: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.254 OF 2005 CRIMINAL APPEAL NO.254 OF 2005 CRIMINAL APPEAL NO.254 OF 2005 Shibu Mukul Das R/o.Manav Dharam Society, Film City Road, Goregaon (East), Room No.14 Mumbai .. Appellant. (Orig.Accused) Versus The State of Maharashtra (at the instance of Dindoshi police station) .. Respondent. Mrs.Aarti P. Bhide, appointed Advocate by Legal Aid Committee for the appellant. Mrs.V.R. Bhonsale, A.P.P. for the respondent. CORAM : SMT. RANJANA DESAI & CORAM : SMT. RANJANA DESAI & CORAM : SMT. RANJANA DESAI & SHRI R.Y. GANOO, JJ. SHRI R.Y. GANOO, JJ. SHRI R.Y. GANOO, JJ. DATE : 22-08-2008. DATE : 22-08-2008. DATE : 22-08-2008. PER : SHRI R.Y. GANOO, J. PER : SHRI R.Y. GANOO, J. PER : SHRI R.Y. GANOO, J. ========================= ========================= ========================= 1. The appellant herein faced trial in Sessions Case No.40 of 2004 for a charge under Section 302 of the Indian Penal Code. The learned Additional Sessions Judge for Greater Bombay (hereinafter referred to as learned Trial Judge) by his Judgement and Order dated 31.8.2004 convicted the appellant under Section 302 of the Indian Penal Code and sentenced the appellant to suffer rigorous imprisonment for life. The learned Trial Judge also : 2 : sentenced the appellant to pay a fine of Rs.10,000/- and further directed that in default of payment of fine he should undergo rigorous imprisonment for three months. In the course of trial, no property was brought before the court and no orders were passed regarding the disposal of the Muddemal. 2. Being aggrieved by the Judgement and Order dated 31.8.2004 passed by the learned Trial Judge as aforesaid, the appellant abovenamed filed this appeal. 3. Prosecution case in brief is as under :- 4. On 26.7.2003 at about 3.30 a.m. at Jaibhim Nagar, Ramdhari Compound, Santosh Nagar, Goregaon (East), Mumbai - 65, the appellant and three others had gone to the premises of deceased Chhotelal Yadav for the purposes of committing a robbery. That was seen by the son of said Chhotelal and, thereafter, the said Chhotelal chased the persons and after some distance one of them was caught by said Chhotelal. On account of that, a scuffle ensued between the said persons, who had come to commit a robbery and somebody from the said group assaulted said Chhotelal. Said Chhotelal was taken to the hospital. He was declared dead before admission. That is to say said Chhotelal died : 3 : in the course of the incident which is said to have been taken place on 26.7.2003 at about 3.30 a.m. 5. The wife of Chhotelal by name Smt.Urmila Yadav, P.W.2 filed F.I.R. (Exhibit-10) (Exhibit-10) (Exhibit-10) on 26.7.2003. She gave a description of one person, who according to her was the assailant sofar as Chhotelal is concerned. Based on the said F.I.R., C.R. No.147 of 2003 was registered under Section 302 r/w.Section 34 of the Indian Penal Code against some unknown persons. The investigation was carried out and the appellant came to be arrested in the said C.R. No.147 of 2003 on 22.10.2003. At the end of the investigation, the charge-sheet was filed against the present appellant and on committal of the case to the court of sessions, the learned Trial Judge framed charge against the appellant under Section 302 of the I.P.C. on 26.2.2004 vide Exhibit-2. Exhibit-2. Exhibit-2. The appellant pleaded not guilty and claimed to be tried. His defence was of denial. 6. The learned Trial Judge conducted the trial. In the course of trial, following witnesses came to be examined :- i) Ramchandra Jankiprasad Yadav, P.W.No.1, : 4 : who is the brother of Chhotelal and who is said to have rushed to the spot on 26.7.2003 on learning from one Mr.Bipin after the incident. ii) Smt.Urmila Chhotelal Yadav, P.W.2, wife of Chhotelal is cited as an eye witness in regard to the manner in which the incident took place. iii) Chandrakant Khokadas Naik, P.W.No.3 is cited by the prosecution as an eye witness to the incident. iv) P.W.No.4 Ismail Mehmood Khan is the Special Executive Officer, who conducted the identification parade on 27.10.2003 at Thane jail sofar as the present appellant is concerned. v) The dead body of Chhotelal was sent to Borivali Post Mortem Centre and the Medical Officer of Borivali Post Mortem Centre conducted the post mortem. From the report, it is observed that the death of said Chhotelal was unnatural death and on account of haemorrhage and shock due to stab wounds on chest. This port mortem report dated 26.7.2003 has been admitted by the appellant : 5 : in the course of the trial. vi) Dayaram Chhotelal Shrivastava, P.W.5, acted as a Panch in regard to the scene of offence panchanama. vii) P.W.6, Sayyed Isamuddin Jainuddin is the Investigation Officer, who had conducted the investigation and had filed the charge-sheet in this case. 7. The important documents which were considered by the learned Trial Judge in the course of trial are as follows :- i) Inquest