1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 220 OF 2008 Sanjay Laxman Chavan Age 30 years, Occ. - Residing at A Type Chawl No.10 Room No.5, Sector 15, Vashi Navi Mumbai. ... Appellant Versus The State of Maharashtra (at the instance of Vashi Police Station, Navi Mumbai). … Respondent Mr. S.R. Chitnis, Senior Advocate a/w Miss. Swapna Kode for the Appellant. Mr. K.V. Saste, APP for Respondent/State. CORAM: P.B. MAJMUDAR & R. G. KETKAR, JJ. DATED: 5th January, 2010. ORAL JUDGMENT: (PER R.G.KETKAR, J.) 1 This appeal is preferred by the original accused against the Judgment and order dated February 20, 2008 passed by the learned I/c Ad hoc Additional Sessions Judge, Thane in Sessions Case No. 106 of 2005. By the impugned judgment and order, the learned Sessions Judge convicted the appellant-accused as per section 235 (2) of the Code of 2 Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) of the offence punishable under section 302 Indian Penal Code (for short ‘I.P.C.’) and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five thousand only) in default to suffer further rigorous imprisonment for one month. 2 The case of the prosecution is that on November 12, 2003, Mangesh Shaligram Patil (hereinafter referred to as ‘the victim’) was watching cricket match alongwith the complainant PW4 Dinesh Sureshchandra Shah at about 9.30 p.m. from out of the house of the one Mandar Wadkar. At that time one boy called the victim. It is alleged that appellant-accused assaulted the victim by means of iron rod on his head. PW4 complainant tried to catch hold of the accused, whereupon, he was pushed and the accused further assaulted the victim on chest by the iron rod. 3 It is further case of the prosecution that the complainant sought help of the people but nobody came forward and the accused ran away from the scene of offence. P.W.4 complainant rushed towards the house of the victim and informed the mother of the victim Kokila PW.7 about the 3 assault. PW.7 Kokila Shaligram Patil and PW.10 Shaligram Kautik Patil, father of the victim rushed towards the spot where the victim was lying. The parents of the victim took him to the Municipal Hospital at Vashi. On the same day, PW4 has lodged the complaint at Exh.51 with Vashi Police Station against the accused. The victim was shifted to Sion Hospital for further treatment, where he died on November 15, 2003 during the medical treatment. 4 It is the case of the prosecution that PW.4 was afraid to go to the police station and therefore went to the office of the Advocate Madhubala Shetty. Advocate Shetty deputed one person to accompany the complainant and the complainant alongwith the said person went to the Vashi police station and lodged the complaint at about 11.20 p.m. on November 12, 2003. PW.12 Kalyanrao Eknath Karpe, Investigating Officer recorded the complaint made by PW4 Dinesh Sureshchandra Shah. He initially registered the office vide Crime No. 312 of 2003 under section 326 I.P.C. He visited the place of incident and drew the spot panchanama at Exh.35 in the presence of the panchas. He seized blood stained clothes of victim under seizure panchanama at Exh.13. Further investigation was 4 thereafter carried by PW14 Police Inspector Vasant Baba Satpute from November 16, 2003. He recorded statements of witnesses and arrested the accused on November 24, 2003. During the investigation, the accused showed willingness to produce the blood stained clothes and iron rod and accordingly he called panchas and recorded statement of the accused. At the behest of the accused they proceeded towards Asam Bhavan, Navi Mumbai alongwith the panchas. The accused pointed out place of bushes and grass from where he produced shirt and iron rod and accordingly both articles were seized and seizure panchanama drawn at Exh.33. The clothes that were seized and also other articles seized during the investigation were sent for analysis to Chemical Analyser. On completion of the investigation, PW14 P.I. Vasant Satpute filed chargesheet against the accused before the learned Judicial Magistrate First Class, Vashi, Navi Mumbai. Since the offence is exclusively triable by the Session Court, the case was committed to the Sessions Court. 5 In order to substantiate the case, the prosecution examined as many as 14 witnesses, which can be broadly classified into following categories: 5 Eye Witnesses: 1 Dinesh Sureschandra Shah, PW.4 at Exh.50. 2 Kamlesh Shreeram Kanoja, PW.9 at Exh.62. Panch witnesses: 1 Vinayak Ramchandra Shinde, PW.1 at Exh.32 who is panch to the Seizure Panchanama at Exh.33. 2 Vaibhav Anant Kadam, PW.2 at Exh.34, panch witness to spot panchanama Exh.35. 3 Shalendra Chandrakant Ghorpade, PW.11 at Exh.65, panch witness to the seizure panchanama at Exh.33. Medical evidence: 1 Dr. Vivek Shriram Malpure, PW.3 at Exh.47, who treated the victim at Corporation Hospital, Navi Mumbai. 2 Dr. Mukesh Shamrao Ghuge, PW.13 at Exh.71, who conducted the post-mortem on the dead body of the victim at Sion Hospital, and prepared the post- mortem notes. Investigating Officers: 1 Kalyanrao Eknath Karpe, PW.12 at Exh.69, who recorded the complaint made by PW.4 Dinesh Shah. 6 2 Vasant Baba Satpute, PW.14 at Exh.76, who conducted the investigation from November 16, 2003 onwards. 