Manoj S/O Gayaprasad Mishra (In ... vs State Of Maharashtra, Through Pso ...
2017 Latest Caselaw 7138 Bom

 1409apeal483.15-Judgment                                                                     1/22


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


                     CRIMINAL APPEAL  NO.  483   OF   2015


 APPELLANT :- (In Jail)               Manoj S/o Gayaprasad Mishra, Aged About
                                      32   Years;   Occup:   Private,   R/o   Plot   No.19,
                                      Swagat Nagar, Near Shiv Mandir, Infront of
                                      Paloti Church, Nagpur.                           


                                         ...VERSUS... 

 RESPONDENT :-                        State   of   Maharashtra,   Through   PSO,
                                      Gittikhadan, Nagpur. 


 ---------------------------------------------------------------------------------------------------
          Mr. R.M.Daga & Mr. C.R.Thakur, counsel for the appellant.
                     Mr. A.M.Joshi, Addl.Public Prosecutor with
                     Mr. A.B.Moon, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------



                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    M. G. GIRATKAR
                                                                   ,   JJ.

DATED : 14.09.2017

O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)

By this criminal appeal, appellant - Manoj has challenged the

judgment of the Additional Sessions Judge, Nagpur dated 27-10-2015

in Sessions Trial No. 311/2012 convicting the appellant for the offence

1409apeal483.15-Judgment 2/22

punishable under Section 302 of the Penal Code and sentencing him to

undergo rigorous imprisonment for life and to pay fine of Rs.5,000/-

and in default of payment of fine to suffer simple imprisonment for six

months.

2. According to the prosecution case, informant Malcolm @

Pintu was working in a private company and 2-3 days before the date of

incident on 6-3-2012, he had a quarrel with appellant - Manoj and his

brother Nitin. On 6-3-2012, appellant Manoj and original accused no. 3

Krushna came to Malcolm and told him that appellant Manoj was

calling him. Malcolm informed Krushna that it was night time and he

would meet appellant Manoj in the morning. Krushna went back and

returned after some time informing Malcolm that he was called

immediately. Malcolm was frightened and he informed Vijay (deceased)

that appellant Manoj was calling him. Vijay asked Malcolm not to go

there alone and he would go to meet Manoj. Vijay then started

proceeding towards the house of Malcolm. Malcolm proceeded towards

the house of Vijay by his motorcycle. Since Vijay was also coming

towards the house of Malcolm, both of them met at Swagat Nagar.

Vijay then walked towards Manoj from a spot which was at a distance

of 100 ft. from the house of Malcolm. Then Vijay, Ravi Roy (accused

no. 2) and appellant Manoj went towards Palloti Church on the

motorcycle which Ravi Roy was riding. Krishna @ Sonu went towards

1409apeal483.15-Judgment 3/22

Palloti Church on foot. The motorcycle was halted near Banarasi Pan

Mandir near Palloti Church and appellant Manoj assaulted Vijay by

knife on the chest and left side of his stomach. In the meanwhile,

suspecting some untoward incident, Malcolm made a phone call to

Police Constable Prashant Thaware (P.W. 6) who was his friend and

informed him that Vijay was taken by appellant-Manoj and original

accused no. 2 Ravi Roy on the motorcycle. Prashant Thaware (P.W. 6)

came towards the spot near Banarasi Pan Mandir and witnessed the

incident and informed Malcolm that Vijay was killed. After Malcolm

received the information, he lodged the report in Police Station,

Gittikhadan. Vijay was taken to Kunal Hospital where he was declared

dead. The dead body of Vijay was shifted to Mayo Hospital. After the

completion of investigation, the charge was framed against appellant

Manoj, original accused no. 2 Ravi Roy and accused no. 3 Krushna @

Sonu for the offence punishable under Section 302 read with Section 34

of the Penal Code. All the three accused pleaded 'not guilty' and the

defence was of total denial and false implication. In order to prove the

guilt of the accused, the prosecution examined as many as 15 witnesses.

The prosecution had sought to prove their case against the accused on

the basis of the evidence of eye witness Prashant Thaware (P.W. 6).

