Krishna @ Barkya Mangal Rajput vs The State Of Maharashtra
2004 Latest Caselaw 65 Bom

JUDGMENT

V.G. Palshikar, J.

1. Being aggrieved by the judgment and order dated 14.08.1998 passed by Additional Sessions Judge at Bombay in Sessions case No. 716 of 1995, the appellant named above has filed this appeal on the grounds mentioned in the memo of appeal, as also verbally canvassed before us by the learned Advocate appointed to defend by the Appellant.

2. With the assistance of the learned Additional P.P. and the appointed Advocate we have scrutinized and appreciated the evidence on record. The prosecution story as revealed by our re-appreciation of the evidence stated briefly is as under:

On 23.3.1995 at 1 O'Clck in the morning the complaint was lodged in Oshiwara Police Station by Police Sub Inspector Shri Babaji Pandharinath Avhad that he went to Kranti Nagar at Jogeshwari (West) on receiving a telephone call from one Rajul Patel, informing him that one injured person was lying there and police should investigate. The Officer then went to the spot, found the victim lying there, which on examination was disclosed to be dead. Accordingly, he went back to the police station. His statement was recorded as F.I.R. and acting on it investigation was conducted. The accused person/ Appellant was arrested and prosecution for offence of Section 302 IPC was started against the accused.

3. The prosecution examined in all seven witnesses to prove its case that it was the accused who committed the murder of the deceased. It was on appreciation of this evidence that the learned trial Judge held the accused guilty and sentenced him to suffer imprisonment for life for the murder of Yusuf Hussain Khan. It is this order which was asserted before us by the learned Advocate appointed to represent the Appellant. The contention of the learned Advocate is that the order of conviction is unsustainable in law as there are several infirmities in the prosecution case, viz.

i. There is no eye witness.

ii. The person who claims to be as eye witness has acted extremely unnatural and can not therefore be believed.

iii. Recovery made of stick and knife is from place which is susceptible to tampering and can not therefore be believed.

iv. Prosecution has helplessly failed to prove its motive.

v. There is no reason why the accused/appellant should have assaulted the deceased Yusuf Khan. Factually, according to the learned Counsel there is no evidence of such assault. Nobody has seen the Petitioner so assaulting.

She, therefore, claimed that the accused is liable to be acquitted. These submissions were countered by the learned Additional PP., who relied heavily on the testimony of prosecution witnesses 3 and 4, according to whom the assault is committed by the accused. It is these contentions we have to decide in the light of evidence as re-appreciated by us.

4. P.W.1 is Pandurang Gangaram Dhebe, who is an autorickshaw driver. He has stated before the Court that around 12.00 in the night he heard some noise and therefore came out of the house. Then he saw the accused assaulting Yusuf. The witness has stated that he knew the accused. The accused was known as Barkya and Barkya was assaulting the person with a bamboo. Surprisingly, the witness did nothing to prevent the quarrel or beating by bamboo, but chose to go inside and sleep. It was only after he was awakened by his brother Deepak when he went together to the house of Smt. Rajul Patel and informed her about the incident. Throughout his deposition the witness nowhere speaks about he accused using any other weapon, much less knife. All that he talks of is accused beating victim with a bamboo. In our opinion, the conduct of the witness is highly unnatural. It seems to be inhuman. It would be very strange behaviour of a person that he sees the person known to him being assaulted and does nothing about it. We find it very difficult to accept the testimony of this witness as truthful. It should be noted that this is the only eye witness to the entire incident.

P.W.2 is one Abu Baker. He comes on the scene of offence, identifies the victim as Yusuf Khan, and tells the Court that he found Yusuf lying dead infront of the house of P.W.1. Beyond identification of the victim, the evidence of this witness is inconsequential.

P.W.3 is Babaji Pandharinath Avhad, who was the Police Sub Inspector of Oshiwara Police Station and who has received the telephone call on 25.3.1995 at around 1.00 a.m., proceeded to enquire about the incident and lodged his statement which was treated as First Information Report and was proved as exhibit 7. It is obvious from the evidence of this witness that when he arrived at the scene of offence, the victim was dead.

The next witness is Mrs. Rajul Patel, P.W.4. She is not a eye witness. She is told of the assault by Raju Dhebe, brother of P.W.1. She speaks of earlier quarrel which took place between accused and the victim on 22.3.1995. She also deposes that she took away the gupti and the nuckle duster which the accused had in his possession. The testimony of this witness is only attempt made by the prosecution to prove the motive which the accused might have to assault the victim.

P.W.5. Sambhaji Shankar Sakhare, is the panch witness who proves the panchanama of seizure of clothes of the accused, recovery of the stick at the instance of the accused and recovery of knife at the instance of the accused. In fact, he appears to be the witness for everything that was investigated into by the police.

P.W.6 is Dr. Baban Shripat Shinde, who performed the post-mortem on the deceased on 23.5.1995 between 5.30 to 6.30 p.m. He has proved the injuries that existed on the body of the victim and consequently proved homicidal death of the victim.

P.W.7 Jagannath Kashiram Shinde, is another Assistant Police Inspector who investigated into the crime. This in all is the evidence, relying on which the learned trial judge proceeded to convict the accused as aforesaid.

5. It will be seen that the deposition of P.W.1 Pandurang is not believable. He must not have seen any assault and then there is no evidence to prove beyond doubt that the assault on the victim was by accused only. Infact, the testimony of P.W.4 Mrs. Rajul goes to show that at the time when there was quarrel on the earlier day between accused and the victim, she was successful in controlling the accused and took away the gupti and duster from the accused. The knife which was recovered at the instance of the accused is not connected to the killing. There is no report of Chemical Analyser in relation to this knife. It cannot therefore be conclusively said that it was this knife which was used by the accused for stabbing the victim.

6. There is yet another aspect which we would like to state. This offence has occurred in city of Gr.Bombay in the year 1998 when the science of Forensic Medical had developed quite a lot. It is the finger printing on article of any nature is a routine work. We see no any reason in the present case as to why the knife recovered at the instance of the accused was not sent for forensic medical for finger print and identification. Had the prosecution proved the existence of the finger prints of the accused on the knife, it would have been almost clinching proof against the accused. Failure on the part of the prosecution to undertake proper investigation in such circumstances has resulted in intechnicality of decision of convicting them accused. In our opinion such state of affairs the prosecution has failed to prove their case beyond reasonable doubt. Consequently, the judgment and order of conviction and sentence cannot be maintained. In the result, the judgment and order of conviction is set aside. The accused be set at liberty, if not otherwise required by the police.

The Office is directed to sent the writ expeditiously to the appropriate jail.