Bombay High Court
Dharmendra Paras Chauhan vs The State Of Maharashtra on 25 February, 2022
Bench: S.S. Shinde, N. R. Borkar
Digitally signed
LAXMIKANT by LAXMIKANT
GOPAL
GOPAL CHANDAN
CHANDAN Date: 2022.02.25 apeal-734.13&3ors.odt
13:25:15 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.734 OF 2013
Dharmendra Paras Chauhan ]
Age 26 yrs. ]
R/o. Nalasopara (E) ]
Dist. Thane ]
At present lodged in ]
Yerwada Central Prison ]..... Appellant.
Yerwada, Pune ] (Org. Accused No.1)
versus
State of Maharashtra ]
(Through Manickpur Police Station, Dist. Thane ]..... Respondent.
ALONG WITH
CRIMINAL APPEAL NO.873 OF 2013
Aazar Azim Shaikh ]
Age 23 yrs. ]
R/o. Shabana Apartment ]
Room No.207, 2nd Floor ]
Baitulnagar, ]
Nalasopara (E), Tal. Vasai ]
Dist. Thane ]
At present lodged in ]
Yerwada Central Prison ]..... Appellant.
Yerwada, Pune ] (Org. Accused No.3)
versus
State of Maharashtra ]
(Through Manickpur Police Station, Dist. Thane ]..... Respondent.
ALONG WITH
CRIMINAL APPEAL NO.735 OF 2013
Ravindra Mishri Chauhan ]
Age 35 yrs. ]
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R/o. Nalasopara (E) ]
Dist. Thane ]
At present lodged in ]
Yerwada Central Prison ]..... Appellant.
Yerwada, Pune ] (Org.Accused No.4)
versus
State of Maharashtra ]
(Through Manickpur Police Station, Dist. Thane ]..... Respondent.
ALONG WITH
CRIMINAL APPEAL NO.737 OF 2018
Ashfaq Akram Khan ]
Age : 32 yrs. Occ. Nil ]
R/at : Nawail Area, Room No.3 ]
Majid Chawl, Room No.4 ]
Nalasopara (E), Tal. Vasai ]
Dist. Palghar ]
(Presently lodged at Kolhapur ]..... Appellant
Central Prison, Kolhapur. ] (Ori. Accused No.2)
versus
The State of Maharashtra ]
(At the instance of Sr. P. I. Manickpur ]
Police Station, Dist : Thane ]..... Respondent.
Mr. Kuldeep S Patil for the Appellants in Criminal Appeal Nos.734 of 2013, 873
of 2013 and 737 of 2018
Ms. Racheeta Dhuru for the Appellant in Criminal Appeal No.735 of 2013
Mr. V B Konde Deshmukh, APP for the Respondent/State.
CORAM : S. S. SHINDE,
N. R. BORKAR, JJ
Reserved on : 21st February 2022
Pronounced on : 25th February 2022
COMMON JUDGMENT : (PER S. S. SHINDE, J)
1 Since the aforesaid four separate appeals are arising out of one
and the same judgment dated 19/01/2013 passed by the Additional Sessions
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Judge, Vasai, with the consent of the learned counsel appearing for the parties,
the same are being decided by this common judgment.
2 These four appeal are directed against the judgment and order
dated 19/01/2013 passed by Additional Sessions Judge, Vasai, thereby
convicting the appellants-original accused Nos.1 to 4 for the offence punishable
under Section 302 of the Indian Penal Code (for short 'IPC') and sentenced to
suffer imprisonment for life and to pay a fine of Rs. 2500/- each and in default
to suffer further imprisonment for six months. The Accused Nos. 1 to 4 are
further convicted for the offence punishable under Section 394 of IPC and
sentenced to suffer R.I. for 5 years with fine of Rs.2500/- each in default to
suffer further R.I. for six months. Both the substantive sentences to run
concurrently.
3 The prosecution story in nutshell can be summarized as under-
That on 24/05/2010, at about 3.00 pm one Ashok Bagul - Police
Hawaldar attached to Manikpur Police Station, received an information about
lying of a dead body of an unknown person behind Kinara Dhaba in a dry Nala.