For proving the guilt of the accused, the prosecution had examined as

many as 15 witnesses. The prosecution examined Shri Sandip Gawande,

P.W. 1, the panch at the Mayo Hospital, P.W. 2 Umesh Dongare, the

1409apeal483.15-Judgment 4/22

panch for the spot panchanama, P. W. 3 Nitin Soni, the panch to the

statement made by appellant Manoj under Section 27 of the Evidence

Act and the recovery of weapon of offence i.e. knife from the premises

in Satyaprakash School behind Banarasi Pan Mandir and the recovery of

the clothes of appellant Manoj i.e. the pants and T-shirt from below the

cot of Manoj, in his house. Malcolm, who had lodged the report after

he was allegedly informed about the murder of Vijay by Prashant

Thaware was examined as P.W. 4. Sachin Shewale (P.W.5) had

recorded the report lodged by Malcolm. P.W. 6, eye witness Prashant

Thaware was examined to prove that the accused had committed the

murder of Vijay. The other material witnesses examined by the

prosecution are the Investigating Officer at P.W. 13, Ravindra Solav -

P.W. 12 to whom Prashant had allegedly informed about the assault on

Vijay, P.W. 8 Manjit Bahadursingh who is also the friend of P.W. 6

Prashant and who was allegedly informed by Prashant about the assault

on Vijay. Manjit Bahadurisngh was also serving as a Police Constable.

Several documents were produced on record in support of the

prosecution case. On an appreciation of the evidence on record, the

trial Court held that the prosecution was successful in proving that the

death of Vijay was homicidal. The trial Court held that the prosecution

had proved that appellant Manoj had intentionally committed the

murder of Vijay and he was liable to be convicted for the offence

punishable under Section 302 of the Penal Code. The Court however

1409apeal483.15-Judgment 5/22

held that the prosecution had failed to establish that the other two

accused, namely, accused no. 2 Ravi Roy and accused no. 3 Krushna @

Sonu were not guilty of the offence of committing the murder of Vijay.

After recording the aforesaid findings, the trial Court acquitted accused

no. 2 Ravi Roy and accused no. 3 Krushna and convicted appellant

Manoj for the offence punishable under Section 302 of the Penal Code.

The judgment of the trial Court is assailed by appellant Manoj in this

appeal.

3. Shri Daga, the learned counsel for the appellant - Manoj

submitted that the prosecution case is based mainly on the testimony of

the sole eye witness i.e. P.W. 6 Prashant and it could be gathered from

the evidence of his three friends viz. Shri Ravindra Solav (P.W. 12),

Shri Manjitsingh (P.W. 8) and Malcolm (P.W. 4) that there are material

contradictions in their evidence, in respect to the commission of the

crime. It is stated that the evidence of eye witness - Prashant is not

corroborated by the evidence of the other witnesses and medical

evidence. It is submitted that though it is deposed by the eye witness in

his evidence that he had informed his four friends viz. Malcolm,

Ravindra Solav, Dinesh Mishra and Manjitsingh about witnessing the

crime, there are glaring contradictions in the evidence of P.W. 6

Prashant, Ravindra Solav, Manjitsingh and Malcolm. It is stated that

the material contradictions relate to the aspect that goes to the root of

1409apeal483.15-Judgment 6/22

the matter and therefore the very existence of Prashant on the scene of

crime becomes doubtful. It is stated that there is considerable delay in

recording the statement of eye witness - Prashant as though the

incident occurred at about 12.30 - midnight on 06/03/2012 and in the

report lodged by Malcolm, the name of Prashant was mentioned as the

witness to the crime, the statement of Prashant was recorded only on

8-3-2012. The learned counsel relied on the judgments reported in

(1976) 4 SCC 288 ( State of Orissa v. Mr. Brahmananda Nanda),

(2016) 3 SCC (Cri) 211 (Shahid Khan v. State of Rajasthan) and

2012 ALL M R (Cri) 3605 (Laxman Bapurao Ghaiwane v. The State

of Maharashtra) to substantiate his submission on the aspect of delay

in recording the statement of the eye witness. It is submitted that

though appellant-Manoj was arrested on 09.03.2012, the

memorandum-statement under Section 27 of the Evidence Act was

recorded on 14.03.2012 and the recovery of the knife and the clothes of

appellant Manoj from near the debris in Satyaprakash school and from

below the cot in his house respectively, was made on 14.03.2012. It is

submitted that the recovery would be doubtful as the same is made

after five days from the arrest of the appellant without any explanation.

