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2014 DIGILAW 1868 (BOM)

Shamrao Bhimrao Mhaske v. State of Maharashtra

2014-08-25

ANUJA PRABHUDESSAI, P.V.HARDAS

body2014
JUDGMENT P.V. Hardas, J. 1. The Appellants/Original Accused Nos. 1 and 2, who stand convicted for an offence punishable under Section 302 read with Section 34 and Section 363 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life and to each accused to pay a fine of Rs. 5000/- in default of which to undergo further SI for six months and RI for three years and each accused to pay a fine of Rs. 5000/- in default of which to undergo further SI for six months, with a direction that the Appellants would be entitled for set off and that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Karad, by judgment dated 27.03.2008, in Sessions Case No. 48 of 2005, by this Appeal question the correctness of their conviction and sentence. Facts, as are necessary for the decision of this appeal, may briefly be stated thus:- PW-21 ASI Jagannath Bhakare, who on 8.4.2005, was attached to the Karad City Police Station and was on duty, recorded the report of PW-13 Vikas Mhaske regarding missing of Naresh, a 8 year old boy. The said missing report is at Exhibit 97. The investigation of the said missing report was then entrusted to PW-22 ASI Dilip Gajare. PW-22 ASI Dilip Gajare, who was also attached to the Karad City Police Station was entrusted with the investigation of Missing Report No. 10 of 2005. He therefore went to the Adarsha Primary School at Karad and took search of Naresh, a boy aged 8 years. Naresh however was not found. In the missing complaint there was a reference to one person by name Mhaske Kaka and therefore, PW-22 ASI Gajare went to the house of Naresh and learnt the name of "Mhaske Kaka" as accused Shamrao Mhaske. He therefore went to the house of accused Shamrao Mhaske but the accused was not present in his house. On 9.4.2005, he again went to the school at about 7.00 a.m. and recorded the statement of PW-12 Prachi Gadekar. Accused Shamrao was not present in the school. The school bag of Naresh was produced and was accordingly seized in the presence of panchas under seizure memorandum at Exhibit 43. He, thereafter, handed over the investigation to PW-23 API Rajendra Mulik. Accused Shamrao was not present in the school. The school bag of Naresh was produced and was accordingly seized in the presence of panchas under seizure memorandum at Exhibit 43. He, thereafter, handed over the investigation to PW-23 API Rajendra Mulik. PW-23 API Rajendra Mulik, who was also attached to the Karad City Police Station was entrusted with the investigation of the Missing Report No. 10 of 2005 on 9.4.2005. He also went to the school and took search of Naresh but did not find the whereabouts of Naresh. He recorded the statement of PW-10 Jagdish Patel, Subhash Patil, Shanta Sapre, Bhagwat Bhosale and others. The search of the house of accused was taken in order to find out the whereabouts of Naresh. A watch was kept on the school as well as at the house of accused Shamrao. Meanwhile, PW-20 Ravindra Mhaske, father of deceased Naresh lodged his report at Exhibit 122. On the basis of the said report, an offence punishable under Section 363 of the Indian Penal Code was registered against unknown persons. The investigation of Crime No. 109 of 2005 was therefore entrusted to PW-23 API Rajendra Mulik on 10.4.2005. He recorded the statements of PW-8 Sandhya Mhaske, PW-9 Nikita Mhaske, PW-11 Anil Sawant, PW-12 Prachi Gadekar, PW-17 Ravindra Mhaske and PW-3 Sajid Shaikh and others. Separate squads were appointed for tracing the whereabouts of Naresh. On 11.4.2005 he recorded the statement of PW-14 Hanmant Pawar and thereafter, handed over the investigation to PW-24 PI Mahadeo Gavade. PW-24 PI Mahadev Gavade, who was attached to the Karad City Police Station was entrusted with the investigation of Crime No. 109 of 2005 on 11.4.2005. On the same day at about 7.00 p.m. API Patil of Police Station Umbraj informed that a dead body of child was found lying in the Kalgaon Area. PW-24 PI Gavade accordingly rushed to the scene of the incident alongwith the staff and on seeing the dead body gave instructions for calling the relatives of Naresh for identification of the dead body. Accordingly, the dead body was identified by PW-11 Anil Sawant, uncle of deceased