Arvind S/O Jiyalal Roy + One vs The State Of Mah on 25 June, 2018

[Cites 6, Cited by 0]

Bombay High Court

Arvind S/O Jiyalal Roy + One vs The State Of Mah on 25 June, 2018

Bench: Swapna Joshi

Judgment

apeals 619 & 630.06 11

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.619 of 2006
AND
CRIMINAL APPEAL NO.630 OF 2006

CRIMINAL APPEAL NO.619 of 2006
(1) Gopal s/o Jiyalal Roy,
Aged 31 years, Occupation Business,
R/o Plot No.43, Kukde Layout,
P.S. Ajni, Nagpur.

(2) Vasant s/o Jiyalal Roy,
Aged 39 years, Occupation Business,
R/o Plot No.43, Kukde Layout,
P.S. Ajni, Nagpur. ..... Appellants.

:: VERSUS ::

State of Maharashtra,
(Through P.S.O. Ajni, Nagpur) ..... Respondent.
==============================================================
Shri A.M. Jaltare, Counsel for the appellants.
Shri Amit Chutke, Addl.P.P. for the respondent/State
==============================================================

CRIMINAL APPEAL NO.630 OF 2006
(1) Arvind s/o Jiyalal Roy,
Aged 41 years, Occupation Business,
R/o Plot No.43, Kukde Layout,
Police Station Ajni, Nagpur.

(2) Sunil s/o Jiyalal Roy,
Aged 39 years, Occupation Business,
R/o Plot No.43, Kukde Layout,
Police Station Ajni, Nagpur. ..... Appellants.

:: VERSUS ::

.....2/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

State of Maharashtra,
Through Police Station Ajni,
Nagpur. ..... Respondent.
==============================================================
Shri C.R. Thakur, Counsel for the appellants.
Shri Amit Chutke, Addl.P.P. for the respondent/State
==============================================================
CORAM : MRS. SWAPNA JOSHI, J.
DATE : JUNE 25, 2018.

COMMON JUDGMENT

1. Since these two appeals arise out of same judgment and order of

conviction dated 30.9.2006 passed by learned 2nd Ad hoc Additional Sessions

Judge, Nagpur in Sessions Trial No.290/2000, they are taken up for hearing and

are disposed of by this common judgment. Learned Sessions Judge convicted the

appellants (hereinafter referred to as "the accused") for offences punishable

under Sections 147 and 148 read with Section 149 of the I.P.C. and sentenced

them to suffer simple imprisonment for 1 year and to pay a fine of Rs.500/- and in

default of the same to suffer simple imprisonment for 2 months each. The

accused were also convicted for offence punishable under Section 323 of the

I.P.C. and sentenced to suffer simple imprisonment for 3 months and to pay a fine

of Rs.500/- and default of the same to suffer simple imprisonment for 1 month

each. The accused were also convicted for offence punishable under Section 341

read with Section 149 of the I.P.C. and sentenced to suffer simple imprisonment

for 1 month and to pay a fine of Rs.500/- and in default of the same to suffer

simple imprisonment for 15 days each. The accused were also convicted for

.....3/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

offence punishable under Section 342 read with Section 149 of the I.P.C. and

sentenced to suffer simple imprisonment for 3 months and to pay a fine of

Rs.500/- and in default of the same to suffer simple imprisonment for 2 months

each. The accused were also convicted for offence punishable under Section 452

read with Section 149 of the I.P.C. and sentenced to suffer simple imprisonment

for 6 months and to pay a fine of Rs.500/- and in default of the same to suffer

simple imprisonment for 2 months each. They were also convicted for offence

punishable under Section 506 read with Section 149 of the I.P.C. and sentenced to

suffer simple imprisonment for 1 year and to pay a fine of Rs.500/- and default of

the same to suffer simple imprisonment for 2 months each. Learned Sessions

Judge directed that all the sentences to run concurrently.

2. The prosecution case, as can be summarized in a nutshell, is that:

prosecution witness Nos.10, 11, 12, and 13 are from the same family. Jospin

Silvester Fransis (PW10) and Katherine Silvester Fransis (PW12) are sisters.

