Bombay High Court High Court

Devchand Punaji Sukte vs The State Of Maharashtra on 16 October, 2009

Bombay High Court
Devchand Punaji Sukte vs The State Of Maharashtra on 16 October, 2009
Bench: Bilal Nazki, A. R. Joshi
                                                                     1apeal-229-07
    Ladda
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                 
                      CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No.229 OF 2007




                                         
            1.    Devchand  Punaji  Sukte,




                                        
                  age 63 years, Occupation
                  cobbler.

            2.    Bhimrao Devchand Sukte,




                                
                  age 36 years, Occupation
                  service.
                       
            3.    Raju Devchand Sukte,age
                  33 years, Occupation nil
                      
                  (lunatic) represented by
                  his mother as unmarried
                  through         Jamunabai
                  Devchand Sukte, age 56
                  yrs, occupation household
      


                  work and cobbler.
   



                   ..Appellant/Orig.Accused
                                 No.1 to 3.

                           Versus.





                  The State of Maharashtra

                              ..Respondent.





    Mr Y. M. Chaudhary, Advocate for the Appellants.

    Mrs A.S.Pai, A.P.P.for the State-Respondent.




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                          CORAM:           BILAL NAZKI,
                                           AND A.R.JOSHI,JJ




                                                                        
                           RESERVED ON:         12TH OCTOBER,2009.




                                                
                          DELIVERED ON: 16TH OCTOBER,2009


    JUDGMENT (Per A.R.JOSHI,J):

1. We have heard the learned counsel for the

appellant as well as the learned A.P.P.,for the

State.

2. Present appeal is preferred by the

appellants (original accused Nos.1 to 3)

challenging their conviction passed by the learned

Ad hoc Additional Sessions Judge, Sewree, Mumbai

dated 14/11/2006 in Sessions Case No.439/2006. By

the said impugned judgment and order all the three

accused were convicted for the offence punishable

under Section 302 read with section 34 of the

Indian Penal Code and they were sentenced to suffer

life imprisonment and to pay a fine of Rs.200/- in

default to suffer R.I.,for one month each.

3. Being aggrieved by the said judgment and

order, the present appeal is preferred by the

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appellants who are hereinafter referred to as

accused persons by their respective numbers.

Accused Nos. 1 and 3 are the sons of Accused No.2.

It is their say that-accused no.1 is schizophrenic

and as such separate application is preferred for

directions to the State to produce the medical

record of said accused No.1.

4. Before appreciating the rival submissions

and mainly the defence on behalf of the appellants-

accused, the case of the prosecution, as unfolded

before the Trial Court, is required to be mentioned

as under along with summary of the evidence led

before the Trial Sessions Court by the prosecution

in support of the charge for the offence of murder.

5. Accused persons are from the cobbler

community and the deceased and his family members

are from Buddhist community and as such there was

caste difference and allegedly it was the motive

behind the killing of deceased Sanjay Kamble. One

Smt Kaushalya PW 2 is the niece of the accused and

the complainant reside in the neighborhood.

However, there used to be frequent quarrels between

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their family members on account of love marriage

between P.W.2 with one Rajesh Kamble, (P.W.1)

husband of P.W.2. Said P.W.1 is real brother of

the deceased Sanjay Kamble. Allegedly, on account

of such rivalry because of the inter-caste marriage

between P.W.1 and 2 there was enmity and on that

count allegedly accused persons assaulted the

deceased Sanjay Kamble on 24.4.2006 at about 4.00

a.m., at the place a sort of platform in front of

one Sunny Bakery situated at locality of slum area

Dharavi where both the families reside. Also,

according to the case of the prosecution, about two

weeks prior to the incident of murder of Sanjay

Kamble, some time on 9th April, 2006, P.W.2 had gone

to attend one marriage at Matunga. Accused no.1

Raju i.e., her cousin brother, abused her and

pulled her out of the marriage hall and there was

hot exchange of words and allegedly he was

assaulted by P.W.2. On that count a police

complaint was lodged by accused no.1 against P.W.2

and her in-laws and also against the deceased

Sanjay. According to the case of the prosecution,

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this was the proximate cause for the accused to

take revenge and to do away with the deceased

Sanjay.

