Bombay High Court
Rajan John Rajmani vs State Of Maharashtra on 6 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:37521-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1017 OF 2015
WITH
INTERIM APPLICATION NO. 1307 OF 2023
IN
CRIMINAL APPEAL NO. 1017 OF 2015
Rajan John Rajmani
Age: 31 years, Occu: Service
R/at: Flat No. 16, S. No. 52, Pride
Platinum, Bhagyodaya Nagar, Appellant/Applicant
Kondhwakhurd, Dist: Pune
(At present Lodged in Yerwada
Central Jail, Pune.)
Versus
The State of Maharashtra
(At the Instance of Wanorie Respondent
Police Station, Dist: Pune)
WITH
CRIMINAL APPEAL NO. 1042 OF 2015
Imran Salim Ahmed
Age: 24 years, Occu: Service
R/o: Navajish Park,
Kondhwakhurd, Dist: Pune Appellant
(At present Lodged in Yerwada
Central Prison, Pune.)
Versus
The State of Maharashtra
Through the Public Prosecutor Respondent
High Court, Mumbai.
WITH
CRIMINAL APPEAL NO. 1054 OF 2015
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Gita Jojeph Montero
Age: 39 years, Occu: Service
R/o: S. No. 71, Balajinagar Lane
Appellant
No. 1, Ghorpodigaon, Pune
(Presently in Pune and Yerwada
Women Prison, Pune.)
Versus
The State of Maharashtra Respondent
...
Dr. Yug Mohit Choudhry a/w Mr. Dashrath Gaikwad, for the
Appellant in Appeal/1017/2015.
Mr. Debajyoti Talukdar, for the Appellant in Appeal/1042/2015
and Appeal/1054/2015.
Mr. S. V. Gavand, APP, for the State.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 6th SEPTEMBER, 2024
Judgment : (Per Manjusha Deshpande, J.):-
1. The Appellant in Appeal No.1017 of 2015 is Original
Accused No. 1 and the Appellant in Appeal No. 1054 of 2015 is
Original Accused No. 2, while the Appellant in Appeal No. 1042
of 2015 is Original Accused No. 3, in Sessions Case No. 465 of
2014. The Appellants/Original Accused have been convicted
for the offence punishable under Sections 302, 504 r/w Section
34 of the Indian Penal Code, by the learned Additional Sessions
Judge, Pune, in Sessions Case No. 465 of 2014 vide Judgment
and Order dated 23.09.2015. The Appellants are sentenced to
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undergo imprisonment for life and fne of Rs.10,000/- each, and
in default to suffer rigorous imprisonment for two years, for
the offence punishable under Section 302 r/w Section 34 of the
IPC, alongwith punishment of rigorous imprisonment for one
year and fne of Rs.1000/- each, and in default to suffer
rigorous imprisonment for one month for offence punishable
under Section 504 of the IPC.
2. The Appellants have been convicted by the learned
Additional Session Judge, Pune by common Judgment and
Order dated 23.09.2015, since offence is an outcome of one and
the same incident, therefore, the Appeals fled by the
Appellants herein are being decided together.
3. The case of the prosecution in nutshell is that:
On 20.02.2014, Accused No. 1 assaulted the deceased
Sandip Dharma Pillay by means of a knife on his chest and
abdomen and Accused Nos. 2 and 3 pelted stones on Sandip.
The incident had taken place after deceased Sandip was
coming out from the house of his sister-in-law Valdi Sanjay
Pillay, after consoling and assuring her that her husband and
brother of the deceased, who was arrested on the same day for
outraging modesty of the daughter of Accused No. 2 would be
released on bail very soon. After the deceased came out of the
house of the informant, the accused have confronted deceased
Sandip and threatened him with dire consequences and,
thereafter, have assaulted him. Deceased Sandip was taken to
the Sasoon General Hospital, where he was declared dead,
upon which his sister-in-law Valdi Pillay lodged FIR against the
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Accused Nos. 1 to 3. Pursuant thereto, Crime No. 24 of 2014
came to be registered against Accused Nos.1 to 3 for offence
punishable under Sections 302, 504 r/w Section 34 of the IPC.