6 The prosecution also examined parents of the victim namely, Kokila Shaligram Patil PW.7 at Exh.58 and father of the victim Shaligram Kautik Patil PW.10 at Exh.63. In addition the prosecution examined Ranjeet Dinkar Patil PW.5 at Exh.52 who is an employee of Co-operative Bank Ltd. Navi Mumbai, Sampat Sawala Sakpal PW.6 at Exh.54 who is resident of locality of victim, where the victim resided, Mandar Ananda Wadkar PW.8 at Exh.61 at whose residence the cricket match was seen by the victim. 7 On the basis of material on record, the learned Sessions Judge came to the conclusion that the accused has committed murder of the victim by means of iron rod. By the impugned judgment and order dated February 20, 2008 the learned Sessions Judge convicted the accused and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for one month. It is against this judgment and order, the present appeal is preferred. 7 8 In support of this appeal, we heard Shri S.R.Chitnis, learned Senior Counsel alongwith Ms Swapna Kode for the Appellant-accused and Shri Kumar V. Saste, learned APP on behalf of the State. 9 Shri Chitnis, learned Senior Counsel submitted that the prosecution has examined complainant Dinesh Sureshchandra Shah as PW.4 and Kamlesh Shreeram Kanoja as P.W.9 as eye witnesses. Perusal of the testimony coupled with the testimony of other witnesses would indicate that these two witnesses did not witness the incident. In the entire deposition of PW.4 Dinesh, presence of another eye witness PW.9 Kamlesh at the time of incident is not disclosed. Likewise, the presence of PW.4 Dinesh at the time of incident is not disclosed by PW.9 Kamlesh. Infact, their presence at the scene of offence itself is doubtful. In so far as testimony of parents of the victim namely, PW.7 Kokila Shaligram Patil and PW.10 Shaligram Kautik Patil is concerned, their statements were recorded belatedly on November 17, 2003. He submitted that perusal of their testimony indicates that they claimed to have seen the accused holding iron rod at the distance of 4 to 5 feet away from the victim, where he was lying. However, what is material to note 8 is that when PW.7 Kokila Shaligram Patil went to the Municipal Hospital, Vashi she did not disclose about the assault, as also the name of the assailant though the prosecution claimed that they also witnessed the incident. Perusal of the testimony of the witnesses would reveal that actually no one had seen the incident. 10 Mr. Chitnis, learned Senior Counsel further criticized the investigation agency on the ground that the alleged incident took place on November 12, 2003 and the injured victim died on November 15, 2003. The investigation agency did not record the statement of the victim during this period. They also did not bring any material on record to indicate that during this period, the victim was not in a position to speak. Shri Chitnis, learned Senior Counsel further submitted that when PW.7 went alongwith the victim to admit him in Municipal Hospital, she was accompanied by one Raju Sakpal. However, police did not record his statement and he was not examined. Likewise, he submitted that PW.4 Dinesh Shah claimed to have visited office of Adv.Madhubala Shetty, neither police recorded her statement nor she was examined by the prosecution to explain the delay of two hours in lodging the complaint. 9 11 Shri Chitnis, learned Senior Counsel further submitted that from the material available on record it would be clear that there are no eye witnesses who had seen the assault. The assault is alleged to have been taken place in the night at 9.30 p.m. and it has been brought on record that there were no street lights. 12 He further submitted that, the prosecution has not established the involvement of the accused. In so far as the reports of the Chemical Analyser at Exh.77 and 78 are concerned, he submitted that as per the C.A. Report at Exh.78, the iron rod was bearing blood stains of human but the blood group on iron rod and the shirt of the accused and victim could not be detected as per the C.A. Report. The blood group could not be determined and the report was inconclusive. As per the C.A. Report at Exh.77, the blood group of the accused was ‘B’ group. There is no supporting evidence of Chemical Analyser’s report to prove that the shirt of the accused and the weapon of the assault i.e. iron rod were bearing blood having “B” group of the victim. Thus, if the evidence of the eye witnesses is discarded, the C.A. Reports at Exh.77 and 78 do not establish the guilt of the accused. 10 13 On the other hand, Shri Saste, learned APP supported that the impugned judgment and order. He submittd that the incident was witnessed by PW.4 Dinesh as also Kamlesh PW.9. Even parents of the victim immediately rushed to the spot and saw the accused at the spot of incident holding iron rod. The complaint was lodged on the same day and on the basis of evidence on record the learned Sessions Judge rightly convicted the accused. He therefore, prayed for dismissal of the appeal. 