1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 80 OF 2009 Ravi Purshuram Kanthrulu @ Rahim ] Age 35 years, C/o. Mr. Razak Patel, ] Dhobhi Talao, 4th Marine Street, ] Opp. Karma Trust, Mumbai 2, presently ] in judicial custody in Mumbai Central Prison ] (Arthur Road Jail), Mumbai ] ...Appellant Versus State of Maharashtra ] (Azad Maidan Police Station) ] ...Respondent. Ms. Sushan Kunjuraman and Mr. Mahesh Kadam for the Appellant Mrs. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and A.R. JOSHI, JJ. DATE: SEPTEMBER 17, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- When an application seeking bail was being argued, this Court found that there are only two witnesses on the basis of whose testimony, the case was decided by the trial Court. 2 Therefore, we thought it proper to hear the main appeal itself. The learned Additional Public Prosecutor, on the last date, was requested to prepare the case, and the case was heard today. 2. We have heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor. 3. On 11th January, 2007, a Police sub Inspector received telephone message from a constable that one dead person was lying on the foot-path on Anandilal Poddar Marg. Accordingly, he registered Crime No. 6 of 2007. He went to the spot, seized incriminating material found on the spot and prepared panchnama with respect to seizure of articles. He also prepared Inquest Panchnama. The body was sent for post-mortem. The post-mortem report was obtained. 4. It appears that nothing happened between 11th January, 2007 till after about two months, when a person, P.W.1, approached the police and made a statement before the police. On or about the same date, another witness, P.W.2, also 3 approached the police and made a statement. Statements of these two witnesses are the basis for conviction of the accused for an offence under Section 302 of the Indian Penal Code, for which he has been sentenced to imprisonment for life and fine of Rs.2,000/-. Besides the testimony of these two people, the prosecution has tried to use the statement made by the accused during police custody in Narco-analysis Test. But we are of the firm view that if the statements of P.Ws. 1 and 2 would not connect the accused to the offence he was charged with, there is no other material on record to prove the guilt of the accused. In all, 8 witnesses have been brought before the Court by the prosecution. 5. P.W.1, Natha Narhari Dongre, stated that in the month of January, 2007, he was residing in Government Quarters at Secondary Training College, B.T. Marg, Mumbai-1. He used to go for morning walk at about 5.00 a.m. to 5.15 a.m. everyday. On 11th January, 2007, he was taking his morning walk as usual and when he reached the railway overbridge after Metro Cinema at about 5.15 a.m., he saw towards the right side of the bridge that two persons were sleeping. Then he went nearer to the place, and 4 saw blood stains on the white cloths of one person sleeping. A white gunny bag was kept at the head of the first person. He could not see the face of the said person, but he could see the face of the second person who was also sleeping near the feet of the first person. The second person was sleeping, using his left hand as his pillow. The witness could see his face on the right side. The nose of the person was straight. He had beard. He had long hair. He had worn cloths of greenish colour. He had also seen two to three impressions of blood palms of feet in the middle of the first and second persons. After seeing this, he got scared. He came towards the bridge, and continued the morning walk. He had a desire to tell what he had seen to the police, but he was scared, and, therefore, he did not approach the police. After one to one-and-a-half months, he went to Azad Maidan Police Station on 24th February, 2007, and narrated the said story to the police. As the story is unfolded, it becomes abundantly clear that this witness is a put up witness and had no knowledge of any event. His further statement is also important. He stated that on 25th April, 2007, police called him to Azad Maidan Police 5 Station, and they told him that an Identification Parade of the suspected persons was to be conducted. Therefore, he went to Arthur Road Jail, and then in the presence of the magistrate, he identified the accused. This witness approached the police on 24th February, 2007. The accused was in custody of police from 5th February, 2007, but Identification Parade was conducted only after more than two-and-a-half months, on 24th April, 2007. 6. In his cross-examination, the witness stated that when he had seen two people sleeping -one with blood stains – he had seen them only for 10 seconds. After seeing two persons sleeping on the road for 10 seconds, he remembered every event for so long is otherwise not believable. Then certain things were also pointed out. For instance, he stated: “I did not state to police that blood impressions of palm of feet were at some distance from persons.” 7. P.W. 2, Rajesh Namdevrao Deshmukh, is similarly another person who has been put up by police to prove the case. He stated that he used to run vada pav centre at New Excelsior Cinema, Fort, Mumbai. He used to take morning walks at about 5.00 a.m. to 5.15 a.m. On 11th January, 2007, while he was taking 6 morning walk, when he reached the railway overbridge after Metro Cinema, he saw that one person was sleeping and another person was standing near him. He saw that a white gunny bag was on the head of the person who had slept. When he was walking near both persons, the person who was standing was tapping on the person sleeping with hands. The person who was standing had beard. He had long hair. The said person had worn Kurta-Payjama of greenish colour. He has not offered explanation as to why he did not inform the police about the incident till 1st March, 2007. In any case, he had not even seen anything suspicious. Therefore, we do not understand why he had put up a story that he had seen the accused near the body of the deceased. Even after his statement was recorded on 1st March, 2007, he was taken for Identification Parade only on 25th April, 2007 along with P.W.1. Obviously, these two witnesses were got-up by the police to show to the people that they had solved the mystery and they had arrested a person who was responsible for murder of an unknown person. There is no other evidence which could connect the appellant to the offence for which he was charged. The attack might have taken place later. It is always desired that the 7 investigation would be able to secure further evidence against a suspect. But such investigative details are not to be misunderstood for evidence in a case. Any statement made by an accused in police custody incriminating himself is hit by Sections 25, 26 and 27 of the Evidence Act, and as such, cannot be relied upon. 8. At best, the prosecution case would be that the two witnesses, P.Ws. 1 and 2, had seen the accused near the deceased. That in itself could have created a suspicion but not the proof that the accused was responsible for the death of the deceased. 9. For these reasons, we find that there was no evidence before the trial Judge to convict the accused for a serious offence like murder. The appeal is allowed, the impugned judgment and order of conviction dated 1st January, 2003 passed by the learned Sessions Judge in Sessions Case No.481 of 2007 is set aside, and the appellant, Ravi Purshuram Kanthrulu @ Rahim, is released forthwith, if not required in any other case. The fine of Rs.2,000/- already paid be refunded to the appellant. BILAL NAZKI, J. A.R. JOSHI, J.