Naresh. PW-20 Ravindra Mhaske, father of deceased Naresh also reached at the scene of the incident and identified the dead body of Naresh to be that of Naresh. In the presence of panchas therefore, an inquest panchnama of the dead body was drawn at Exhibit 50. Accordingly, the dead body was identified by PW-11 Anil Sawant, uncle of deceased Naresh. PW-20 Ravindra Mhaske, father of deceased Naresh also reached at the scene of the incident and identified the dead body of Naresh to be that of Naresh. In the presence of panchas therefore, an inquest panchnama of the dead body was drawn at Exhibit 50. On 12.4.2005, the Medical Officer conducted the postmortem on the dead body of deceased Naresh at the spot. The dead body was thereafter handed over to Ravindra. Sections 302, 364 and 201 of the Indian Penal Code came to be added. The scene of the incident panchnama was then drawn in the presence of panchas at Exhibit 62. From the scene of the incident white half shirt, khaki half pant, shoe of left foot and stickers were seized. Supplementary statements of witnesses were recorded. 2. On 14.4.2005, statements of PW-15 Sanjay Nikam was recorded and on the same day Accused Nos. 1 to 3 were arrested. During custodial interrogation, Accused No. 1 Shamrao expressed his willingness to point out the place where his car had been kept. A memorandum was accordingly drawn in the presence of panchas at Exhibit 56. The Accused led the Police and the Panch to village Kodoli and point out one car which had registration number as BLL-1221. The said car was seized under seizure memorandum at Exhibit 57. Statements of witnesses were recorded and on 16.4.2005, PW-16 Rahiman Saudi produced one motorcycle which was seized in the presence of panchas under Section 127-A. The seized articles were then referred to the Chemical Analyzer under the requisition at Exhibits 128, 129 and 130. The report of the Chemical Analyzer is at Exhibits 131, 132 and 116. On 20.4.2005, PW-20 Ravindra produced the photographs of Naresh which was seized under seizure memorandum at Exhibit 54. The Executive Magistrate was asked to arrange for a test identification parade and accordingly, the test identification parade was conducted by the Executive Magistrate. Further to the completion of investigation, a charge-sheet against the accused was submitted. 3. Postmortem on the dead body of deceased Naresh was conducted by PW-19 Dr. Ramesh Lokhande. He noticed the following injuries:- (a) Right parietal bone was separated from sutured line and exposed, occipital bone was separated from sutured line, skin and hairs were absent from frontal bone, and parietal bone, and was lying on occipital bone. 3. Postmortem on the dead body of deceased Naresh was conducted by PW-19 Dr. Ramesh Lokhande. He noticed the following injuries:- (a) Right parietal bone was separated from sutured line and exposed, occipital bone was separated from sutured line, skin and hairs were absent from frontal bone, and parietal bone, and was lying on occipital bone. Left temporal bone fracture oblique 1.5". Brain matter was liquefied and brown coloured on both sides of meninges. (b) Thorax wall intact, except left upper side ribs were open to exterior right lower four ribs fractured. (c) Larynx trachea and bronchi intact. Right and left lungs reddish and hemorrhagic. (d) On abdominal examination of wall, skin was absent on lower abdomen. Peritoneum in tact. Buccal cavity, teeth tune - lower jaw with 2 incisors and one Molar to left side and no teeth present on right side. In upper jaw-Central two short incisors, two lateral incisors, two canines and four molars. (e) On examination of stomach, it was ruptured and empty. Small intestine contains semi digested food. Large intestine contains gas. Lever was intact having brown colour. He opined that the probable cause of death was due to head injury i.e. fracture of left temporal bone. The postmortem report is at Exh. 115. As per the report of the viscera at Exhibit 116, no poison was detected. 4. On committal of the case to Court of Sessions, trial Court vide Exhibit 12 framed charge against the accused for offence punishable under Sections 120-B, 302 read with Section 120-B of the Indian Penal Code and alternatively Sections 302 read with Section 34, 363, 364-A read with Section 120-B, 363, 364-A r/w. 34 of the Indian Penal Code, 301 r/w. 120-B and alternatively under Section 201 r/w. 