14 With the assistance of the learned counsel, we were taken through the material on record. Perusal of testimony of PW4 Dinesh Shah indicates that he claims to be eye witness to the incident. In the examination in chief he says that he knew the victim as also the accused. Still he initially says that he saw somebody assaulting the victim. Thereafter, he says that the accused assaulted the victim and he is present in the court. He further deposed that he rushed towards the house of the victim and informed the mother of the victim. He was afraid to go to the police station and therefore went to the office of advocate Madhubalaa Shetty. He informed the said incident to Advocate Madhubala Shetty who deputed one person to accompany PW.4 11 for lodging the complaint. In the examination in chief, he further says that he could not identify the iron rod which was shown to him. 15 In the cross examination, he deposed that at the time of incident, he was suffering from Dengu fever and on that count he was taking medical treatment from one Dr. Anant Wagh. Due to Dengu fever, he became week. He further deposed that there were no street lights and there was darkness. In the cross examination he comes with the story that initially when he went alongwith person deputed by the Advocate Madhubala Shetty, the police did not take cognizance. Thereafter, Advocate Shetty came to the police station at about 11 p.m. and his complaint was recorded by the police after 20 minutes. In the cross examination, it has been brought on record that the police interrogated PW.4 continuously for four days from morning to 9.30 p.m. In view of his continuous interrogation PW.4 Dinesh Shah felt that police suspected him to be a culprit. He applied for the anticipatory bail in the court of Sessions. 16 Shri Chitnis, learned Senior Counsel criticized the evidence of PW.4 on the ground that he informed about the 12 assault to PW.7 Kokila, mother of the victim. However, PW.7 Kokila claims that one boy Istriwala informed about the assault to her. In so far as the testimony of PW.9 Kamlesh is concerned, in the entire evidence, he does not disclose that it is he who informed about the assault to the parents of the victim. In so far as the testimony of PW.10 father of the victim is concerned, he is totally silent on the aspect as to who gave information about the assault to them. On the contrary, he had deposed that he heard the victim was assaulted at about 9.30 p.m. and went towards the place of the incident. Even the statement of PW.10 was recorded on November 17, 2003 though he claims to be present at the scene of offence. 17 Shri Chitnis, learned senior counsel further submitted that motive alleged by the prosecution is that the victim had taken Rs.1,500/- from the accused and this fact was disclosed by his wife Kokila PW.7. In her evidence, however, she has not disclosed this fact. Shri Chitnis, learned senior counsel also criticized the testimony of PW.7 Kokila on the ground that though she claimed to have received information from one boy Istriwala, she did not categorically disclose the name of that Istriwala. After she got the information, she came to the place 13 of incident and saw that the accused was standing near the victim with iron rod. Though she was present at the spot of the incident, that took place on November 12, 2003, the police recorded her statement only on November 17, 2003. She claims to have seen the accused at the distance distance of 3 to 4 feet alongwith iron rod and at that time 20 to 25 persons gathered there. He submitted that whereas PW.4 deposed that after the assault the accused ran away from the scene of the offence and thereafter PW.4 informed Kokila PW.7 mother of the victim. PW.7 claims to have seen the accused standing with iron rod. 18 Shri Chitnis, learned senior counsel submitted that the testimony of PW.4 and PW.7 is totally inconsistent. Even otherwise the human conduct indicates that the assailant will not stay at the scene of offence when 20 to 25 persons gathered there. Even during the deposition of PW.7 Kokila, she did not disclose the alleged motive and for the first time during the deposition of PW.10 Shaligram Patil, the alleged motive is spelt out. He therefore submitted that the testimony of PW.7 was totally unbelievable and liable to be discarded. 14 19 In so far as the testimony of father of the victim PW.10 is concerned, he submitted that PW.10 claims to have visited the spot of the incident and had seen many persons had gathered there. He also deposed that accused was standing with iron rod at the distance of 4 to 5 feet. He does not disclose as to who gave information about the assault whether it was PW.4 Dinesh Shah or PW.9 Kamlesh Kanoja. 20 Shri Chitnis, learned senior counsel further submitted that perusal of testimony of PW.4 indicates that his sister Trupti’s marriage was performed with one Vijay Deshmukh and it was love marriage. The marriage was not approved by his family. The suggestion was given to him as to whether the accused helped the said marriage. He answered that he was not aware about the said marriage. 21 After considering the submissions made on behalf of the parties and after going through the material on record, we are satisfied that prosecution has not established its case beyond the reasonable doubt. Though the prosecution claims that PW.4 and PW.9 are eye witnesses, considering their testimonies, we have grave doubts in our mind as to whether these two witnesses were present at all at the time of incident. 