George Silvester Fransis (PW11) is brother of PW10 and PW12. Whereas,

Hruday Swami Charli (PW13) is nephew of PW10; PW11, and PW12. Except

accused No.3 Rajesh Waghmare, all accused persons were brothers and sons of

owner of property viz. Jiyalal Roy. Complainant Jospin (PW10) along with her

family members was residing as a tenant in the house of Jiyalal Roy. Their tented

house was situated at plot No.43, Kukde Layout, Nagpur. The dispute was going

.....4/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

on between the landowner and the tenant, in respect of the house wherein the

complainant along with her family was residing, since last 22-23 years. A civil suit

was pending between the landowner and the tenant in the civil court. It is the

case of the prosecution that during intervening night of 29.11.2000 and

30.11.2000, at about 1:30 a.m., when the complainant along with her family

members was sleeping, suddenly about 5-6 persons entered into her house from

backside door which was open. Those persons caught hold brother of the

complainant namely George and started assaulting him. He shouted loudly, as a

result of which all the family members woke up. The persons pressed neck of the

complainant and others and they started assaulting all of them. Those persons

were holding swords and iron strips in their hands and they damaged articles in

the house of the complainant and kept the same in a truck. They affixed sticky

tape on mouth of the complainant and others. They also tied their hands with rope

and then snatched keys of cupboard. Thereafter, they took the complainant and

others to house of her brother Arik Swami Fransis (not examined) and left them

there. Those persons threw the household articles collected from the house of the

complainant on vacant plot belonging to her sister (not examined). The

complainant then contacted the police telephonically. The police arrived to the

spot. The complainant was taken to the police station and her complaint came to

be recorded by the police on 30.11.1999 at 9:00 O'clock in the morning (Exhibit

90). On the basis of the said complaint, the police registered an offence vide

.....5/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

Crime No.412/1999. The police conducted spot panchanama (Exhibit 65) and

recorded statements of relevant witnesses. On completion of investigation,

submitted chargesheet before learned J.M.F.C.. The case was committed to the

Sessions Court. Learned Sessions Judge framed charge. On analysis of

evidence and after hearing both the sides, convicted the accused as aforesaid.

3. Learned counsel for the accused strenuously argued that no

independent witness was examined by the prosecution. He placed reliance on

testimony of PW10; PW11; PW12, and PW13. According to him, those were

interesting witnesses. He submitted that learned Trial Judge also failed to

consider that evidence of those witnesses was not at all reliable and there were

material omissions and contradictions in testimony of those witnesses which go to

the root of the prosecution case. It was further submitted that there was no

consistency in testimony of the witnesses with regard to holding of weapons

allegedly used in the commission of offence and recovery of the same was not

proved by the investigating agency. It was further pointed out that even the

investigating officer was not examined in the present case. Therefore, learned

counsel for the accused submitted that neither the recovery of weapons nor

omissions and contradictions in testimony of the witnesses was proved by the

prosecution. According to learned counsel for the accused, as there was long

standing dispute between the complainant and the accused on the point of

.....6/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

property, false case was foisted against the accused and they were falsely

implicated in the crime in question.

4. Per contra, learned Additional Public Prosecutor Shri Amit Chutke

for the respondent/State contended that learned Trial Judge has rightly placed

reliance upon testimony of the prosecution witnesses and convicted the accused.

He supported the judgment passed by learned Trial Judge.

5. In order to consider the rival contentions of both the sides, it would

be appropriate to go through evidence led by the prosecution witnesses. The

prosecution has heavily relied upon testimony of PW10; PW11; PW12, and PW13.