He along with other police personnel went to the spot and found the dead
body of a male person aged about 25 to 30 years. The dead body had slit to
his neck and there were black coloured abrasion on the chest and the
abdomen. He also observed that the dead body was dragged from Ahmedabad
Highway to a dry Nala. The said Ashok Bagul - Police Hawaldar lodged FIR
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being CR No. I-172/2010 on behalf of the State against the unknown persons.
On the basis of said FIR, an offence came to be registered against unknown
persons for the offence punishable under Section 302 of the IPC.
4 After about one month of registration of the above FIR, one person
by name Kishor Kathepuri (PW-5) informed Manickpur Police Station that 4
assailants i.e. the accused had killed his friend Sanjay in front of him. The
Investigation Officer API Kerubhau Kolhe (PW-8), who conducted the
investigation, recorded his statement and started further investigation.
5 During the course of investigation, the IO (PW-8) conducted spot
panchanama, and seized simple earth and blood stained earth from the spot.
The accused were arrested and in pursuant thereto, memorandum statements
of the accused were recorded, incriminating articles such as motorcycle of the
deceased, wire, knife and gold ingots were seized under seizure panchanama.
API Kolhe (PW-8) also recorded the statements of witnesses and seized
muddemal were sent to Chemical Analysis.
6 After completing the investigation, IO filed charge-sheet against
the accused in the Court of Judicial Magistrate First Class, Vasai, who in turn,
committed the case to the Court of Sessions as the offence under Section 302
of the Indian Penal Code is exclusively triable by the Court of Sessions.
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7 The trial Court framed charge against the accused for the offence
punishable under Sections 302 and 394 of the IPC. The accused pleaded not
guilty and claimed to be tried. After a full fledged trial, the trial Court
convicted the appellants - original accused Nos.1 to 4.
8 In order to bring home the guilt of the accused and to prove that
the death of deceased was homicidal, the prosecution has examined 10
witnesses viz. PW-1 Ashok Bagul - Police Hawaldar - the first informant; PW-2
Abhayaraj Ramcharan - Panch witness on seizure of the clothes of the
deceased; PW-3 Dr.Anilkumar Yadav - who conducted post mortem; PW-4 -
Rambali Rajbhar - Panch witness for arrest of accused and on seizure
panchanama of motor-cycle; PW-5 Kishor Kathepuri - Eye witness; PW-6
Shrinivas Mhatre - Panch witness on seizure of gold ingots and on
memorandum statement of Accused No.2; PW-7 Rajesh Singh - Panch witness
on arrest panchanama and memorandum statement of Accused No.1 and ; PW-
8 Kerubhau Kolhe - IO who conducted investigation; PW-9 Sharad Vinerarkar -
witness; and PW-10 Vivek Kadam - witness.
9 Mr. K. S Patil, the learned counsel appearing for the Appellants -
Accused Nos.1 to 3 submitted that, the learned Judge has not appreciated and
evaluated the evidence on record in proper perspective. It is submitted that
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the eye witness PW-5 is not a reliable and trustworthy witness as he did not
disclose the incident to the police immediately. It is further submitted that the
deceased, accused and eye witness (PW-5) were the friends and neither there
was evidence on record to show the enmity between them nor any motive was
attributed to the accused, and if it is assumed that the accused committed
murder of Sanjay in the presence of PW-5, then there was no reason why the
accused would have allowed PW-5 to go unharmed. There is no satisfactory
explanation on the part of PW-5 as to why he had approached the police after a
period month of the incident. In so far as evidence of PW-5 and the evidence
of IO (PW-8) are concerned, the learned counsel for the Appellants submitted
that, there is no consistency in their evidence about the date on which the
witness went to the police and when his statement was recorded. The
incriminating articles seized under the panchanama like cable and knife were
accessible to all. The prosecution has failed to bring on record that the gold
ingots allegedly seized by the police belonged to the deceased. It is submitted
that the accused were falsely roped in the criminal case and the trial Court
erred in holding that the Appellants accused have committed the alleged
offence. In support of the aforesaid submissions, Mr. K. S. Patil, the learned
counsel appearing for the Appellants - Original Accused No.1 to 3 sought to
place reliance on the following judgments :-
1] Vadively Thevur v/s The State of Maharashtra1;
1 AIR 1957 SC 614
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2] Lallu Manjhi v/s. The State of Jharkhand2;
3] Joseph v/s. The State of Kerala3;
4] Ansar Dastagir Aitawade v/s. The State of Maharashtra4; and
5] Sujit Gulab Sohatre and others v/s. The State of Maharashtra5
10 Ms. Racheeta Dhuru the learned counsel appearing for the
Appellant - Accused No.4 in Criminal Appeal No.735 of 2013 submitted that,
the version of all the prosecution witnesses are contradictory, inconsistent and
conflicting to each other, and therefore, they are not trustworthy and reliable.
