1 mss APEAL+241 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 241 OF 2006 DHIRENDRAKUMAR RAJNARAYAN ) TIWARI, having his address at ) Galli No. 2, Room No. 2, Gopal Nagar, ) P.B. Marg, Worli, ) .. APPELLANT Vs. THE STATE OF MAHARASHTRA ) N. M. Joshi Marg, Police Station, Mumbai ) .. RESPONDENTS Mr. Y. M. Chaudhari for the appellant Ms. S. D. Shinde, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATE ON WHICH THE JUDGMENT IS RESERVED : 1ST APRIL, 2011 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 8TH APRIL, 2011 JUDGMENT: (Per Smt. Ranjana Desai, J.). The appellant was tried by the Sessions Court for Greater Bombay in Sessions Case No. 1386 of 1999 for offence punishable under Section 302 2 mss APEAL+241 of the Indian Penal Code (“IPC”). By the judgment and order dated 16/5/2005 learned Sessions Judge convicted him under Section 302 of the IPC and sentenced him to suffer RI for life and to pay a fine of Rs.1000/-, in default to suffer further RI for six months. 2. It is the case of the prosecution that the appellant, deceased Sachin, (also referred to as Sachin or the deceased), one Ramesh and CW1 Rajiv Maruti Kumbhar used to smoke Charas and Ganja together. Deceased Sachin was working as a Hamal on a tempo. The prosecution evidence indicates that all these people come from poor strata of the society. The deceased and CW 1 Raju Kumbhar used to sleep on street. According to the prosecution in the night between 21/6/99 and 22/6/1999 CW 1 Raju Kumbhar and the deceased were sleeping in the tempo of PW 2 Manohar Shirke. This tempo was parked in front of Century Mill. At about 2 a.m. to 2-30 a.m. the appellant threw a stone on the head of the deceased. CW 1 Raju Kumbhar asked him as to what he was doing. Thereafter the appellant again threw a stone on the head of the deceased. After throwing the stone the appellant ran away. He threatened CW1 that he should not inform this fact to anybody. 3. PW 1 Gajanan Patil was running a tea stall near Madhu Industrial 3 mss APEAL+241 Estate. He used to know the deceased. On 22/6/99 in the morning he came to know that Sachin was dead. Therefore, he informed PW 2 Manohar Shirke, the termpo owner. PW 2 Manohar Shirke came there. The deceased was seen lying in the tempo with a head injury. PW 2 narrated the incident to the police. His FIR came to be recorded against unknown persons. It is at Exh.-8. On the basis of the FIR, the investigation was set into motion. The appellant was traced in U.P., and was brought to Bombay. He was arrested in connection with this case. After completion of the investigation the appellant came to be charged and convicted as aforesaid. 4. In support of its case the prosecution examined PW1 Gajanan Patil, the Tea Stall owner, PW 2 Manohar Shirke, the owner of the tempo, PW 3 Ramesh Bhosle friend of deceased Sachin, PW 4 Ram Pedamkar Pancha to inquest/spot panchnama Exh.-20, PW 5 PSI Mohamed Hanif Bandubhai, who had recorded the FIR and conducted some part of the investigation, PW 6 Kiran Kalyankar Medical Officer, attached to Nagpada Police Hospital, PW 7 API Bhimrao Nikam, the Investigating Officer. CW 1 Raju Maruti Kumbhar was examined as court witness. The defence of the appellant was one of denial. In his statement recorded under Section 313 of the code of Criminal Procedure, he stated that he was falsely involved in this case and that he was not present in Mumbai on the date of the incident. After 4 mss APEAL+241 perusing the evidence on record, learned Sessions Judge convicted and sentenced the appellant as aforesaid. Hence this appeal. 5. We have heard at some length Mr. Chaudhari, learned counsel appearing for the appellant and learned APP Ms. Shinde. With the assistance of the counsel, we have gone through the record. Mr. Chaudhari submitted that learned Sessions Judge erred in convicting the appellant as there is no cogent and reliable evidence on record to establish the prosecution case. He submitted that learned Sessions Judge has relied on the evidence of CW 1 Raju Kumbhar. But Raju Kumbhar’s evidence does not inspire confidence. He is a wholly unreliable witness. Counsel submitted that even, if CW 1 Raju Kumbhar is classified as not a wholly reliable witness and not a wholly unreliable witness, his evidence cannot be accepted unless it is corroborated. Necessary corroboration is wanting in this case. Counsel submitted that this witness did not go voluntarily to the police. He was brought under duress. He is a drug addict. His evidence is so full of inconsistencies that it is doubtful whether he was in a proper frame of mind when he gave his evidence It is possible that he was under hallucination. He has stated that he was kept in the police station for 3-4 days. Therefore, it is possible that he was coerced into giving evidence by the police. Counsel submitted that the stone, which the accused is stated to 5 mss APEAL+241 