1 Cri-Apeal-1272-2004 acd FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1272 OF 2004 Suresh Arjunkumar Ganesh Singh ] age about 20 years, ] resident at Gaibi Nagar, ] Bhiwandi, Dist. Thane ] ...Appellant (Orig.Accused No.3.) Vs. The State of Maharashtra ] (At the instance of Kolsewadi ] Police Station, Kalyan, Dist. Thane ] ...Respondents. WITH CRIMINAL APPEAL NO. 881 OF 2004 1.Rameshkumar Bhojai Bharatiya ] age about 22 yars, ] residing at Behind Si Krupa ] Hotel, Gupta Chawl, Netivali, ] Kalyan, Dist. Thane ] 2. Rejendra @ Dinesh Santlal@ ] Mataru, ] age about 26, residing at Shiv Shakti ] Nagar, Gupta Chawl, Behind Sai ] Krupa, Netavli, Kalyan. ] ...Appellants ( Orig.Accused Nos.1 & 2) Vs. The State of Maharashtra ] (At the instance of Kolsewadi ] Police Station, Kalyan, Dist. Thane ] ...Respondents. 2 Cri-Apeal-1272-2004 ----------- Mr. Arfan Sait, for Appellant in Appeal No. 1272/2004. Mr. Indrajeet Joshi, for Appellants in Appellants in Appeal No.881/2004. Mrs. V.R. Bhosale, A.P.P. for Respondent-State. CORAM: D.B. BHOSALE & U.D. SALVI, JJ. APRIL 29, 2011. [JUDGMENT PER U.D. SALVI, J.] 1. Heard learned Counsel for the parties. These are the appeals preferred by life convicts against their conviction for the offence punishable under Section 302 read with Section 34 of IPC, 1860 recorded by the 1st Ad-Hoc Additional Sessions Judge, Kalyan, in Sessions Case No.566 of 2001. 2. Finding of the dead body of a unknown male person in the room allegedly in occupation of the appellants-accused as the tenants of the complainant-Shriram Gupta in hutment chawl situate at Shiv-Shakti Nagar, Netivali, Kalyan in the morning of 16.07.2001 gave rise to the present case. 3 Cri-Apeal-1272-2004 3. The complainant-Shriram Gupta lodged a complaint with the Kolsewadi Police Station, Kalyan (East) in the morning of 16.07.2001 against his tenants Rajendra Yadav, Vikram Yadav and their two other colleagues. Thereupon, Crime at CR No.103/2001 under Section 302 read with Section 34 of IPC, 1860 came to be registered against the said accused. 4 According to the complainant, some 12 days before 16.07.2001, accused no.2-Rajendra Yadav accompanied by 3-4 persons approached him for rented premises and he rented out to him one of his three rooms adjoining to his grocery shop on accepting Rs.2000/- as deposit. He further deposed, in his complaint, that Rajendra Yadav purchased provisions of Rs.1000/- from shop and started staying at the rented premises along with one Vikram Yadav and two other young persons not known to him. He revealed that Rajendra Yadav had asked for the rented premises for some days and was to leave the room after getting better premises. On 16.07.2001 around 10.30 a.m.,the complainant alleged, a milkman came to him in his shop and told him that he found one man 4 Cri-Apeal-1272-2004 sleeping inside the said premises when he had opened the closed door as none was responding to his call at the time he had gone to supply milk. Thereupon, he added that he verified the fact and had noticed one young person, about 25 years old, lying inside the room with chattai and clothes covering his body, and on removal of the said chattai and clothes in the presence of a policeman Mr. Chaudhary on duty at the local Police chowki, he had noticed that there was unknown person who was lying with bleeding injuries on his abdomen and sickle like weapon and knife (Sura) lying by his side. After noticing this, the complaint reveals the complainant lodged the complaint against his tenants Rajendra Yadav and Vikram Yadav with two others. 5. Inquest was held over the body of the unknown deceased. Blood stained clothes found on the deceased as well as chattai, sura (knife) and kukri were seized from the scene of offence. Observations made at scene of offence panchana were recorded in form of a panchanama. Body of the deceased was sent for postmortem examination to rural hospital at Kalyan. 