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2021 Supreme(Bom) 245
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SADHANA S. JADHAV, N.R. BORKAR, JJ.
Jafar Khijar Sheikh – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 592 of 2012 With Criminal Application No.1131 of 2019 in Criminal Appeal No. 728 of 2012
Decided on : 08-06-2021
Advocate Appeared:
For the Appellant : Mr. Niteen Pradhan a/w. Mr. Chaitanya Pendse a/w. Ms. S.D. Khot a/w. Ms. Asavari Khandkar i.by Mr. Shailesh Chavan, adv.
For the Respondent: Mr. Niteen Pradhan a/w. Mr. Chaitanya Pendse a/w. Mr. S.D. Khot a/w. Mr. Shailesh Chavan I/by Ms. Juanita Menezes, Ms. P.P. Shinde-APP for the State.
Point of law: Criminal law – Conviction set aside – Testimony of witness - Account of an incident by an eyewitness has to be necessarily a sterling testimony.
Headnote:
Indian Penal Code, 1860 - section 302 and 307 read with 34 – Conviction and sentence – Appeal – Motive -Offence of Murder – Attempt to murder - unknown person armed with deadly weapons and had mounted assault had barged into the chamber of the Mayor, mounted assaulted with a dagger, slit his neck and had also assaulted PW.6 on his head and shoulder.
Finding of the Court: Demolition was pursuant to the orders passed by the High Court and that incident had taken place more than a year prior to the incident and hence it cannot be said that the said motive was sufficient to cause the homicidal death of the President in broad daylight and that too in his office without having the fear of being arrested on the spot- In criminal jurisprudence it is well-settled that witnesses are eyes and ears of the Court. Therefore, the testimony of the witnesses has to be supported by corroborative material. Moreover the testimony must be truthful and must inspire the confidence of the Court. The evidence has to be appreciated with logic by applying the Rule of ‘Deductive reasoning’ - In criminal jurisprudence it is well-settled that witnesses are eyes and ears of the Court. Therefore, the testimony of the witnesses has to be supported by corroborative material. Moreover the testimony must be truthful and must inspire the confidence of the Court. The evidence has to be appreciated with logic by applying the Rule of ‘Deductive reasoning’.
Result: Appeal allowed
JUDGMENT :
SADHANA S. JADHAV, J.
1. The appellants herein take exception to the judgment and order passed by District Judge- 10 and Additional Sessions Judge, Pune in Sessions Case No. 1085 of 2009 dated 27th of April 2012, thereby convicting the appellants for the offence punishable under section 302 and 307 read with 34 of Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs.5000 (Rs. Five Thousand only) each in default, to suffer rigorous imprisonment for six months as well as for the offence punishable under section 201 read with 34 of Indian Penal Code and sentencing them to suffer rigorous imprisonment for 3 years and to pay fine of Rs.3000 (Rs. Three Thousand only) each in default, to suffer rigorous imprisonment for three years.
2. Such of the facts necessary for the decision of this appeal, are as follows:-
a. One Raju Choudhari was officiating as a President of Municipal Council, Lonavala since the year 2008. On 26th May 2009 at about 1.30 p.m. when Mr. Choudhari was in the office of Municipal Council Lonavala along with PW.6 Umesh Mudliyar two persons barged into his chamber. They were armed with deadly weapons and had mounted assault upon Raju Chaudhari. They had also assaulted Umesh Mudliyar and thereafter, they had fled from the office. Mr. Mudliyar was taken to Parmar Hospital. The statement of the injured was recorded in Parmar Hospital. The said statement is at ‘Exhibit-92’. The injured PW.6 had stated that at about 2.30 p.m. the accused Sumit Prakash Gavali along with one unknown person had barged into the chamber of the Mayor, mounted assaulted with a dagger, slit his neck and had also assaulted PW.6 on his head and shoulder and he had just learnt that Raju Chaudhari had succumbed to the said injury. On the basis of station diary entry (Entry No. 23 of 2009, at about 2.45 p.m.) Crime No. 72 of 2009, was registered against Sumit Gavali and one unknown person for the offence punishable under section 302, 307 read with 34 of Indian Penal Code. The investigation was set into motion.
b. On 24th August 2009, Charge-sheet was filed. The case was registered as Sessions Case No. 1085 of 2009. The prosecution examined 26 witnesses to bring home the guilt of the accused. The accused has examined two defence witnesses. There were 7 accused who faced the trial, however, accused no. 4 was discharged by the High Court, whereas accused no. 3, 5, 6 and 7 are acquitted. In the present case, PW.6 happens to be an injured eyewitness and the first informant in the present case. In fact, it was Lonawala Municipal Council and not Lonawala Municipal Corporation. Further, inadvertently, the post of the deceased has been spelt by the witness and the presiding officers as Mayor and the same needs to be corrected as President.
3. The case needs to be appreciated under four categories :- Eye witness account. PW.6-Umesh Mudliyar, PW.14-Dashrath Chorage. Motive PW.6-Umesh Mudliyar, PW. 18-Shadan Choudhari Circumstances PW.15-Prakash Hajare, PW.21-Rajesh Chavhan, PW.14-Dashrath Chorage and PW.5-Ashok Panchmukh. Investigation PW.13-Dr. Rajendra Parmar, PW.19-Dr. Mamata Parade and PW.20-Dr. Balaji Gawade.
4. PW.6.- Umesh Mudliyar has deposed before the Court that he happens to be the member of Education Board of Lonavala Municipal Council and was elected from Graduate’s Category. He and the deceased belonged to the same party. That, the accused Sumit Gavali happens to be the brother of Corporator, Amit Gavali. Amit Gavali and Sumit Gavali are the sons of Prakash Gavali who was running Ekvira Chinese Restaurant. That, upon directions of the High Court a demolition drive was undertaken for removing encroachments and in the said drive Ekvira Chinese, Ekvira Rasvanti Griha, Ekvira Malvani and Ekvira Café owned by Gavali family were demolished. The directions of the High Court were executed by the President. There was political rivalry in between Gavali family and the deceased Raju Choudhari. On 26th May