Jospin Fransis (PW10) is complainant. The testimony of PW10 Jospin shows that

during the night of 29.11.1999, after having dinner went to sleep, she heard shouts

of her brother George (PW11) from rear side door. As her brother was shouting as

"Bachao - Bachao", she and her family members woke up. PW10 Jospin noticed

that about 5-6 persons were assaulting her brother George. Those persons were

Gopal (accused No.1); Vasant (accused No.2); Arvind (accused No.6); Sunil

(accused No.7), and one more person whose name she did not remember. She

stated that all the accused persons were holding katyar, iron rods, and country

made pistol in their hands. They were threatening her brother by pointing out the

weapons and beating him with fist and kick blows. They brought her brother to the

middle room of the house. They assaulted all of them. PW10 Jospin was

.....7/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

assaulted, by means of big knife on her head, by Rajesh Waghmare. They

opened door and called 6-7 other persons standing on the ground floor to the

upper floor. The accused persons forcibly obtained signatures of the members of

her family on a blank stamp paper and threatened them to kill, if they do not sign.

The accused persons then tied hands and legs of her brother George by means of

rope. So also, they tied Hruday Swami (PW13). They also tied hands of PW10

Jospin. Thereafter, the accused persons gagged the mouth of Jospin and others

by applying sticky tape. The said episode continued, till morning. One of the

accused outraged modesty of sister of PW10 Jospin. The accused persons also

took out all household articles and loaded the same in a matador. PW10 Jospin

stated that accused No.1 Gopal forcibly took out a key which PW10 Jospin was

having and opened the door of almirah with the key. After searching, he again

locked the almirah and kept it in his custody. The accused threatened not to shout

and brought all of them to the ground floor of the house. The accused made

PW10 Jospin and others to walk towards the house of the brother of PW10 Jospin

at Babulkheda and showed them the articles which were thrown on open plot of

sister of PW10 Jospin. On the way, one Shantibai met and enquired them as to

where they were going in the early morning and the accused threatened her. The

accused then asked PW10 Jospin and others to enter into house of her brother.

The accused threatened not to disclose the incident to the police. PW10 Jospin

narrated the incident to the police on telephone. Police reached at the house of

.....8/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

her brother at 6:00 a.m.. Police then took them to Ajni Police Station. Thereafter,

complaint (Exhibit 90) of PW10 Jospin came to be recorded. Police took charge of

the articles lying on the spot. PW10 Jospin found 90 grams of gold ornaments

and cash of Rs.20,000/- kept in the locker of the almirah missing.

6. During extensive cross-examination of PW10 Jospin, many

improvements were pointed out in her version to the effect that articles were taken

away in the matador; name of Rajesh did not appear in the report; she heard

shout of her brother George as "Bachao-Bachao"; there was a country made pistol

and knife in the hands of the accused persons; accused Rajesh assaulted her by

means of knife on her head, she had sustained swelling injury on her head;

accused Gopal opened front side door, accused persons forcibly took her and

members in her family signatures on a blank paper by giving them threats;

accused persons tied legs and hands of two male members, one of the accused

outraged modesty of her sister Katherine; accused Gopal forcibly took key from

her and opened door of almirah and enquired with her whether any valuables were

in the almirah and, thereafter, he took a search of the almirah and again locked

the same; the accused gave threats not to raise shouts, and lastly on the way the

accused persons showed them the place where the thrown articles were lying.

Further, an improvement was also pointed out to the effect that when the accused

persons were taking them by road, the people were watching them. It is also an

.....9/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

improvement that when on the way Shantibai met and enquired them as to where

they were going in the early morning, the accused threatened her so also Jospin

and others not to disclose the incident to the police. All the aforesaid

improvements were pointed out in the testimony of PW10 Jospin. During cross-

examination, PW10 Jospin categorically stated that the articles were lying on open

plot of land for about 1 month which appears to be improbable version made by

her. PW10 Jospin admitted that in front of her house, there were the Railway

Police Quarters wherein 50-100 families were residing. So also, there was the

Railway Police Headquarters. To a specific query being put to PW10 Jospin that

since vacated the house on 2.10.1999, she did not give arrears of rent and electric

bill and she agreed to give the same within two months and accordingly a writing

was executed (Exhibit 94), her reply was in negative. It was further suggested that

as she feared that the accused persons would take action against her and

members of her family, she took articles from her house to her brothers' house and

kept it on the open plot and created a false scene.