5 Cri-Apeal-1272-2004 6. Initially, the Police arrested accused no.1 Rameshkumar Bhojai Bharatiya. According to the prosecution, accused no.1 Rameshkumar Bhojai Bharatiya discovered his blood stained baniyan concealed near Gamdevi Mandir Temple at Village Pissavali within the limits of Kalyan Police Station. Blood stained jean pan was seized from the person of the deceased. The police recorded the statements of the local witnesses. Forensic investigation revealed the presence of human blood “B” group on the clothes of the deceased as well as baniyan discovered by accused no.1-Rameshkumar Bhojai Bharatiya. Accused no.1 Rameshkumar Bhojai Bharatiya had blood group “O” . Human blood group “B” was also detected on the weapon and the loongi sized from the scene of offence. 7. Initially, a charge under Section 302 read with Section 34 of IPC, 1860 was framed only against accused no.1-Rameshkumar Bhojai Bharatiya as other three accused were absconding. Later on the charge under Section 302 read with Section 34 of IPC came to be framed against the accused no.2 Rajendra Yadav and accused no.3 Suresh Ganesh Singh. The accused pleaded not guilty. 6 Cri-Apeal-1272-2004 8. The prosecution examined PW-1 Shriram Gupta, the complainant at Exh.28, WP-2 Firoz Siddiqui, panch at Exh.32, PW-3 Ramchandra Panchal, panch at Exh.34, PW-4 Khatija Gani, local resident at Exh.40, PW-5 Rambhau Gupta, panch at Exh.42, PW-6 Jitendra Patil, panch at Exh.45, and PW-7 Pradeep Ugale, I.O. at Exh.50. Oral testimonies were complimented with CA reports, complaint, inquest panchnama dated 16.7.2001, scene of offence panchanama dated 16.7.2001, postmortem report dated 16.7.2001, seizure panchnama (seizure of jean pan from body of the deceased), memorandum and discovery panchnama dated 19.7.2001. 9. There is no controversy over the fact that the deceased died homicidal injuries by multiple incised and stab wounds as disclosed in the admitted postmortem report at Exh.39. It is also not disputed before this court that the body of the deceased was found in one of the rooms i.e. middle room in Gupta Chawal, situate at Netevali, Kalyan and the said Gupta chawl belonged to the complainant-PW-1 Shriram Gupta. However, the fact that the said room was in occupation of the accused as tenants of the complainant on the date of incident is disputed. The discovery of the blood stained baniyan is also disputed in the present appeal. 7 Cri-Apeal-1272-2004 10. Mr.Joshi, learned Counsel for the appellants (in Appeal No. 881/2004) submitted that the prosecution evidence was grossly insufficient to prove the involvement of appellant no.2 in the present crime, in as much as, there was no evidence as to the i) identity of the deceased; ii) deceased being seen along with the accused in the said premises; iii) motive for the crime; and iv) room being occupied by the accused as the tenants at the time of commission of the crime. 11. Mrs. Bhosale, learned APP for the respondent-State submitted that the evidence of the complainant-PW-1 Shriram Gupta read with evidence of PW-4 Khatija Gani is sufficient to nail the involvement of the accused in the crime. 12. At the outset, it needs to be observed that there is no eye- witness account in the crime and the prosecution case rests squarely on the circumstantial evidence. It is, therefore, all the more necessary that the prosecution must establish every circumstance in the chain roping in the accused in crime beyond reasonable doubt and must further show that these 8 Cri-Apeal-1272-2004 circumstances completely rule out the hypothesis of innocence. Significantly, in the instant case, there is no evidence regarding the motive, much less, regarding any connection between the deceased and the accused. 