panchanama dated 26.7.2003 is at Exhibit-5. Exhibit-5. Exhibit-5. ii) Panchanama dated 26.7.2003 regarding taking charge of clothes of Chhotelal. It is at Exhibit-6. Exhibit-6. Exhibit-6. iii) The complaint filed by Smt.Urmila Chhotelal Yadav dated 26.7.2003 is at Exhibit-10. Exhibit-10. Exhibit-10. : 6 : iv) The Memorandum of Identification Parade dated 27.10.2003 relates to the identification parade conducted sofar as appellant is concerned. It is at Exhibit-13. Exhibit-13. Exhibit-13. v) The Port mortem report dated 26.7.2003 is at Exhibit-14 Exhibit-14 Exhibit-14. vi) Panchanama dated 26.7.2003 pertains to scene of offence panchanama. It is at Exhibit-16. Exhibit-16. Exhibit-16. vii) The appellant was arrested on 22.10.2003 and the arrest panchanama is at Exhibit-17. Exhibit-17. Exhibit-17. This panchanama is admitted by the appellant. 8. We have heard learned Advocate Smt.Bhide appearing on behalf of appellant and learned A.P.P. Ms.Bhonsale appearing on behalf of the State. A perusal of the Judgement delivered by the learned Trial Judge goes to show that the learned Trial Judge accepted the testimonies of P.W.1, Ramchandra Yadav, P.W.2 Smt.Urmila Yadav, P.W.3 Chandrakant Naik. The learned Trial Judge also accepted the evidence of Special Executive Officer P.W.4, Ismail Khan read with the Memorandum of Identification parade at Exhibit-13. Exhibit-13. Exhibit-13. The learned Trial Judge observed that the : 7 : evidence of aforesaid witnesses implicates the present appellant and that is how, the learned Trial Judge accepted the case of the prosecution and held the appellant guilty of murder of Chhotelal Yadav and convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- as mentioned aforesaid. 9. The learned Advocate Mrs.Bhide appearing on behalf of the appellant took us through the evidence of P.W.1 Ramchandra Yadav as well as P.W.2 Smt. Urmila Yadav and submitted that these 2 witnesses cannot be cited as an eye witnesses and their evidence is of no use to the prosecution for the purposes of accepting the case of the prosecution. We have gone through the evidence of these 2 witnesses and we are inclined to accept this submission of the learned Advocate Mrs.Bhide. Ramchandra Yadav, P.W.1 is said to have reached the spot of incident after he came to know about the assault on Chhotelal by one Mr.Bipin and, therefore, he was not present at the time of the incident. Insofar as P.W.2 Smt.Urmila Yadav is concerned, she, no doubt, has stated in her examination-in-chief that the robber assaulted her husband. Smt.Urmila P.W.2 has further stated that she alongwith her husband went after : 8 : the robber and Chhotelal was assaulted by the robber. She further states that she tried to seek help but none came forward to help her. In her cross-examination she has admitted that she did not see the assault by knife personally. In the wake of this admission on her part, she can hardly be called as an eye witness. It is pertinent to note that Smt.Urmila P.W.2 was not called to attend the identification parade and as such she has not identified the appellant. If this is the position, P.W.2 Smt.Urmila Yadav cannot be cited as an eye witness. 10. In view of the aforesaid discussion, Ramchandra Yadav, P.W.1 and Smt.Urmila Yadav, P.W.2 cannot be cited as an eye witnesses to the incident and the alleged involvement of the appellant. If this be so, it is difficult to accept the observations of the learned Trial Judge whereby the learned Trial Judge has held that evidence of P.W.1 Ramchandra Yadav and P.W.2 Smt.Urmila Yadav implicate the present appellant and to that extent, we find an error in the impugned judgement. As such the evidence of these 2 witnesses will be of no use to the prosecution. 11. Learned Advocate Mrs.Bhide appearing on behalf of the appellant took us through the evidence of P.W.3, : 9 : Chandrakant Naik, who according to the prosecution, was an eye witness to the incident. Learned Advocate Mrs.Bhide submitted that evidence of P.W.3, Chandrakant Naik will clearly go to show that at the time when the incident is alleged to have taken place, P.W.3, Chandrakant Naik was away from the spot of incident and he was at a distance of about 5 minutes from the spot. She pointed out that the word of P.W.3 Chandrakant Naik in the examination-in-chief, namely, the distance between his window and the spot was about 4 ft. and he had seen through his window that a person had caught another person and others were assaulting Chhotelal is shown to be false once it is accepted that P.W.3 Chandrakant Naik was away from the spot at a distance of about 5 minutes. Mrs.Bhide, therefore, submitted that P.W.3 cannot be cited as an eye witness and there is no material against the present appellant brought before this court through Chandrakant P.W.3 and, therefore, the observations of the learned Trial Judge that the evidence of P.W.3 supports the case of the prosecution cannot be accepted. She submitted that if court comes to the conclusion that P.W.3 cannot be cited as an eye witnesses, the evidence brought before the court through the identification parade is of no relevance. She, therefore, submitted that evidence of P.W.3 should not be accepted by the court. : 10 : 12. Learned Advocate Mrs.Bhonsale in reply to the arguments advanced by Mrs.Bhide submitted that the learned Trial Judge rightly came to the conclusion that P.W.3 Chandrakant Naik was an eye witness to the incident and the learned Trial Judge has rightly accepted the evidence of P.W.3. 