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. 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 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 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, 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 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 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 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. 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 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 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, 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 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 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 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 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 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 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 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. 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 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) 18apeal-229-07