She further submitted that, the prosecution has miserably failed to bring on
record cogent and convincing evidence in support of the seizure of gold from
Uttam Jewellers of Bihar. She also submitted that there is no independent
witness to prove the close proximity to the place of alleged incident, and there
is no recovery from the Appellant - Accused No.4. The learned counsel
appearing for the Appellant in aforesaid Appeal therefore submitted that the
Appeal filed by the said Appellant may be allowed.
11 Per contra, the learned Additional Public Prosecutor appearing for
the Respondent/State submits that the prosecution has proved its case by
adducing material evidence on record to bring home the guilt of the accused.
He submitted that in so far as non disclosure of the incident to the police by
2 2003(2) SCC 401
3 2003(1) SCC 465
4 Cri.Appeal No.281 of 2012 decided on 12/09/2018
5 1996 (5) Bom CR 630
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eye witness is concerned, the threat given by the accused was sufficient reasons
for him for not approaching the police. There is direct evidence in the form of
eye witness. There is recovery of incriminating articles at the instance of the
accused. It is therefore urged that, there is sufficient evidence and material
brought on record by the prosecution to prove that the death of the deceased is
homicidal. The impugned judgment and order passed by the learned
Additional Sessions Judge is well reasoned judgment, and needs no
interference at the hands of this Court.
12 Heard the learned counsel for the Appellants and the learned APP
for the Respondent/State. With their able assistance we have perused the notes
of evidence placed on record by the Appellant, so also record and proceedings
and the reasons recorded by the learned Additional Sessions Judge in the
impugned judgment.
13 The prosecution case mainly rests upon the solitary evidence of
PW-5 Kishor Kathepuri, who is eye witness to the alleged incident. Therefore,
first we will discuss the evidence of PW-5. In his deposition before the Court,
he stated that on 23/05/2010 at about 10.30 to 10.45 pm after closing the
shop, he and his mother went back to home. After 10 to 15 minutes, his friend
Sanjay Gokhale came to house of PW-5 and told him that they have to go out
for dinner. Sanjay told to mother of PW-5 that they would go and come back
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immediately, so mother of PW-5 told to Sanjay to come back soon. Therefore,
they went towards Achole road on red colour pulser motor cycle of Sanjay.
PW-5 had seen that Asphak, Dharmendra and Azhar were standing near the
shop of PW-5 with activa motor cycle. They told PW-5 that, all of them have to
go for dinner together. Thereafter all of them went towards Tulinj Road and
when they reached Tiwari Nagar, he found that Ravindra was waiting for them.
Thereafter they went on Bombay Ahmedabad Highway towards Mumbai and
took dinner in a Dhaba near Tungareshwar Phata. At that time, it was about
12 to 12: 15 midnight. Thereafter they went upto Kinara Dhaba from there
they took U turn for coming towards Nalasopara. PW-5 stated that at some
distance, they stopped both the motor cycles, and attended the natures call.
PW-5 stated that he and Sanjay came first near the motor cycle, and when PW-
5 was rubbing tobacco on his palm, Ravindra came from behind Sanjay and
put a wire over his neck. Ravindra dragged him from the corner of the road.
PW-5 asked others as to why they are beating Sanjay, they told him to keep
quite or else same thing would be done with him. They took Sanjay to the
field abutting to the road. They took him to 10 to 12 fts. From the place where
PW-5 was standing. Azhar and Asphak caught hold of Sanjay's leg,
Dharmendra sat on his chest. Ravindra slit the neck of Sanjay with knife. They
took money, gold chain, gold rings and bracelet of Sanjay. PW-5 deposed that
the dead body was thrown in a dry drain and they threatened him that, if he
disclosed same to anyone, they would also cut him like Sanjay. PW-5 further
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deposed that as he was frightened, he told them that he will not tell anything
to anyone and told the accused to take away from said place. Thereafter they
came back. Asphak was driving Sanjay's motor cycle. PW-5 got down at Vasai
Phata. From there PW-5 went to his home. PW-5 further deposed that they all
were friends. PW-5 did not inform about the incident to anybody for a month.
