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1996(4) Crimes 47
BOMBAY HIGH COURT (DB)
Vishnu Sahai & Vaidyanatha, JJ.
Sujit Gulab Sohatre & 5 Ors. -Appellants
versus
State of Maharashtra -Respondent
Criminal Appeal No. 114 of 1994
Decided on 18-4-1996
Counsel for the parties:
For the Appellants: S.H. Chitnis along with S.V. Kotwal.
For the Respondent: S.H. Borulkar.
IMPORTANT POINTS
1. Recoveries from place which is accessible to all & sundry is not incriminating evidence.
2. It is permissible for court to record/sustain conviction on evidence of solitary eye-witness if evidence is cogent, implicit, reliable & in time with probabilities.
3. Principle Falsus Uno Falsus Omnibus is not applicable to our criminal jurisprudence & the court should make every endeavour to separate grain from the chaff but within permissible limits.
Headnote:Indian Penal Code, 1860-Sections 302/149, 148 & 147 Appellants armed with knife, sword stick & sticks assaulted deceased & the eye witness - Conviction recorded on evidence of solitary eye witness who was injured & recoveries of weapons at the instance of accused - Recoveries effected from open place would not be admissible - Eye witness was inimical to appellants whose evidence was to be scrutinised with utmost caution - Occular evidence that deceased & the witness were assaulted by four out of six accused by sticks also falsified by medical evidence as no injury was found on deceased or witness attributable to stick Irresistible inference was that four appellants were falsely implicated Incident took place in mid night & there was no light on spot Possibility of mistake in identity could not be ruled out - Conviction cannot be sustained. (Paras 12 to 26)
Result: Appeal allowed.
JUDGMENT (ORAL)
Vishnu Sahai, J. - Vide judgment and order dated 27-1-1994 passed in Sessions Case No. 170 of 1991 the Second Additional Sessions Judge, Raigad, Alibag convicted and sentenced the Appellants in the manner stated hereinafter:
(i) Under Section 302 read with 149 I.P.C. to imprisonment for life;
(ii) Under Section 148 I.P.C. to suffer 6 months rigorous imprisonment;
(iii) Under Section 147 I.P.C. to suffer rigorous imprisonment for 3 months.
The sentences of the Appellants were ordered to run concurrently.
Hence this appeal.
2. The prosecution case in brief runs as under:
Suresh Kamble, P.W. 2, the deceased Babu @ Suraj and Gajanan Jadhav were friends. On the evening of 23-4-1991 the three of them had gone to Municipal Garden in Panvel. They sat there till about 7 p.m. and thereafter returned to the house of Gajanan. They sat at Gajanan's house till 9 p.m. Thereafter they left for attending the Haldi function at the house of one Dattatraya Mahase. When they reached near Datta Hotel, Suresh Kamble and Gajanan Jadhav asked the deceased Babu to go to the House of Mahase and see whether he was there. At that time appellants Sujit, Manoj, Ravi, Raju and Naresh were coming from cinema and were looking towards them in anger. After these appellants left, Babu came and informed that Dattatraya Mahase was not at his house. Consequently Babu, Suresh Kamble and Gajanan Jadhav returned to the house of Gajanan in a rickshaw. After leaving Gajanan at his house Suresh and Babu returned to their house. After some time both Suresh Kamble and Babu started seeing a film on video at the house of one Gopal Gaikwad. After some time (at about mid night) Babu told Suresh to accompany him for easing. Hence both of them went to ease on the path way near the place where a new building was being constructed. While they were returning after easing the appellants attacked them. Appellant Manoj had a knife, Sujit a sword-stick and the remaining persons viz., Kailash, Ravi, Raju and Naresh had sticks. First all six of them assaulted both Suresh and the deceased Babu. Thereafter all of them started assaulting the deceased Babu. While appellant Manoj was trying to assault Babu, Suresh Kamble caught hold of his hand and during the scuffle he received injuries from the knife which was in the hands of Manoj. Suresh Kamble got frightened and thereafter ran to the house of the deceased which was situate near the place of the incident. He informed about the incident to the mother and brother of the deceased one Prakash alias Sunil P.W. 3. Thereafter all of them returned to the place of the incident. The deceased was then saying "Oh mother save me". There after they took the deceased to Municipal Dispensary, Panvel which was situated nearby. Sunil and Suresh Kamble went to Panvel Police Station to lodge F.I.R. Instead of lodging the F.I.R. the police immediately rushed to Panvel Municipal Dispensary. There Suresh Kamble and others learnt that the deceased had died at about 12 O' clock.
3. The F.I.R. of the incident was recorded by P.I. Anil Tamaichekar P.W. 8 at Panvel Municipal Dispensary on the facts furnished by Suresh Kamble, P.W. 2. On the basis of the F.I.R. C.R. No. 129 of 1991 was registered at Panvel Police Station.
4. The injuries of Babu @ Suraj and Suresh Kamble P.W. 2 were medically examined on 24-4-1991 at 12.15 a.m. and 12.45 a.m. respectively at Panvel Municipal Dispensary by Dr. Ramarao Tukaram Kendre, P.W. 7.
On the person of Babu @ Suraj the doctor found four stab wounds and two incised wounds.
On the person of Suresh Kamble the Doctor found two incised wounds which were situate over the left middle finger, proximal phalaynx and left index finger, middle phalaynx respectively.
5. In the medical case papers the Doctor also mentioned about the history of the injuries of the victims. In the injury report of Babu @ Suraj, he has mentioned that the history given out was assault by two persons viz. Manoj and Ravi. In the injury r