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case, examined 24 witnesses. The defence of the accused was of denial. The Trial Judge, upon appreciation of the evidence of the prosecution, convicted and sentenced the Appellants as afore-stated, while acquitting the Original Accused Nos. 3 and 4. 5. We have heard Advocate Mr. The accused denied their guilt and claimed to be tried. Prosecution in support of its case, examined 24 witnesses. The defence of the accused was of denial. The Trial Judge, upon appreciation of the evidence of the prosecution, convicted and sentenced the Appellants as afore-stated, while acquitting the Original Accused Nos. 3 and 4. 5. We have heard Advocate Mr. Arfan Sait, the learned counsel appointed for the Appellants and the learned APP and in order to effectively deal with the submissions advanced before us by the learned Counsel appointed for the Appellants and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 6. Prosecution has examined PW-10 Jagdish Patel, a classmate of deceased Naresh. PW-10 Jagdish Patel deposes that he knew Accused No. 1 Shamrao Mhaske as he was employed in the school and was known as Mhaske Kaka. Jagdish has also deposed that he knew deceased Naresh as he was his friend and were studying in the same class i.e. 2nd Standard 'C' Division. Jagdish further deposes that they were studying in Adarsh Prathamik School, Karad. He has also deposed that Accused No. 1 Shamrao Mhaske was uncle of deceased Naresh and deceased Naresh used to address him as Mhaske Kaka. Jagdish further deposes that they used to go to the school in a Van of one Subhash. On 8.4.2005, he alongwith Naresh had gone to the school in the Van at about 11.00 a.m. PW-12 Prachi Gadekar was a Class Teacher. During the recess at 1.30 a.m., Jagdish and Naresh had gone to the rear side of the school for eating their lunch. After lunch, Naresh had gone to the classroom for keeping his tiffin while Jagdish was standing in the gallery in front of the class-room. He noticed deceased Naresh going near the gate of the school where Accused No. 1 Shamrao Mhaske was standing. Naresh thereafter went with Accused No. 1 Shamrao Mhaske towards the Nagoba Temple. Naresh did not return thereafter to the school. The school was over at about 3.30 p.m. and even till then Naresh did not return. While returning home, PW-10 Jagdish informed PW-9 Nikita, sister of Naresh and one Vikram that Naresh had gone alongwith Mhaske Kaka. 7. In cross-examination Jagdish has admitted that 64 students were studying in his class. Naresh did not return thereafter to the school. The school was over at about 3.30 p.m. and even till then Naresh did not return. While returning home, PW-10 Jagdish informed PW-9 Nikita, sister of Naresh and one Vikram that Naresh had gone alongwith Mhaske Kaka. 7. In cross-examination Jagdish has admitted that 64 students were studying in his class. He has also admitted that the classroom of class 2nd 'B' was towards the gate while his class-room was towards the western side. He has admitted that since the class teacher of 2nd 'B' was absent, half the students were accommodated in class 2nd 'A' and 'C'. He has also admitted that deceased Naresh was his only friend and that no other students from his class were travelling in the vehicle excepting Naresh. He has admitted that there is no gallery to his class-room towards the north-west and east. He has admitted that his statement was recorded on the next day. He has further admitted that from the gallery of the school the road is not visible. Omission has been elicited that he had not stated in his previous statement that he had informed Nikita that Naresh had gone alongwith Mahadeo Kaka. 8. Prosecution has examined PW-9 Nikita, sister of deceased Naresh who deposes that Accused No. 1 Shamrao Mhaske is her uncle and was serving in the school as a peon. She has also admitted that she knew PW-10 Jagdish as he was friend of deceased Naresh and was studying in the same class. According to Nikita, on 8.4.2005 she alongwith her brother Naresh, Vikram, Jagdish and Akshay had gone to the school at about 11.00 a.m. In a maruti van belonging to Subhash Patil. After the school was over at 3.30 p.m., she, Vikram, Akshay and Jagdish returned home and while she was sitting in the van, she inquired from