The learned counsel relied on the judgment reported in 2007 All M R

(Cri) 28 (Sarvanand @ Soiru Gaonkar s/o Purso Gaonkar v. State of

Goa) to substantiate his submission. It is submitted that the recovery of

the knife was from a place that was accessible to all and the recovery of

1409apeal483.15-Judgment 7/22

the bloodstained clothes of appellant-Manoj was made nine days after

the date of the incident from below the cot of Manoj. It is stated that

the recovery of the knife from an open space which was accessible to all

and the recovery of the bloodstained clothes of Manoj from below his

cot appears to be doubtful. It is submitted that though the knife and the

clothes of appellant-Manoj were recovered on 14.03.2012, they were

sent to the chemical analyzer as belatedly, as on 31.05.2012. It is

stated that there is no explanation, whatsoever about the condition in

which the articles were retained and where they were kept, by the

investigating officer. It is submitted that in the absence of any

explanation in this regard, the prosecution cannot be permitted to rely

on the report of the chemical analyzer that the blood-group of the

bloodstains on the clothes of Manoj and the knife seized on 14.03.2012

matched with the blood group of deceased Vijay. The learned counsel

relied on the judgment reported in 2017 All M R (Cri) 496 (Raju

Mahesh Dhruv v. State of Maharashtra) to submit that much

importance cannot be attached to the appearance of the bloodstains on

the recovered articles in the absence of any evidence that the articles

were retained properly. It is submitted that there is nothing on record

to show that the articles were immediately kept in the malkhana after

they were seized on 14.03.2012. It is stated that the last-seen together

theory also cannot be applied by the prosecution to bring home the

guilt of accused-Manoj as though it is stated in the evidence of Malcolm

1409apeal483.15-Judgment 8/22

that Ravi Roy, deceased Vijay and appellant-Manoj proceeded on the

motorcycle, the omission in that regard is proved by the admission of

Malcolm (P.W.No.4) as also the investigating officer in their cross-

examination. It is stated that though Prashant had deposed that Mukesh

Mawande was also an eye witness to the incident, for the reasons best

known to the prosecution, they have failed to examine him. It is stated

that in the aforesaid scenario, it cannot be said that the prosecution has

proved that the appellant had committed the murder of Vijay, beyond

reasonable doubt.

4. Shri Joshi, the learned Additional Public Prosecutor

appearing for the respondents, supported the judgment of the trial

Court. It is stated that after the knife and clothes were recovered on

14.03.2012, they were sent to the malkhana on 01.04.2012 and from

the malkhana they were sent to the chemical analyzer on 31.05.2012.

It is stated that there is evidence on record to show that the articles

were found in a sealed packet when they were received by the chemical

analyzer. It is stated that merely because there is some delay in sending

the articles to the chemical analyzer and there is no explanation in

regard to their custody before 01.04.2012, it cannot be said that no

importance can be given to the opinion of the chemical analyzer. It is

submitted that it cannot be said that the recovery of the knife was from

an open space as the knife was recovered on 14.03.2012 from a bush

1409apeal483.15-Judgment 9/22

beside the debris in Satyaprakash school. It is submitted that merely

because the bloodstained clothes of appellant-Manoj were kept below

his cot, the said recovery cannot be doubted. It is submitted that

Mukesh Mawande was not examined by the prosecution as he was not

ready to support the case of the prosecution and the said fact could be

depicted from the pursis filed by the prosecution before the trial Court.

It is submitted that since the blood-group of deceased Vijay was found

on the knife as also the clothes of appellant-Manoj, the trial Court

rightly considered it as one of the incriminating circumstances to bring

home the guilt of the accused. The learned Additional Public Prosecutor

relied on the judgment of the Hon'ble Supreme Court reported in

(2004) 12 SCC 229 (Yakub Ismailbhai Patel v. State of Gujarat) to

substantiate his submission that in a given case, the eye witness may

flee from the spot of occurrence for saving his life and that would not

make his testimony unreliable. It is stated that much importance cannot

be therefore attached to the fact that Prashant (PW6) had fled from the

spot as soon as he saw appellant-Manoj inflict a stab on the left side of

the stomach of deceased Vijay. Reliance is placed on the judgment

reported in 1991 Supp.(2) SCC 677 (Jayaram Shiva Tagore and

others v. State of Maharashtra) to submit that the evidence of the eye

witness cannot be discarded on the basis of minor discrepancies in the

evidence of witnesses. It is stated that the evidence of Prashant (PW6)

