Bombay High Court
Rupesh Babu Thapa @ Hamaliya Arjun ... vs The State Of Maharashtra on 6 June, 2016
Bench: V.K. Tahilramani
9. cri apeals 345 & 227 - 14 (j) .doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 345 OF 2014
Rupesh Babu Thapa @ Hamaliya
Arjun Thapa.
Age 32 Years, Occ. Caterer,
Residing at Kabutar Galli Footpath,
Mahi Matura Marg, SVP Road,
Mumbai - 400 064.
Presently lodged in Nasik Road Central
Prison, Nasik. .. Appellant
(Org. Accused 1)
Versus
The State of Maharashtra
At the instance of VP Road Police Station
C.R. No. 96 of 2012 in C.C. No.
323 PW of 2012 .. Respondent
WITH
CRIMINAL APPEAL NO. 227 OF 2014
Lalbihari Kishor Paswan
Convict No. C/9232,
Circle No. 3/4,
Nasik Road Central Prison, Nasik. .. Appellant
(Org. Accused 2)
Versus
The State of Maharashtra
At the instance of VP Road Police Station .. Respondent
...................
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9. cri apeals 345 & 227 - 14 (j) .doc
Appearances
Ms. Sarojini Upadhyay Advocate (appointed) for the Appellant in
Criminal Appeal No. 345 of 2014
Mrs. Nasreen S.K. Ayubi Advocate (appointed) for the Appellant in
Criminal Appeal No. 227 of 2014
Mrs. A.S. Pai APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ.
DATE : JUNE 6, 2016.
COMMON ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1.
Appellant - Rupesh Babu Thapa i.e original accused No.
1 has preferred Criminal Appeal No. 345 of 2014 against the
Judgment and Order dated 27.12.2013 passed by learned
Sessions Judge, City Civil & Sessions Court, Greater Mumbai
in Sessions Case No. 620 of 2012. Appellant - Lalbihari
Kishor Paswan i.e original accused No. 2 has preferred
Criminal Appeal No. 227 of 2014 against the very same
Judgment and Order. By the said judgment and order, the
learned Session Judge convicted both the appellants for the
offence punishable under Section 302 r/w 34 of IPC and
sentenced each of them to suffer rigorous imprisonment for
life and fine of Rs. 5000/- each, in default R.I. for six months.
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The learned Sessions Judge further convicted appellant -
Rupesh Babu Thapa i.e accused No. 1 for the offence
punishable under Section 37(1)(a) r/w 134 of Bombay Police
Act and sentenced him to suffer rigorous imprisonment for
six months. Learned Sessions Judge directed that both the
sentences of imprisonment of accused No. 1 shall run
concurrently.
As both the appeals are directed against the very same
Judgment and Order, we are deciding both the appeals
together. For the sake of convenience, we shall refer to the
appellants as they were referred before the trial Court i.e
appellant - Rupesh Babu Thapa will be referred as accused
No. 1 and appellant - Lalbihari Kishor Paswan will be referred
as accused No. 2.
2. The prosecution case briefly stated, is as under:
(a) PW 1 Rohitkumar was residing in a tea stall which
was situated near Gol Deul (Round Temple) in
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Kabutar Galli at S.V.P. Road, Mumbai. He was
residing there along with accused No. 1 - Rupesh
Thapa, accused No. 2 - Lalbihari, deceased Bablu
Thapa and one other person. Rohitkumar was
working with caterers. Both the accused and the
deceased used to work with caterers. Both the
accused persons and the deceased were in habit
of taking liquor and drugs.
(b) The incident occurred on 20.5.2012. The day
earlier, Rohitkumar, accused No. 2 Lalbihari and
some others went to work for a caterer. They
were working there till 2.00 or 3.00 a.m. As there
was no conveyance to go back as it was late
night, they slept there.
(c) In the morning, they came back to Kabutar Galli at
about 7.00 a.m. Both the accused, deceased and
Rohitkumar went to country liquor bar. PW 1
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Rohitkumar was standing outside. Accused No. 1 -
Rupesh Thapa and the deceased then went
towards the Gol Temple. Rohitkumar and accused
No. 2 Lalbihari went to Kabutar Galli. They took
drugs. Accused No. 1 - Rupesh Thapa and the
deceased came there and they started drinking
liquor. After sometime, accused No. 1 - Rupesh
Thapa and the deceased told Rohitkumar and
accused No. 2 - Lalbihari to give them money.
