Bombay High Court
Vishwajeet Ganpati Sarkar vs The State Of Maharashtra on 8 June, 2018
Equivalent citations: AIRONLINE 2018 BOM 634
Author: Sarang V. Kotwal
Bench: B. R. Gavai, Sarang V. Kotwal
1 / 14 APEAL-418-10.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.418 OF 2010
Vishwajeet Ganpati Sarkar
of Mumbai, Indian Inhabitant,
aged 45 years,
resident of Room No.129,
Kanchan Tala, Thakur Pada,
Dist-Murshidabad, Taluka Duliyanganga,
West Bengal
(At present at Nashik Jail) .... Appellant
versus
The State of Maharashtra
through MRA Marg Police Station ... Respondent
.......
• Ms.Payoshi Roy, Advocate for the Appellant.
• Mr.H.J. Dedhia, Addl.P.P. for the State/Respondent.
CORAM : B. R. GAVAI &
SARANG V. KOTWAL, JJ.
DATE : 08th JUNE, 2018.
JUDGMENT (PER : SARANG V. KOTWAL, J.) :
1. The Appellant has preferred this Appeal challenging the Judgment and Order dated 30/03/2010 passed by the 2 nd Ad-Hoc. Additional Sessions Judge Bombay at Sewree, Mumbai, in Sessions Case No.73/09. By the impugned Judgment and Nesarikar ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:22 ::: 2 / 14 APEAL-418-10.odt Order, the Appellant was convicted for the commission of offence punishable u/s 302 of IPC and was sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for two weeks. The Appellant was acquitted from the charge of commission of offence punishable under Section 135 of the Bombay Police Act.
2. The prosecution case in nutshell, is as follows:
The present Appellant, one Dinesh Yadav and one Rajan Rammilan Mishra (the deceased in this case) were working together at a Tea Stall. The owner of the tea stall sold it and therefore these three lost their jobs. They started their separate tea stall. But the Appellant broke away from the group and started his own tea stall in Bora Bazar area and since then held grudge against Dinesh Yadav and the deceased Rajan Mishra. On 31/10/2008, at about 08.30 p.m. Rajan and Dinesh finished their day's work and closed their tea stall. Rajan went to take bath in a bathroom near Gautam Niwas. At that time, the ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:22 :::
3 / 14 APEAL-418-10.odt Appellant came with a knife in his hand and stabbed Rajan in his abdomen. Thereafter the accused ran away from the spot. Rajan came out of the bathroom and was shouting as "Bangali assaulted him". Dinesh Yadav and one Kalim Khan took Rajan to St.George's Hospital, where he was declared dead. Dinesh's statement was recorded and on the basis of the said statement, the offence was registered with M.R.A. Marg Police Station, vide C.R.No.392/08 under Section 302 of the Indian Penal Code and u/s 37(1) and 135 of Bombay Police Act.
3. The investigation was carried out. The knife which was embedded in the body of the deceased was taken out during Panchanama and was seized. The Appellant was arrested on 22/11/2008. According to the prosecution case, the Appellant's blood stained clothes were recovered at his instance. The statements of various witnesses were recorded. After completion of the investigation, the charge-sheet was filed and the case was committed to the Court of Sessions.
::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:22 :::
4 / 14 APEAL-418-10.odt
4. During trial, the prosecution examined 16 witnesses. The prosecution case was based on the evidence of P.W.1 Dinesh Yadav who had lodged the FIR as well as the evidence of P.W.6 Mohd. Akram Idris Khan, who had seen the Appellant running away from the spot and the deceased coming out of the bathroom with a knife in his abdomen. P.W.11 Arun Bapu Dhale also claimed to have seen the deceased with his injury. The deceased was shouting as, "Bangali ne mara". Apart from these three main witnesses, the other witnesses were examined as Panchas for various Panchanamas, photographer who had assisted in the investigation, the witness regarding identification parade, the carrier who had carried the muddemal articles to chemical analyzer and different police officers who had conducted the various parts of the investigation. After recording the evidence of the prosecution witnesses and the statement of the accused u/s 313 of Cr.P.C.; and after hearing the arguments, the learned Trial Judge, passed the impugned Judgment and Order.
::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 :::
5 / 14 APEAL-418-10.odt
5. The learned Trial Judge accepted the prosecution evidence and observed that the prosecution case was based on circumstantial evidence and chain of circumstances against the accused was complete. The evidence of P.W.6 Mohd. Akram Khan and P.W.11 Arun Dhale was accepted and the emphasis was laid on the shouts given by the deceased that he was assaulted by 'Bangali'.