PW-10 Jagdish regarding the whereabouts of Naresh. PW-10 Jagdish informed her that Naresh had gone alongwith Mhaske Kaka during the recess. On reaching home, Nikita informed this to her mother. According to Nikita, she did not see Naresh alive thereafter. She has identified the clothes which Naresh was wearing as well as the school bag and the tiffin belonging to Naresh. She further deposes that about 6 months prior to 8.4.2005, one person had come to the school for taking Naresh. PW-12 Mrs. According to Nikita, she did not see Naresh alive thereafter. She has identified the clothes which Naresh was wearing as well as the school bag and the tiffin belonging to Naresh. She further deposes that about 6 months prior to 8.4.2005, one person had come to the school for taking Naresh. PW-12 Mrs. Gadekar, teacher of Naresh had called her i.e. PW-9 Nikita and had asked her whether the person who had come to collect Naresh was acquainted with her. Nikita had informed PW-12 Mrs. Gadekar that she did not know the said person and therefore, Mrs. Gadekar declined to sent Naresh alongwith that person. She has identified the person as Accused No. 2 who had come to take Naresh. She claims to have identified Accused No. 2 in the test identification parade conducted on 7.5.2005. 9. In cross-examination, omission has been elicited that she had not stated that she had inquired from PW-10 Jagdish regarding the whereabouts of Naresh and Jagdish had informed her that Mhaske Kaka had taken Naresh alongwith him. She has denied the suggestion that she was deposing false that Jagdish had informed her that Mhaske Kaka (Accused No. 1) had taken Naresh alongwith him. She has admitted that she had informed her parents about Accused No. 2 coming to the school about 6 months prior to the incident for taking Naresh alongwith him. 10. Prosecution has examined PW-8 Sandhya, mother of deceased Naresh, who deposes that Naresh was studying in Adarsh Vidhyalay and at the time of the incident PW-9 Nikita was studying in 4th Std. According to her, on 8.4.2005, Naresh and Nikita had gone to school at about 10.45 a.m. in the Maruti Van of Subhash Patil. At about 3.45 p.m. Nikita alone returned home and therefore, PW-8 Sandhya inquired from Nikita as to why Naresh had not returned home. On which Nikita informed her that Naresh had gone alongwith Mhaske Kaka in the recess. According to Sandhya, she waited for Naresh some time but since he did not return, she telephoned to the house of Accused No. 1 Shamrao Mhaske. The telephone was received by mother of Accused No. 1 Shamrao and Sandhya inquired from mother of Accused No. 1 Shamrao if Accused No. 1 had returned home, whereupon mother of Accused No. 1 informed Sandhya that Accused No. 1 Shamrao had not returned home. The telephone was received by mother of Accused No. 1 Shamrao and Sandhya inquired from mother of Accused No. 1 Shamrao if Accused No. 1 had returned home, whereupon mother of Accused No. 1 informed Sandhya that Accused No. 1 Shamrao had not returned home. Sandhya also telephoned Subhash Patil but could not contact him on telephone and left message on telephone. She thereafter telephoned in the school and contacted a peon who informed her that the school was closed. She also inquired if Accused No. 1 Shamrao was present in the school since 1.00 p.m. At about 6.00 p.m. Subhash Patil came to her house and therefore, she inquired from Subhash Patil as to why he had not brought Naresh home, on which Subhash Patil informed her that Accused No. 1 had taken Naresh alongwith him. Sandhya thereafter contacted her husband on his mobile phone and informed him that Naresh had not returned home. Her brother-in-law PW-13 Vikas Mhaske thereafter lodged a missing report. 11. In cross-examination she has admitted that the relations between her husband and Accused No. 1 Shamrao were cordial and they used to visit each other. She has denied the suggestion that Accused No. 1 Shamrao had come to her house and had informed her that he was going to Mumbai to attend the last rites of the wife of Dayanand Mhaske. She has denied the suggestion that on 8.4.2005 at about 4.00 p.m. Accused No. 1 Shamrao had come to her house and at that time PW-13 Vikas Mhaske and Subhash Patil were present. In further cross examination she has admitted that on 8.4.2005 she had personally not gone to the school to inquire about the whereabouts of Naresh. 