have used, was recovered 7 days after the incident. Surprisingly it is not mentioned in the Inquest Panchnama dated 22/6/1999 which is drawn soon after the incident and which is in the nature of scene of offence panchnama. Counsel submitted that evidence of other witnesses is replete with contradictions. Counsel submitted that assuming that the appellant was absconding that circumstance by itself is not sufficient to convict the appellant. In this connection he relied on the judgment of the Supreme Court in Matru alias Girish Chandra v. The State of UP, AIR 1971 SC 1050. On the question of corroboration required to the evidence of a witness who is neither wholly reliable nor wholly unreliable, counsel relied on Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. Counsel submitted that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the order of conviction and sentence be set aside. 6. Ms. Shinde learned APP on the other hand submitted that the prosecution has proved its case to the hilt. She submitted that minor discrepancies in the evidence of the prosecution witnesses do not affect the substratum of the prosecution case. Counsel submitted that CW 1 Raju Kumbhar’s evidence establishes the prosecution case. He has no reason to falsely implicate the appellant. It is true that he did not approach the police immediately after the incident but that could be because of fear. Evidence 6 mss APEAL+241 of this witness is corroborated by the other evidence on record. Counsel submitted that therefore this court may dismiss the appeal. 7. There can hardly be any dispute about the fact that death of Sachin was homicidal. One Dr. U.S. Patil had done Post Mortem of the deceased. Since he was not available to give evidence, PW 6 Dr. Kalyankar, who was attached to Coroner’s Court, JJ Hospital at the relevant time produced Post Mortem Notes Ex.-28 prepared by Dr. Patil. He identified the signature of Dr. Patil. The Post Mortem Notes indicate that the deceased had received serious head injuries. Out of five external injuries two were chop wounds received on the head. There was a fracture of right temporal bone which is described as “transverse size 6 cm x 2 cm depressed fracture”. Cause of injury is stated to be “Head Injury caused by sharp edged object, unnatural”. 8. PW 1 Gajanan Patil runs a tea stall near Madhu Industrial Estate. According to him deceased Sachin used to sleep in the tempo. On 22/6/99 when he got to know about the death of Sachin, he informed PW 2 Manoher Shirke, the owner of the tempo. PW 2 came to the spot of the incident. PW 1 Gajanan Patil then narrated the incident to the police. The police registered the FIR which is at Exh.-8. The evidence of this witness does not help the prosecution. He is not an eye-witness. He has lodged FIR against 7 mss APEAL+241 unknown persons. He has not disclosed anything in his evidence which can throw light on the offence of murder. 9. PW 2 Manoher Shirke, the tempo owner has acknowledged that he knows PW 1 Shankar Patil. He has confirmed that PW 1 Gajanan Patil came to his house and informed him about the incident. He has stated that the deceased was working as a Hamal on a tempo. He has stated that in the night of 21/6/99 he had parked his tempo and gone home. He accompanied PW 1 Gajanan Patil to the tempo. He found dead body of Sachin lying in the tempo with head injuries. The police recorded his statement. According to him after the arrest of the appellant he came to know that Sachin was murdered by the appellant. In the cross-examination he has stated that the police told him that the appellant murdered Sachin. Thus this witness gathered information about the alleged involvement of the appellant from the police. He has not witnessed the incident. He has no independent source of information. His evidence can hardly be of any use to the prosecution. 10. PW 3 Ramesh Bhosale knows the appellant, the deceased and CW 1 Raju Kumbhar. He has stated that the deceased was working as a Hamal. According to him on 19/6/99 at 7-30 p.m., there was a quarrel between the 8 mss APEAL+241 deceased and the appellant because the deceased had assaulted Baba who is a friend of the appellant. He had tried to mediate and persuade them not to quarrel. According to him CW 1 Raju Kumbhar and the appellant were sleeping in the tempo and on the morning of 22/6/99 CW 1 reported to him about the incident. Cross-examination of this witness brings on record certain important facts. He has stated that the deceased and the appellant were friends. On 19/6/99 he and the deceased had taken the appellant to the hospital as he was sick. He has admitted that the quarrel between the deceased and Baba had not taken place in his presence. This part of his evidence clearly indicates that the prosecution has not been able to establish motive. He does not even know Baba. On the contrary according to him the deceased and the appellant were friends, they used to talk to each other and there was no quarrel between the two. Further evidence of this witness casts a shadow of doubt on the prosecution case. He has stated that apart from the deceased and the appellant, other people used to sleep in the tempo. Thus the possibility of some other person’s involvement cannot be ruled out. Evidence of this witness, therefore, does not help the prosecution. 