was corroborated by the medical evidence as it is clear from the post-

1409apeal483.15-Judgment 10/22

mortem report that most of the stab injuries were found on the left side

of the body of Vijay. Also, reliance was placed on the judgment

reported in AIR 2000 SC 1735 (State of U.P. v. Babu Ram) to submit

that the delay in recording the statement of the eye witness would not

be enough for dispelling his evidence as an investigating officer may

have his own reasons for not interrogating the accused as soon as he

sees him. It is stated that an investigating officer has various

engagements and hence, the delay in recording the statement of the eye

witness cannot be frowned upon. Lastly reliance is placed on the

judgment of the Rajasthan High Court in the case of Ramlal Versus

State of Rajasthan to substantiate the submission that when the

recovered articles were sent to the chemical analyzer in sealed

packets, no irregularity can be found about keeping the articles. The

learned Additional Public Prosecutor sought for the dismissal of the

appeal.

5. The case of the prosecution is mainly based on the evidence

of eye witness P.W.6-Prashant and the evidence of the other witnesses,

the post-mortem report, the chemical analyzer's report, etc. which

according to the prosecution corroborates the evidence of the eye

witness. It is well settled that there is no bar in basing the conviction of

an accused on the testimony of a sole eye witness provided that the

evidence of the sole eye witness is wholly reliable and trustworthy. It is

1409apeal483.15-Judgment 11/22

further well settled that when there is a sole eye witness to the incident,

his evidence has to be accepted with caution and after testing it on the

touchstone of the evidence of the other witnesses and the other

evidence tendered by the prosecution. The evidence of the sole eye

witness should be reliable, cogent and most essentially, it must fit into

the chain of events stated by the prosecution. In short, the evidence of

the sole eye witness has to be wholly reliable and trustworthy. By

keeping these principles in mind, it would be necessary to consider the

evidence tendered by P.W.6-Prashant, who claims to be the witness to

the crime. It would be necessary to bear in mind that P.W.6-Prashant is

a police constable who was posted at Nagpur at the relevant time.

Prashant has testified that when he had reached his home at about

11.30 p.m. on 06/03/2012, he was called at 12.00 midnight by P.W.4-

Malcolm. As per P.W.6-Prashant, Malcolm told him on telephone that

Vijay was not receiving his phone and therefore, he was asked by

Malcolm to make a phone call to Vijay. Accordingly, Prashant made a

phone call to Vijay but Vijay did not receive the same. When a call was

made on the third occasion, the phone was received by Vijay but he did

not talk to Prashant and Prashant could hear certain voices from which

he could gather that there was some quarrel. On hearing the voices,

Prashant proceeded towards the house of Vijay on his motorcycle. At

the same time, Malcolm also started from his house and when Prashant

was near Palloti square, he heard the voice of Vijay and found that

1409apeal483.15-Judgment 12/22

accused no.2-Ravi Roy, appellant-Manoj and Vijay were riding on a

motorcycle, triple seat. It is deposed by Prashant that the motorcycle

was stopped near Benarasi Pan Shop. At that time, Vijay told appellant-

Manoj that "Jaane Do Na Bhau, Zagda Khatam Karo Aur Malcolm @

Pintu Ko Chhod Do" (Give up the quarrel with Malcolm @ Pintu and

excuse him). The eye witness has testified that thereafter appellant-

Manoj stabbed Vijay on the left side of his stomach and said that on

earlier occasion also he had tried to save Malcolm and on this occasion

also, he was doing that. On seeing appellant-Manoj inflicting a stab

injury on the left side of the stomach of Vijay, Prashant tried to save

Vijay from the clutches of appellant-Manoj but as Vijay fell on the

ground, Prashant was frightened and he fled from the spot towards

Palloti square. It is deposed by Prashant that he then called his friends

Dinesh Mishra, Ravi Solav and Manjit Singh on phone and informed

them about the incident. It is stated in his evidence that at that time, he

received a call from Malcolm and he told Malcolm that Vijay was

assaulted. It is then deposed that after 20 to 25 minutes, he received a

phone call from Dinesh Mishra and he was informed that the police

were informed in regard to the incident. It is deposed that thereafter

he went to Kunal Hospital where Vijay was declared brought dead and

then to Mayo Hospital where the dead body of Vijay was kept in the

mortuary. It is lastly stated by Prashant in his examination-in-chief that

after a few days from the incident, he noticed Mukesh Mawande, who

1409apeal483.15-Judgment 13/22

was also an eye witness to the incident, near the pan shop and he had

informed the police about Mukesh Mawande being an eye witness to

the crime and at that time, a supplementary statement of Prashant was

recorded.