Thereafter he disclosed the said incident to his mother and at her instance they
came to Manikpur Police station and disclosed the same to the Police Officer -
Kolhe, who recorded his statement.
In his cross examination PW-5 stated that there is traffic light on
Achole road after 11:00 pm, and on the way from Achole Road to High Way
there are police chowki of Tulinj, Toll Naka and Pelhar Police Chowki. There
are rickshaws at Vasai Phat in the night and there are hotels and residential
premises at Vasai Phata as also petrol pump is situated at about 200 ft. away
from Vasai Phata. He stated that he does not know and remember the name of
Dhaba in which they took dinner. However, he stated that the said Dhaba is
situated at a distance of about ½ kms from Tungareshwar phata. He stated
that he does not know the distance between Dhaba where they took dinner
and Kinara Dhaba. He further stated that they have taken U turn before 1 km
of Kinara Dhaba. However, he stated that he never knew about Kinara Dhaba.
He further stated that whenever police called him for inquiry, he used to go
police station and thereafter he used to continue his work in shop. He stated
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that police called him for the first time after 15 days of the incident and at that
time police made inquiry with him and he did not raise any suspicion nor
named anyone to the police. PW-5 stated that he was again called after 5 to 6
days. Even on the second occasion he did not tell anything to the police. He
further stated that he went to police station after one month of the incident.
We have carefully perused the evidence of PW-5. Though he has
stated that there is traffic light on Achole Road after 11.00 pm and from Achole
Road to High Way there is toll naka as also police chowki at Tulinj and Pelhar,
however it is surprising to note that nobody had seen PW-5, the deceased and
the accused while going on motor-cycles. If PW-5 in his cross examination has
given minute details about the time consumed for dinner, about Kinara Dhaba
and taking U turn before 1 kms of Kinara Dhaba, then it is really surprising,
how he did not know the name of the Dhaba where they took the dinner,
though he remembered the distance of the said Dhaba from Tungareshwar
Phata. In the aforesaid background it is difficult to believe the testimony of
PW-5. One more important fact which is required to be noted is that, before
going for dinner, PW-5 and deceased Sanjay informed the mother of PW-5 that
they are going for dinner and will return immediately, however, the
prosecution did not examine the mother who would have been supporting the
version of the PW-5. The another aspect which cannot be lost sight of is, PW-5
twice visited the police station, however, he did not disclose anything about the
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alleged incident to the police. PW-5 in his deposition admitted that he did not
inform the incident to anybody for a month, and thereafter he disclosed the
said incident to his mother and at her instance he went to police station and
disclosed the incident to police. The reason given by PW-5 for not disclosing
the incident to anybody for a month is due to the threat given by the accused.
But considering the fact of not disclosing such a serious incident even to his
own mother for one month, creates doubt about the credibility of the witness.
Therefore in the aforesaid background the incident narrated by PW-5 in detail
before the court right from the time of leaving his home till the happening of
alleged incident appears to be afterthought and concocted, and no implicit
reliance whatsoever can be placed on such evidence. Being a friend of
deceased Sanjay, it was expected of PW-5 to disclose the incident to the police
immediately, but not disclosing the incident to the police even when he visited
twice to the police station during the said month creates suspicion and doubt
about the truthfulness of testimony of the said solitary witness. Therefore the
evidence of so called eye-witness (PW-5) is highly suspicious, doubtful and no
implicit reliance whatsoever can be placed in his testimony.
14 In so far as evidence of PW-1 Ashok Bagul - Police Hawaldar, is
concerned, he deposed before the court that he received telephonic
information in respect of one dead body lying behind Kinara Hotel. He visited
the spot and lodged the FIR. However, he was not in a position to tell who had
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given the said call and from which number. Therefore, evidence of this
witness (PW-1) is not helpful to the prosecution to connect the Appellants-
Accused with the alleged commission of offence.
15 The next witness is PW-2 Abhayaraj Ramcharan, who is the panch
witness in respect of seizure of clothes. However, in his cross he admitted that
he cannot read and write Marathi. He also admitted that he cannot read the
contents of panchanama Exhibit-39, though he stated in his chief examination
that the contents are true.