Necessary investigation was carried out by the police
authorities. Spot panchanama, inquest panchanama, post-
mortem, recovery panchanama etc. was conducted by the
Investigating Authority. The accused persons were arrested
and their clothes were seized. Pursuant to the disclosure
statement of Accused Nos. 1 to 3, there is a recovery of clothes
and weapon of assault. Even the motorcycles used during the
commission of the offence were seized. After completion of
investigation, charge-sheet was fled and charges were framed
against the Accused Nos.1 to 3 for offence punishable under
Sections 302, 504 r/w Section 34 of the IPC. All the accused
pleaded not guilty and claimed trial. In the statement of the
accused recorded under Section 313 of the Code of Criminal
Procedure, all the accused took defence of total denial and of
false implication. The learned Additional Sessions Judge has
framed points for determination and conducted the trial.
4. The accused have admitted seizure panchanama
(Exhibit- 78) in respect of clothes of deceased Sandip, inquest
panchanama (Exhibit- 79), seizure panchanama in respect of
clothes of Accused Nos. 2 and 3 (Exhibits - 84 and 85), sketch
of the spot of incident (Exhibit - 99) and requisition for
medical treatment (Exhibit - 100).
The issue about the death of deceased being homicidal,
was not disputed. The inquest panchanama, disclosing three
stab wounds on the chest and abdomen of the deceased have
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been admitted by the defence, therefore, it is not disputed that
the death is homicidal.
5. In order to prove that the accused persons in
furtherance of their common intention committed murder of
Sandip Pillay, the prosecution has relied on eye witness PW 1
and 2; the testimony of PW 3 Dr. Vijay Tarachand Jadhav; PW
4 Nilesh Ashok Alhat for recovery of weapon (knife) and PW 6
Namdev Narayan Kunjir, who is the panch witness for seizure
of clothes of the Appellants and, lastly, on the testimony of PW
7 and 8 respectively, who are Investigating Offcers (I.O) in the
said crime.
6. According to PW 1, who is the sister-in-law of the
deceased Sandip, who happens to be the informant, has stated
in her testimony that on 20.02.2014, during the afternoon at
about 02.00 p.m. there was an incident as a result of which
Accused No. 2 fled complaint against the husband of the
informant alleging that her husband Sanjay Pillay had
outraged modesty of her daughter. Her husband was taken
away by the police after lodging of FIR. On this background,
deceased Sandip who happens to be her brother-in-law came to
meet her at night, at about 11:30 p.m. at her house. He
consoled her and asked her not to worry. When he left her
house to go to his house, at that time, Accused Nos. 1 to 3
surfaced all of a sudden. Accused No. 1 inquired with Accused
No. 2 Gita whether the Sandip is the same person whose
brother had outraged modesty of her daughter, when Accused
No. 2 replied affrmatively, Accused Nos. 2 and 3 started
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abusing deceased Sandip in flthy language and Accused No. 1
assaulted Sandip by means of a knife on the left side of chest
and in the middle of the abdomen. According to PW 1, while
Accused Nos. 2 and 3 picked stones and exhorted to kill Sandip
and pelted stones on his back. After that, Accused Nos. 1 and
2 fed from the scene of offence on a motorcycle and Accused
No. 3 also left. After that, PW- 1 the informant with the help of
relatives took Sandip to Sasoon Hospital, where he was
declared dead. She lodged the FIR against the accused
persons which she has identifed before the court and affrmed
that contents shown to her are the same.
7. PW- 1 has shown the spot of incident to the police. The
blood stained earth was collected from the spot and the spot
panchanama was conducted in her presence. She has deposed
that she can identify the knife as it was a buttoned steel knife,
which was used by Accused No. 1 to assault deceased Sandip.