Both Rohitkumar and accused No.2 - Lalbihari
refused to give money. Then the deceased took
out a razor and assaulted Rohitkumar on the arm.
The deceased also assaulted accused No. 2 -
Lalbihari with razor on the chest. Then both of
them ran away.
(d) Accused No. 2 - Lalbihari told Rohitkumar that
they will go and search for both the persons and
assault them. Both of them started searching for
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the deceased and accused No. 1 - Rupesh Thapa.
When accused No. 2 - Lalbihari saw Bablu Thapa,
accused No.2 - Lalbihari told Rohitkumar to
assault Bablu Thapa but Rohitkumar refused.
Then accused No. 2 Lalbihari went and held hand
of Bablu Thapa and gave him a fist blow on the
chest. Then accused No. 1 Rupesh Thapa took out
a knife and stabbed Bablu Thapa on his neck.
Bablu Thapa started screaming and running.
Then accused No. 2 Lalbihari caught Bablu Thapa
by neck and made him fall down. Then both
accused ran away.
(e) People gathered at the spot. Meanwhile police
vehicle came to the spot on seeing the crowd.
Police went inside the crowd and saw Bablu Thapa
lying there. Police made inquiry about the identity
of the person but no one gave any answer.
Rohitkumar too did not give any answer. He did
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not say anything to the police. Then police took
the body of Bablu Thapa to the hospital. After
sometime, Rohitkumar went to chowky to inquire
whether Bablu Thapa was dead or alive. Police
asked him his identity whereupon Rohitkumar
replied that Bablu Thapa was his friend. The next
morning, Rohitkumar told the police that he had
witnessed the incident.
(f) As stated earlier, the police had arrived at the
spot. ASI Indulkar who was in the police patrolling
van, on seeing the crowd at S.V.P. Road, came to
the spot. He saw one person (deceased Bablu
Thapa) lying there with cut injury on the neck.
They took the person to J.J. Hospital where he was
declared dead. PW 2 ASI Indulkar then lodged
F.I.R. The F.I.R was against unknown persons.
After lodging the F.I.R., investigation commenced.
After completion of investigation, charge sheet
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came to be filed.
3. Charge came to be framed against both the appellants
under Section 302 r/w 34 of IPC. Additional charge was also
framed against accused No. 1 Rupesh Thapa under Section
37(1)(a) r/w 134 of Bombay Police Act. The appellants
pleaded not guilty to the said charge and claimed to be
tried. Their
defence was that of total denial and false
implication. After going through the evidence adduced in
this case, the learned Sessions Judge convicted and
sentenced the appellants as stated in paragraph 1 above,
hence, this appeal preferred by the appellants against their
conviction and sentence.
4. We have heard the learned Advocates for the
appellants and the learned APP for the State. After giving
our anxious consideration to the facts and circumstances of
the case, arguments advanced by the learned Advocates for
the parties, the judgment delivered by the learned Sessions
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Judge and the evidence on record, for the reasons stated
below, we are of the opinion that there is no cogent and
reliable evidence to prove the guilt of both the accused
beyond reasonable doubt.
5. The conviction of both the accused is based on the
evidence of two eye witnesses i.e PW 1 Rohitkumar and PW 3
Santosh. As the prosecution story narrated above is taken
from the evidence of PW 1 Rohitkumar, we will not
overburden the judgment by repeating the same here. In
short, the evidence of PW 1 Rohitkumar shows that both the
accused, deceased and he were friends. Rohitkumar saw
accused No. 1 Rupesh Thapa giving a blow with knife on the
neck of Bablu Thapa. Thereafter, he saw accused No. 2 -
Lalbihari caught Bablu Thapa by the neck and made him fall
down. Thereafter, both the accused ran away.
6. The evidence of PW 1 Rohitkumar is assailed by both
the learned counsel for the accused by pointing out that
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though Rohitkumar is an eye witness to the incident, when
police came to the spot where Bablu Thapa was lying injured
or dead, Rohitkumar did not mention anything to the police
about witnessing the incident. In fact, Rohitkumar has stated
in his examination-in-chief that when Bablu Thapa was
assaulted, people gathered at the spot. Police vehicle, on
seeing the crowd, came to the spot. Police went inside the
crowd and saw Bablu Thapa was murdered. Police inquired
about the identity of the person but no one gave any answer.
Rohitkumar also did not give any answer to the police about
the identity of the deceased. Thereafter, Rohitkumar went to
the garden and slept. Thereafter, Rohitkumar went to the
chowky to inquire whether Bablu Thapa was alive or dead.