12. Prosecution has examined PW-13 Vikas Mhaske, uncle of deceased Naresh and brother-in-law of Sandhya. PW-13 Vikas deposes that on 8.4.2005 at about 5.00 p.m. he had gone to the house of Sandhya. At that time Sandhya had informed him that Naresh and Nikita had gone to the school in the morning but Nikita had returned home alone. Vikas therefore inquired from Nikita about Naresh, and Nikita informed him that Naresh had gone alongwith Accused No. 1 Shamrao Mhaske. PW-13 Vikas therefore went to the Adarsh Prathamik School and searched for Naresh in the school and at the near-about places but could not find trace of Naresh. Vikas therefore inquired from Nikita about Naresh, and Nikita informed him that Naresh had gone alongwith Accused No. 1 Shamrao Mhaske. PW-13 Vikas therefore went to the Adarsh Prathamik School and searched for Naresh in the school and at the near-about places but could not find trace of Naresh. He therefore went to the City Police Station and lodged the missing report at Exhibit 97. Vikas further deposes that on 11.4.2005, his cousin Anil Sawant contacted him on telephone and informed him that the dead body of Naresh was found in Kalgaon area and therefore, he was called to the house of PW-8 Sandhya. He accordingly went to the house of PW-8 Sandhya and PW-20 Ravindra Mhaske, parents of Naresh. 13. In cross-examination he has admitted that his tailoring shop is at village Kurve at a distance of 4 kms. from Karad. He has admitted that he and his father were looking after the tailoring shop. In response to the question he has admitted that Sandhya had informed him that Nikita had alone returned home but Naresh had not returned from the school. He had admitted that thereafter he had gone to the school at about 5.30 to 5.45 p.m. He has admitted that he had not inquired from Subhash Patil and was alone searching for Naresh. He had denied the suggestion that when he had gone to the Police Station for lodging the missing complaint against Accused No. 1 Shamrao Mhaske had accompanied him. 14. The omission in the evidence of PW-10 Jagdish as well as in the testimony of PW-9 Nikita about Jagdish not telling Nikita that Naresh had been taken by Accused No. 1 Shamrao Mhaske would not according to us be a major omission which would affect the prosecution case as PW-8 Sandhya and PW-13 Vikas have deposed about Nikita informing them that Naresh had been taken by Accused No. 1 Shamrao Mhaske. Even in the missing report a statement is made that Nikita had informed them that Naresh had been taken by Accused No. 1 Shamrao Mhaske. In that background therefore, the said omission in the testimony of PW-10 Jagdish as well as in the testimony of PW-9 Nikita would pale into insignificance. 15. Prosecution has examined PW-14 Hanmant, who deposes that he knew Accused No. 1 Shamrao as he was a Peon working in the Shivaji High School. In that background therefore, the said omission in the testimony of PW-10 Jagdish as well as in the testimony of PW-9 Nikita would pale into insignificance. 15. Prosecution has examined PW-14 Hanmant, who deposes that he knew Accused No. 1 Shamrao as he was a Peon working in the Shivaji High School. According to PW-14 Hanmant, he runs a stall/handcart in front of the Shivaji High School and sells eatables. According to him, Accused No. 1 Shamrao used to purchase eatables from him. He has also deposes that on 2 to 3 occasions he had travelled in the car belonging to Accused No. 1 Shamrao which had registration number of BLL-1221. Hanmant has also deposes that he knew deceased Naresh who was nephew of Accused No. 1 Shamrao and Naresh used to purchase sweets, biscuits and other eatables from the handcart of PW-14 Hanmant. He also identified Accused No. 4 Jagdish Gaikwad as brother-in-law of Accused No. 1 Shamrao to whom accused No. 1 had introduced him. He also identified Accused No. 2 as Accused No. 1 Shamrao had introduced Accused No. 2 to him. He further deposes that his handcart used to be parked in front of the school from 10.00 a.m. till 6.00 p.m. On 8.4.2005, he had taken his handcart and parked it in front of the school at about 11.00 a.m. On 9.4.2005, Accused No. 1 Sharad came in his car from the side of the Stadium and parked his car in front of the Nagoba Temple at a distance of 10 to 12 ft. from PW-14 Hanmant. Accused Sandip and