7. Careful scrutiny of the evidence of PW10 Jospin shows that it is a

full of improvements, embellishments, exaggerations, and discrepancies which go

to the root of the case and the testimony of PW10 Jospin cannot be relied upon.

Even, the testimony of PW10 Jospin is not in consonance with the contents in the

First Information Report (F.I.R.) (Exhibit 90).

.....10/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

8. The testimony of George Fransis (PW11) indicates that in the night

of 29.11.1999, at about 1:00 a.m., 5-6 persons entered in their house and they

assaulted him. Those persons were, Arvind, Gopal, Sunil, Vasant, Rajesh, and

one person whose name he was not knowing. PW11 George deposed that by

beating, those persons brought him to the middle room of the house. They also

started beating his sisters Jospin and Katherine and nephew Hruday. The

accused persons were holding knife, iron plates, and country made revolver.

Accused Rajesh assaulted with knife on the head of his sister Jospin (PW10).

They started threatening other members in the family on the point of knife and

they took signature of PW11 George and signatures of his sisters Jospin (PW10)

and Katherine (PW12) on a blank paper. The accused persons again started

beating them and as George (PW11) shouted, they gagged their mouth by means

of sticky cloth. The accused persons tied legs and hands of PW11 George and

Hruday (PW13). The accused persons threatened them to keep quiet, otherwise

they would kill them. Accused Gopal took key of Godrej almirah from his sister

Jospin (PW10). The accused persons after opening the almirah and searching

articles in it, scattered the articles in the almirah and took the almirah in their

custody by pulling it to a middle room of the house. Thereafter, the accused

opened front door of the house. PW11 George further deposed that at that time

accused Anil along with 10-15 persons entered into the house and started giving

threats to vacate the house, otherwise they would beat him and members in his

.....11/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

family. The accused persons also threatened that if they do not vacate the house,

they would throw them from the first floor. Thereafter, the accused persons started

removing all household articles out of the house and they loaded the same in

matador. The said episode continued, till 5:00 a.m. in the morning. PW11 George

deposed that the accused persons did not allow his sister Katherine (PW12) to go

for piss and by giving a kick asked her to piss on the spot only. The accused

persons then forcibly removed Jospin (PW10) and others from their house saying

that they would reach them to the house of their brother. The accused persons

untied legs of PW11 George and others. He deposed that at that time there were

sticky cloths on their mouth. Thereafter, on the point of knife, the accused persons

took PW11 George and others to the house of their brother Arik by walk, upto

Babulkheda. The accused persons showed the household articles to PW11

George and others which they had thrown from matador. PW11 George stated

that on the way a lady Shantibai met and enquired them as to where were they

going. At that time, the accused persons rushed to beat Shantibai. On reaching

to the house of the brother of PW11 George, the accused persons untied their

hands. The accused persons removed the sticky cloths from the mouth of PW11

George and others and threatened them that if they approach to the police, they

would kill them. Thereafter, the accused persons fled away from the spot.

9. PW11 George, deposed that, thereafter, he contacted the police

.....12/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

control room on phone at about 6:00 a.m.. The Ajni Police reached to the house

of their brother and took them to Ajni Police Station. After some time, the police

came to the spot where the articles were lying. The police did not allow his sisters

to break open lock of the almirah. The key of the said almirah was with accused

Gopal. Thereafter, the police left that place. PW11 George deposed that after an

hour, one Thakare broke opened lock of the almirah. At that time, PW11 George

found gold bangles, gold tops, and gold ring amounting to 90 grams of ornaments

and cash of Rs.20,000/- missing. They went to the police station at about 5:00

p.m. and on the same day informed the police about the missing of ornaments.