8. PW 2, Umarani Shailesh Pillay, who is the another eye
witness and also sister-in-law of the informant. According to
her, when the incident occurred at about 11.30 p.m. in the
night of 20.02.2014, she was present in her house alongwith
her husband and children. The door of her house was open.
She saw Sandip coming to the house of her sister-in-law and
consoling her. When Sandip left house of PW 1, all the accused
persons were present there on the spot. After seeing Sandip,
Accused No. 1 verifed from Accused No. 2 whether he is the
brother of person who outraged modesty of her daughter,
thereafter, Accused Nos. 1 to 3 started abusing Sandip.
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Accused No. 1 assaulted Sandip by means of knife on his chest,
arms and on his abdomen. The stab injuries of Sandip started
to bleed profusely. Accused Nos. 2 and 3 hit deceased Sandip
by means of stones. Thereafter, all the accused fed from the
spot. After that, PW 2 and the informant (PW 1) raised hue
and cry for help. They with the help of relatives and
neighbours took deceased Sandip to Sasoon Hospital. PW 2
has claimed that she can identify the weapon knife with which
the deceased was assaulted. The Article 'A' which was shown
to her has been identifed by her.
9. The prosecution has examined PW 3, Dr. Vijay Tarachand
Jadhav, who conducted the post-mortem of the deceased. PW
3 - Doctor in his testimony has stated that there were three
serious injuries on the body of the deceased. He has deposed
that all the injuries mentioned in column No. 17 of the post-
mortem are suffcient in ordinary course of nature to cause
death of a person. While he was shown the weapon knife
(Article - A), he has opined that the injuries mentioned in
column No. 17 of the report are possible with Article - 'A' knife.
10. PW 4, Nilesh Ashok Alhat has been examined by the
prosecution in support of recovery of (weapon) knife hidden
by Accused No. 1 Rajan. PW 4 in his testimony has stated that,
after the disclosure statement was made by Accused No. 1, he
accompanied Accused No. 1 to the house of Accused No. 2.
Accused No. 1 knocked the door and the door was opened by
one young boy, thereafter one lady came, when they informed
the reason of their visit, they were given entry in the house.
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Accused No. 1 entered the house and took out one knife from
behind the showcase in his presence. The said knife was
button operated and was stained with blood. PW 4 further
deposed that the said knife was wrapped in a brown paper and
sealed in his presence. He has put his signature on the seizure
panchanama alongwith the accused.
11. PW 5, Sandip Shankar Travadan is the panch witness of
the spot panchanama. According to him, blood stained soil
from the spot alongwith broken pieces of bangles were seized
from the spot and were sealed. The stones which are alleged to
have been used for assaulting deceased Sandip were shown by
the informant. They were also seized and sealed in a carton.
12. PW 6, Namdev Narayan Kunjir is the panch witness to
the seizure of clothes of Accused No. 1. According to him, the
clothes of Accused No. 1 were seized in his presence. The
seized clothes were wrapped in brown paper and signatures of
panch witness and the accused were affxed on the label.
Similar exercise was undertaken in respect of clothes of
Accused No. 2, who was in police custody then. A pink colour
saree with white patches on it and one pink colour blouse were
seized. Clothes of Accused No. 3 i.e. a grey colour shirt with
full sleeves and full pant of grey colour were seized in his
presence.
PW 6 was also panch witness to the disclosure statement
made by Accused No. 3. Accused No. 3 has shown two
motorcycles, one Bajaj Discover and another Hero Honda
Passion from the parking of Diamond Wine Shop used by them
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during the offence. Both the motorcycles were seized by the
police in his presence.
