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2022 Supreme(Bom) 226
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sambhaji Shiwaji Shinde, N.R. Borkar, JJ.
Mangesh Arjun Bhosale and Others – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal Nos. 976 of 2015, 1167 of 2015, Interim Application No. 3138 of 2021 and Criminal Appeal No. 584 of 2017
Decided On : 17-03-2022
Advocate Appeared:
For the Appellant :Harshad Sathe, Advocate, Ankita Pawar and Janaki Ravi
For the Respondent: S.S. Hulke, APP
The central legal point established in the judgment is the requirement for the prosecution to prove the case beyond reasonable doubt, especially in cases of serious offenses like murder.
Headnote:
IPC - Murder - 302, 506(II) - The court discussed the evidence and medical reports to conclude that the prosecution failed to prove the case beyond reasonable doubt. The accused were acquitted of the charges.
Fact of the Case:
The appellants were convicted for the murder of the deceased. The prosecution's case was based on the testimony of the sole eye-witness, PW-1, and medical evidence.
Finding of the Court:
The court found that the evidence of the witness was not consistent with the medical evidence, and there were contradictions and omissions in her testimony. The court also noted that the cause of death was pending till receipt of histopathology report, and the trial court's conclusion of homicidal death was unjustified.
Issues: The main issues were the reliability of the witness testimony, consistency with medical evidence, and the pending cause of death report.
Ratio Decidendi: The court's decision was based on the lack of consistency between the witness testimony and medical evidence, as well as the pending cause of death report, leading to the conclusion that the prosecution failed to prove the case beyond reasonable doubt.
Final Decision: The appellants were acquitted of the charges, and the judgment of the trial court was set aside.
JUDGMENT :
N.R. Borkar, J.
1. All these appeals are filed against one and the same judgment and order dated 12.08.2015 passed by the Ad-hoc Additional Sessions Judge, City Civil and Sessions Court at Mumbai in Sessions Case No. 233 of 2014. All these appeals were therefore, heard together and they are being disposed of by this common judgment.
2. The appellants were accused Nos. 1 to 3 before the trial court. By the impugned judgment and order, the trial court convicted them for the offences punishable under sections 302 and 506 (ii) read with 34 of the Indian Penal Code (for short 'IPC') and awarded life imprisonment and rigorous imprisonment for three months respectively.
3. The deceased Kamal Hanumant Mane was the mother of accused No. 3 Naina. At the relevant time, the deceased was residing at Mankhurd with accused No. 3, accused No. 2 Atul, who is the husband of accused No. 3 and son of accused No. 3 namely Aakash from her first husband.
4. The incident took place in the intervening night of 29.09.2013 and 30.09.2013. According to the prosecution, there was dispute between the deceased and accused No. 3 in relation to the ownership of the house in which they were residing. It is alleged that on account of the said dispute, accused Nos. 2 and 3 along with accused No. 1, who according to prosecution, is the friend of accused No. 2 committed the murder of deceased in the intervening night of 29.09.2013 and 30.09.2013 at about 2.30 a.m. to 3.00 a.m. by smothering her.
5. The report in relation to the incident was lodged. On the basis of said report, crime vide Crime No. 279 of 2013 was registered for the offences punishable under section 302 and 506(II) read with 34 of the against the accused. On completion of investigation, the charge-sheet was filed against the accused for the said offences.
6. The accused were charged and tried for the abovesaid offences. As stated earlier, the trial court, by the impugned judgment and order, convicted the accused for the charges framed against them.
7. We have heard Mr. Harshad Sathe, learned appointed counsel for the appellant in Appeal No. 976 of 2015, Ms. Ankita Pawar, learned counsel for the appellant in Appeal No. 1167 of 2015, Ms. Janaki Ravi, learned counsel for the appellant in Appeal No. 584 of 2017 and Mr. S.S. Hulke, learned APP for the respondent/State in all the appeals.
8. The learned counsel for respective appellants submit that the case of the prosecution is based on testimony of PW-1 Kranti Desai, the alleged sole eye-witness to the incident. It is submitted that the evidence of PW-1 is not consistent with medical evidence. It is submitted that there are lot of omissions and contradictions in the evidence of PW-1. It is submitted that the trial court, therefore, ought not to have relied upon the un-corroborated evidence of PW-1 to convict the accused.
9. The learned counsel for the appellants have further submitted that the evidence on record is not sufficient to conclude that the deceased had died homicidal death. It is submitted that the postmortem was conducted on 01.10.2013, however, the opinion as to cause of death was kept pending till receipt of histopathology report. It is submitted that the opinion as to cause of death from PW-11 Dr. Sanjay D. Wathore, who conducted the postmortem, was not obtained till filing of the charge-sheet. It is submitted that opinion of PW-11 in that respect came to be obtained only two days prior to recording of his evidence, i.e., practically after 15 months from the date of postmortem examination. It is submitted that according to PW-11, the deceased had died due to asphyxia with smothering, however, there are no symptoms to that effect and therefore possibility of issuance of false opinion, just to support the prosecution case cannot be ruled out. It is submitted that the trial court lost sight of all these facts and with very cryptic findings concluded that the death of deceased was homicidal.
10. It is submitted that even as regards the alleg