10. During cross-examination, PW11 George stated that he sustained

injuries during the course of the incident. However, he stated that the police did

not send him to hospital for medical treatment. The testimony of PW11 George

though shows that he received injuries and he was not referred for medical

examination, his testimony does not make clear the nature of injuries he had

sustained. During cross-examination of PW11 George, many improvements were

pointed out by the defence to the effect that accused Rajesh assaulted by means

of knife on the head of Jospin (PW10), the accused persons forcibly took their

signatures on a blank paper, George (PW11) shouted when 5-6 person beat him;

the accused persons gave them threats to keep quiet otherwise they would kill

them and at that time there was a country made revolver in the hand of accused

.....13/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

Rajesh; accused Gopal snatched the key from neck of Jospin (PW10) and opened

almirah; the accused searched and scattered the articles in the almirah; the

accused persons opened front door of the house; accused Anil along with 10-15

persons entered inside the house and threatened them to vacate the house

otherwise they would throw them to the ground floor of the house; the accused

persons did not allow his sister Katherine (PW12) to go for piss and by giving a

kick asked her to piss on the spot only; the accused persons forcibly removed

them from their house saying that they would reach them to the house of their

brother; on the point of knife the accused persons took George (PW11) and others

to the house of their brother Arik by walk upto Babulkheda; the accused persons

showed them the household articles which they had thrown from matador; on the

way a lady Shantibai met and enquired them as to where were they going and

when they were about to talk to her, the accused persons got vacated the house

by assaulting them and at that time the accused persons rushed to beat Shantibai;

on reaching to the house of their brother the accused persons untied their hands,

and the accused persons removed the sticky cloths from their mouth and

threatened them that if they approach to the police, they would kill them. All these

improvements were made by PW11 George in his version before the Court.

11. PW11 George further stated that he had stated in his statement

dated 3.12.1999 that the police did not allow him to break open the almirah as the

.....14/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

key was with accused Gopal. Further, he had stated before the Court that at

about 12:00 p.m. with the help of a man he broke open the almirah and that time it

was found that other gold ornaments were missing. It was further improvement in

the version of PW11 that he had not stated in his statement dated 3.12.1999 that

at 6:00 p.m. he went to report the police about the missing ornaments. Thus, the

testimony of PW11 George is full of improvements, exaggeration, discrepancies,

and embellishments. The testimony of PW11 George does not corroborate with

the testimony of PW10 Jospin on material aspects. It is noticed that according to

PW10 Jospin, their signatures were obtained on a blank stamp paper, whereas

according to PW11 George, the signatures were obtained on a blank paper.

PW10 Jospin did not state about the fact that the accused persons did not allow

her sister Katherine (PW12) to go for piss and by giving a kick asked her to piss

on the spot only. Significantly, according to PW10 Jospin and PW11 George, on

the way when a lady Shantibai met and enquired them as to where they were

going, their mouth were gagged by means of sticky cloths. It is unbelievable that

the accused persons after gagging the mouth of the prosecution witnesses by

means of sticky cloths would walk from the place of the incident to the place of the

brother of the prosecution witnesses, which the distance was of 10 minutes

walking. It is also unbelievable that Shantibai met them on the way and enquired

with them. Significantly, Shantibai though was examined by the prosecution, did

not support the case of the prosecution and hence she was declared hostile. As

.....15/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

such, nothing fruitful was elicited from her cross-examination. Even, PW10 Jospin

failed to give the description of the gold ornaments which were found missing

from the almirah. According to PW10 Jospin, the rod produced before the Court

was not the same used in the commission of offence. Whereas, according to

testimony of PW11 George, the rod produced before the Court was the same used

in the commission of offence. Thus, testimony of PW10 Jospin and PW11 George

does not inspire confidence and throw light on the aspect of the accused

assaulting and threatening the prosecution witnesses with dire consequences.

Significantly, no complaint, as regards missing of the gold ornaments, was made

by the witnesses to the police.

12. The deposition of Katherine Fransis (PW12) demonstrates that

during intervening night of 29.11.2000 and 30.11.2000, at about 1:30 a.m., 4-5

persons entered into the house from rear side door. Those persons were holding

handmade pistol, swords, and weapons in their hands. They started beating her

brother George (PW11) with fist and kick blows. Therefore, she and members in

the family started shouting. Those persons were namely Gopal, Vasant, Sunil,

Arvind, Rajesh Waghmare, and one unknown person. The accused persons

threatened to the witnesses to kill them by means of country made revolver.

