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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, MILIND N. JADHAV, JJ.
The State of Maharashtra – Appellant
Versus
Omprakash @ Munna Aliyar Singh – Respondent
Criminal Appeal No. 428 of 2001
Decided On : 10-02-2022
Indian Penal Code, 1860 - Section 302 r/w Section 34 - Code of Criminal Procedure, 1973 - Section 209 - Injuries/Weapons - Common intention - Appeal against Acquittal - Respondent No. 1 is Son of Aliyar, who is owner of a chawl near spot of incident - Respondent No. 1 and his father have had a long-standing dispute with deceased and his brother (PW-1) in respect of a room housing a manufacturing unit. This dispute pertained to transaction and valuation by which manufacturing unit was purchased by deceased and his brother from father of Respondent No. 1 - Deceased and his brother (PW-1) had paid amount to Respondent No. 1 and his father for manufacturing unit. However, latter demanded more money from former, over and above consideration that was already paid. Proceedings in respect of said dispute between the parties were also pending in Small Causes Court - In past, a criminal case was also lodged against deceased for assaulting Respondent Nos. 2 to 4 - Deceased left the manufacturing unit for having paan at shop of Radheshyam, which was situated close by. According to Prosecution, deceased was attacked and assaulted with deadly weapons like choppers, guptis and knives. As a result, deceased was injured seriously - Deceased was immediately taken to Hospital, thereafter to another Hospital and finally to another Hospital. However, on reaching Hospital, deceased was pronounced dead. According to Prosecution, (PW-1, brother of deceased) was beside deceased at time.
Finding of the Court:
It is a well-settled position of law that reversal of acquittal is permissible on the touchstone of the principle that the appellate court should, generally, be loath in disturbing the finding of facts recorded by a trial court as the trial court has the advantage of seeing the demeanor of the witnesses and that the appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice - Court may state that there are demonstrable flaws in the evidence given by the key prosecution witnesses. The Prosecution has heavily relied on the circumstantial evidence given by the three witnesses as alluded to and discussed above to make out its case against the Respondents. However, given that this evidence in our opinion is not only palpably erroneous, but also unreliable to prove the chain of causation of the actual incident beyond reasonable doubt, especially because Shri Radheshyam Rai, the first informant and owner of paan shop, has not been examined by the Prosecution. The findings of the Trial Court conform with our reappraisal of evidence on record, and hence we concur with the findings of the Trial Court in its entirety.
Result: Criminal Appeal dismissed.
JUDGMENT :
MILIND N. JADHAV, J.
1. The learned Additional Sessions Judge, Court of Sessions, Greater Bombay, by judgment and order dated 26.02.2001-28.02.2001 has acquitted Respondent Nos. 1 to 4 (originally Accused Nos. 1 to 4 respectively) of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”). The State of Maharashtra is in appeal against the said judgment acquitting the Respondent Nos. 1 to 4 in Sessions Case No. 299 of 1998. The Trial Court has arrived at the conclusion that the Prosecution has failed prove its case against the Respondent No. 1 in its entirety and it beyond reasonable doubt against Respondent Nos. 2 to 4.
2. According to the Prosecution, Respondent Nos. 1 to 4 intentionally caused the death of one Shri Virendra Ramchandra Singh (hereinafter referred to as “the deceased”) in furtherance of their common intention at 6:00 P.M. on 27.11.1997 in front of a paanbeedi shop of one Shri Radheshyam Shivshankar Rai, which is adjacent to the hardware shop of Maharashtra Trading Company situated at Adarsh Nagar Chowk, Kurar Village, Malad (East), Mumbai-97.
3. Before we advert to the submissions made by the respective advocates and to the reappraisal of evidence on record, it will be apposite to refer to the relevant facts of the incident briefly.
3.1. Respondent No. 1 is the son of Shri Aliyar Singh, who is the owner of a chawl near the spot of the incident. Respondent No. 1 and his father have had a long-standing dispute with the deceased and his brother Shri Jitendra Ramchandra Singh (PW-1) in respect of a room housing a manufacturing unit. This dispute pertained to the transaction and valuation by which the manufacturing unit was purchased by the deceased and his brother from the father of Respondent No. 1.
3.2. The deceased and his brother Shri Jitendra Singh (PW-1) had paid a consideration of Rs. 50,000.00 to the Respondent No. 1 and his father for the manufacturing unit. However, the latter demanded more money from the former, over and above the consideration that was already paid. Proceedings in respect of the said dispute between the parties were also pending in the Small Causes Court, Bandra.
3.3. In the past, a criminal case was also lodged against the deceased for assaulting the Respondent Nos. 2 to 4.
3.4. On 27.11.1997, at about 6:00 P.M. the deceased left the manufacturing unit for having paan at the shop of Shri Radheshyam Rai, which was situated close by. According to the Prosecution, the deceased was attacked and assaulted with deadly weapons like choppers, guptis and knives. As a result, the deceased was injured seriously. The deceased was immediately taken to Asha Hospital, thereafter to Agarwal Hospital, and finally to Bhagwati Hospital. However, on reaching Bhagwati Hospital, the deceased was pronounced dead. According to the Prosecution, Shri Jitendra Singh (PW-1, brother of the deceased) was beside the deceased at the time. The police constable on duty thereafter registered an entry in the Emergency Police Register (EPR) and informed the concerned police station by telephone.
3.5. Shri Trimbak Lal Patil (PW-11), the Investigating Officer, immediately visited Bhagwati Hospital. He was told that Shri Jitendra Singh (PW-1, brother of the deceased) was not in a position to make any statement. As a result, he recorded the statement of the owner of the paan shop, Shri Radheshyam Rai, and treated the same as the First Information Report (FIR). The statement of Shri Jitendra Singh was recorded later, during investigation.
3.6. The body of the deceased was sent for autopsy. A spot panchanama of the spot of the incident was also drawn up. Photographs of the crime scene were taken. Blood-stained items from the spot of the incident such as slippers and strands of hair were seized.
3.7. On 29.11.1997, the Respondent No. 1 was arrested, and his clothes were seized under a panchanama.
3.8. On 03.12.1997, Respondent Nos. 2 to 4 were arrested.
3.9. On 04.12.1997, a
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