6. On the night of 23.4.2006, as usual, the

deceased Sanjay had gone to sleep on the platform

in front of Sunny bakery. At about 4.00 a.m., on

the next day, there were shouts raised and noticing

such commotion P.W.1, brother of the deceased left

his house which is at back side of Sunny bakery

beyond a road and reached the spot and witnessed

the incident of assault on his brother deceased

Sanjay. According to P.W.1, he saw that accused

Nos.2 and 3 had caught hold of hands and legs of

the deceased while accused no.1 gave blows with the

help of a wooden log on the head and other parts of

the body of the deceased. Noticing presence of

P.W.1, accused persons ran away from the spot. The

deceased was lying on the ground in severely

injured condition. By the time, the wife of P.W.1

i.e.,P.W. no.2 and mother of P.W.No.1 both reached

the spot. Probably after some time police party

arrived on the spot on receiving intimation

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regarding commotion. At this juncture, it may be

mentioned that nowhere in the substantive evidence

of the prosecution witnesses and mainly the

evidence of P.W.No.9, a Police Officer, P.S.I.,Shri

Bhosale and Investigating Officer, P.W.10

P.S.I.Shri Sawant, it has been brought on record as

to how the police came to know regarding the

commotion. However, the fact remains that after

arrival of the police party the deceased Sanjay was

taken to Sion Hospital in a police van. He was

declared dead after examination by the doctor.

According to the prosecution, complaint of P.W.1

was recorded by P.S.I. Shri Bhosale (P.W.9) at Sion

Hospital. Same is taken as F.I.R., vide Exh.10 and

offence was registered for the offence punishable

under Section 302 read with Section 34 of the

I.P.C. Against all three accused.

7. During investigation, inquest panchnama was

conducted in which panch witness P.W.3 took part.

The spot panchnama was also conducted in which P.W.

4 took part. Also, during the investigation the

statements of various witnesses including that of

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P.W.2, wife of P.W.1, were recorded. According to

the prosecution, at about 2.00 p.m., on 24.4.2006

all the accused were put under arrest and arrest

panchnama was conducted in which P.W.Nos.5 and 8

took part. According to the prosecution, while in

the custody, accused No.1 made a voluntary

statement in presence of panch witnesses including

panch P.W.7, to produce a wooden log. At this

juncture, it must be mentioned that said P.W.7 did

not support the prosecution case and stated that

his signature was obtained by the police when he

had been to Sion Hospital to receive the dead body

of deceased Sanjay. Said P.W.7 was declared hostile

and was cross-examined by the prosecution. However,

nothing could be extracted from his evidence in

order to support the case of the prosecution as to

alleged recovery of wooden log which was allegedly

used by accused No.1 in the offence of murder.

Again, it must be mentioned that said recovery of

wooden log at the instance of accused No.1 has been

disbelieved by the Trial Court.

8. Also, during the investigation after the

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arrest of the accused and during the arrest

panchnama in presence of panch witnesses P.W.Nos. 5

and 8 clothes of the accused persons were taken

charge of under the panchnama Exh.15. According to

the case of the prosecution, clothes of the accused

were having blood stains. However, there was no

such mention in the said panchnama Exh.15.

Moreover, panch P.W.5 did not support the case of

the prosecution and as such turned hostile.

                      ig                                                       Though

    P.W.8    supported        the    panchnama      of     seizure           of      the
                    
    clothes     from     the       accused    persons,            he      did        not

correctly identify the clothes of the accused No.1

and identified the clothes of the deceased as of

accused No.1.

9. P.W.6 is the Asstt.Sub Inspector, then

attached to Shahunagar Police Station and was on

duty along with other staff and on receiving

message on wireless at early hours of 24.4.2006

regarding some commotion at Matunga Labour Camp, he

went to the spot and located the Sunny bakery and

found the deceased and other witnesses and then

took the deceased to Sion Hospital in the mobile

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van. P.Ws. 9 and 10 are the Police Officers.