6. The post-mortem report shows eight stab injuries and about

eleven other injuries on the dead body of Vijay. Since it is the case of

Prashant that he had witnessed appellant-Manoj stabbing only once on

the left side of the stomach of Vijay and he had fled from the spot

immediately thereafter, it would be necessary to consider the evidence

of the three friends of Prashant, viz. P.W.4-Malcolm, P.W.8-Manjit

Singh and P.W.12-Ravi Solav to whom he had immediately called after

he had allegedly witnessed the crime. It is necessary to note that P.W.4-

Malcolm has stated in his evidence that P.W.6-Prashant had called him

and had informed that appellant-Manoj, accused no.2-Ravi Roy and

accused no.3-Krushna @ Sonu had killed Vijay by knife. There appears

to be a glaring contradiction in the evidence of Prashant and Malcolm

as Prashant has allegedly seen accused-Manoj giving only one stab

injury to Vijay on the left side of his stomach and had fled. On the

other hand, Malcolm deposed that Prashant had told him after

witnessing the incident that all the three accused, i.e., appellant-Manoj,

Ravi Roy and Krushna @ Sonu had killed Vijay by knife. Let us now

consider the evidence of P.W.8-Manjit Singh. The said witness deposed

1409apeal483.15-Judgment 14/22

that at 12.20 a.m., he was informed by Prashant on his cellphone that

some persons were beating Vijay at Palloti square and that he should

call on "100" to the police. Manjit Singh testified that when he met

Prashant at Mayo Hospital, Prashant told him that Manoj and his

associates assaulted Vijay by weapons. There are material contradictions

in the evidence of eye witness Prashant, P.W.4-Malcolm and P.W.8-

Manjit Singh. Though Dinesh Mishra to whom a call was made by

Prashant immediately after the incident is not examined, Ravi Solav, the

other friend of Prashant is examined by the prosecution as P.W.12.

Ravi Solav has stated in his evidence that Prashant told him on phone at

12.30 midnight on 06/03/2012, that Vijay was murdered. Let us now

consider the evidence of Prashant and further consider whether it is

corroborated by the evidence of Malcolm, Manjit Singh and Ravi Solav,

in respect of his claim that he had witnessed the crime. P.W.6-Prashant

had seen appellant-Manoj inflicting only one stab injury on Vijay and no

further assault, whereas, Malcolm has deposed that Prashant had told

him that all the three accused, viz.Manoj, Ravi Roy and Krushna @

Sonu had killed Vijay by knife. P.W.8-Manjit Singh, who is also a police

constable has testified that Prashant had called him immediately after

the incident and informed him that some persons were beating Vijay

and at Mayo Hospital he was informed by Prashant that appellant-

Manoj and his associates had assaulted Vijay with weapons. Ravi Solav

on the other hand, had stated that Prashant had told him that Vijay was

1409apeal483.15-Judgment 15/22

murdered. In these circumstances, it would be difficult to rely on the

testimony of the sole eye witness for holding that appellant-Manoj had

murdered Vijay when the evidence of the said eye witness is not

corroborated by the evidence of the other witnesses viz. Malcolm,

Manjit Singh and Ravi Solav.

7. Apart from the aforesaid glaring contradictions in the

evidence of the witnesses, there is another reason to doubt the presence

of P.W.6-Prashant at the spot of incident. Though in the report lodged

by Malcolm at about 2.30 a.m. on 07.03.2012 it is mentioned that

Prashant had witnessed the crime and he had asked Malcolm to lodge a

report, the statement of Prashant is recorded only on 08.03.2012.