16 The prosecution has also examined Dr. Anilkumar Ghanshyam
Yadav as PW-3, who conducted the post mortem on the dead body. He found
two injuries, which according to Doctor, are sufficient to cause death. The
cause of death mentioned by the Doctor is, Haemodynamic Shock due to cut
injury. However, he has not recorded the age of the injury.
17 The next witness examined by prosecution is Rambali Rajbhar as
(PW-4) who is the panch witness for arrest panchanama of accused
Dharmendra, Azar and accused Ashfaq. He has acted as a panch witness for
the panchanama of seizure of the motor cycle at the instance of accused
Ashfaq. However, he stated that he is not aware of the contents of the said
panchanama (Exh.58). He stated that he does not recollect the name of the
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accused nor he can identify the accused. As PW-4 is not supporting the
prosecution case on the aspect of identification and recording of statement of
witness, he was declared as hostile witness. In the cross examination, he
denied the suggestion given by the prosecution that he is deliberately not
identifying the accused. Thereafter in his further cross examination, he
admitted that accused Ashfaq has not made any statement in his presence.
18 Another Panch witness examined by prosecution is PW-6 Shrinivas
Mhatre, who stated that he was called by the police at Manikpur Police Station
on 25/06/2010, where Shri Kolhe (IO) told him that they have to go to Bihar
Dist. Siwan The police took accused Asphak Khan with them. They went there
on 27/06/2010 in Tavera Car. After reaching there, the accused has shown
shop of one Uttam Jeweller saying that he has sold the ornaments to him. The
said jeweller told them that he has prepared gold ingots of the said ornaments.
The said jeweller gave the ingots to them. Thereafter they came to Vasai. He
stated that initially the writing was done at Manikpur Police Station and after
seizure of gold ingot panchanama was drawn.
In his cross PW-6 admitted that he used to visit police station. He
does not know the registration number of the Tavera car, and the name of the
said driver. He does not remember the area in which Uttam Jewellers was
situated . He does not remember the name of the owner of said shop.
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It is impossible to believe that he (PW-6) does not remember
the registration number of Tavera car in which he along with officers went to
Bihar as also he does not remember the name of driver of said Tavera car with
whom he travelled for two days. Even though he does not remember the name
of owner of the shop and the area in which the said shop is situated. It cannot
be believed that a person, who travelled with Police in a car from Vasai to Bihar
for two days, does not know the basic things i.e. names of the driver, shop
owner, the registration number of car or area in which the shop is situated.
Therefore his evidence is not reliable.
19 The next witness PW-7 Rajesh Singh, who is the panch witness in
respect of seizure of knife and cable wire. He stated that accused Dharmendra
showed the placed near Asha Bar from where he removed cable wire and knife
kept under table at that place. At the instance of accused Azhar one black
coloured motorcycle Activa was seized from the place in front of the office of
Jivdani Finance Company.
In his cross examination PW-7 stated that his mobile number was
there with the police and in connection with work as estate agent, he is
required to go to police station. Before this case, he visited the police station
on 4 to 5 occasions. Though he acted as a Panch, this witness (PW-7) does not
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remember the registration number of motorcycle.
The Investigating Officer Mr. Kerubhau Kolhe is examined by the
prosecution as PW-8. He conducted the investigation of the crime. During the
course of investigating he prepared seizure panchanama, spot panchanama,
collected the simple earth and earth stained with blood from the spot of
incident, sent the dead body for post mortem, accused were arrested. He stated
that on 23.06.2010 accused Asphak made a statement that he is ready to show
the place where the motor-cycle of the deceased is concealed. Thereafter they
went to a stone Quarry at Vasai Phata from where they found red coloured
Pulser Motor-cycle. On 25.06.2010, accused Asphak made a voluntary
statement that the gold ornaments of the deceased were sold by them to a
jeweller at Siwan, State of Bihar, and he agreed to show the said place.