Police inquired with Rohitkumar whereupon Rohitkumar
replied that Bablu Thapa was his friend. Rohitkumar them
again went to the garden and slept. The next day morning,
police came and took him to V.P. Road Police Chowky. They
made inquiry with Rohit Kumar. Rohitkumar replied that
Bablu Thapa was his friend. Thereafter, Rohitkumar stated
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to the police that both the accused had assaulted Bablu
Thapa.
7. When the incident occurred and police arrived at the
spot, Rohitkumar was present at the spot, however, he did
not mention anything about identity of the deceased to the
police though police made inquiry about the identity of the
deceased.
Rohitkumar also did not inform the police that
Bablu Thapa was assaulted by both the accused. This delay
on the part of Rohitkumar of informing the police that he had
witnessed the incident raises grave doubt about the veracity
of his evidence. The incident occurred on 20.5.2012 at about
7.30 a.m. however, Rohitkumar informed the police that he
had witnessed the two accused assaulting the deceased only
in the morning of 21.5.2012.
8. The second eye witness is PW 3 Santosh. Santosh has
stated that the incident occurred on 20.5.2012 at about 9.00
a.m.,. At that time, he was working in vadapav shop. There
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was scuffle amongst three people. One caught hold of the
other and inflicted a fist blow from the front and the third
person caught hold of hair of the second person and cut his
throat. The victim shouted for help and tried to run away
whereupon the first person ran behind the victim, made him
fall down and thereafter, he ran away. Santosh has
identified accused No. 2 - Lalbihari as the person who
inflicted fist blow and accused No. 1 - Rupesh Thapa as the
one who cut throat of the deceased. Santosh had also
identified the accused persons in identification parade.
Santosh has stated that police also reached the spot and
took the injured to J.J. Hospital.
9. It is pertinent to note that the incident occurred in the
morning of 20.5.2012, however, the statement of Santosh
was recorded on 23.5.2012 which is not only clear from the
evidence of Santosh but it is also clear from the evidence of
Investigating Officer PW 14 PI Kale. PW 2 Santosh stated
that after the assault when the accused ran away, crowd
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gathered at the spot. Police also reached the spot and took
the injured to J.J. Hospital, however, at that time, Santosh did
not inform the police about witnessing the incident. What is
most interesting to note is that Santosh has acted as a panch
to the inquest panchnama which took place at J.J. Hospital.
Though Santosh had opportunity to interact with the police
especially during the inquest panchnama, he kept quiet
about witnessing the incident and did not inform the police
that he was an eye witness to the incident. Santosh has
admitted that police had inquired with him but yet Santosh
did not disclose anything to the police. Thereafter on
23.5.2012, he went to the Police Station at about 10.00 a.m.
and disclosed about being an eye witness to the incident.
Santosh has also admitted that he did not disclose to his
other colleagues in the shop that he had witnessed the
incident. This fact of Santosh belatedly informing the police
that he had witnessed the incident again raises serious doubt
about reliability of his evidence. Looking to the conduct of
Santosh and the delay on his part to inform the police that
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he had witnessed the incident, we do not find it safe to rely
upon his testimony. Same is the case with the other eye
witness i.e PW 1 Rohitkumar.
10. The prosecution has tried to rely on the circumstance of
recovery of weapon and clothes at the instance of accused
No. 1 - Rupesh Thapa, however, the panch witness i.e PW 9
Riyaz Ansari has admitted that API Patankar introduced him
to accused No. 1 - Rupesh Thapa. This panch witness has
admitted that he knew API Patankar quite well. Looking to
this fact that the relations between the panch witness and
API Patankar were quite close, we do not think it safe to rely
on the testimony of PW 9 panch witness Riyaz Ansari.
11. On going through the record, we do not find that there
is cogent and reliable evidence to prove the guilt of the
accused beyond reasonable doubt, hence, we are inclined to
give benefit of doubt to both the accused and proceed to
pass the following order:-
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ORDER
(i) The Criminal Appeals are allowed.
(ii) The conviction and sentence of both the
appellants imposed by the learned Sessions
Judge, City Civil & Sessions Court, Greater
Bombay in Sessions Case No. 620 of 2012 vide
judgment and order dated 27.12.2013 is set aside.
Both the appellants are acquitted of the said
offences.
(iii) Office to communicate this order to the
Superintendent of prison where the appellants are
lodged and to the appellants-original accused.
12. We quantify legal fees to be paid by the High Court
Legal Services Committee to both the appointed Advocates
at Rs. 5000/- each.
[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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