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2015 Supreme(Bom) 2072
IN THE HIGH COURT OF BOMBAY
P.V. Hardas and Dr. Shalini Phansalkar Joshi, JJ.
Rajesh Chinanna Jumbrati and Ors. – Appellant
Vs.
State of Maharashtra – Respondents
Criminal Appeal No. 68 of 2007
Decided On: 23.02.2015
Advocate Appeared:
For Appellant : Yug Mohit Chaudhary, Adv.
For Respondents: H.J. Dedhia, A.P.P.
Headnote:[INDIAN] PENAL CODE, 1860 - Sections 395 and 396 Evidence Act, 1872, Sections 9 and 27 Conviction for dacoity with murder. Since prosecution proved offence against accused persons beyond reasonable doubt hence conviction of accused persons proper. Failure of the prosecution to examine ’V’ would not in any manner affect the credibility of the evidence of PW 3. It is true that for reasons undisclosed, the prosecution chose not to examine ’V’. However, the evidence of ’V’ was not essential for unfolding prosecution case further and, therefore, no adverse inference can be drawn as against the prosecution for its failure to examine ’V’. The counsel for the appellants, by referring to the evidence of the Investigating Officer, has pointed out to us that there are several infirmities in the investigation and the accused, therefore, would be entitled to be given the benefit of doubt in the light of the infirmities. Infirmities in the investigation cannot be used as lever for otherwise discarding the reliable evidence of the other witnesses. There may be inconsistency in the date of arrest of the accused but that by itself is not enough to give benefits of doubt to the accused.
P.V. Hardas, J.
1. The appellants/Original Accused Nos. 4 and 6, who stand convicted for offence punishable under Sections 452, 395 and 396 of the Indian Penal Code and sentenced to RI for five years and each accused to pay a fine of Rs. 3000/-. in default of which to undergo further RI for six months under Sections 452 and 395 of IPC and imprisonment for life and each accused to pay a fine of Rs. 3000 -, in default of which to undergo further R1 for six months, with a direction that substantive sentences shall run concurrently, by the 12th Ad-hoc Additional Sessions Judge, Court Room No. 5, Sewree, Mumbai, by judgment dated 28/08/2006, in Sessions Case No. 680 of 2003, by this appeal question the correctness of their conviction and sentence. The present appellants had filed the present appeal, while the co-accused had filed Criminal Appeal Nos. 871/07 and 883/07. During the pendency of these appeals, Original Accused No. 4 - Rajesh Chinanna Jumbrati had filed an application that he was a juvenile in conflict with law. By order of this court dated 18/3/2013, the hearing of the present appeal was separated from the other appeals i.e. Criminal Appeal Nos. 871/07 and 883/07. The said appeals i.e. Criminal Appeal Nos. 871/07 and 883/07 were dismissed by the judgment of this court dated 14/6/2013.
2. It appears that the claim of Original Accused No. 4 - Rajesh Chinanna Jumbrati that he was a juvenile in conflict with law was turned down by the Sessions Judge and the said report was accepted by this court by its order dated 26/11/2013. Meanwhile, the claim of Original Accused No. 6 - Ramesh Bhumaiyya Kalleda that he was a juvenile in conflict with law was enquired into by the City Civil & Sessions Court, Greater Bombay in Misc. Application No. 330 of 2013. The City Civil & Sessions Court, Greater Bombay, by its oral order dated 31/7/2014 upheld the contention of Original Accused No. 6-Ramesh Bhumaiyya Kalleda that he was a juvenile in conflict with law. This court by its order dated 19/12/2014 directed that Original Accused No. 6 - Ramesh Bhumaiyya Kalleda be released as he had already undergone 11 years of imprisonment and had been held to be a juvenile in conflict with law. By the same order, this court directed that the appeal filed by Original Accused No. 4 - Rajesh Chinanna Jumbrati shall proceed in accordance with law.
3. Facts, as are necessary for the decision of this appeal may be stated thus:-
PW 10 - PSI Anil Desai, who, on 20/5/2003, was attached to the Santacruz Police Station and was on duty, recorded the report of PW 1 - Ranendra regarding robbery and murder at Exh. 15. On the basis of the report at Exh. 15, PW 10 - PSI Desai registered an offence vide Crime No. 197 of 2003 under Sections 302, 452, 454, 457, 460and 380 of the IPC against unknown persons. The registration of the offence was accordingly informed to his superiors.
PW 10 - PSI Desai, along with PW 1 - Rajendra and other police officers, went to the scene of the incident, after making necessary entry in the station diary. The scene of the incident was Flat No. 18 in Maheshwar Prakash Building No. 1. Jain Dairasar Marg, 6th Floor. Santacruz (West). Mumbai, belong to PW 1 Rajendra. After inspecting the entire flat in the presence of panchas, a scene of the offence panchanama was drawn at Exh. 30. The inquest panchanama was also drawn. One Dr. Sumit Shah had examined injured Nirmalaben and had opined that she was dead. One handkerchief, white coloured cable wire which was tied on her neck, some liquid which was found in the mouth, saree and one odhani were seized under panchanama at Exh. 30. An ADR form was then filled in triplicate and the dead body was forwarded for postmortem examination through a police constable. The ADR is at Exh. 42. The inmates of the house were instructed not to enter in any of the bedroom or in the kitchen as the police wanted to explore if there was possibility of any fingerprints. On 21/5/2003, the clothes of deceased Nirmala