Accused Sanjay alighted from the car and were standing outside. After some time Accused No. 1 Sharad came there alongwith his nephew deceased Naresh and sat in the car. Accused Sandip and Accused Sanjay also sat in the car. Accused No. 4 Jagdish was travelling the vehicle. At about 3.45 p.m. PW-14 Hanmant went to his village. On 9.4.2005, the school was closed and on 10.4.2005, the school was closed as it was a Sunday. Hanmant had gone to Kolhapur and returned from Kolhapur on 10.4.2005 at about 11.00 to 11.30 p.m. 16. In cross-examination he was asked whether he could identify all the customers who were purchasing eatable from his handcart. Hanmant had replied that he could identify the customers who were acquainted with him. Hanmant had gone to Kolhapur and returned from Kolhapur on 10.4.2005 at about 11.00 to 11.30 p.m. 16. In cross-examination he was asked whether he could identify all the customers who were purchasing eatable from his handcart. Hanmant had replied that he could identify the customers who were acquainted with him. He has reiterated that Accused No. 1 Sharad had introduced the other accused to him. He has admitted as true that vehicle was parked facing Cottage Hospital and by the side of the Hospital. An omission has been elicited that he had not stated in his previous statement that Accused No. 4 Jagdish Gaikwad was travelling the car. He has admitted that his statement was recorded by the Police on 11.4.2005. 17. Prosecution has examined PW-15 Sanjay Nikam, who deposes that he knew Accused No. 1 Shamrao as well as Accused No. 2 Sandip and Accused No. 4 Jagdish. According to PW-15 Sanjay Nikam, on 8.4.2005 at about noon, he was going towards his village on his motorcycle and at about 3.30 p.m. he stopped as the railway gate was closed. At that time one Premier Car bearing Registration No. BLL-1221 also stopped there. He heard a child crying and therefore, went towards the vehicle and noticed one child sitting in the car. He also noticed Accused No. 2 Sandip and absconding accused Sanjay Hotelkar, who were present in the car. He therefore enquired as to why the child was crying and the accused informed him that he was remembering his mother and Accused No. 3 Sanjay Hotelkar taking the child to his mother. PW-15 Sanjay Nikam thereafter went to his village. He has further deposed that the child was wearing white shirt and khaki half pant and was aged about 7 to 8 years with wheatish complexion. He has further deposed that on 12.7.2005, he had identified the photographs of the child in the test identification parade which was conducted in the office of the Tahasildar. 18. In cross-examination an omission has been elicited that he had not stated that he had stopped because the railway gate was closed. He was also asked in cross-examination as to whether the photographs and the news of the missing child was published in the newspaper to which he replied that he did not read the newspaper. 18. In cross-examination an omission has been elicited that he had not stated that he had stopped because the railway gate was closed. He was also asked in cross-examination as to whether the photographs and the news of the missing child was published in the newspaper to which he replied that he did not read the newspaper. He has denied the suggestion that the police have shown him the photograph of the child prior to the test identification parade. An omission has also been elicited that he had not stated in his previous statement that the accused had informed him that the child was remembering his mother. 19. Prosecution has examined PW-20 Ravindra Mhaske, father of deceased Naresh. PW-20 Ravindra deposes that on 8.4.2005 at about 7.30 p.m. his wife Sandhya had telephoned him and had informed him that Naresh had not returned from school. PW-20 Ravindra was in Mumbai and therefore he immediately started proceeding to Karad and reached Karad on 9.4.2005 in the morning and started searching for Naresh. Ravindra has also deposed that he searched for Naresh at the circus, school and in the house of Accused No. 1 Sharad. He has also deposed that when he had gone to the house of Accused No. 1, Accused Shamrao was not present in the house and Naresh was also not present in the house. According to him, thereafter he had lodged his report at Exhibit 122. He has deposed that on 10.4.2005, at about 10.00 