13. PW 7, Rahul Veersingh Gaur is the Investigating Offcer.
According to him, he received a call on his mobile phone from
the police station that one Sandip Pillay has been assaulted in
Chimta Vasti. Therefore, he rushed to the Sasoon Hospital at
12:30 a.m. and met the concerned Medical Offcer, he was
informed that Sandip Pillay was dead. When PW 7 reached
Bhairobanala Police Chowky at about 01:00 a.m., the
informant Valdi was present, who lodged the FIR against the
accused persons, which is at Exhibit 68. PW 7 went to the spot
alongwith informant and conducted spot panchanama in
presence of panch witnesses. He also recorded statements of
witnesses and arrested the accused on 21.02.2024. He has
seized the clothes of accused on 21.02.2014. Thereafter,
investigation was entrusted to P.I. Sawant. Again when PW 7
was entrusted with the investigation, he has recorded
disclosure statement of Accused No. 3 Imran and two
motorcycles were seized as per the disclosure statement of
Accused No. 3. According to PW 7, on 06.03.2014, the seized
muddemal was sent for chemical analysis.
14. PW 8, Vijay Ambu Sawant, P.I. attached to the Special
Branch, Pune has stated in his deposition that, while in
custody Accused No. 1 expressed willingness to make
disclosure statement, therefore two panch witnesses were
summoned. In presence of the witnesses, Accused No. 1 has
shown his willingness to produce the knife from the hidden
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place. The said knife was seized from house of Accused No. 2
Gita. The said knife was sealed and pachanama to that effect
was prepared. PW 8 forwarded letter to Sasoon Hospital for
taking blood samples of Accused Nos. 1 and 3. After
examining the above witnesses, the prosecution has fled
Evidence Close Pursis.
15. Though the defence has not examined any witness,
however Accused No. 1 has fled his written statement.
According to him, his real name is Jokim John Rajmani. He
never used to visit Chimta Vasti. He is not recognized by name
Rajan. Merely on the basis of resemblance in his name, he has
been arrested and he has not committed murder of deceased
Sandip Pillay.
On the basis of the above evidence, the learned
Additional Sessions Judge, Pune has been pleased to convict
Accused Nos. 1 to 3 for offence punishable under Sections 302,
504 r/w Section 34 of the IPC.
16. The learned counsel for the Appellant/Accused No.1 has
drawn our attention to the discrepancy in the time of
commission of offence and time of the death recorded in the
post-mortem. According to the learned counsel, in the post-
mortem report, as per police inquest and requisition, time and
date of death is 01:20 hrs on 21.02.2014, while as per the time
of incident recorded in the FIR, the incident had occurred at
11:30 in the night of 20.02.2014. According to him, the
deceased Sandip was immediately taken to the Sasoon
Hospital which is about 6 km. from the place where the
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incident had occurred. The prosecution has failed to explain
the delay that has occurred in reaching the hospital and what
transpired between the time of assault and declaration of
death. According to him, the prosecution has failed to explain
the delay in admitting the deceased to the hospital.
The next limb of the argument by the learned counsel for
Accused No. 1 is that, there is recovery of knife by the
Investigating Offcer which does not disclose stains of blood on
it.
In the post-mortem report also there are three serious
injuries shown in column No. 17. While examining the Doctor,
in his cross-examination has admitted that injuries mentioned
at serial Nos. 1 and 3 of column No. 17 is possible due to use of
two different weapons. Therefore according to him,
considering the admission of the Doctor that injury Nos. 1 and
3 in column No. 17 can be caused by two different weapons and
only one knife has been recovered, creates doubt about the
complicity of Accused No. 1. The other knife which has caused
injury to the deceased has not been recovered.
It is further contended by the learned counsel that the
recovery of clothes and knife with stains of blood have not
been proved by the prosecution. PW- 4 has been examined to
prove the disclosure panchanama for the seizure of knife at
the instance of Accused No. 1. Though the witness has
categorically stated that he has accompanied the accused to
the house of Accused No. 2 and upon reaching her house
Accused No. 1 taken out the knife, which was behind the
showcase and has also stated that it was stained with blood but
the fact remains that he has admitted that there is no mention
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about blood stains on the knife (Article - A) in the
panchanama. Hence, the testimony of this witness is nothing
but improvement contrary to the contents of the seizure
panchanama at Exhibit 76.