11. PW 7 API Nikam is the Investigating Officer. He has stated that he arrested the appellant in U.P. and brought him on 24/6/99 to the police 9 mss APEAL+241 station. He has also stated that on 29/6/99 he seized one bloodstained stone which was lying by the side of the tempo, under panchnama Ex.-32. In the cross-examination he has admitted that he had not gone to U.P. to arrest the appellant, but P I Pandhere was sent there. Thus on the vital aspect of the case this witness has contradicted himself. So far as seizure of bloodstained stone from near the tempo is concerned, it does not inspire confidence. The spot/inquest panchnama was drawn on 23/6/99. If indeed a bloodstained stone was lying near the tempo it would have been mentioned in that panchnama. Seizure of a bloodstained stone 7 days after the incident that too in rainy season is hard to believe. Besides panchas of the seizure panchnama have not been examined. The stone was also not sent to the Chemical Analyser. Besides chop wounds found on the dead body of Sachin are not consistent with use of stone. Of course there was a depressed fracture. But since there were chop wounds, it is possible that the incident did not take place in the manner alleged by the prosecution. The possibility of involvement of more persons and different weapon of assault cannot be ruled out. 12. That takes us to CW 1 Raju Kumbhar. Learned Sessions Judge has observed that at the stage of recording of the statement of the appellant under Section 313 of the Code of Criminal Procedure on 14/2/05, it was 10 mss APEAL+241 realised that Raju Kumbhar was the only eyewitness. Therefore, summons was issued to him. The reports which are on record indicate that the presence of Raju Kumbhar could not be secured by the police. Ultimately on 7/4/2005 the police succeeded in their effort and Raju Kumbhar was examined as CW 1. 13. Raju Kumbhar has stated that six years back he was residing on footpath. He and the deceased used to sleep in the tempo of PW 2 Manoher Shirke. According to him on 21/6/99 at about 11.00 a.m. he returned near Anti-Corruption Office after doing his work. He and the deceased slept in the night in the tempo of Manoher Shirke. He heard a sound at about 2.00 a.m. to 2.30 a.m. He woke up. He saw the appellant throwing stone on the head of the deceased. He asked him as to what he was doing. The appellant again threw a stone on the head of the deceased who succumbed to the injuries. The appellant ran away. He identified the appellant in the court as the same person, who had thrown stone on the deceased. He has stated that he knew the appellant because he, the deceased, one Ramesh and the appellant used to smoke Charas and Ganja together. According to him, the appellant gave him threat that, if he informed this fact to anybody, then he would kill him. He was scared. He went to Mili Hotel and sat there up to 3.30 a.m. At 4 a.m. he went to Ramesh’s house and narrated the incident to 11 mss APEAL+241 him. Thereafter he went to the house of his brother Vijay and stayed there for two days. He told his brother that he was scared because the appellant had committed murder of Sachin. His brother took him to the police station where his statement was recorded. He has further added that he went to the house of PW 2 Manoher Shirke at about 5.00 a.m. on the date of the incident. His friend Ramesh was also with him when he went to Manoher Shirke. 14. In the cross-examination he has stated that he was kept in the premises of the police station for three to four days after his statement was recorded. He has denied the suggestion that the deceased was taken to the hospital by the appellant as he was ill one day prior to the incident. He has stated that the police detained him for 4 to 5 days after recording his statement because the appellant was absconding and the police had doubt that he might have committed the murder. He was released after the appellant was brought to the police station. He has denied the suggestion that on the day of the incident at 9.00 p.m., the appellant had left Mumbai at 9.00 p.m., by train. He has admitted that he was smoking Ganja everyday. An omission in his police statement has been brought on record. He had omitted to tell the police that he had gone to the house of Ramesh at 6.30 a.m. 12 mss APEAL+241 15. We find it difficult to maintain the conviction of the appellant solely on the basis of the evidence of CW 1. His evidence needs corroboration which is lacking in this case. It is clear from his evidence that the police initially suspected that he was the culprit and, therefore, he was detained at the police station. He is a drug addict. Though he claims in the examination-in-chief that he had gone to PW 3 Ramesh and informed him about the incident, he has not stated so to the police. 