6. We have heard learned counsel Ms.Payoshi Roy, who was appointed to argue the case for the Appellant, since the Advocate for the Appellant had remained absent. We have also heard Mr.H.J. Dedhia, Addl.P.P. for the State of Maharashtra.
7. Ms.Roy submitted that the learned Trial Judge has wrongly overlooked the entries in the EPR and the medical papers in the St. George's Hospital, where it was mentioned that the deceased was assaulted by an unknown person. She submitted that this entry in the treatment card at Ex.33 falsifies the evidence of P.W.1 Dinesh Yadav and P.W.6. Mohd.Akram ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 6 / 14 APEAL-418-10.odt Khan. She further submitted that the words "Bangali assaulted him" do not unerringly and conclusively point to the present Appellant.
8. She has also pointed out that the seizure of knife at the time of inquest Panchanama does not appear to be correct as it is mentioned that the knife was taken out from the body of the deceased. She pointed out that the deceased was treated for his injuries as indicated in the post-mortem notes and therefore it was impossible that the knife would be still in his body at the time of inquest Panchanama. She further submitted that the recovery of the clothes at the instance of the present Appellant was from the place which was accessible to all and therefore the said recovery was not incriminating.
9. As against these submissions, the learned Addl. P.P. Mr.H. Dedhia submitted that the evidence of P.W.1, P.W.6 and P.W.11 was sufficient to reach the conclusion of the guilt of the Appellant. He submitted that the utterances by the deceased ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 7 / 14 APEAL-418-10.odt amount to oral Dying Declaration and the said declaration was clearly implicating the present Appellant and therefore the conviction was proper.
10. P.W.1 Dinesh Yadav is the first informant and most important witness for the prosecution. He had given a background of dispute between the deceased and this witness on one hand and the Appellant on the other. According to this witness, because of their separate business of Tea Stall, the Appellant was holding grudge against the deceased which had resulted in the incident dated 31/10/2008. He has deposed that on 31/10/2008 at about 08.30 p.m. after their business hours, the deceased was taking bath in the bathroom near Gautam Niwas. That time, the Appellant came there holding knife in his hand. The Appellant went inside the bathroom. Thereafter this witness heard shouts by Rajan. P.W.1 Dinesh has further deposed that, he saw the Appellant leaving the bathroom and running away. The Appellant had left his Chappal in the bathroom. P.W.1 Dinesh then saw that Rajan was having a knife in his abdomen and was shouting as "Bangali had assaulted ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 8 / 14 APEAL-418-10.odt him". P.W.1 then tried to chase the accused, but could not catch him. Thereafter this witness along with one Kalim Khan took Rajan to St. George's Hospital, where he was declared dead. The record shows that the FIR was registered at 03.40 a.m. on 01/11/2018. The proforma of the FIR at Ex.10 shows that the Police Station had received the information at 10.30 p.m. on 31/10/2018. There is no explanation as to why from 10.30 p.m. till 03.40 a.m. i.e. for almost 5 hours, FIR was not registered. Surprisingly, though the FIR mentioned the name of the present Appellant, the Investigating Officer, chose to conduct the identification parade on 10/12/2008 after the Appellant was arrested on 22/11/2008. According to P.W.1 he identified the Appellant at the identification parade.
11. P.W.6 Mohd. Akram Idris Khan has deposed on the similar lines to those of the P.W.1 in respect of the incident. Curiously this witness was asked to act as a Pancha when the spot panchanama was conducted. He has deposed that he had seen the Appellant running away at about 10.00 p.m. This ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 9 / 14 APEAL-418-10.odt witness has given the date of incident as 01/11/2008. He further deposed that he had seen the deceased with a knife embedded in the abdomen. He has deposed that he along with others took the deceased to St. George's Hospital. He has also deposed that the deceased was shouting "Bangali had assaulted him." P.W.6 identified the Appellant at identification parade. Ms.Roy rightly submitted that if he was the witness to the part of the incident of the accused running away from the spot, he was very well aware of the spot. Therefore he should not have depended on the spot being shown by P.W.1 Dinesh. There is no reference in the Spot Panchanama at Ex.25 that he himself had seen the incident.
12. P.W.9 Dr.Vishal Nakalgaonkar had conducted the post-mortem examination. His evidence shows that there was incised stab wound on the left side of the chest wall (lower side) mid arm pit line oblique 4 x 1 cms x cavity deep. Upper lateral angle - acute, lower medial angle - acute. There were other two injuries, but they were surgical wounds and an injection mark. ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 :::
10 / 14 APEAL-418-10.odt The cause of death was given as "Hemorrhage and shock due to incised stab wound by sharp edged weapon involving vital organs (unnatural)."
