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2017 Supreme(Bom) 1990
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, A.M. DHAVALE, JJ.
Bhimappa S/o Gopalappa Kottawar - Appellant
Versus
The State of Maharashtra - Respondent
CRIMINAL APPEAL NO. 126, 125, 127 OF 2002
Decided On : 12-12-2017
Advocate Appeared:
For the Appellant :Mr. Satej S. Jadhav, Advocate
For the Respondent:Mr. S.D. Ghayal, A.P.P., Mr. A.S. Deshpande, Advocate, Assist to A.P.P.
The evidence of eye witnesses must be cogent, consistent, credible and trustworthy. In the absence of corroborative evidence, the evidence of eye witnesses alone cannot be relied upon to convict the accused.
Headnote:
CRIMINAL APPEAL - SECTION 302 OF THE INDIAN PENAL CODE - MURDER - COMMON INTENTION - EYE WITNESSES - RES GESTAE - DELAY IN LODGING FIR - ENMITY BETWEEN THE ACCUSED AND INFORMANT - NON-EXAMINATION OF MATERIAL WITNESSES - ABSENCE OF BLOOD STAINS ON THE SPOT - RECOVERY OF WEAPON - CREDIBILITY OF WITNESSES - APPRECIATION OF EVIDENCE - MOTIVE - BURDEN OF PROOF.
Fact of the Case:
The deceased Uday, aged 24 years, was the son of PW-1 Ram Choudhary and PW-14 Pushpa Chaudhary. PW-1 Ram Choudhary was a political leader of B.J.P. of Mudkhed, Taluka Mudkhed, District Nanded. He was also a Mayor of Municipal Council for around 10 years. Accused No.1 Kailash was trying to secure a loan to start a Beer Bar. The bank did not provide him loan and he apprehended that PW-1 Ram, his brother and Uday were responsible for rejection of his application. Hence, Uday was murdered.
Finding of the Court:
The evidence on record shows that accused Nos.1 to 3 in furtherance of their common intention made forcible entry in the house of PW-1 Ramrao on 13th July, 1996 at 02.45 a.m. PW-2 Mayura, daughter of PW-1 Ram saw the accused persons in the drawing hall. She raised shouts. Deceased Uday came from television room and started pushing two accused out of the drawing hall. All the accused pushed him out. He was taken upto the compound wall. Two accused caught hold Uday and pushed up to the gate and the third accused stabbed on his chest. His father came with stick in the drawing room and he ran for chasing the accused, but they disappeared in the darkness and when he returned back, he saw Uday lying on ground with bleeding injury on his chest. Uday was taken in a Car to Civil Hospital, Nanded, where he was declared dead.
Issues: 1. Whether Uday met with homicidal death? 2. Whether accused Nos.1 to 3 in furtherance of their common intention committed murder of Uday? 3. Whether any interference is called for in the Judgment passed by the trial Court?
Ratio Decidendi: The evidence of PW-1 Ram, PW-2 Mayura and PW-14 Pushpa is not cogent, consistent, credible and trustworthy. There is no corroborative evidence in the form of recovery of weapon or recovery of blood stained clothes. The absence of blood stains on the spot or in the house create a possibility that Uday might have been stabbed some where outside and before the time disclosed by PW-1 Ram, PW-2 Mayura and PW-14 Pushpa. Such probability is strengthened by PW-11 Kishan Puri, who stated that on the night of 13th July, 1996, at about 02.00 a.m. to 02.30 a.m., PW-1 Ram Choudhary came to him and disclosed the incident of stabbing of Uday. There are serious doubts as to whether PW-1 Ram, PW-2 Mayura and PW-14 Pushpa have seen any incident or not; or whether such incident as described by them has taken place or not.
Final Decision: All the appeals are allowed. The conviction of all the accused are set aside and they are acquitted.
A.M. DHAVALE, J.
Accused No.1 Kailash S/o Vishwanath Godse, accused No.2 Bhimappa S/o Gopalappa Kottawar and accused No.3 Nagorao S/o Madhvrao Pachling aggrieved by their conviction in Sessions Case No. 175 of 1996 by II Adhoc Additional Sessions Judge, Nanded, by Judgment dated 13th March, 2002, under Section 302 read with Section 34 of the Indian Penal Code and sentence of life imprisonment and fine of Rs.5,000/- each, preferred Criminal Appeal Nos. 127 of 2002, 125 of 2002 and 126 of 2002, respectively. As common questions are involved, all the appeals are heard together.
2. Facts relevant for deciding the appeals may be stated as under :-
Deceased Uday, aged 24 years, was son of PW-1 Ram Choudhary and PW-14 Pushpa Chaudhary. PW-1 Ram Choudhary was a political leader of B.J.P. of Mudkhed, Taluka Mudkhed, District Nanded. He was also a Mayor of Municipal Council for around 10 years.
3. First Information Report [Exhibit 193] dated 14th July, 1996 recorded by PW-1 Ram Choudhary in Civil Hospital, Nanded, at 09.15 a.m. was registered at CR No.95/96 at Mudkhed Police Station, under Section 302 read with Section 34 of the Indian Penal code. On the same day, the incident took place in the night in between 13th July, 1996 to 14th July, 1996. As per First Information Report [Exhibit 193], PW-1 Ram Choudhary, son Uday and other family members were watching movie on Television in the house. Other family members went to sleep. PW-1 Ram and deceased Uday had continued to see Television upto 00.30 midnight. Thereafter, Uday slept in the Television room. PW-1 Ram and PW-2 Mayura slept in drawing room and PW-14 Pushpa slept in adjoining room. At about 02.45 a.m., PW-2 Mayura got up and saw two strangers standing in the drawing room. They had made entry from the main door. She raised shout 'thieves-thieves'. Then all the family members got up. PW-1 Ram rushed to the adjacent room to bring a stick. He saw two persons namely accused No.1 Kailas and the other person who was not identified by him. As Uday tried to chase those persons, PW-1 also chased with a stick towards those persons. As they ran away, he returned back to the house and found that Uday was lying in front of their house with bleeding injury on his chest. He was not in a position to speak. He was brought inside the house. He was unconscious. He was immediately shifted to Civil Hospital, Nanded. There the Doctors declared that he was brought dead. Accordingly, First Information Report was lodged against two persons including one Kailash Godse.
4. It shows reason that PW-1 Ram was running a Beer Bar at Chursi Naka Nanded road and accused No.1 Kailash was trying to secure a loan to start a Beer Bar. The bank did not provide him loan and he apprehended that PW-1 Ram, his brother and Uday were responsible for rejection of his application. Hence, Uday was murdered. One sentence was also inserted that there were political reasons behind the murder of Uday. On registration of crime, P.I. Mr. Kishansing started the investigation. He recorded the statements of material witnesses and additional statement of P.W.1 Ram on 14th July, 1996. On 9th August, 1996, he handed over further investigation to P.S.I. Mr. Chavan. The clothes of deceased Uday were seized, inquest panchnama and spot panchnama were drawn and postmortem was conducted on dead-body. Accused No.1 Kailash was arrested on 14th July, 1996. The clothes on the person of accused No.1 Kailash were seized and were sent for chemical analysis. But, no blood was found on the clothes of the accused. No weapon was recovered. After completion of investigation, charge-sheet was submitted in the Court.
5. In due course, the case was committed to the Court of Sessions. The Charge was framed against all the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (Exhibit-55). The accused pleaded