There is no explanation whatsoever as to why the statement of Prashant

was not recorded by the police immediately after he was named in the

report as an eye witness though he was present on the spot, when the

police party had arrived, when he was at Mayo Hospital in the midnight

between 06.03.2012 and 07.03.2012 and when there is nothing on

record to show that he was not ready to attend the police station to give

a statement. The statement of Prashant ought to have been recorded at

the earliest available opportunity. The learned counsel for the appellant

has rightly relied on the judgments reported in (2016) 4 SCC 96

(Shahid Khan v. State of Rajasthan), 2012 All M R (Cri.) 3605

(Laxman Bapurao Ghaiwane v. The State of Maharashtra) and

1409apeal483.15-Judgment 16/22

(1976) 4 SCC 288 (State of Orissa v. Mr. Brahmananda Nanda) to

substantiate his submission that unexplained delay in recording the

statement of the eye witness may in a given case, prove to be fatal. Not

only was the statement of Prashant not recorded at the earliest

opportunity, we further find that the conduct of Prashant after allegedly

witnessing the crime was also not normal. We have to consider the

conduct of Prashant as an eye witness by keeping in mind that Prashant

is a police constable. On seeing appellant-Manoj give a stab injury to

Vijay, Prashant fled from the spot. The learned Additional Public

Prosecutor had stated that this conduct could be normal. We do not

dispute this submission. It is possible that even a cop may flee from the

spot if he apprehends that he may, in a given case, be at the receiving

end at the hands of the assailants. We are not surprised at the action on

the part of Prashant of fleeing the spot but we are surprised that

Prashant, who is a police constable, did not call the police on number

'100' to inform them that he had witnessed the crime near Palloti square

and he had seen appellant-Manoj stabbing deceased Vijay. It is

surprising that Prashant had not called the police at all. Even a person

who is not in the police department may call the police on witnessing a

crime. Since Prashant did not call the police immediately on witnessing

the crime, though he is a police constable, we gravely doubt whether

Prashant had really witnessed the crime.

1409apeal483.15-Judgment 17/22

8. It would now be necessary to consider whether the

prosecution has proved the recovery of the articles, i.e. knife and the

bloodstained clothes of appellant-Manoj. Appellant-Manoj was arrested

on 09/03/2012. It appears from the material on record that

memorandum-statement of appellant-Manoj was recorded on

09/03/2012 but no recovery was made in pursuance thereof.

Memorandum-statement of appellant-Manoj was again recorded on

14/03/2012. and on the basis of the same, the prosecution has

allegedly recovered the bloodstained knife and clothes of appellant-

Manoj from the bushes in the premises of Satyaprakash School and

from below the cot of appellant-Manoj in his house, respectively. There

is no explanation from the prosecution as to why the recovery of the

articles were not made after the appellant was arrested on 09/03/2012

and what was the reason for the belated recovery. In the absence of

any explanation in regard to the time gap between the arrest of the

appellant and the recovery of the knife and the clothes, the recovery

would have a doubtful character. It is held by this court in the

judgments reported in 2007 ALL MR (Cri) 28 (Sarvanand @ Soiru

Gaonkar s/o Purso Gaonkar v. State of Goa) and 1994 Cri.L.J. 274

(Ahmad alias Ahmad Chakri andothers v. The State of

Maharashtra) that unexplained delay in recovery would certainly

diminish the value to be attached to it. In the judgment reported in

1994 Cri.L.J. 274, it is observed by this court that when there is a total

1409apeal483.15-Judgment 18/22

vacuum in the prosecution case as to why even though the accused was

in custody, it took the police so much time to effect the discoveries in

question, the extent of delay could have fatal consequences. Though in

the said case also it was strenuously contented on behalf of the

prosecution that the delay was insignificant, as it was hardly 4 to 5

days, the court had held that the delay of 4 or 5 days could have fatal

consequences. The court went on to add that the evidentiary value of

the discovery would get considerably weakened because of the delay

factor. In the present case also, though appellant-Manoj was arrested

on 09/03/2012, the recovery was made on 14/03/2012 and there is no

explanation whatsoever, by the prosecution in respect of the said time

gap. Apart from the fact that there was delay in making the recovery of

the articles, we further find that there is inordinate delay in sending the

murder weapon and the bloodstained clothes of appellant-Manoj to the

chemical analyser. The recovery of the articles was made on

14/03/2012 but the same were sent to the chemical analyser for

examination, only on 31/05/2012. Though it is sought to be canvassed

on behalf of the prosecution that the articles were safely kept in the

malkhana on 01/04/2012, there is no explanation as to where the

articles were lying for a considerable period between 14/03/2012 till

01/04/2012. Also, there is nothing on record to show that the articles

were kept in sealed covers immediately after they were seized till they

were sent to the chemical analyser for examination on 31/05/2012.

