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2011 Supreme(Bom) 762
2011 ALL MR (Cri) 2426
High Court of Judicature at Bombay
B.H. MARLAPALLE and U.D. SALVI
Sanjay Udahhav Sonawane & Others
Versus
The State of Maharashtra
CRIMINAL APPEAL NO. 958 OF 2003 WITH CRIMINAL APPEAL NO. 1129 OF 2003
Decided on: 07-07-2011
For the Appellants:S.R. Chitnis, Senior Counsel with M.S. Mohite and A.R. Kapadnis i/b. Shailesh Kantharia, Advocates.
For the Respondent: Dr. F.R. Shaikh, APP.
Headnote:Criminal Procedure Code, 1973 - Section 374-Appeal against conviction-Appellant-accused convicted and sentenced under Sections 302 and 134, IPC-Prosecution case itself contradictory-Prosecution failed to prove its case beyond reasonable doubts regarding complicity of any of accused in homicidal death of deceased-Trial Court failed to analyse evidence of prosecution witnesses in proper perspective-Conviction and sentence not sustainable-Set aside-Appeal allowed.-Shrikant died because of stab injuries and Articles 6 and 7 had no blood stains which implied that these injuries were not caused by such sticks. That leaves behind only the sharp weapon i.e. Knife (Article 14). Its discovery has not been proved and as per PW 5 and PW 6, accused No. 3 after giving blows with the same weapon to the deceased had dropped it on the spot and ran away. Thus, the prosecution case itself is contradictory. Even the doctor clarified in his cross-examination that external injuries Nos. 1, 7 and 9 were minor and simple and they were on main bony prominence. They could have been caused by a fall on the rough surface like the road. He has admitted that Article 14-knife was sent to him in a sealed cover though he had admitted that Exhibit 47 did not say so. This also raises doubts about the CA report (Exhibit 84) indicating blood stains of Group "O" on Article 14.
On assessment of the evidence as adduced by the prosecution and on the examination of 18 witnesses, it could not prove its case beyond reasonable doubts, regarding the complicity of any of the accused in the homicidal death of Shrikant on 12th October, 1999 between 9.30 p.m. to 10 p.m. The prosecution could have examined some independent witnesses, so as to corroborate the evidence of Police Constable PW 11 and the family members of the deceased i.e. PW 5 to PW 7. The deposition of PW 18 came to highlight the procedural failures so as to weaken the case of the prosecution. In Court’s considered opinion, the trial Court failed to analyse the evidence of PW 11 and PW 5 to PW 7 in proper perspective and on the backdrop of the circumstances that accused No. 1 had already filed a criminal case for the offence punishable under Section 326 read with 34 of IPC against the deceased and PW 5 and on the same day of the incident i.e. on 12th October, 1999, there was some incident during the day time between accused No. 2 and PW 5. Court have, therefore, no doubt in its mind that the reasoning given by the trial Court in support of the order of conviction is unsustainable and the evidence of the eye witnesses relied upon failed to inspire confidence. Hence, the impugned order of conviction and sentence is required to be set aside by allowing the appeals.
1. Both these appeals filed under Sections 374(2) of Cr.P.C. are directed against the order of conviction and sentence passed in Sessions Case No. 63/2000 by the learned 3rd Ad-hoc Additional Sessions Judge on 22nd July, 2003 and the three accused have been convicted and sentenced for the offence punishable under Section 302 read with 34 of IPC. Criminal Appeal No.958/2003 has been filed by accused nos.1 and 2 whereas Criminal Appeal No.1129/2003 has been filed by accused no.3. Accused Nos.1 and 2 came to be released on bail whereas similar prayer of accused no.3 was turned down by this Court and therefore, he continues to be in jail.
2. As per the prosecution case, accused no.1 Sanjay Sonawane is running “Classic Motor Driving School” and accused nos.2 and 3 were his employees at the relevant time. On 12th October, 1999, one Shrikant @ Baba Chandrakant Shirke, who was an absconding accused in a complaint filed by accused no.1, had come to his house at 489 Centre Street, Opposite Bhimpura Galli and few hundred metres away from his house, he was assaulted on the Centre Street by the accused at about 9.45 p.m. with hocky sticks and sharp weapon (knife) (Article 14). This incident was seen by PW 11 Mahadeo Mali, Police Constable and PW 9 D.Y. Temgire, Police Constable, who were specifically deputed by PW 8 Ganesh Katke, duty ammaldar, at the police chowky, so as to take the deceased in custody as he was reported to be absconding for more than six months and this intimation was given to the police chowky by PW 6 PC Shirke, the brother of the deceased. PW 11 Mahadeo Mali noticed that the victim was lying on the road with bleeding injuries and there was a mob surrounding. The victim was taken in the rickshaw to the police station and from there to the Sassoon Hospital where he was declared dead by the Doctor on duty around 10.30 p.m. PW 11 Mahadeo Mali claimed to have caught hold of accused no.1 and taken him to the Charbavadi police chowky where he was arrested. PW 18 Raghunath Pohekar reached the hospital and the complaint of PW 4 Vijay Shirke, another brother of the deceased, was recorded on the basis of which the FIR came to be registered (Exhibit 36). Inquest Panchnama (Exhibit 9), Spot Panchnama at Exhibit 14 and Seizure Panchnama (Exhibit 17) were made. The dead body was sent for post mortem and PW 10 Dr.Milind Wable conducted it and signed the post mortem notes at Exhibit 46. Accused Nos.2 and 3 came to be arrested on the next date i.e. on 13th October, 1999 and accused no.3 purportedly made some disclosure statements based on which the knife (Article 14) was recovered. Two hocky sticks (Article 6 and 7) (one broken) were also claimed to have been recovered from the spot on 13th October, 1999 under recovery panchnama (Exhibit 69). As per the post mortem report, Shrikant died due to traumatic and haemorrhage shock as a result of stab injury.Investigation was done by PW 18 and he submitted the charge-sheet. As the case was exclusively triable by the Sessions Court, it came to be committed and the charge was framed at Exhibit 3 on 30th November, 2000.
3. The prosecution examined in all 18 witnesses and PW 8 Ganesh Katke, PW 9 DY Temgire, PW 11 Mahadeo Mali and PW 18 Raghunath Pohekar were the police personnel. PW 1 Zubeart Bringanda s/o. Tingo Bringanda, PW 2 S.M. Pawse, PW 3 Pandurang Chorge, PW 12 Bharat Parmar, PW 13 Ashok Deshmukh, PW 14 Vinayak Ugral, PW 15 Paul James and PW 17 Bhagat Tour were the panch witnesses. However, PW 1, PW 3, PW 9 (Police Constable), PW 12, PW 13, PW 14 and PW 15 turned hostile. PW 16 Nishan Kamble was the witness examined to prove the purported extra judicial confession made to him by accused no.2 but he also turned hostile. The prosecution case was mainly based on the evidence of the eye witnesses viz. PW 5 Mrs.V.C. Shirke, mother of the deceased, PW 6 PC Shirke, brother of the deceased, PW 7 Sandhya Kale, sister of the deceased, in addition to the two police constables viz. PW 9 and PW