13. We have scanned the evidence of P.W.3 Chandrakant Yadav. Chandrakant P.W.3 admits in his examination-in-chief that it would take about 5 minutes from his place to reach the place of incident. He further admits that on the date of the incident, he alongwith others were sleeping and at about 3.00 a.m., he alongwith others woke up after hearing shouts of Chhotelal, whose name he came to know later on. Chandrakant P.W.3 has stated that he saw from his window that a person had caught another person and 2 others were assaulting Chhotelal. He further states that the distance between his window and the place of the incident was 4 ft. He also admits that he and others did not venture out as all of them were having knives in their hands. In the cross-examination, Chandrakant P.W.3 has admitted that all people got up and went to the spot within 5 minutes. If the aforesaid evidence of P.W.3 is read as a whole, it is : 11 : clear that P.W.3 was not present when the incident took place and he was not an eye witness. The admission on part of Chandrakant P.W.3 that his house was about 5 minutes away from the place of incident, falsifies the version about he noticing the alleged incident. 14. Reading the evidence of P.W.3 in totality, we hold that Chandrakant P.W.3 had no opportunity to witness the incident. Consequently, Chandrakant P. W. No.3 cannot be termed as an eye witness. The learned Trial Judge erred in appreciating the evidence of Chandrakant P.W.3. He could not have accepted the evidence of Chandrakant P.W.3 as the one supporting the prosecution. The learned Trial Judge erred to that extent. 15. Once, it is observed that Chandrakant P.W.3 cannot be termed as an eye witness even if the appellant was put up for the identification parade and the appellant is said to have identified by Chandrakant P.W.3, that identification will have no bearing and that piece of evidence will be of no use to the prosecution. 16. The present case involves the incident where one person by name Chhotelal has been assaulted and the post mortem notes at Exhibit-14 Exhibit-14 Exhibit-14 do go to show that he did : 12 : receive injuries which can be termed as vital and the cause of death was haemorrhage and shock due to stab injuries and the death of Chhotelal was unnatural. It is true that the death of Chhotelal was unnatural. However, the prosecution has not been able to make out a case against the appellant to say that the appellant assaulted Chhotelal or that appellant participated in the incident wherein said Chhotelal was assaulted. 17. In view of the aforesaid discussion, we are inclined to observe that the learned Trial Judge erred in accepting the evidence of Ramchandra Yadav, P.W.1, Smt.Urmila Yadav, P.W.2 and Chandrakant Naik, P.W.3 in favour of the prosecution. 18. For the reasons mentioned aforesaid, we accept the arguments advanced by the learned Advocate Mrs.Bhide that the prosecution has failed to prove the guilt of the appellant beyond the shadow of reasonable doubt and that the appellant is required to be acquitted of charge under Section 302 of the I.P.C. by setting aside the order of conviction. The sentence imposed upon the appellant is also required to be set aside. 19. For the reasons mentioned aforesaid, we are : 13 : inclined to allow the appeal and hence the order :- O R D E R O R D E R O R D E R i) Appeal is allowed. ii) The Judgement and Order dated 31.8.2004 passed by the learned Additional Sessions Judge for Greater Bombay in Sessions Case No.40 of 2004 is set aside. iii) The conviction of the appellant under Section 302 of the Indian Penal Code is set aside. The sentence of rigorous imprisonment for life and fine of Rs.10,000/- is also set aside. iv) The appellant is acquitted of charge under Section 302 of the Indian Penal Code. The appellant be set at liberty if he is not required in any other case. v) If the appellant has deposited the fine amount, the said amount be repaid to the appellant. No property was produced before the court in the course of trial and as such there is : 14 : no question of passing an order regarding disposal of the Muddemal. vi) Registrar (Judicial) is directed to communicate this order forthwith to the concerned jail authorities for acting upon it forthwith. (SMT. RANJANA DESAI, J.) (SMT. RANJANA DESAI, J.) (SMT. RANJANA DESAI, J.) (SHRI.R.Y. GANOO, J.) (SHRI.R.Y. GANOO, J.) (SHRI.R.Y. GANOO, J.)