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.
::: Downloaded on - 09/06/2013 15:14:03 :::
2apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:03 :::
3apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:03 :::
4apeal-229-07
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,
::: Downloaded on – 09/06/2013 15:14:03 :::
5apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:03 :::
6apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
7apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
8apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
9apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
10apeal-229-07
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,
::: Downloaded on – 09/06/2013 15:14:04 :::
11apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
12apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
13apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
14apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
15apeal-229-07
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
::: Downloaded on – 09/06/2013 15:14:04 :::
16apeal-229-07
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.
::: Downloaded on - 09/06/2013 15:14:04 :::
17apeal-229-07
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)
::: Downloaded on – 09/06/2013 15:14:04 :::
18apeal-229-07
::: Downloaded on – 09/06/2013 15:14:04 :::