1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 898 OF 2001 Ajay Ramchandra Kokare, ) Aged 32 years, Residing at Shivaji ) Nagar Rahivasi Sangh, Dorabsha ) Lane, Napean Sea Road, Walkeshwar,) Mumbai – 400 006, and at present ) undergoing sentence imposed upon ) him at the Yerwada Central Prison, ) Yerwada. .... .... ) .... .... Appellant. (Orig.Accused No.1.) Versus The State of Maharashtra ) (At the instance of Senior ) Inspector of Police, Gaondevi ) Police Station, vide their C. R. ) No.289 of 1999. .... .... ) .... .... Respondent. -: ALONG WITH :- CRIMINAL APPEAL NO. 882 OF 2001 Ramesh Mani Naidu, ) Aged 27 years, Residing at Shivaji ) Nagar Rahivasi Sangh, Dorabsha ) Lane, Napean Sea Road, Walkeshwar,) Mumbai – 400 006, and at present ) undergoing sentence imposed upon ) him at the Yerwada Central Prison, ) Yerwada. .... .... ) .... .... Appellant. (Orig.Accused No.2.) Versus 2 The State of Maharashtra ) (At the instance of Senior ) Inspector of Police, Gaondevi ) Police Station, vide their C. R. ) No.289 of 1999. .... .... ) .... .... Respondent. Ms. Pooja Bhojne i/by Mr. Nitin Sejpal for the Appellant in Appeal No.898/2001. Mr. Rahul Arote i/by Ms. Manali Desai for the Appellant in Appeal No. 882 of 2001. Mrs. P. H. Kantharia, APP for the Respondent. CORAM : BILAL NAZKI and ANOOP V. MOHTA, JJ. DATED : 13TH JANUARY, 2009. ORAL JUDGMENT (Per Bilal Nazki,J.) : These two separate appeals are being taken together as they are filed by he two accused against the common judgment. Both the accused were tried in Sessions Case No. 1473 of 1999 along with other two accused. The first accused, who has filed Appeal No. 898 of 2001 has been sentenced to life imprisonment and to pay fine of Rs.5,000/- and in default he has to undergo further imprisonment for one year. The conviction is under Section 302 of the Indian Penal Code. The second accused, who has filed Appeal No. 882 of 2001, has been convicted under Section 120(B) of the Indian Penal Code and is sentenced to suffer imprisonment for 7 years and to pay fine of Rs.3,000/- and in default to undergo further imprisonment for six months. 3 2. We have heard the learned Counsel for the appellants in both the appeals as well as the Public Prosecutor. We have also perused the record and evidence and also went through the judgment of the learned Sessions Judge. 3. It may be pointed out that the accused were charged under Section 302 read with 34 of the Indian Penal Code and also under Section 35(1)(a) and 135 of the Bombay Police Act for committing offence of murder or causing the death by choppers of the deceased on the night of 19th September, 1999 in front of Samudra Villa Building, Off. Napean Sea Road, Mumbai. At no stage there was any charge of conspiracy nor have we found any evidence on record to show any conspiracy between the accused to commit offence. Yet accused No.2 was convicted for the offence under Section 120(B) of the Indian Penal Code and the reasons given by the learned Sessions Judge, in paragraph 54 of the Judgment, for convicting accused No.2 under Section 120(B) of the IPC are not supported by the evidence. Even otherwise, whatever has been stated by the learned Sessions Judge, even if found to be supported by the evidence, would not constitute an offence under Section 120(B) of the IPC. Keeping a bad company and joining a bad company at a wrong time would not constitute criminal conspiracy. Therefore, at the threshold this Court can declare that the charge 4 under Section 120(B) of the IPC was not at all proved. There was no charge framed under Section 120(B) of the IPC and at no stage any of the witnesses deposed with regard to any conspiracy and if accused No.1 was convicted for murder, which was a result of conspiracy with accused No.2, then there was no reason for the learned Sessions Judge not to convict accused No.1 also for the charge under Section 120(B) of the IPC and if the accused No.2 was convicted for charge under Section 120(B) of the IPC for conspiracy to commit murder of the deceased then there was no reason for the learned Sessions Judge not to convict accused No.2 under Section 302 of the IPC along with Section 120(B) of the IPC. In our view, these is sufficient for setting aside the conviction of accused No.2 and this may be even sufficient to set aside the conviction of accused No.1. But since the accused No.1 has been convicted under Section 302 of the Indian Penal Code, a look at the evidence is necessary. 4. When the charges were framed, all the four accused pleaded not guilty and claimed to be tried. PW 1 projected as an eye witness. PW 2 is brother of the deceased. PW 3 is the neighbour. PW 4 is the doctor who conducted autopsy of the dead body. PW 5 is the Special Executor Officer who held the identification parades. Before PW 6 the choppers were recovered at the alleged disclosure. PW 7 is the Police Officer, who recorded FIR. PW 8 was a 5 formal witness, who stated that the handle of the choppers got made from him by accused No.1. PW 9 is the Investigating Officer. 5. PW 1 is the only witness who could give details of the crime alleged against the accused and who was projected as an eye witness and PW 6 who was a witness to recovery of the choppers at the alleged disclosure having been made by PW 9. PW 6 turned hostile and he stated in his stated that he signed the panchnama which had already been prepared in the police station. He admitted signature on the panchnama, but submitted that he had not read it. He was also categorical that no statement of disclosure was made by the accused. This witness was, therefore, declared hostile. But inspite of that he was not put to any cross-examination by the Public Prosecutor. 