17. The learned counsel for the Appellants have contended
that, the testimony of both the eye witnesses do not inspire
confdence due to the infrmities and contradictions in their
depositions. The learned counsel have relied on the omissions
of PW 1, which have been proved in her cross-examination.
PW- 1 in her complaint has stated that Sandip had come to her
house alongwith Shailesh, Vijay and Vishnu at 11:30 p.m. on
the said night. However, she denied to have made any such
statement before the police. According to her, she does not
have any knowledge about how such statement appeared in
the FIR.
Our attention is drawn to the omission admitted by PW 1
in her cross-examination. It is admitted that though PW 2
Umarani was with her and she has failed to mention it in her
complaint to the police. She has also stated in her complaint
recorded by the police about presence of herself and her
brother-in-laws, during the incident. It is surprising that
though the brothers of deceased were present, they did not
intervene and tried to save the deceased. At the same time, PW
2 does not speak about their presence.
18. Reliance is placed by the respective counsel appearing
for the Appellants on the omissions of PW 2. In her cross-
examination, she has categorically stated that when Sandip
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was assaulted, he was bleeding profusely and, therefore, she
caught hold of his hand, Sandip was not in a position to talk
and move, she also called PW-1 Valdi for her help and Valdi also
caught hold of his hand and both of them made him walk some
distance towards his house with their help and made him sit
under a tree. PW- 2 in her cross-examination has given
admission that Accused No. 3 Salim Ahmed did not pelt stone
on deceased Sandip. According to the learned counsel for the
Appellants, the testimony of PW 2 does not seem to be
probable, in fact, her presence on the scene of offence itself is
not believable.
Considering the discrepancies as stated hereinabove, it is
contended that, the prosecution has failed to prove the
complicity of all the accused beyond reasonable doubt. It is
urged that, this being a case of ocular evidence, standard of
proof required is of highest standard, it should inspire
confdence and also should be above any doubt. The testimony
of eye witnesses being full of discrepancies and omissions do
not inspire confdence, therefore, the Appellants have sought
intervention by this Court and prayed for setting aside the
sentence of conviction by quashing and setting aside the
impugned Judgment and Order.
19. We have heard learned APP, Mr. Gavand for the State as
well.
The learned APP has submitted that, the present case
being that of an ocular evidence does not require any
corroboration. Both the eye witnesses have categorically
stated that the incident which has taken place in their
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presence. The evidence of all the witnesses is consistent. He
submits that, after the arrest of accused persons, there is a
recovery of clothes as well as weapon used by them during the
offence. According to the learned APP, even the testimony of
Doctor supports the case of the prosecution. According to the
Doctor, the injuries mentioned in the post-mortem are possible
by the knife which is seized at the instance of Accused No. 1.
Learned APP contended that, considering all the evidence on
record, the learned Judge has rightly convicted the accused
and the conviction deserves to be maintained. Hence, the
Appeals of the Appellants deserves to be dismissed.
20. We have given a thoughtful consideration to the evidence
produced by the prosecution, and the fndings recorded by the
learned Additional Sessions Judge, Pune.
Though the case is based on ocular evidence, the
standard of proof required should be above doubt, credible and
trustworthy. Though minor variations and contradictions in
the evidence of eye witnesses are natural, which can be
ignored to some extent. But when such contradictions in the
evidence of the prosecution witness proves to be fatal, and
such contradictions go to the root of the matter, in such cases,
beneft of doubt is required to be given to the accused.
21. In the present case, while considering the testimony of
PW 1, there are number of discrepancies in her testimony.
