The court upheld the conviction for murder under Section 302 IPC, emphasizing the sufficiency of witness credibility and evidence of intent for the act despite noted inconsistencies.

JUDGMENT :

S.M.MODAK, J.

Three persons viz first informant Smt. Jyoti Yedu-PW-3, accused Sanjay Pradhan @ Rani and the deceased were residing together at mezannine floor of room situated in Rahul Nagar, Bandra (W) Mumbai. They were residing there since one and half month prior to the month of August 2015.

2. The room was owned by PW-1-Rafiq Abdul Shaikh. He used to reside on the ground floor of that room. PW-2-Alim Rafiq Shaikh also used to reside there. The first informant Jyoti and accused used to beg at various place and used to earn their livelihood. Whereas the deceased was earning by cleaning vehicles. Occupants of the mezzanine floor were supposed to reside peacefully. Their cohabitation last long only for one and half month.

3. The incident took place on 1/8/2015. Accused Sanjay murdered the deceased by assaulting him on his chest with the help of knife. The incident took place in the intervening night of 1/8/2015 and 2/8/2015.

4. The background for this incident is the accused disliked intimacy between the first informant Jyoti and the deceased. Infact deceased came to reside on mezzanine floor at later point of time. But he sidelined accused and developed a bondage with first informant. That is the cause of concern for the accused.

5. On fateful day the owner and his son heard noise in the mid night and when they went to mezzanine floor they noticed the deceased lying on the ground and the first informant giving him first aid treatment. Realizing discomfort, the accused( who was polio patient and using clutches) jumped from the mezzanine floor and ran away. People gathered, the deceased was taken to Bhabha hospital. They have declared him dead. On the complaint of the first informant Jyoti, Bandra police station registered an offence punishable under section 302 of IPC against the accused. Accused was tried by the Sessions Judge, Bombay. Defence of the accused is of denial.

6. The prosecution has in all examined 10 witnesses.

7. The learned Sessions Judge found the accused guilty as per the judgment dated 9/12/2016 for the offence punishable under section 302 of IPC. He is challenging the correctness of the said judgment.

8. We have heard Mr. Garg, the learned Counsel (legal aid) for the Appellant and Mr. Dedhia, the learned APP for the Respondent-State.

9. The appellant challenged the judgment mainly on the ground that the evidence of the witnesses eye witness PW-3-Jyoti and PW-1-Rafiq and PW-2-Alim (who came at the spot later on) is not consistent and reliable. The findings are also challenged for the reason that there is inherent inconsistency in between the prosecution witnesses about the seizure of knife. According to the appellant these grounds are sufficient to raise a reasonable doubt in the prosecution case and the appellant needs to be given benefit of doubt. Alternatively, it is submitted that the offence will not fall within the purview of section 302 of IPC. But at the most will fall under section 304 part I of IPC. As against this the learned APP supported the findings and according to him there is no inconsistency in the evidence of three witnesses and the findings on the point of recovery and seizure of weapon is reliable and trustworthy.

10. We have read the evidence of prosecution witnesses with the assistance of both the sides. It is true that only PW-3-Jyoti is named as an eye witness to the actual assault. Though it may be true that during her evidence before the Court, she tried to suggest that the owner PW-1-Rafi