IMPORTANT POINT
Compelling grounds exist in this case in the circumstantial evidence to make prosecution case doubtful and High Court was not justified in upholding the conviction of appellant under Sections 302/34 IPC.

Headnote:Indian Penal Code, 1860-Sections 302/34-Appellant held guilty of murdering one Uday Patole concurrently by Courts below-Appeal against to Supreme Court-Compelling grounds of failure of justice revealed-Circumstantial evidence-Appellant was named by PWs 1, 3 and 9-Patrolling constables but not mentioned in station diary-Name of appellant disclosed for the first time in fard beyan as a history sheeter-Infirmities in test identification parade-No reliance placed on recoveries of blood stained clothes and weapons-Arrest of appellant in injured state-No explanation of injuries by prosecution-Complicity of appellant with the crime found highly doubtful-No motive for crime-Cumulative effect-Doubt about veracity of prosecution case-Result-Acquittal-Appeal allowed.
Held : In the present case, non-explanation of injuries on the appellant by the prosecution assumes significance as there are circumstances which make the prosecution case, showing complicity of appellant with the crime, highly doubtful. Learned counsel appearing on behalf of the appellant submitted that neither there is any allegation nor evidence to show that the appellant had any motive whatsoever to commit the crime. It is well settled that merely because motive is neither alleged nor proved, the same would ipso facto not affect the prosecution case but in case there are other circumstances to create doubt regarding veracity of the prosecution case, this may also become material. In view of the foregoing discussion, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt and the High Court was not justified in upholding conviction of the appellant. In the result, the appeal is allowed, conviction and sentence awarded against the appellant are set aside and he is acquitted of the charge. The appellant, who is in custody, is directed to be released forthwith if not required in connection with any other case. (Paras 10, 11, 12 and 13)

JUDGMENT

B.N. Agrawal, J.-The sole appellant in this appeal by Special Leave has impugned his conviction under Section 302 read with Section 34 of the Penal Code as upheld by Bombay High Court.

2. The short facts are that Shankar Maruti Kamble (PW 1), Dilip Shrirang Barge (PW 2) and Siddharth Keshav Kamble (PW 9) were constables attached to Jogeshwari police station and they were on patrolling duty at Partap Nagar within the jurisdiction of the said police station in the afternoon of 29th October, 1991. At about 3.30 p.m. when they arrived at the junction of Partap Nagar, they saw people running helter skelter from Triveni Lane. They also noticed that four persons were running armed with weapons, i e., swords and choppers shouting that Uday Patole was killed. Dilip Shrirang Barge (PW 2) could identify the appellant-Dhananjay Shanker Shetty as he was known history sheeter from that area and also wanted in criminal cases. The said constables tried to chase the appellant and his three other companions but in vain. Thereupon, they returned back to Triveni Lane junction and found that Uday Patole was lying in pool of blood with several injuries on his person. PW 1 immediately sent telephonic message from the nearby medical stores to the police station stating that Uday Patole was murdered by Dhananjay Shankar Shetty and three other persons on receipt of which Ravindra J. Medsingh-Station Duty Officer, (PW 12) and Bhimrao Shivram Khambe-Inspector of Police (PW 15) rushed to the place of occurrence where statement of Shankar Maruti Kamble (PW 1) was recorded stating therein the above said facts on the basis of which a first information report against the appellant and three unknown persons was registered at Jogeshwari police station at 4.40 p.m.

3. The police after registering the case took up investigation during the course of which when the appellant was arrested he was found injured and accordingly referred by the police to doctor-Dilip Ram Chandra Waje (PW.13) for examination who found several injuries on his person. During investigation, two other persons, namely, Sudhir Dattatraya Shinde and Rajesh Babu Kharat were also arrested as suspect and they along with the appellant were put on test identification parade in which PWs 1, 3 and 9 are said to have identified all of them. Upon completion of investigation, the police submitted charge sheet, on receipt whereof learned Magistrate took cognizance and committed the appellant and the aforesaid two other accused persons to the Court of Sessions to face trial.

4. Defence of the accused was that they were innocent and no occurrence much less the one alleged had taken place.

5. During trial, the prosecution examined 15 witnesses in all and various documents were exhibited. Upon conclusion of the trial, the learned Sessions Judge acquitted other two accused persons of the charge under Section 302 read with Section 34 of the Penal Code whereas convicted the appellant under Section 302 read with section 34 of the Penal Code and sentenced him to undergo imprisonment for life. On appeal being preferred by the appellant, his conviction and sentence have been upheld by the High Court. Hence, this appeal by special leave.

6. Ordinarily, after appraisal of evidence by the two courts below and recording concurrent verdict of conviction, this Court does not interfere with the same, but where it is found that compelling grounds exist and there would be failure of justice, a duty is enjoined upon it to reappraise the evidence itself for doing complete justice in the case. In the facts and circumstances of the present case, we deem it fit and proper to reappraise the evidence.

7. Undisputedly, in the case on hand, there is no direct evidence as nobody is said to have seen the accused persons assaulting Uday Patole, the deceased, and it is a case of circumstantial evidence. The most important circumstance against the appellant was that PWs. 1, 3 and 9 who were on patrolling duty had seen t

Click Here to Read the rest of this document

2002 Supreme(SC) 745

IMPORTANT POINTCompelling grounds exist in this case in the circumstantial evidence to make prosecution case doubtful and High Court was not justified in upholding the conviction of appellant under Sections 302/34 IPC.

Cases Referred (2)

IMPORTANT POINT
Compelling grounds exist in this case in the circumstantial evidence to make prosecution case doubtful and High Court was not justified in upholding the conviction of appellant under Sections 302/34 IPC.