13. P.W.11 Arun Bapu Dhale was the third witness who had seen the deceased with knife in his abdomen. He heard the deceased shouting that Bangali had assaulted him. This witness had brought the taxi, but had not accompanied the others to the hospital.
14. Insofar as the evidence of these three witnesses and in particular the evidence of P.W.1 and P.W.6 is concerned, it is destroyed by the entry in the medical papers. P.W.9 Dr.Vishal Nakalgaonkar had conducted the post-mortem examination and has also proved the concerned entry. The Treatment Card is produced on record at Ex.33. The relevant entry reads thus;
"History given by friends (co-workers) Dinesh Yadav and Mohd. Kalim.
A/h/o assault by knife to the lt Side, of abdomen, upper ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 11 / 14 APEAL-418-10.odt part & lt lower chest by an unknown person at Fort at 10.00 pm on 31/10/2008."
15. According to P.W.1 himself he, along with one Kalim, had taken the deceased to the hospital. Both of them were knowing the Appellant and yet the history given by them was in respect of assault on the deceased by an "unknown person". If they had really seen the Appellant running away after the assault and if they had really heard the deceased shouting that the Appellant had assaulted him, there was no reason as to why the Appellant's name was not given when the history of assault was given by them. This is a very important circumstance in favour the Accused/Appellant.
16. It is also quite strange that the Investigating Officer thought it necessary to conduct an identification parade, when the Appellant was already named by the witnesses in the FIR and the police statements. This also throws doubt in the truthfulness of the prosecution case. This approach raises a valid suspicion that the investigating agency was clueless about the ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 12 / 14 APEAL-418-10.odt identity of the assailant. It is doubtful whether P.W.1 and other witnesses had named the Appellant as the assailant of the deceased.
17. The prosecution had examined P.W.4 Shelten Arthur John who was a Pancha in whose presence, the blood stained clothes of the Appellant were recovered at his instance. The clothes were recovered on 25/11/2008 from a corner of a public toilet. As can be seen that the place is obviously visible and accessible to all. As such, this recovery cannot be termed as an incriminating circumstance against the Appellant and therefore the chemical analysis for presence of blood is of no consequence.
18. The prosecution has examined P.W.8 Sohaib Mohammad Jafar Shaikh from whom the Appellant had allegedly purchased the knife. This witness has turned hostile and has not supported the prosecution case. In that connection the prosecution has also examined P.W.5 Deepak Janardan Gamare, in whose presence the Appellant had agreed to show ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 13 / 14 APEAL-418-10.odt the shop from where he had purchased the knife. However, since nothing was discovered pursuant to this statement, even this witness's evidence does not take prosecution any further. P.W.10 Parvez Sahebjan Shaikh had taken the photographs of the dead body on the spot of incident and P.W.12 Rajeeb Hargovinddas had video-graphed some part of investigation. Even their evidence is not of much importance. The other witnesses are concerned with the investigation.
19. The other remaining circumstance against the Appellant is the utterance allegedly heard by P.W.6 and P.W.11 as "Bangali had assaulted him". We have already discussed as to why the evidence of P.W.1 and P.W.6 was not truthful in the light of the entry in the medical papers. Moreover there is no evidence to show that the present Appellant was known as "Bangali" or that the deceased always referred to him as "Bangali". Just because the Appellant hailed from that region, it cannot be presumed that the deceased had referred to the present Appellant. Therefore, even the evidence of P.W.11 Arun ::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 ::: 14 / 14 APEAL-418-10.odt Dhale does not help the prosecution case. The prosecution has not chosen to examine Kalim who had accompanied the P.W.1 when the deceased was taken to the hospital.
20. Thus, taking overall view of the matter, we are of the opinion that the prosecution has failed to prove the case as against the present Appellant beyond reasonable doubt. The Appellant deserves to be extended the benefit of doubt in these circumstances. Hence following order:
ORDER
(i) Appeal is allowed.
(ii) The Judgment and Order of conviction is set aside.
(iii) Appellant is acquitted of the charges, charged with.
(iv) Appellant is directed to be released forthwith, if not required in any other case.
(v) Fees of Ms.Payoshi Roy, learned Advocate, appointed to appear on behalf of the Appellant, is quantified at Rs.5000/- to be paid from High Court Legal Services Committee fund.
(SARANG V. KOTWAL, J.) (B. R. GAVAI, J.)
::: Uploaded on - 18/06/2018 ::: Downloaded on - 18/06/2018 23:52:23 :::