6. Now coming to the evidence of PW 1 – Suresh Govind More. He has no where stated in his statement that he saw any assault being made by any of the accused on the deceased. As a matter of fact, he submitted that accused No.1, deceased and the witness belong to the same locality and from their locality two processions for Ganesh idol immersion are being taken every year. The accused and the deceased belong to two groups of the locality. They were taking Ganesh idols for immersion separately. There was an altercation between two groups at 7.30 p.m. when accused No.1 allegedly had thrown some gulal over the ladies belonging to the group of the 6 deceased. Police case was registered. The immersion took place before 2.00 a.m. in the night of 19th September, 1999. The witness stated that on 19th September, 1999, late in the night around 2.00 a.m., he saw Mahesh Ramchandra Kadam lying in a pool of blood near the Ganeshotsav Mandap and he was in injured condition. Thereafter he went to inform Mahesh's family members and when he came back with the family members, Mahesh had died. Nowhere, this witness has ever stated that he saw anybody attacking Mahesh. He did not, in fact, have any knowledge about the actual assault on Mahesh or any knowledge about a person who had attacked Mahesh. In fact, this witness was also declared hostile and was put to cross-examination, but nothing worthwhile, which could support the prosecution story, could be elicited from this witness. Unfortunately, the learned Sessions Judge has referred to the contents of the FIR which was given by PW 1 in coming to the conclusion that this person was an eye witness to the occurrence. The learned Sessions Judge has discussed that in paragraph 20 of the Judgment, which read thus: "20. POINT NO. 2: This issue goes to the root of the trial. Accusations are made against accused No.1 Ajay Kokare and the other co-accused Nos. 2, 3 and 4 as his associates having participated in the assault on Mahesh Kadam with choppers causing him several bodily chop injuries described above resulting in instantaneous death before he was being admitted in Nair Hospital. The main object of the trial after 7 the accused having denied the charge and pleaded innocence, is to discover the guilt of the accused. The burden to prove the charge is certainly on the prosecution. Therefore, learned defence counsel Shri Shinde for accused No.1, Shri Nitin Shejpal for accused Nos.2 and 4 and Miss Anjali Patil for accused No.3 made their submissions in support of innocence of the accused, criticised the prosecution evidence produced on record in the form of recovery evidence and oral testimony of the witnesses. Various discrepancies have been pointed out. The most of the points in their arguments were common. They argued in one voice that the total evidence is falling short and not to be trusted for want of support from independent witnesses such as panch witnesses (referring to recovery evidence).” 7. The statements which were attributed by the learned Judge to the witnesses were never spoken by the witnesses. But their statement was made either under Section 161 of the Criminal Procedure Code or in the F.I.R. Therefore, the mistake was committed of committing the accused on the basis of the statements made by the Police or in the F.I.R. since there is no evidence which could connect the accused persons to the crime. PW 1, who is a star witness, could not support the prosecution case. PW 6, who was another star witness and to whom the prosecution projected as witness to recovery of the choppers used in the alleged crime did not also support to the prosecution. All other witnesses are formal. Even if their testimony is believed, that would not help the prosecution in building a case against the accused. Therefore, we are of the view that the conviction and sentence awarded to both the accused Nos. 1 and 2 can not sustain. 8. In the circumstances, both the appeals are allowed. Conviction and 8 sentence awarded by the learned Sessions Judge to accused No.1 and accused No.2 in Sessions Case No. 1473 of 1999 by the Judgement dated 28th and 29th September, 2001 is set aside. We are told that both the accused are on bail. Their bail bond to stand discharged. Sd/- (BILAL NAZKI, J.) Sd/- (ANOOP V. MOHTA, J.) 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 898 OF 2001 Ajay Ramchandra Kokare .... .... Appellant. (Orig.Accused No.1.) Versus The State of Maharashtra .... .... Respondent. -: ALONG WITH :- CRIMINAL APPEAL NO. 882 OF 2001 Ramesh Mani Naidu .... .... Appellant. (Orig.Accused No.2.) Versus The State of Maharashtra .... .... Respondent. Ms. Pooja Bhojne i/by Mr. Nitin Sejpal for the Appellant in Appeal No.898/2001. Mr. Rahul Arote i/by Ms. Manali Desai for the Appellant in Appeal No. 882 of 2001. Mrs. P. H. Kantharia, APP for the Respondent. CORAM : BILAL NAZKI and ANOOP V. MOHTA, JJ. DATED : 13TH JANUARY, 2009. P.C. : For the reasons separately recorded in the judgment, the following order: 10 In the circumstances, both the appeals are allowed. Conviction and sentence awarded by the learned Sessions Judge to accused No.1 and accused No.2 in Sessions Case No. 1473 of 1999 by the Judgement dated 28th and 29th September, 2001 is set aside. We are told that both the accused are on bail. Their bail bond to stand discharged. Sd/- (BILAL NAZKI, J.) Sd/- (ANOOP V. MOHTA, J.)