Thereafter they went to Bihar in a private vehicle Tavera car. Accused Asphak
took them to Uttam Jewellers. The accused informed about the selling of gold
chain, gold ring, and bracelet to the owner of the said shop, who in turn
admitted to have purchased of said ornaments from Asphak and others. The
owner of the said shop told that he has prepared gold ingots of the said
ornaments and, the ingots were given by the said jeweller to the police. On
1.7.2010 Activa Motorcycle used by Azar was seized. At the instance of
Accused Azar, the said motor-cycle owned by Vivek Kadam was seized from
virar (East) from the place in front of his office. He recorded the statement of
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jeweller Sonukumar, statement of owner of Activa Motorcycle and the
statement eye witness Kishor Kathepuri. The statement of Mobin Khan - the
driver of the Tavera Car was also recorded.
In his cross examination, the IO admitted that the family member
of the deceased did not lodge any missing complaint. He also admitted that
the place where the dead body was found no one was found in the nearby area
having witnessed the incident. The deceased was married. He also admitted
that there used to be disputes between deceased and his wife and there was a
divorce between them. He also admitted that deceased used to lent money. The
IO denied the suggestion that deceased was staying with a Muslim lady.
However, he has voluntarily made a statement that the deceased used to go to
her for taking food. The said lady was married. He also denied the suggestion
that the deceased had illicit relations with the said lady and for the said reason,
the husband of the said lady was annoyed with the deceased. The deceased
was staying alone at Nalasopara. He stated that no investigation was done in
whose house he was staying and no inquiry was made with the neighbours of
the deceased. The deceased was wearing shoes and his shoes were seized,
however, no panchanama about seizure of shoes of the deceased was drawn.
Except for Kishor (PW-5) no one else has stated about having witnessed the
said incident. On 12.06.2010 Kishor and his mother came to the police station
on their own. Their statements were not recorded on that day. As the witness
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again came on 20.6.2010, his statement was recorded on that day. He stated
that Vasai Phata is populated area. The distance between Vasai Phata and
stone quarry is not mentioned in panchanama. Enquiry was made with regard
to ownership of the stone quarry. He admitted that the key of the said motor-
cycle was not seized from any of the accused. He also admitted that there is no
mention in panchanama about the carat of gold ingots. No documents was
obtained to show that the accused Azhar was working with Vivek Kadam. He
also admitted that Kishor (PW-5) did not state that the murder was committed
with black coloured folding knife. There is no recovery from accused Ravindra.
No finger print was lifted from the knife.
It is clear from the afore-stated admissions given by the
Investigating Officer in his cross examination that the investigation has not
been carried out in a proper manner.
20 One more witness Sharad Anant Vinerarkar has been examined by
the prosecution as PW-9, who was employed with Vivek Kadam. He knows
accused Azar. On 23.5.2010 after finishing work, this witness and Azar went
to the house of Vivek Kadam for sleeping there on Activa at about 11.15 pm.
At that that Azar told this witness that he wants to go to party and left the
place on Activa. The activa bears registration No.MH-04 DH 3353 and it
belongs to wife of Vivek Kadam. Police recorded his statement. In his cross
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examination this witness stated that he had not personally seen Azar taking
Activa with him. He was called after one month of the said date by the police.
Therefore, it is clear that the version of this witness is not
consistent with the prosecution case. At one place he stated that Azar left the
place for party on Activa, however in the cross examination he stated that he
had not personally seen Azar taking Activa with him.
21 Now coming to the Chemical Analysis report. Nail clippings of
right hand and left hand as also scalp hair of the deceased Sanjay were sent to
CA for examination. The results of analysis show that Exhibits 1, 2 and 3 are
stained with blood, however, the result of ABO Grouping is "Inconclusive."
Examination of report of blood of accused Asphak Khan is also placed on
record. The blood group of Asphak Khan is shown in the said report is "AB".
22 In the light of above discussion, in our considered view, the
evidence of PW-5 does not inspire confidence and there is no corroborative
evidence in material particulars by a reliable testimony to match the version of
PW-5. In our view, the evidence of the eye-witness (PW-5), upon which the
prosecution case mainly rests, is not satisfactory to sustain the conviction of the
Appellants-accused in the crime. PW-1 Police Hawaldar, who visited the spot
on the basis of telephonic information received by him and thereafter he
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lodged the complaint. The incriminating articles i.e. knife and wire are easily
available in the market. It is pertinent to note here that the police person who
carried the articles to the CA has not been examined by the prosecution to
prove that the articles were sent to CA in a sealed packet. There is no evidence
or material on record to show that samples and/or articles were sent after
following proper procedure. It appears from record the clothes of the deceased
seized during investigation have not been sent to CA. It also appears from the
record that the prosecution did not examine the owner of the Uttam Jewellers
nor did prosecution examine the driver of the Tavera Car in which the police
went to the shop of the said Jeweller to prove that accused Asphak sold the
ornaments to him and he made ingots of the said ornaments. The knife and
cable wire seized from the accused Dharmendra are easily accessible in market.