to 10.30 a.m. Anil Sawant had come to his house and had informed him that on 8.4.2005 Anil Sawant had received a telephone call when Anil Sawant was present in the house of Ravindra. Anil Sawant had disclosed the entire conversation to PW-20 Ravindra. Ravindra further deposes that on 11.4.2005, Anil Sawant had informed him that the dead body of a child was noticed lying at Masur - Targaon road and therefore, PW-20 Ravindra went at the spot accompanied by his friend and identified the dead body of deceased Naresh. In cross-examination he had denied the suggestion that the dead body which he had identified was not the dead body of his son Naresh. He has also denied the suggestion that he had several enemies on account of his business relations. 20. In cross-examination he had denied the suggestion that the dead body which he had identified was not the dead body of his son Naresh. He has also denied the suggestion that he had several enemies on account of his business relations. 20. Prosecution has examined PW-12-Prachi Gadekar, the class teacher of deceased Naresh, who deposes that on 8.4.2005 she had taken the roll call in the morning and had noticed that Naresh was present. During the recess Naresh came in the class-room and kept his tiffin in the class-room and went outside. At 2.00 O' clock the other students were assembled and the class began. At about 3.30 p.m. the school was over and all the students had left the school. While checking the classroom she noticed one school bag on the last bench and on inspecting the school bag came to know that it was the school bag of Naresh. She deposited the school bag in the office of the Headmistress and thereafter, went home. During re-examination, she had deposed that in September 2004, one unknown person had come to the class and had told her that he was neighbour of Naresh and father of Naresh had called Naresh and therefore, he had come to take him. PW-12 Prachi Gadekar therefore inquired from Naresh as to whether the said person was his neighbour and was acquainted with him. Naresh had informed her that the said person was not acquainted with him. PW-12 Prachi Gadekar had also called Nikita and had inquired about the stranger and Nikita had informed PW-12 Prachi that the said person was not acquainted with her. She has identified the said person as Accused No. 2 Sandip. She has further deposed that on 7.5.2005 she had identified Accuse No. 2 in the test identification parade. 21. Mr. Arfan Sait, learned Counsel appointed for the Appellants has urged before us that there is no evidence to indicate that the Appellants and the other accused had kidnapped deceased Naresh. It is also urged before us that the alleged kidnapping had occurred on 8.4.2005 and the dead body was discovered on 11.5.2005 and in the light of the time lag, the theory of last scene would loose its significance. The learned APP has supported the findings arrived at by the Trial Court. 22. We have already adverted to the evidence of the prosecution witnesses. The learned APP has supported the findings arrived at by the Trial Court. 22. We have already adverted to the evidence of the prosecution witnesses. The evidence of the prosecution witnesses overwhelmingly establishes that Accused No. 1 Sharad had taken deceased Naresh alongwith him in the car which was parked near the handcart of PW-14 Hanmant. Hanmant has clearly identified Appellant No. 1 Sharad as well as Accused No. 2 Sandip. He has also identified deceased Naresh, who was acquainted with him. Evidence of PW-10 Jagdish further indicates that he had seen Accused No. 1 taking deceased Naresh alongwith him. PW-10 Jagdish had disclosed this to PW-9 Nikita who in turn had disclosed it to her mother. Prosecution has also examined PW-15 Sanjay Nikam, who had seen deceased Naresh in the company of the accused. Thus, there is overwhelming evidence that the Accused/Appellants had taken deceased Naresh alongwith them. It is equally true that the dead body of deceased Naresh was found on 11.4.2005. The evidence of Dr. Lokhande, who had performed the postmortem examination would reveal that the small intestine contained semi-digested food. Admittedly, deceased Naresh had taken his lunch at about 1.00 p.m. and thereafter, he was not seen alive. Finding of semi-digested food would indicate that deceased Naresh had been killed within 