16. It is significant to note that this witness has stated that he had gone to the house of PW 2 Manoher Shirke and informed him about the incident but PW 2 Manoher Shirke has not confirmed this fact. He has not even referred to this witness. It does appear from the evidence on record that CW 1 and the deceased used to sleep in the tempo. It is possible that in the night in question they slept in the tempo but the question is whether implicit reliance can be placed on the statement of this witness that he saw the appellant throwing stone on the deceased. It cannot be forgotten that this witness was himself a suspect. He did not approach the police on his own. His statement was recorded 4 days after the incident. It is only after the police made efforts that he was traced and he gave evidence. In view of his conduct of not going to the police immediately after the incident, and that he was forced by the police to give evidence, we are of the opinion, that his 13 mss APEAL+241 evidence cannot be relied upon unless it is corroborated. 17. In this connection reliance placed by learned counsel for the appellant on the judgment of the Supreme Court in Vadivelu Thevar’s case is apt. In that case the Supreme Court has observed that oral testimony may be classified into three categories namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. The Supreme Court has further observed that in case the witness is wholly reliable the court may convict or acquit on his testimony. If the witness is wholly unreliable, the court has no difficulty in coming to its conclusion. However, if the witness is neither wholly reliable nor wholly unreliable the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or substantial. We are of the opinion, that CW 1 falls in the third category mentioned by the Supreme Court. He is neither wholly reliable nor wholly unreliable. Corroboration to his evidence is therefore, a must. We feel that such corroboration is not available to his evidence from the other evidence on record. We have no difficulty in holding that the other evidence on record is not clinching. It is, therefore, difficult to maintain the conviction which wholly rests on the evidence of CW 1. 14 mss APEAL+241 18. It is also difficult to accept the submission that because the appellant was absconding, adverse inference needs to be drawn against him. It is well settled by a catena of judgments of the Supreme Court that absconding by itself is not sufficient to come to the conclusion of guilt of a person. In Matru alias Girish Chandra’s case, the Supreme Court has held that absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. In the light of this judgment, we are of the opinion, that assuming the appellant was absconding in the absence of clinching evidence pointing to his involvement it is difficult to come to the conclusion, that he is guilty of offence of murder. This is a case where benefit of doubt will have to be given to the appellant. In the circumstances, the impugned judgment and order needs to be set aside. Hence the following order: The impugned judgment and order dated 16th May, 2005 convicting the appellant Dhirendrakumar Rajnarayan Tiwari under Section 302 of the IPC and sentencing him to suffer life 15 mss APEAL+241 imprisonment and to pay a fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for six months, is quashed and set aside. The appellant Dhirendrakumar Rajnarayan Tiwari is ordered to be released forthwith unless otherwise required in some other case. The appeal is disposed of. (CHIEF JUSTICE) (SMT. RANJANA DESAI, J.) 16 mss APEAL+241 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 241 OF 2006 DHIRENDRAKUMAR RAJNARAYAN TIWARI.. APPELLANT Vs. THE STATE OF MAHARASHTRA ) .. RESPONDENTS Mr. Y. M. Chaudhari for the appellant Ms. S. D. Shinde, APP for State. CORAM: MOHIT S. SHAH, C.J. & SMT. RANJANA DESAI,J. DATED: 8/4/2011 OPERATIVE PART OF THE ORDER: For the reasons separately recorded in the oral judgment, this court has passed the following order: The impugned judgment and order dated 16th May, 2005 convicting the appellant Dhirendrakumar Rajnarayan Tiwari under Section 302 of the IPC and sentencing him to suffer life imprisonment and to pay a fine of 17 mss APEAL+241 Rs.1000/-, in default, to suffer further rigorous imprisonment for six months, is quashed and set aside. The appellant Dhirendrakumar Rajnarayan Tiwari is ordered to be released forthwith unless otherwise required in some other case. (CHIEF JUSTICE) (SMT. RANJANA DESAI, J.)