1409apeal483.15-Judgment 19/22

Merely because there is a mention in the report that when the chemical

analyser received the articles, they were found in sealed envelops would

not be enough to prove that the prosecution had retained the articles in

sealed covers during the period from 14/03/2012 to 31/05/2012. This

court has held in the judgment reported in 2017 ALL MR (Cri.) 496

(Raju Mahesh Dhruv v. State of Maharashtra) that the delay in

sending the samples of the muddemal articles to the chemical analyser

would result in giving lesser importance to the appearance of

bloodstains of the blood group of the deceased on the clothes of the

accused. In the case in the reported judgment, there was a time gap of

hardly 4 days in dispatching the muddemal articles to the chemical

analyser, whereas in the present case the delay is to the extent of more

than 75 days. In the aforesaid set of facts, much weightage or

importance cannot be attached to the recovery of the knife and the

bloodstained clothes of appellant-Manoj as also the opinion of the

chemical analyser that the blood group of the bloodstains on the

clothes of appellant-Manoj matched with the blood group of deceased

Vijay.

9. We also find that the other eye witness to the crime, as per

the evidence of P.W. No.6-Prashant, namely Mukesh Mawande was not

examined by the prosecution by stating that he was not ready to

support the prosecution case. Though the post-mortem report would

1409apeal483.15-Judgment 20/22

prove that the death of Vijay is homicidal, in view of material

discrepancies and contradictions in the evidence of the eye witness and

the other prosecution witnesses in respect of the occurrence of the

crime and the involvement of the accused in the same, it would be

necessary to hold that the prosecution has failed to prove the guilt of

appellant-Manoj beyond reasonable doubt. It is no doubt true that in

criminal cases minor discrepancies are bound to occur in the

depositions of witnesses due to normal errors of observations but if the

contradictions are so material that they go to the root of the case, they

may materially affect the core of the prosecution case, as has

happened in this case. We also find that the depositions of the

prosecution witnesses, namely eye witness Prashant-P.W.No.6,

Malcolm-P.W.No.4, Manjeetsing-P.W.No.8 and Ravi Solao-P.W.No.13

do not inspire confidence. We also find that the prosecution is not

successful in proving that appellant-Manoj was last seen together with

deceased Vijay by P.W.No.4-Malcolm as the said witness has admitted

in his cross-examination that he had not informed the investigating

officer that he had seen Ravi Roy, Vijay and appellant-Manoj, triple seat

on the motorcycle before the incident. The omission is also proved by

the admission of P.S.I. Sachin Shewale (P.W.No.5) in his cross-

examination that he was not informed by Malcolm that Ravi Roy,

appellant-Manoj and deceased Vijay proceeded on a motorcycle towards

the Ring Road. Since the material omission is proved by the defence on

1409apeal483.15-Judgment 21/22

the basis of the admissions of the investigating officer and P.W.No.4-

Malcolm in their cross-examination, it would be necessary to hold that

there is absence of reliable evidence to show that appellant-Manoj, Vijay

and accused No.2 Ravi Roy proceeded towards Ring Road on the

motorcycle and Vijay was seated in between the two. It would be

necessary to hold on the basis of the observations and findings recorded

herein above that the prosecution has utterly failed to prove the guilt of

appellant-Manoj beyond reasonable doubt and without considering the

evidence that is discussed herein above, the trial court has erroneously

held, mainly on the basis of the evidence of eye witness Prashant that

the prosecution had succeeded in proving that appellant-Manoj had

committed the murder of Vijay. We find that the prosecution case

suffers from material infirmities and contradictions and the evidence

of the prosecution witnesses including the investigating officer is not

reliable and worthy of credence. In the circumstances of the case, the

trial court was not justified in holding that appellant-Manoj had

committed the murder of Vijay and was liable to be convicted for the

offence punishable under section 302 of the Penal Code. The judgments

reported in (2004) 12 SCC 229, 1991 Supp.(2) SCC 677, and AIR

2000 SC 1735 and relied on by the learned Additional Public

Prosecutor cannot be applied to the facts of this case.

1409apeal483.15-Judgment 22/22

10. Hence, for the reasons aforesaid, the criminal appeal is

allowed. The judgment of the trial court, insofar as it convicts appellant-

Manoj for the offence punishable under section 302 of the Penal Code is

set aside. Appellant-Manoj is hereby acquitted of the offence punishable

under section 302 of the Penal Code.

Appellant-Manoj be set at liberty forthwith, if he is not

required in any other crime.

The record and proceedings be remitted to the trial court at

the earliest. No costs.

                            JUDGE                                                JUDGE 




 WASNIK / APTE / KHUNTE