalini met homicidal death. Further considering the evidence of PW1 if read together with the statement of accused u/s 313 of Criminal Procedure Code, it is apparently clear that the accused was working with complainant on his construction work on plot in Tukdoji Layout, thirdly, according to him, the rope which was found at the neck of Nalini to the extent of 3 feet and 8 inches was similar to the rope which was attached from the house of accused under Panchanama Exh.29, fourthly, according to him, the stolen articles from the house of complainant i.e. golden Dorlya, TV, Chadar (Bed sheet), Saree, one Jodwe a pair of anklets was attached from the house of accused and those articles were identified by the complainant as belonging to him and the accused has not claimed his ownership nor given any explanation about the possession of those articles. Evidence in that respect of PW4, PW5 and PW6 being convincing, satisfactory and those circumstances on record formed a chain so as to connect the accused with the crime and thus, according to him, the court below is justified in convincing the accused for the offences punishable under Sections 302 and 380 of Indian Penal Code. Alternatively he submits that in case if the Court comes to the conclusion that those circumstances brought on record by the prosecution are not of conclusive tendency and are not sufficient to convict the accused for a charge, he submits that from the evidence on record it is clear that the accused was found in possession of stolen articles which belongs to the complainant and he identified the same and therefore, at least the accused may be convicted for the offences punishable u/s 411 of Indian Penal Code. Shri Jichkar, Additional Public Prosecutor, in support of his contention placed reliance on Ramchit Rajbhar Vs. The State of West Bengal, .

Considering the submissions on behalf of the parties to the appeal, it is necessary to see whether the order of conviction and sentence for the offences under Sections 302 and 380 of Indian Penal Code is proper and justified, for which a reference to the evidence on record, both oral and documentary, adduced by the prosecution is necessary.

Before considering the evidence on record, it is necessary to make it clear that the prosecution case is solely based on circumstantial evidence and therefore, in dealing with the circumstantial evidence, the rules specially applicable to such evidence must be borne in mind as in such cases there always the danger for conjecture or suspicion may take place of legal proof. While considering the case of circumstantial evidence, the essential ingredients to prove the guilt of accused are: (i) the circumstances from which the conclusion is to be drawn should be fully proved; (ii) the circumstances should be conclusive in nature; (iii) all the acts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence and (iv) the circumstances should, to a moral certainty, exclude the possibility of guilt of any other person than the accused. In other words, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must be such as to show that in all human probability the act must have been done by the accused.

The prosecution, in order to succeed, must establish circumstances which are consistent only with the guilt of accused, the probative value of the proved circumstances must be considered with due regard to ordinary human conduct and on a pragmatic and realistic approach. Where proved circumstances of an incriminating character and though proved a complete chain, there being no missing link pointing out unequivocally to the guilt of the accused and excluding any hypothesis consistent with his innocence, it can be said that the prosecution has proved the guilt of accused beyond reasonable doubt.

A reference is also necessary to Section 114 of the Evidence Act, which reads as under:-

The court may presume the existence of any fact which it thinks likely to have happened regard being had to be common course of natural events, human conduct and pubic and private business, in their relation to the facts of a particular case;

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.

On perusal of Section 114(A), it is apparently clear that the stolen property is even in possession of the person soon after the theft, the court u/s 114 is entitled to presume that either the person is himself thief or he has received the property knowing them to be stolen, unless he can account for the possession. Section 114 is a rule of guidance and it does not lay down any hard and fast rue with regard to the circumstances in which any fact may be presumed. The principle laid down by Section 114 is one of very wide application, it cannot be made at random, there must be connection between facts proved and those to be proved. The section is vide enough to permit the court to raise a presumption not only with regard to the real evidence but also with regard to some of the stolen properties which are recovered from the house of accused and he himself has not offered any explanation, the court may draw presumption u/s 114A (illustration (a)) of in a given case may presume to draw such presumption, which is discretionary. Thus drawing of presumption u/s 114A is a matter which depends upon the evidence and the circumstances of each case, thus the nature of stolen articles, the matter of its acquisition by the owner, the nature of evidence about its identification, the manner in which it was dealt with by the accused, the place and circumstances of its recovery, the length of interruptive period, the ability or otherwise of the accused to explain his possession, are the facts which have to be taken into consideration. For drawing presumption u/s 114, two essential elements necessary to be established are possession of articles and that the possession is soon after the incident. In other words, both the corpus and animus are to be established by the prosecution for raising the presumption of possession u/s 114 of Evidence Act. It is equally true that to raise presumption u/s 114A, the prosecution must establish ownership of property by complainant, its theft and possession by the accused.

