Bombay High Court
Raju Lahu Sawant vs The State Of Maharashtra And Anr on 5 July, 2017
Bench: V.K. Tahilramani
15. cri apeal 1360-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1360 OF 2011
Raju Lahu Sawant
Age - 29 Years,
Residing at : On Footpath,
In front of ATM Booth of Canara Bank,
Near Dockyard Railway Station,
Mazgaon, Mumbai.
Presently lodged in Nasik Road Central
Prison, Nasik. .. Appellant
(Org. Accused)
Versus
1. The State of Maharashtra
2. The Sr. Inspector of Police
(Byculla Police Station vide
C.R. No. 198/09 u/S. 302 of IPC)
(Sessions Case No. 716/2009 in
Court No. 2 at Sewari Session Court) .. Respondents
...................
Appearances
Ms. Rohini M. Dandekar Advocate (appointed) for the Appellant
Mrs. G.P. Mulekar APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SANDEEP K. SHINDE, JJ.
DATE : JULY 5, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 16.12.2010
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passed by the learned Ad-hoc Additional Sessions Judge,
Sewree, Mumbai in Sessions Case No. 716 of 2009. By the
said judgment and order, the learned Session Judge
convicted the appellant for the offence punishable under
Section 302 of IPC and sentenced him to suffer imprisonment
for life and fine of Rs. 5000/-, in default R.I. for 6 Months.
2. The prosecution case briefly stated, is as under:
(a) The appellant and deceased Sunil used to sleep in
front of bookstall near Dockyard Railway Station.
PW 5 Subhash who was working as a coolie at
Dockyard Railway Station also used to sleep on
the same spot. The incident occurred on the night
between 16.8.2009 and 17.8.2009.
(b) On 16.8.2009 at about 9.00 p.m, PW 5 Subhash
had taken his meals. At that time, the appellant
and the deceased were sleeping at some distance
from him. At about 10.00 p.m., one old woman
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Rani Maa had brought meals. As Subhash had
already taken meals, he asked the appellant
whether he would take the meals. The appellant
replied in the affirmative. While the appellant was
taking meals, Sunil woke up and told the appellant
that when he had asked him for taking meals, at
that time, the appellant had refused and now the
appellant was taking meals. Saying so, Sunil beat
the appellant.
(c) At about 2.00 p.m., Subhash woke up due to
shouts of Sunil. Subhash saw Sunil lying in injured
condition and the appellant was standing nearby.
Thereafter, the appellant went away.
(d) PW 1 ASI Mali who was attached to Byculla Police
Station was informed at about 3.10 a.m., that one
injured person was lying in front of Dockyard
Railway Station, hence, he went to the spot. He
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saw one person was lying there in unconscious
state with injuries on his person. He took the said
person (Sunil) and admitted him in J.J. Hospital.
ASI Mali then registered the FIR. The said FIR was
against an unknown person. Thereafter
investigation commenced. Meanwhile, Sunil
expired on 22.10.2009. The offence was
converted into Section 302 of IPC.
(e) The dead body of Sunil was sent for postmortem.
PW 4 Dr. Meshram conducted the postmortem.
He found 11 injuries on the person of Sunil. Six of
them were lacerations. Two of which were on the
head. Two injuries were caused during the
treatment in the hospital and the rest of the
injuries were minor abrasions. Though no internal
fractures were found, the cause of death was
injury to the head. After completion of
investigation, the charge sheet came to be filed.
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3. Charge came to be framed against the appellant -
original accused under Section 302 of IPC. The appellant-
accused pleaded not guilty to the said charge and claimed
to be tried. His 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 appellant as stated in paragraph 1 above,
hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP. After giving our anxious consideration
to the facts and circumstances of the case, arguments
advanced by the learned counsel for the parties, the
judgment delivered by the learned Sessions Judge and the
evidence on record, for the reasons stated below, we are of
the opinion that there is no reliable material to connect the
appellant to crime.
5. There is no eye witness to the incident nor is there any
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recovery at the instance of the appellant. The weapon of
assault is stated to be a stone which was found at the spot.
On going through the evidence, we find that there is no
reliable material to connect the appellant to crime. The
prosecution has placed reliance on the evidence of PW 5
Subhash who used to sleep along with the appellant and the
deceased in front of Dockyard Railway Station. PW 5
Subhash has stated that On 16.8.2009 at about 9.00 p.m, PW
5 Subhash had taken his meals. At that time, the appellant
and the deceased were sleeping at some distance from him.
At about 10.00 p.m., one old woman Rani Maa had brought
meals. As Subhash had already taken meals, he asked
the appellant if he would take the meals. The appellant
replied in the affirmative. While the appellant was taking
meals, Sunil woke up and told the appellant that when he
had asked him for taking meals, at that time, the appellant
had refused and now the appellant was taking meals. Saying
so, Sunil beat the appellant. Subhash further stated that at
about 2.00 p.m., Subhash woke up due to shouts of
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Sunil. Subhash saw Sunil lying in injured condition and the
appellant was standing nearby. Thereafter, the appellant
went away.
6. The fact that the appellant was found standing at the
spot and thereafter he went away does not reliably and
convincingly connect the appellant with the crime specially
in view of the fact that the appellant also used to sleep at the
same spot, hence, the presence of the appellant at the spot
of the incident was natural. Thereafter, the prosecution has
tried to place reliance on the evidence of PW 7 PSI Satpe.
This witness has deposed about the seizure of clothes of the
appellant. These clothes were sent to C.A. As per C.A.
report Exh. 32, the pant of the appellant was found stained
with human blood. As far as this aspect is concerned, PW 7
PSI Satpe has deposed on this aspect. It is noticed that he
has stated that the clothes of the appellant were seized
under panchnama at the time of his arrest. He does not
mention anything about sealing of the said clothes. Since,
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there is no evidence about sealing of the said article at the
spot at the time of seizure, according to us, no reliance can
be placed on the finding of the chemical analyzer. In this
regard, useful reference may be made to the decision of the
Supreme Court in the case of Amarjit Singh @ Babbu Vs.
State of Punjab1, wherein the Supreme Court has held that
non-sealing of the articles at the spot is a serious infirmity
because the possibility of tampering with the said articles
cannot be ruled out. The same view was followed in two
decisions of the Division Bench of this Court in the case of
Ashok Premji Nirbhawane Vs. State of Maharashtra 2
and Rajaram Limbaji Babar Vs. The State of
Maharashtra3 . In such case, we are not inclined to place
any reliance on the seizure of pant of the appellant and the
CA report.
7. There is no other material except the evidence
discussed above to connect the appellant to the crime. In
1 1995 Suppl (3) SCC 217
2 Cri. Appeal No. 886 of 2012 dated 11.4.2014 (Coram : P.V. Hardas & A.S. Gadkari, JJ)
3 Cri. Appeal No. 899 of 2005 dated 17.1.2014 (Coram : P.V. Hardas & A.S. Gadkari, JJ)
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this view of the matter, we are of the opinion that the appeal
deserves to be allowed. Hence, we proceed to pass the
following order:-
ORDER
i. The Criminal Appeal is allowed.
ii. The Judgment & Order dated 16.12.2010 passed by the
learned Ad-hoc Additional Sessions Judge, Sewree,
Mumbai in Sessions Case No. 716 of 2009 is hereby set
aside.
iii. The appellant is acquitted of the offence under Section
302 of IPC. He be set at liberty if not required in any
other case.
7. Office to communicate this order to the appellant who
is in Nasik Road Central Prison, Nasik.
[ SANDEEP K. SHINDE, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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