According to PW12 Katherine, accused Anil came from the front door of the house

along with 8 persons. They tied the legs and hands of PW12 Katherine and her

.....16/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

brother George (PW11). They gagged their mouth with sticky cloth. Thereafter,

accused Gopal took out the cloth from their mouth and threatened them to sign on

a blank stamp paper. Accused Gopal took a key from her sister Jospin (PW10)

and opened almirah and took out all articles in his possession. She stated that

accused Rajesh dashed her brother George (PW11) forcibly on the wall.

Therefore, her sister Jospin (PW10) shouted loudly. Accused Rajesh assaulted

her sister Jospin (PW10) by means of knife on her head. The accused persons

abused them. Thereafter, they started taking them to the house of their brother

residing at Babulkheda. A lady Shantibai met them on the way. On reaching them

to the house of their brother at Babulkheda by the accused persons, the accused

persons fled away from the spot. Thereafter, Jospin (PW10) informed the police

telephonically about the said incident. According to PW12 Katherine, the accused

persons did all these things to get the house vacated. According to PW12

Katherine, there were 2 doors to their house, one to the front side and another to

the rear side. The rear side door of the house was not open but it was closed.

Significantly, according to Jospin (PW10), rear side door of the house was open

during that night. PW12 Katherine denied that through the door which was

already open, 5-6 persons entered to their house. The said version finds in her

statement marked as portion "B" for identification. The said contradiction also

creates a doubt as to whether the rear side door of the house was open and the

accused persons entered inside the house from the said door. It is surprising that

.....17/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

the rear side door of the house was kept open by the complainant during the night

hours and that too in a winter season. It is worth noting that it is not the case of

the prosecution that the accused persons broke upon any of the doors and then

they entered inside the house of the prosecution witnesses. Even, the spot

panchanama does not throw any light on the said aspect. The panch witnesses

on the point of the spot panchanama have not supported the case of the

prosecution. Even the investigating officer, who investigated the case, has not

been examined by the prosecution. In view thereof, it is doubtful as to by which

door the accused persons entered into the house of the prosecution witnesses.

The improvements pointed out in the version of PW12 Katherine are that 5-6

persons were holding with "Deshi Katta" and all weapons in their hands; all

brothers and sisters started shouting and as they shouted, those persons on the

point of knife and pistol threatened them not to shout; amongst 5-6 persons

accused Rajesh was also present; accused Anil along with 8 unknown persons

entered into their house from the front door of the house and those persons took

out sticky cloth from their mouth and by giving them threats took signatures on

a blank stamp paper; accused Gopal took a key from his sister Jospin (PW10) and

opened almirah and took out all articles in the almirah in his possession; accused

Rajesh dashed her brother George (PW11) forcibly on the wall and assaulted her

sister by the handle of the knife on her head, and a lady Shantibai met and

enquired them on the way. All these improvements pointed out in the testimony of

.....18/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

PW12 Katherine make the entire case of the prosecution doubtful. It creates a

serious doubt as to whether such incident had ever taken place in the house of

Jospin (PW10), the complainant.

13. The testimony of Hruday Swami (PW13) does not corroborate with

the testimony of PW10; PW11, and PW12. He stated that the accused persons

made him; Jospin (PW10); and his uncle George (PW11) to sit by the side and

they started beating his uncle George. When his aunt Jospin shouted, the

accused persons assaulted her by means of knife on her head. Significantly,

PW10; PW11, and PW12 did not state that the accused persons made them to sit

by the side and started beating George (PW11). From the testimony of PW13

Hruday Swami it appears that his statement was recorded on 3.12.1999. It is not

clear as to why statements of PW11; PW12, and PW13 were recorded on

3.12.1999 though they were available when complaint (Exhibit 90) of Jospin

(PW10) was recorded by the police on 30.11.1999. As per the testimony of PW10

Jospin and PW12 Katherine one Thakare broke open the almirah at 12:00 p.m.,

however the same fact is not found in the testimony of PW12 Katherine and

PW13 Hruday. PW13 Hruday admitted that he was watching the articles on the

open plot since morning of the incident, till evening. In the circumstances, it is