10. Again, prior to appreciating the rival

submissions, it must be mentioned that the Trial

Court had mainly relied upon on the substantive

evidence of P.W.1 as the eye-witness and solely on

his testimony rather uncorroborated by any other

material, convicted the appellants-accused. As

mentioned earlier, the Trial Court disbelieved the

recovery of wooden log at the instance of Accused

No.1. Again, another circumstance is required to be

construed that one panch P.W.5, for arrest and

seizure of the clothes of the accused turned

hostile and another panch P.W.8 misidentified the

clothes as of accused No.1. Moreover, there was

nothing brought on record that the clothes of the

accused persons were sealed on the spot. So also,

admittedly, the blood groups of the accused persons

are not determined though it is brought on record

that the alleged blood found on the clothes of the

accused matched with the blood group of the

deceased. Moreover, if the case of the prosecution

as to seizure of the clothes of the appellants

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accused in the afternoon of 24.4.2006 is to be

accepted then it is also to be construed that since

the time of the offence all the three accused were

wearing same clothes though allegedly the clothes

had blood stains. It must be said that such a

situation does not sound to reason and logic and

can be considered as mitigating circumstance to the

case of the prosecution so far as the recovery of

alleged blood stained clothes from the person of

the accused.

11. With the above background, now the

arguments advanced by the learned counsel Shri

Choudhary for the appellants-accused are required

to be construed so far as appreciation of the

evidence of P.W.1, which is only important piece of

evidence taken as acceptable by the Trial Court for

convicting the appellants. Needless to mention

that the evidence of single eye-witness as in the

present case is required to be critically examined,

when his evidence is of such a status as not

wholely reliable and in that event there need to

be a corroboration to his evidence. Admittedly,

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in the present case, the evidence of P.W.1 is not

corroborated by any material. Admittedly, there are

various infirmities and contradictions in the

evidence of P.W.1 which go to show that he was not

the eye-witness to see the incident and to see the

appellants-accused assaulting his brother Sanjay.

12. Admittedly, the deceased Sanjay was a

habitual drunkard and was a patient of HIV/AIDS and

used to sleep outside the house on the platform in

front of the Sunny bakery and was sleeping on the

fateful day. The house of P.W.1 is located behind

the Sunny Bakery at a distance of 5 minutes walk.

At one occasion, in his evidence P.W.1 stated that

the place of offence is two seconds walk from his

house. According to P.W.1 himself front portion of

the Sunny Bakery where the platform situate is not

visible from the house of P.W.1. However,

according to him, he saw the incident while

standing in front of the house of the bakery owner

and which was located behind the bakery. On this

aspect, the reasoning given by the Trial Court has

been examined by us in which reasoning is given by

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the Trial Court in favour of P.W.1 as to his

standing position in front of the house and at

which angle he could have seen the place of the

offence. In our view, such reasoning cannot be

accepted in order to accept the testimony of P.W.1

as an eye-witness considering other circumstances

which are given hereunder. Such circumstances are

as under.

13. According to P.W.1, he woke up at 4.00 on

the fateful day to get water and heard some sound.

He went to the spot, he saw accused persons

assaulting his brother in front of the bakery. He

started shouting. Noticing his presence the accused

persons ran away. Thereafter, his wife P.W.2 and

mother came to the spot. However, till the time

police arrived on the spot, P.W.1 did not take any

steps to remove his brother to the hospital. There

are certain discrepancies, at what time police

arrived on the spot, whether immediately within

five to ten minutes or after about an hour or so.

However, admittedly, the deceased was taken to Sion

Hospital at 5:10 a.m.,and was declared dead on

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arrival at Hospital. According to P.W.1 the

incident of assault occurred at 4.00 a.m. Whereas

according to the police they reached the spot at

about 5:00 a.m., or so. This time gap has been much

emphasized on behalf of the appellants and it is

suggested that the conduct of P.W.1 is unnatural

inasmuch as not taking immediate steps to take the

injured brother Sanjay for medical treatment, if it

is accepted that
ig he was the eye witness and

witnessed the assault at about 4:00 a.m. In our

opinion, such arguments on behalf of the appellants

are acceptable and in that event the benefit of

doubt must go in favour of the accused persons so

far P.W.1 witnessing the incident.