3 to 4 hours of the last meal. Thus, the evidence of PW-19 Dr. Lokhande establishes that deceased Naresh had been killed on 8.5.2005 itself at about 4.00 to 5.00 p.m. Thus, though the dead body of deceased Naresh was found on 11.5.2005, the fact remains that deceased Naresh had been killed within 3 to 4 hours of his kidnapping. The time lag therefore between deceased Naresh being seen alive in the company of the accused and the time of his death is not so much as to exclude the possibility of the Appellants not committing murder of deceased Naresh. The evidence on record therefore, leads to only one hypothesis that it is the Appellants and the Appellants alone had committed murder of deceased Naresh. Moreover, deceased Naresh was a small boy who was aged 8 years. Even if he had been allowed to go by his kidnappers, deceased Naresh would have returned home and his dead body would not be found at that place. Deceased Naresh would not have wandered to the place where his dead body was found. Moreover, deceased Naresh was a small boy who was aged 8 years. Even if he had been allowed to go by his kidnappers, deceased Naresh would have returned home and his dead body would not be found at that place. Deceased Naresh would not have wandered to the place where his dead body was found. The evidence on record therefore, in our opinion, points to the involvement of the present Appellants and the only hypothesis that is available on the basis of the evidence on record is that it is the Appellants and the Appellants alone have committed murder of deceased Naresh. 23. Learned Counsel appointed for the Appellants has urged before us that there is no evidence regarding motive. It is true that in cases resting on circumstantial evidence, motive as a circumstance is extremely important and assumes importance in forging of the chain of circumstances. However, failure of the prosecution to establish motive would not be fatal in each and every case. If there is other overwhelming evidence which point to the guilt of the accused and on the basis of which the offence is proved beyond reasonable doubt, failure of the prosecution to prove and establish motive would not be of any significance. In the present case as adverted to above, there is overwhelming evidence of the accused kidnapping deceased Naresh and the only hypothesis possible is that the Appellants and the Appellants alone have committed murder of deceased Naresh. 24. The Appellants have examined DW-1 Anandrao in support of the plea of Accused No. 1 Sharad that he was present at Mumbai at the day of the incident. DW-1 Anandrao, younger brother of Ex-Minister Dayanand Mhaske, deposes that Pushpalata, wife of Dayanand Mhaske had expired and therefore, he had gone to Mumbai from Karad. The funeral of Pushpalata was performed on 8th day and Anil Sawant, Ravindra Mhaske had attended the funeral of Pushpalata. According to him, at about 3.30 p.m. Accused No. 1 Sharad had telephoned him and had asked him whether Sharad should come to Mumbai on which DW-1 Anandrao had informed him that the funeral was already over. The thrust of the defence evidence is Anil Sawant and Ravindra Mhaske both prosecution witnesses were not present at Karad but were present at Mumbai. The thrust of the defence evidence is Anil Sawant and Ravindra Mhaske both prosecution witnesses were not present at Karad but were present at Mumbai. The Trial Judge has rightly recorded at paragraph 22 that the evidence of DW-1 Anandrao does not clearly establish that Anil Sawant and Ravindra Mhaske were present at the last ceremony of Pushpabai on 8.4.2005. In fact, he has admitted that he had met Ravindra Mhaske and Anil Sawant in the ceremony which was performed after 15 days of the death of wife of Dayanand Mhaske. Thus, the presence of Anil Sawant in the village therefore is not affected at all. The defence evidence has not been able to make any dent in the prosecution evidence. 25. Thus, after considering the submissions advanced before us by the learned Counsel for the parties, according to us, prosecution has proved the offence against the Appellants beyond reasonable doubt. The Appeal filed by the Appellants therefore being sans merit is dismissed confirming the conviction and sentence. Fees payable to the learned Counsel appointed for the Appellants quantified at Rs. 5,000/-. Appeal dismissed.