doubtful whether PW10; PW11, and PW12 found the articles missing from the

almirah which was broken with the help of a man at about 12:00 p.m.. The

.....19/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

improvements were pointed out in the testimony of PW13 Hruday to the effect that

the accused persons assaulted his uncle George (PW11) by means of a pointed

weapon and they also assaulted his aunt Jospin (PW10) by means of a knife on

her head. Amongst those persons, Rajesh was the person who threatened the

members in the family by pointing out a country made pistol. Similarly, an

improvement was also pointed out to the effect that those persons took their

signatures on a blank stamp paper. Accused Gopal took a key from Jospin

(PW10) and opened the almirah and was searching the articles. On the way, a

lady Shantibai met and the accused persons threatened them not to talk to her.

Thus, the testimony of these prosecution witnesses is full of exaggerations,

improvements, and embellishments and brings the entire case of the prosecution

under a shadow of doubt.

14. The investigating officer has not been examined by the

prosecution. Therefore, the defence did not get an opportunity to prove the

contradictions and omissions in the evidence of the witnesses through the

investigating officer. Similarly, recovery of the articles has not been proved by the

prosecution through the investigating officer. It is pertinent to note that the

witnesses on the point of recovery of articles did not support the case of the

prosecution. Thus, there is no evidence with regard to recovery of the articles or

its discovery at the instance of the accused persons. The incident allegedly had

.....20/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

taken place during intervening night of 29.11.2000 and 30.11.2000, at about 1:30

a.m.. However, the prosecution has failed to establish whether there was

sufficient light at the time of the incident in the house of PW10 Jospin. The

identity of the accused persons is also not established beyond reasonable doubt.

It is also not established as to which of the accused persons was armed with

which weapon at the time of commission of the offence. The case was put up by

the defence that a writing (Exhibit 94), with regard to handing over of the

possession, was already executed by the prosecution witnesses and the same

was admitted by PW10 Jospin. However, it is not clear as to when the rented

premises was handed over by PW10 Jospin and others to the accused persons,

under what circumstances the prosecution witnesses were staying at the place of

the incident and how the incident had taken place. The prosecution has not

examined the independent witness and, therefore, an adverse inference has to be

drawn against the prosecution witnesses as their testimony does not inspire

confidence. The independent witness might have thrown light on the aspect as to

in what manner the actual incident had taken place. The aim and object of the

investigating agency is to find out the truth and the same has not been done. The

investigating officer has not entered into witness box in order to substantiate the

case of the prosecution. None for the witnesses were sent for their medical

examination.

.....21/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::
Judgment

apeals 619 & 630.06 11

15. Thus, the prosecution has failed to prove that the accused persons

caused hurt to the prosecution witnesses on the point of weapon and they

threatened them with dire consequences. There is no cogent evidence with

respect to the fact that the accused persons restrained the prosecution witnesses

in any manner. Further, it is also not proved by the prosecution witnesses that the

accused persons trespassed through the rear side door of the house which was

allegedly kept open by PW10 Jospin. The prosecution cannot lend assurance

from the witnesses whose testimony is not found to be credible. The prosecution

also failed to examine the person on whose open plot the articles were lying.

Thus, the entire case of the prosecution is under a shadow of doubt. Learned

Sessions Judge ought to have considered all these aspects while convicting the

accused. In view of the facts and circumstances of the case, the judgment and

order impugned in the appeal needs to be quashed and set aside. Hence, the

following order:

ORDER

(i) The criminal appeals stand allowed.

(ii) Judgment and order of conviction dated 30.9.2006 passed by learned 2 nd Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No.290/2000 is hereby quashed and set aside.

.....22/-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 ::: Judgment apeals 619 & 630.06 11 22

(iii) The accused are acquitted of the offences for which they were convicted. (Iv) The bail bonds of the accused stand cancelled.

JUDGE !! BRW !! ...../-

::: Uploaded on - 06/07/2018 ::: Downloaded on - 07/07/2018 23:42:09 :::

Unlock Advanced Research with PRISMAI

Bombay High Court