Bombay High Court
Mahendra Rajaram Gurav vs The State Of Maharashtra on 5 December, 2016
Bench: V.K. Tahilramani
201-APPEAL-676-2005.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.676 OF 2005
MAHENDRA RAJARAM GURAV )
Age 31 years, residing at Arvind Patil Wadi )
Ghatla Village, Chembur, Mumbai-400071. )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.P.B.Patil, Advocate for the Appellant.
Mr.H.J.Dedhia, APP for the Respondent - State.
CORAM : V.K.TAHILRAMANI &
A. M. BADAR, JJ.
DATE : 5th DECEMBER 2016.
ORAL JUDGMENT : (PER V.K.TAHILRAMANI, J.)
1 The appellant / original accused no.2 has preferred
this appeal against the judgment and order dated 6 th April 2005
passed by the Additional Sessions Judge, Mumbai, in Sessions
Case No.281 of 1990. By the said judgment and order, the
learned Additional Sessions Judge convicted original accused no.1
under Section 302 read with Section 34 of the IPC and the present
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appellant only under Section 324 read with Section 34 of the IPC.
For the said offence, the appellant has been sentenced to suffer
rigorous imprisonment for 3 years and to pay fine of Rs.5,000/-, in
default, rigorous imprisonment for 3 months.
2 The prosecution case briefly stated is as under :
PW1 Vikas Patel knew deceased Laxmi Shah. On 15 th
July 1989, deceased Laxmi Shah and PW1 Vikas were proceeding
together to the night school of Laxmi Shah. At that time, the
accused persons started abusing PW1 Vikas. Laxmi Shah tried to
intervene, whereupon, accused no.1 Vikaykumar Xavier Francis
assaulted Laxmi Shah with a knife. Vikas Patel was assaulted by
some of the accused with cycle chain. Laxmi Shah expired on
account of the injuries. PW1 Vikas Patel lodged FIR. Thereafter,
investigation commenced. After completion of investigation, charge-
sheet came to be filed. Charge came to be framed against the
appellant and co-accused under Sections 143, 144, 147, 148, 302
read with Section 149, in alternate, Section 302 read with Section
34 of the IPC and Section 324 read with Section 34 of the IPC.
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After going through the evidence adduced in this case, the learned
Additional Sessions Judge convicted original accused no.1
Vikaykumar Xavier Francis for the offence of murder of Laxmi
Shah. The learned Additional Sessions Judge acquitted the
appellant i.e. original accused no.2 as well as original accused
no.3 Giridhar Paradkar of the offence under Section 302 and other
sections of the IPC. However, he convicted the appellant and
original accused no.3 under Section 324 read with Section 34 of
the IPC for assaulting PW1 Vikas Patel with cycle chain.
3 There is only one eye witness in the present case i.e.
PW1 Vikas Patel. There is no recovery at the instance of the
appellant. It may be stated that original accused no.1 Vijaykumar
Xavier Francis preferred Criminal Appeal No.448 of 2005 against
his conviction and sentence under Section 302 of the IPC. The
said appeal was allowed by this court by judgment and order
dated 4th December 2006. On going through the said judgment, it
is seen that this court did not place reliance on the evidence of
PW1 Vikas Patel and did not find his evidence to be trustworthy.
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As far as the present appellant is concerned, the only evidence
sought to be relied upon against him is the evidence of PW1 Vikas
Patel. PW1 Vikas Patel speaks of he being assaulted by cycle
chain, however, there is no evidence available on record of any
injury on the person of PW1 Vikas Patel.
4 In view of the fact that evidence of PW1 Vikas Patel
was not relied upon in relation to the conviction of appellant no.1
Vijaykumar Xavier Francis, we find it difficult to place any reliance
on the evidence of PW1 Vikas Patel. Besides the evidence of PW1
Vikas Patel, there is no other evidence to connect the appellant
with the crime. In this view of the matter, this appeal has to be
allowed.
ORDER
1) Appeal is allowed.
2) Fine amount, if any paid, be refunded to the appellant.
(A. M. BADAR, J.) (V.K.TAHILRAMANI, J.)
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