There is no recovery from Accused Ravindra. The prosecution also did not
examine Vivek Kadam with whom the accused Azar was working and, the
Activa motor-cycle allegedly used in the crime stands in his wife's name. The
Investigating officer did not record the statement of neighbours of the
deceased, so also the statement of owner of quarry, from where the police
seized the motor-cycle of the deceased at the instance of accused Asphak.
Considering all these relevant facts, we are of the considered view that the
investigation was not properly done by the Investigating Officer in the crime,
and therefore, the investigation in this case is defective.
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23 The deceased Sanjay, eye-witness (PW-5) and the Appellants-
Accused were friends. There are no material particulars on record to show that
the Appellants-Accused had any motive to kill Sanjay. The version of the
incident given by the sole eye witness, who in our opinion, is the interested
witness on account of his relationship with the deceased, is highly exaggerated
and not corroborated by the evidence of any independent witness.
24 In so far as the statements of the Accused recorded under Section
313 of the Criminal Procedure Code are concerned, the defence of the Accused
is of total denied and they have stated that they are innocent and falsely
implicated in the crime.
25 The prosecution has miserably failed to bring home the guilt of the
accused. The prosecution case is based on solitary evidence of eye-witness
(PW-5) which is not trustworthy and there is no corroboration to his version,
and therefore, it would be unsafe to convict the Appellants-Accused on the
basis of evidence of such witness. As per the prosecution case, the cause of
murder of Sanjay was theft, however, there is no evidence on record to show
that there was any previous meeting of minds between all the accused. The
Trial Court, in the absence of trustworthy evidence, proceeded to convict the
Appellants-Accused. It was incumbent upon the Trial Court to meticulously
consider the reliability of evidence of PW-5 since his statement was recorded by
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the police officer after one month when admittedly twice he visited the police
station during the said month. The Trial Court in the absence of corroboration
to the evidence of PW-5, whose evidence itself was not trustworthy, and
without having evidence on record regarding motive for commission of such
crime, wrongly convicted the Appellants-Accused.
26 In the light of discussion in foregoing paragraphs, we are of the
considered view that the impugned judgment and order passed by the trial
Court cannot legally sustain, and therefore, inevitable conclusion is that the
appellants/accused are entitled for benefit of doubt. Hence, we pass the
following order-
ORDER
a] Criminal Appeal No.734 of 2013, Criminal Appeal
No.873 of 2013; Criminal Appeal No.735 of 2013 and
Criminal Appeal No.737 of 2018 are allowed.
b] The impugned judgment and order dated 19.01.2013
passed by the Additional Sessions Judge, Vasai in
Sessions Case No.95 of 2010 is quashed and set aside.
c] Appellant - Dharmendra Paras Chauhan; Appellant -
Aazar Azim Shaikh; Appellant - Ravindra Mishri
Chauhan and Appellant - Ashfaq Akram Khan are
acquitted of the offences punishable under Sections
302 and 394 of the Indian Penal Code, 1860.
d] The Appellant - Ravindra Mishri Chauhan is in jail.
He shall be released forthwith, if not required in any
other case.
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e] The bail bonds of Appellant - Dharmendra Paras
Chauhan; Appellant - Aazar Azim Shaikh; and
Appellant - Ashfaq Akram Khan stand cancelled.
f] All the Appellants shall, within one months furnish a
bail in terms of Section 437-A of Code of Criminal
Procedure, 1973 in the sum of Rs. 25,000/- (Rupees
Twenty Five Thousand) each with one surety in the
like amount before the concerned Trial Court.
g] All the Appeals stand disposed of.
h] A copy of this judgment shall be sent forthwith to
Appellant - Ravindra Mishri Chauhan in Criminal
Appeal No.735 of 2013.
(N. R. BORKAR, J.) (S. S. SHINDE, J.)
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