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BOMBAY HIGH COURT
Sunil B. Shukre and Pushpa V. Ganediwala, JJ.
Komal and Ors. – Appellants
versus
State of Maharashtra – Respondent
Criminal Appeal No.559 of 2018 with Criminal Appeal No.560 of 2018 with Criminal Appeal No.561 of 2018 with Criminal Appeal No.562 of 2018 with Criminal Appeal No.570 of 2018 with Criminal Appeal No.576 of 2018
Decided on 2.2.2022
(A) Criminal Law – Appreciation of evidence – Even if testimony of a solitary witness is found to be trustworthy, cogent and one which inspires confidence of Court, conviction on the basis of same could be rested – Merely because witnesses are relatives cannot be a ground to discard their testimony – Testimonies of prosecution witnesses, before their acceptance must be tested on established parameters of appreciation of evidence and one has to guard against any attempt to put up an exaggerated or concocted story – When witnesses make parrot-like statements, add improbabilities and impossibilities and so on, their testimonies are least likely to inspire confidence of Court – Ultimately, all depends upon facts and circumstances of each case. (Para 24)
(B) Criminal Law – Appreciation of evidence – Positive CA reports are crucial corroborative evidence in favour of prosecution in any criminal trial – However, sanctity of same, at every stage of process, has to be established beyond reasonable doubt. (Para 53)
(C) Indian Penal Code, 1860 – Sections 302, 307, 147 and 148 read with Section 149 – Criminal Procedure Code, 1973 – Section 374 – Murder, attempt to murder and rioting – Common object – Appeal against conviction – In order to establish guilt against accused, prosecution mainly relied on testimonies of three injured witnesses and three eye-witnesses amongst other witnesses – Testimonies of these witnesses with regard to incident of assault are almost identical – They have not attributed any role to them in carrying of any weapons and it has been done quite thoughtfully just to create a show of truthfulness of their version – When one incident involving several persons is witnessed by several persons, it is well-nigh impossible for witnesses to match each other’s testimony word by word and version by version – It is improbable for wife and mother who claimed to have witnessed incident to observe and remember each and every minute detail of incident and report the same to Police – In case of an injured witness, there may not have been any difficulty in believing his testimony as to assault on him – But, when other injured persons who were subjected to assault simultaneously also start telling about attack on others in similar words, a serious doubt creeps in prosecution evidence and it becomes difficult to believe prosecution evidence, without corroboration from independent witnesses – Here, no independent witnesses have been examined though they were available – Trial Court has rightly discarded evidence of seizure of weapons and clothes from person of accused from consideration – However, trial Court has erred in extending benefit of defects in investigation to prosecution – Where 23 accused are involved for charge of murder, being members of unlawful assembly and in absence of evidence of independent witnesses and other reliable material, lapses in investigation with regard to non-sealing of Muddamal property and delay in sending the same for chemical analysis are serious of kind and benefit of same has to be extended to accused – Prosecution has cleverly suppressed MLC reports of accused and were not found part of charge-sheet – Prosecution has failed to prove its case beyond reasonable doubt – Accused are entitled to benefit of doubt – Appellants acquitted of offences charged with. (Paras 17, 24, 34, 45, 62, 64 and 69)
Result: Appeals allowed. Appellants acquitted.
JUDGMENT
Pushpa V. Ganediwala, J.—All these Appeals against conviction, preferred under Section 374 of the Code of Criminal Procedure Code, 1973, are directed against the judgment and order dated 10/08/2018 passed by the I/c. Additional Sessions Judge, Mangrulpir (Camp at Washim) in Sessions Trial No.44/2014, whereby the learned Judge convicted the appellants for the offences punishable under Sections 302, 307, 147 and 148 read with Section 149 of the Indian Penal Code (“IPC”).
2. The appellants/accused are acquitted of the offences punishable under Section 120-B of the IPC and Section 135 of the Bombay Police Act (now ‘the Maharashtra Police Act, 1951’) (“Act of 1951”).
Accused No. 16 - Babusingh Ramji Rathod and accused No. 17 - Sadashiv Limbaji Jadhao are acquitted of all the offences punishable under Sections 302, 307, 147 and 148 read with Section 149 of the IPC.
For the offence punishable under Section 302 read with Section 149 of the IPC, the appellants/ accused are sentenced to suffer imprisonment for life and fine of Rs.3,000/- each, in default, to suffer simple imprisonment for one year.
For the offence punishable under Section 307 read with Section 149 of the IPC, the appellants/ accused are sentenced to suffer rigorous imprisonment for 7 years and fine of Rs.2,000/- each, in default, to suffer simple imprisonment for one year (three counts).
For the offence punishable under Section 147 of the IPC, the appellants/ accused are sentenced to suffer rigorous imprisonment for one year and fine of Rs.500/- each, in default, to suffer simple imprisonment for one month.
For the offence punishable under Section 148 of the IPC, the appellants/ accused are sentenced to suffer rigorous imprisonment for two years and fine of Rs.500/- each, in default, to suffer simple imprisonment for two months.
All the aforementioned sentences are directed to run concurrently. The appellants/ accused have been given set-off for the period for which they were in jail.
The facts in brief, leading to the filing of the present Appeals, may be stated as under:—
3. In all 23 accused persons were tried before the Additional Sessions Court, Mangrulpir. In the incident of rioting, Devidas, his son Mukesh and nephew - Ganesh received injuries, while the son of Devidas, by name Avinash, succumbed to the injuries received to him.
4. As per the prosecution story, on 18/03/2014, on the eve of Holi festival, Devidas along with his two sons by name Avinash and Mukesh, had been to the house of his elder brother to take blessings of his mother (grandmother of Avinash and Mukesh). The accused Janardhan was playing DJ in front of the house of the elder brother of Devidas during ‘fagwa’ celebration. As the grandmother of the Avinash was not keeping well, Avinash asked Janardhan to stop playing DJ. There was a trivial quarrel between them. Thereafter, playing of DJ was stopped. At around 4:00 pm, when Avinash along with his brother Mukesh, father Devidas and cousin Ganesh started to go to their house at Naik Nagar by a car, no sooner than they reached and alighted from the car, the accused persons caught hold of them and assaulted all the four by weapons like iron pipes and wooden planks. It is alleged that some of the accused caught hold of the victims of assault and some accused were instigating to assault. In the said assault, Avinash succumbed to the injuries received to him, whereas Mukesh, Devidas and Ganesh were seriously injured.
5. The information about the aforesaid incident was reached Police Station - Manora. PI. Mr. Shankar Laxman Donkalwar along with the staff proceeded to the spot of the incident and found four persons smeared with blood lying in front of the house of Janardhan. The injured were shifted to the hospital. On the same day, Avinash was declared dead.
6. On the report of Nirmalabai (PW19) - mother of Avinash, crime for the offences punishable under Sections 302, 307, 147, 148 and 149 of the IPC and Section 135 of the Act of 1
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