Though in the complaint it is stated that while she was in her
house at 11:30 in the night, her brother-in-laws namely
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deceased Sandip, Vijay and cousin brother-in-law Vishnu as
well as Shailesh visited her house. PW 1 in her cross-
examination has denied to have stated about the presence of
her other brother-in-laws with deceased Sandip, alongwith her
during the incident. She has also admitted in her cross-
examination that, she did not mention presence of PW 2
Umarani in FIR, though PW 2 claims that she was very much
present at the time of incident.
22. PW 2 Umarani also has given a different version from
that of PW 1. According to PW 2, when Sandip was assaulted,
she rushed towards Sandip and gave him support and she
called PW 1 for help. Both of them have supported deceased
Sandip to walk for some distance and made him sit under a
tree. She further admits that Accused No. 3 had not pelted
stones against deceased Sandip, though she has stated in her
examination-in-chief that Accused Nos. 2 and 3 assaulted
deceased Sandip by means of stones. Even in her statement
under Section 164 recorded by the Magistrate, she has stated
that she herself, PW 1 and son of PW 1 were present during the
incident. When the accused persons started abusing the
deceased Sandip, three of them took him aside, at that time,
Accused No. 1 came from behind and has assaulted the
deceased in his chest on the left side, with the knife.
The statement of PW 2 recorded under Section 164 is
different from the version given by her in her testimony before
the court. Therefore, both the eye witnesses i.e. PW 1 and PW
2 do not inspire confdence because of the variations and
contradictions in the evidence given by them. Their versions
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are not at all reliable. There is no consistency in the testimony
of both the eye witnesses about the presence of other people
during the incident. Both the witnesses have given different
versions in their statements before the Magistrate, in the FIR
and in their testimony before the court. Therefore, we do not
fnd that credibility can be attached to their testimony. As a
result, the very basis on which the case of prosecution rests
has crumbled.
23. The corroborating evidence produced by the prosecution
in order to prove the complicity of the Appellants/Accused in
support of the eye witness is also not trustworthy and reliable.
PW 4 Nilesh Alhat, who is the panch witness to the disclosure
statement made by Accused No. 1 in his deposition, has stated
that when the accused produced the knife from the showcase
of house of Accused No. 2 in his presence, it was stained with
blood. He also stated that, the knife was wrapped in a brown
paper and sealed in his presence. Contrary to his statement
made in examination-in-chief, he has admitted in his cross-
examination that the panchanama fails to mention about
existence of blood stains on the knife. There is also admission
by PW 4 that, the said knife was not wrapped in the brown
paper and sealed in his presence. From said admissions of PW
4 the irresistible conclusion that can be drawn is that the
seizure of said weapon 'knife' is not made in the presence of
the witness. As a result, even the corroborating evidence
which lacks credibility does not support the case of the
prosecution, making the conviction unsustainable.
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24. Though PW 3 Doctor has been examined to prove the
injuries on the body of the deceased were caused by the
weapon which was seized, however, the seizure of weapon
itself becoming unsustainable and testimony of PW 3 Doctor
becomes inconsequential. Even otherwise, the testimony of
Doctor can be relied on only for proving that the death of the
deceased is homicidal and the injuries are caused with the
seized weapon.
25. Though the clothes of Accused Nos. 1 to 3 have been
seized, the seizure panchanama does not disclose any blood
stains on their clothes. The panch witness PW 6 who is
present during the seizure of the clothes of the
Accused/Appellants does not mention about stains of blood on
the clothes of any of the accused, yet their clothes have been
sent to Chemical Analyzer to ascertain whether there are
stains of blood of deceased on their clothes. Despite the
evidence on record, the learned Additional Sessions Judge has
observed that there is recovery of blood stained clothes which
support the complicity of the accused, which is erroneous and
contrary to the record.
PW 7, Investigating Offcer has stated that, he has
recorded statements of all the persons, who were present
alongwith the informant at the time of incident. According to
him, the portion marked- A and B in the FIR, which contains
the name of other persons present during the incident was
narrated by the informant. He further admitted that the
informant did not mention about presence of PW 2 Umarani at
the time of incident.