13. The evidence of PW-1 Shriram Gupta, at the most, gives credible account of discovery of the dead body of the deceased in one of the room belonging to him around 10.00 a,m. on 16.7.2001. He deposed that the said room was given by him to the accused persons on rent. However, in his cross examination, he could not produce before the court any document suggesting letting out of the said room on rent to one of the accused persons. Pertinently, the answer to the question as to when the said room was given on rent to the accused person is not found in the testimony of PW-1 Shriram Gupta. He also did not depose anything about the deceased person, and how and when he happened to be there. Pertinently, he had not named the A/l, 3 and 4 in the complaint at Exh. 29. The examination of the milkman, who used to supply the milk at the said premises, would have shed better light on the facts concerning the 9 Cri-Apeal-1272-2004 occupants of the said room. However, the milkman was not examined by the prosecution. 14. Little contribution is made to the prosecution by PW-2 Firoz Siddiqui, panch to the Inquest Panchanama at Exh.33 and PW-3 Ramchandra Panchal, panch to the scene of offence panchanama at Exh.34. Nothing much comes from their evidence. It appears that the Police did not carry out any investigation regarding things found at the scene of offence, namely the local ticket and house-hold articles. 15. PW-4 Khatija Gani in her examination-in-chief made a reference to the milkman knocking at the door in the morning on 16.7.2001 and went on to say that the accused and another were residing in the room where the deceased was found murdered. However, in their cross- examination, she took complete U-turn and deposed that she had not seen those four boys (accused persons) residing in Gupta chawl previously and she was seeing the accused person in the court for the first time and the accused were not known to her previously. Her evidence, therefore, is of no use to the prosecution. 10 Cri-Apeal-1272-2004 16. Seizure of blood stained jean pant under seizure panchanama at Exh.42 at the Police Station on 17.7.2001 is referred to in the evidence of PW-5 Rambhau Gupta. His evidence hardly makes any contribution to the prosecution case. 17. PW-6- Jitendra Patil at Exh.42 deposed that he signed memorandum Exh.46 prepared by the Police in response to the accused “Bharat” saying something at the police station on 19.7.2001; thereafter the police had taken him to village Pissavli where the accused had taken out the baniyan from the stones and the said baniyan with plastic bag were seized by the police under panchanama at Exh.47. He identified the baniyan before the court. However, he in the cross-examination stated that he could identify the said baniyan as it was seen somewhat dirty and he could not find any paper slip bearing his signature attached to it at the time of panchanama Ex.47. His testimony is, therefore, brings into question the identification of the baniyan allegedly discovered by the accused. It can also be seen from his evidence that the discovery was made from the open place near a temple. What disclosure the accused ( Bharat had made) at the 11 Cri-Apeal-1272-2004 time of memorandum Ex.46 remains a mystery in the testimony of PW-6 Jitendra Patil. There is no evidence coming forth from the testimony of PW-6 Jitendra Patil that the said accused had led the police and panchas to the spot of alleged discovery of the said baniyan. This marks the clear failure of the prosecution to prove that accused no.1-Rameshkumar Bhojai Bharatiya had discovered the blood stain baniyan as alleged. 18. In the result, it cannot be said with certainty that the appellant- accused and none else had committed murder of the deceased “Raju”. The prosecution case must, therefore, fail. In the result, both the appeals are allowed. Judgment and order dated 20th May, 2004 convicting the appellants-accused for the offence punishable under Section 302 read with Section 34 of IPC, 1860 and sentencing them R.I for life and to pay a fine of Rs.20,000/- each is set aside. The appellants-accused no.1- Rameshkumar Bharatiya and accused no.3-Suresh Ganesh Sing shall be released from the prison, unless required in the any other case.Bail bond of 12 Cri-Apeal-1272-2004 appellant-accused no.2 Rajendra Yadav shall stand cancelled. Fine paid, if any, shall be refunded. (U. D. SALVI,J.) (D.B. BHOSALE,J)