It is now necessary to consider the factual aspect in the present case and the circumstances brought on record by the prosecution and the medical evidence. The first aspect which needs to be considered is whether prosecution succeeded in proving that Nalini met homicidal death and for which a reference to the evidence of PW3 Dr. Aparna Behati and post-mortem report Exh.46, Inquest Exh. 18 is necessary. From the evidence of Dr. Aparna Behati, according to her, she along with another Doctor namely Dr. A.K. Batra, performed post-mortem over the dead body of Nalini. The dead body was identified by the relatives of deceased namely Sitaram Barade and her husband Govind Jadho. On extraordinary examination, following injuries were noticed:

(1) Ligature mark over the neck seen as contused abrasion of size 29x 1.5 cm encircling the whole neck.

(2) Contused abrasion on back.

(3) Small abrasion on chin.

(4) Abrasion over right elbow posteriorly.

(5) Abrasion on left elbow posteriorly.

(6) Abrasion on right wrist dorsally.

The Doctor in her evidence has positively stated that those injuries were fresh and ante-mortem in nature, also noticed fracture of hide bone. The internal organs found congested and also made clear in the evidence that injuries mentioned in Column Nos. 17, 18, 20 & 21 of the post-mortem report are sufficient to cause death in the ordinary course of nature. The opinion as regards to the cause of death is given as strangulation and when a query is made by the Investigating Officer, a reply is given which is at Exh.47, informing to the investigation Officer that strangulation is possible by rope, which is attached under Panchanama Exh.25 from the place of incident which was found around the neck of Nalini. If the evidence of Doctor PW8 is read together with Exh.46, Exh.47 and Inquest Exh. 18, we find that conclusion arrived at by the court below that Nalini met homicidal death is definitely proper, justified and in conformity with the evidence on record.

As far as regard to another aspect about conviction and sentence recorded by the court below against the appellant/accused for the offences punishable u/s 302 of Indian Penal Code, we find that the court below has not properly scanned the evidence on record in that respect and more particularly Exh.35 which is a Panchanama as regards identification parade as in fact the person alleged to have identified the accused namely Aniket, son of complainant. PW1 has not examined in the present case, secondly the identification by the police in the Police Station is also not justified when the accused/appellant himself was in the custody of police. The Investigation Officer has not followed proper procedure for holding identification parade and inspite of all this and when the evidence on record suffers from several infirmities, the Additional Sessions Judge has wrongly relied the Panchanama as regards to identification parade Exh.35 about the identification of accused being the person who assaulted deceased, strangulated the deceased. Thirdly, the complainant in his evidence has stated that that his son Aniket informed him that the "Mistri" has strangulated the Nalini, however, this particular aspect does not find place in the F.I.R. and it is seen that there is an improvement in his evidence in that respect. Thus the circumstances about identity of accused by Aniket, we find that the same being wrongly relied upon by the court below.

The another circumstance which is relied by the court below that a piece of rope near about to the extent of 3 feet and 8 inches attached from the house of complainant at the time of preparing spot panchanama Exh.25 and the remaining portion of the said rope being found at the house of accused near about to the extent of 15 feet in length attached under Panchanama Exh.29, is also not proper, justified for the reason that none of the witnesses has stated that the piece of rope attached from the house of the complainant and the piece of rope attached from the house of accused is of same size, similarly and even an attempt is made by the Investigating Officer to sent this property to the expert, the opinion is not on record and in absence of any satisfactory evidence to that effect, the reliance placed by the court below on the said circumstances is not justified.