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There is a contradiction in the statement of PW 2
recorded before the Magistrate, under Section 164 and her
testimony before the court. The testimony of both the eye
witnesses PW 1 and PW 2 suffers from infrmities. Testimony
of the respective eye witness about presence of other eye
witness during the incident suffers from omissions. PW 1 does
not name PW 2 to be present during the incident, while PW 2
states that after assault on deceased Sandip, she immediately
rushed towards him and caught hold of his hand and while
doing so, she has called PW 1 for help. Considering the
variation in the deposition of eye witnesses, their testimony
does not inspire confdence.
26. The evidence produced by the prosecution was in
support of complicity of Accused No. 1. The only role
attributable to Accused Nos. 2 and 3 is that they had pelted
stones on the deceased Sandip. However, neither in the post-
mortem nor in the inquest panchanama there are any injuries
found on the body of the deceased on account of pelting of
stones. There are no injuries recorded on the vital part of the
body or any serious injuries caused on account of pelting of
stones. Accused No. 2 and 3 could not have been charged with
Section 302 of the IPC. Accused Nos.2 and 3 are not charged
with any other offence, only offence registered against them is
that under Section 302 and 504 of the IPC. In absence of
evidence in support of the said charge, the conviction of the
accused under Section 302 is not at all sustainable. Similarly,
the charge under Section 504 is also not proved by producing
any evidence by the prosecution against any of the accused
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persons, therefore conviction for the said offence would also
not be maintainable.
27. The law with regard to testimony of eye witness is well
settled. The testimony of even a single eye witness is suffcient
to convict an accused, provided his evidence is reliable,
trustworthy and inspires confdence. In the facts of the
present case as discussed above, considering the infrmities
and contradictions in the testimony of two eye witnesses, it
does not inspire confdence and it creates doubt about their
presence during the incident.
Even the corroborating evidence in the shape of recovery
of the 'knife' at the instance of Accused No.1 suffers from
infrmity, as the panchanama does not disclose any blood
stains on the knife, whereas the panch witness in his
testimony states that the knife which was recovered at the
instance of Accused No. 1 was stained with blood. The said
deposition of the panch witness is nothing but improvement
over the seizure panchanama. Seizure panchanama being
corroborative evidence, discrepancy in the evidence renders it
inadmissible for convicting the accused.
Therefore, in view of the fact that the prosecution has
failed to prove the complicity of the Appellant/Accused in
causing death of deceased, through evidence of PW 1 and PW 2
eye witnesses, and corroborative evidence of seizure of
weapon. Having failed to prove the evidence through the eye
witnesses as well as the corroborative evidence of seizure of
weapon, there is no other evidence that would point towards
guilt of the accused. Therefore, the prosecution has failed to
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prove the complicity of the Appellant/Accused in commission
of murder of deceased Sandip.
We fnd that the learned Additional Sessions Judge has
failed to appreciate the infrmities in the testimony of eye
witnesses as well as the contradictions in the statement of
panch witness to the seizure of knife, which is a corroborative
evidence. The failure of the prosecution to prove the two vital
and material piece of evidence beyond doubt, makes the
conviction of the accused unjustifed and unsustainable.
Considering the contradictions in the ocular evidence
and the irregularities and lapses in the investigation, the
conviction of the Appellants becomes unsustainable. Hence in
view of the above, the Judgment and Order passed by the
Additional Sessions Judge convicting the accused is required
to be quashed and set aside. Accordingly, the Judgment and
Order passed by the Additional Sessions Judge, Pune, in
Sessions Case No.465 of 2014 on 23.09.2015 is quashed and
set aside and, resultantly the Appellant/Accused shall be
released forthwith.
In view of disposal of Criminal Appeal No. 1017 of 2015,
Interim Application No. 1307 of 2023 does not survive and is
also disposed off.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)
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