15 There is no consistency between witnesses on the point about who gave information and to whom. As noted earlier PW.4 claims to have informed the mother of the victim PW.7 Kokila. PW.7 Kokila deposed that one boy Istriwala informed her. Though she does not specifically disclose the name of PW.9 Kamlesh. PW.9 Kamlesh does not disclose anything about the disclosure to the parents of the victim. PW.10 does not disclose at all who gave information about the assault to them. On the other hand, he deposed that upon hearing the assault on the victim, he and PW.7 Kokila came to the spot of the incident. 22 In so far as PW.4 Dinesh is concerned in the cross examination he admitted that infact he was interrogated continuously from four days. At one stage, the police suspected that he is a culprit. Accordingly, he applied for anticipatory bail. We find merit in the submission advanced on behalf of the accused that, the complaint was not immediately lodged after the commission of offence. Infact, the complaint was lodged at about 11.20 p.m. and the delay of two hours is sought to be explained on the count that PW.4 Dinesh was afraid to go to the police station and he therefore he went to the office of advocate Madhubala Shetty. The police did not record the 16 statement of Advocate Madhubala Shetty, as also the prosecution did not examine Advocate Madhubala Shetty to explain the delay of two hours in lodging the complaint. P.W.12 Kalyanrao Eknath Karpe deposed in the cross-examination that the fact that after the incident PW.4 Dinesh went to office of Madhubala Shetty and narrated her the incident and that she deputed one person to accompany the complainant and the complainant came to the police station alongwith the said person is not mentioned in the FIR at Exh.51. He further deposed that at the time of recording complaint, complainant PW.4 Dinesh was alone. Thus, the case made out by PW.4 Dinesh that initially the police did not take cognizance of his complaint and after advocate Shetty came to the police station at about 11 p.m. his complaint was recorded by the police is falsified. 23. In so far as PW.9 Kamlesh is concerned, in the cross examination he deposed that he had stated to police in his statement that he saw accused was assaulting with iron rod on the head of the victim and that the said fact is not found in his statement. This assumes importance as the statement of PW.9 was recorded by the police on November 17, 2003. Even 17 Investigating Officer PW.14 Vasant Baba Satpute in his cross examination stated that he recorded the statement of PW.9 Kamlesh and while recording his statement, he did not state that PW.9 Kamlesh saw the accused was holding with iron rod and assaulted on the head of the victim. PW.14 also deposed that he did not record the statement of Raju Sakpal who accompanied PW.7 Kokila for admitting the victim in Municipal Hospital at Vashi. That apart when PW.7 brought the victim in the Municipal Hospital and at that time one Raju Sakpal accompanied her. PW.7 did not disclose about the assault and also the name of the assailant. Even Raju Sakpal was not examined. This really creates a doubt in our mind as to whether PW.7 had seen the accused alongwith iron rod as she claimed to have. If she had really seen the accused alongwith iron rod, certainly she would have disclosed the name of assailant at the time of the admission of the victim in Municipal Hospital, New Mumbai. We are therefore, satisfied that oral testimony of this witnesses do not inspire confidence and are not reliable. If the oral testimony of the witnesses is discarded from consideration, the only evidence against accused is in the respect of reports of the C.A. at Exh.77 and Exh.78. As observed earlier even this 18 C.A. Reports do not substantiate the case of the prosecution. In paragraph 15 of the Judgment, the learned Sessions Judge has observed that as per C.A. Report at Exh.78 the iron rod was bearing blood stains of human but the group of the iron rod and the shirt of the accused and the victim could not be detected as per C.A. Report. The blood group could not be determined and report was inconclusive. As per C.A. Report at Exh.77, the blood group of the accused was ‘B’ group. There is no supporting evidence of Chemical Analyser report to prove that the shirt of the accused and the weapon of assault i.e. iron rod were bearing blood having ‘B’ group of the victim. In this state of affairs, we are clearly of the opinion that the prosecution has not established guilt of the accused beyond reasonable doubt. In such circumstances, the conviction and the sentence cannot be maintained and the accused is entitled to the benefit of doubt. 24. In the result, appeal succeeds and the same is allowed. The impugned judgment and order dated February20, 2008 passed by the Incharge 1st Ad hoc Additional Sessions Judge, Thane in Sessions Case No. 106 of 2005 is quashed and set aside. The amount of fine if deposited by the accused be 19 refunded to the accused within one month from today. The accused be released forthwith unless required in any other case/s. (R.G. KETKAR, J) (P.B. MAJMUDAR, J)