The third circumstance which is relied by the Court below that the accused/ appellant has shown the shop of Lashkare Jewellers, a place where he sold the stolen articles/ornaments, which were seized by the police. As in fact there is nothing on record which shows that the accused has made any disclosure statement before the Police nor he has led the police to the shop of Lashkare Jewellers, however, the evidence of Panch goes to show that they alongwith the accused went to the shop of Lashkare Jewellers at Yavatmal and two ear-rings were produced by the Lashkare Jewellers and those were attached. As in fact there is nothing on record to connect the said ear rings attached from the shop of Lashkare Jewellers being the stolen property from the house of complainant nor there is a reference in complaint about the theft of golden ring and in view of this aspect and when the evidence is not satisfactory to that effect, the said circumstances relied by the court below is also not justified. About the another circumstance which is relied by the Court below that the accused took police and panchas to the shop of Ravindra Devling Karnajkar, PW4, where he tied golden Dorlya, in respect of which theft was committed, as in fact on perusal of Panchanama Exh.34 about identification of article by the complainant, he specifically made clear that the six golden beads of the said Article ''B'' does not belong to him and the material portion from the Panchanama Exh.34 is to the following effect:

*("matter in other language")

As a matter of fact the court below concluded that the complainant has identified the said article belonging to him including six golden beads.

In this respect, to our mind, a reference is necessary to one authority i.e. Sharad Birdhichand Sarda Vs. State of Maharashtra, , wherein it is observed to the following effect:

The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should'' and not ''may be'' established.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

It is well settled that the prosecution must stand on its own legs and it cannot derive any strength from the weakness of the defence.

It is thus on analyzing the evidence on record and on proper scrutiny, we find the court below committed error in concluding that the accused committed offence u/s 302 of Indian Penal Code as the circumstances brought on record by the prosecution are not of conclusive nature and tendency and the circumstances does not form a chain so as to conclude safely that the accused is the person who committed the said offence and therefore, the order of conviction and sentence u/s 302 deserves to be set aside. Equally, so far as regards offence u/s 380, as a matter of fact that the prosecution has not adduced any satisfactory evidence to that effect though the complainant has identified certain property attached from the house of accused belong to him in respect of which theft is committed, at the most so far as regards the said aspect is concerned, it can be said that the accused who found in possession of certain property in respect of which theft is committed and failed to explain his possession unsatisfactorily, at the most offence will u/s 411 of Indian Penal Code and this aspect needs to be dealt with separately.

So far as regards offence u/s 411 is concerned, it is necessary to refer the evidence of PW1. According to him, at the relevant time when the incident took place he was residing in the house of one Madhukar Zade at Bele Layout, Yavatmal, along with his wife Nalini and two minor sons - Aniket aged about 4 years and Paritosh aged about 2 years. In his evidence he further made clear that on 19.2.1999 he attended the office. At about 1.30 p.m. his neighbour Prabhakar Meshram came to his office and informed him about condition of his wife. He along with Meshram then returned to the house, found condition of his wife. He along with Meshram then returned to the house, found condition of his wife. According to him, T.V., one green bed-sheet was stolen from his house along with one Dorle about 2 gms. In report given by him on the basis of which crime is registered, he referred about theft in respect of these three articles i.e. one bead and Dorely, portable black and white TV and one bed sheet. In his evidence he has improved his version and contended that ear-rings, silver two Jodwe were found missing or in respect of which theft is committed. In the report, there is no reference about the silver anklets being missing or in respect of which theft is committed. On close scrutiny of evidence of PW1 if read together with F.I.R. Exh.22 and Panchanama Exh.34 about identification of articles, we find that the identity of theft articles as regards Mangalsutra and two golden beads, chader and black and white T.V. of Sigma Company can safely be accepted. In this respect it is submitted by Shri Data, Advocate, that the evidence of Panch-witness PW3 as regards identity of T.V. and the same being found at the house of accused is not satisfactory. As in fact, considering the evidence of complainant if read together with evidence of PW5 and Panchanama Exh.34, we find that the identity of these three articles is definitely satisfactory and those three articles being found at the house of accused in house search and those are attached under Panchanama Exh.29. The accused has not explained his possession in respect of these three articles and therefore, in view of Section 114 with illustration (A) of the Evidence Act, the accused/ appellant can safely be held guilty for the offence u/s 411 of Indian Penal Code. A reference in this respect is necessary to Mohan Lal and Another Vs. Ajit Singh and Another, , wherein it is observed to the following effect:

The question whether a presumption should be drawn against the accused under illustration (a) of Section 114 of the Evidence Act, it is a matter which depends on the evidence and the circumstances of each case, the nature of the recovered articles, the manner of their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervening period and the ability or otherwise of the accused to explain the recovery are some of those circumstances.

A reference is also necessary to another authority i.e. Alisher Vs. State of Uttar Pradesh, , wherein it is observed to the following effect:

The illustration (a) to Section 114, Evidence Act makes it clear that the time factor has a material bearing and the court must keep it in view before it can draw the presumption in accordance with the illustration. The presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. The question as to how much period should elapse after the theft in order to rule out the presumption would depend upon the nature of the stolen article and the facts of each case.

A reference is also necessary to one another authority i.e. ( Satnarain Sao Vs. The State of Bihar, , wherein it is observed that:

Section 114 provides that the court may presume the existence of any fact which it thinks likely to have happened regard being had to be the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustration (a) is as follows: that a person who is in possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.

Thus, considering the ratio laid down in the above authorities, considering the ingredients of Section 411 of Indian Penal Code, we find that the accused committed offence u/s 411 of Indian Penal Code.

It is necessary to make it clear that in order to establish an offence u/s 411, it is necessary for the prosecution that the accused received or retained the property, secondly that property being stolen property, thirdly such receipt or retention is dishonest and fourthly that the accused knew that the property so received or retained by him is stolen property.

In the present case all these four ingredients have been satisfactorily proved by the prosecution, as from the evidence on record it is clear that the accused has not disputed about the house search of his house, even not disputed the correctness of Panchanama Exh.34 and even he has not given any explanation about his possession of the stolen goods or property. In this respect it is also material to mention that the alleged incident took place on 19.2.1999 while the house search of the house of accused is taken on 22.2.1999 i.e. within three days of the incident and the stolen property as referred above is recovered and therefore, this being a fit case where presumption u/s 114A is available to the prosecution so as to convict the accused u/s 411 of the Indian Penal Code. It is true that in the present case the accused is not charged for offence u/s 411, however, in view of Section 222 of the Criminal Procedure Code, the accused can safely be convicted for the offence u/s 411, though no particular charge is framed against him. Thus we find that the order of conviction and sentence for the offences punishable under Sections 302 and 380 of Indian Penal Code needs to be set aside. The accused needs to be convicted for the offence punishable u/s 411 of the Indian Penal Code.

In the result appeal is partly allowed. The order passed by Additional Sessions Judge, Yavatmal, convicting the accused for the offence punishable u/s 302 and 380 and directing him to suffer imprisonment for life for offence u/s 302 and R.I. for 2 years for offence u/s 380 along with fine is set aside.

The accused Jagdish Tukaram Telang is acquitted for the offences u/s 302 and 380 of Indian Penal Code, however, he is convicted for the offence punishable u/s 411 of Indian Penal Code and directed to suffer R.I. for 2 years and to pay fine of Rs. 1000/-, in default R.I. for 3 months. The accused - Jagdish Telang is entitled to get set of u/s 428 of Criminal Procedure Code. The order about disposal of muddemal property by Additional Sessions Judge is maintained.