14. According to P.W.1 police arrived on the

spot at about 10 to 15 minutes after the incident

at about 4:20 a.m.,whereas P.W.2, wife of P.W.1

narrated that the police arrived within two minutes

of the incident. As against this, P.W.6, a Police

Officer who first arrived on the spot in a mobile

police van stated that he reached the spot at about

4:50 a.m. Apart from this discrepancy there is

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another discrepancy as to at which place the

statement/complaint of P.w.1 was recorded by the

police. According to him, his statement under

Section 154 of the Cr.P.C., that is the complaint

was recorded at Police Station when he reached the

police station after attending the hospital and

knowing that his brother Sanjay is dead. Whereas,

according to P.W.9, the I.O., P.S.I.Bhosale he

recorded complaint
ig of P.W.1 at Sion Hospital

itself. Pointing this discrepancy it is strongly

submitted on behalf of the appellants that there

was every possibility for P.W.1 to falsely

implicate the accused persons because of the enmity

between two families.

15. Apart from assailing the evidence of P.W.1

and asking for the clear cut acquittal of the

appellants-accused from the offence charged,

alternatively it is argued on behalf of the

appellants that at the most the entire case of the

prosecution can be brought down to the offence

punishable under Section 304(II) of I.P.C., and

that also only against accused No.1. This is, more

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so, in view of alleged use of wooden log by

accused No.1 alone and not intending to cause death

of the deceased or otherwise he could have used

other weapon. It is also submitted on behalf of the

appellants that Section 34 cannot be applied to

accused Nos.2 and 3 so as to implicate them in the

offence of murder as no any overt act is attributed

to them. In our opinion, such alternative arguments

are of no much relevance if it is held that the

evidence of P.W.1, alleged eye-witness, is not

trust worthy and is uncorroborated testimony. In

other words, it must be said that considering the

mitigating circumstance mentioned above in the case

of the prosecution, the Trial Court had erred in

accepting the testimony of P.W.1 as trust worthy

and there is every reason to doubt the testimony of

P.W.1 for the reasons mentioned above and also for

the reasons of non-examination of any independent

witness though admittedly near the spot there are

residential hutments and the daily water is

available at such early hours of 4.00 a.m., in the

said locality of Matunga Labour Camp. Considering

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such circumstances, there was definitely a

possibility of any independent witness being

present on the spot. However, there is no such

evidence brought before the Court and the case of

the prosecution rests only on the testimony of P.W.

1.

16. Though the trial Court had held that there

was sufficient motive for the appellant-accused to

do away with the deceased because of the rivalry,

there could be a possibility of false implication

of the accused. Though this aspect has also been

dealt with by the Trial Judge still he took the

side of the prosecution which in our view is error

committed by the Trial Court. In all probabilities,

it must be held that the prosecution had failed to

establish the guilt of all three accused beyond

reasonable doubt and in that event the

circumstances warrant interference in the impugned

judgment and order.

17. In the result, the present appeal is

disposed of with the following order.





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                              ORDER

     1.   Appeal is      allowed.




                                                              

2. Conviction of Appellant-Accused No.1

,2 and 3 passed by the learned Sessions

Judge, Sewree, Mumbai in Sessions Case

No.439/2006 under Section 302 r.w.s.34

of the IPC is set aside. They are hereby

acquitted.





                         
     3.   The   appellants
                ig               be    set        at      liberty

     forthwith if       not required in any other
              
     case.

     4.   It    is     submitted      by       the        learned
      

     counsel     for    the    appellants            that         the
   



     original     accused     No.1     is      in       Yerawada

     Mental     Hospital.      He     may      be       produced





before the Board of Visitors and he may

be released or handed over to his family

members in accordance with law.

5. Appeal is disposed of.

(BILAL NAZKI,J)

(A.R.JOSHI,J)

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