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2006 DIGILAW 908 (BOM)

Satyanarayan Vithal Ambat v. State of Maharashtra

2006-06-19

J.N.PATEL, ROSHAN DALVI

body2006
J. N. PATEL, J.:- In Sessions Case No.42 of 1998 the appellants-accused in the two appeals were tried along with others on a charge that they have committed murder of Firoz @ Bachhu Mohd. Salim Khalil Ahmed Khan and one Akhtar. The trial Court by judgement and order dated 29th October, 1999 found the appellant original accused no.1 Phillips John Baptist and appellant - original accused no.2 Satyanarayan Vithal Ambat guilty of having committed offence punishable under Section 302 read with 120-B and convicted and sentenced them to suffer rigorous imprisonment for life. They were also found guilty of the offence punishable under Section 201 of the IPC and came to be convicted and sentenced on the said count to suffer R.I. for one year and to pay fine of Rs.2,000/- in default to suffer further R.I. for six months. They were acquitted of the other charges with the further direction that their substantive sentences would run concurrently. The Court also granted them set off for the period they were in custody during the trial. In so far as the other co-accused are concerned, they were acquitted of all the charges. This is how the two appellants have preferred these two separate appeals which are heard and finally disposed of by this common judgment and order. 2. It is the prosecution's case that R.C.F. Police Station received an anonymous phone call on 24-8-1997 at about 10.45 a.m. to the effect that in Chikhalwadi area near one Pimpal tree in a hut two persons were murdered. A station diary entry to this effect came to be made by PSI Sawant who at the relevant time was attached to RC.F. Police Station, PI Rao, API Kale, API Shinde and other police officers proceeded to Chikhalwadi to inquire into the matter. But they could not get any substantial information but they found that one hut was closed of which the owner was one Mangal Kamble (PW 8). On enquiry from Smt. Mangal Kamble they learnt that the hut was given on rent to Jyoti (PW 3) who was working as a barmaid and that she had left the said hut and removed her household articles. On enquiry from Smt. Mangal Kamble they learnt that the hut was given on rent to Jyoti (PW 3) who was working as a barmaid and that she had left the said hut and removed her household articles. On this the police asked Mangal Kamble to send Jyoti to police station whenever she happens to meet him, and returned to the police station and made an entry in the station diary of closure of search as they could not get any substantial information. Thereafter on 27-8-1997 PSI Swamy who was the Duty Officer along with API Kale received wireless message from one WSI Anjelin (PW 1) that she found one dead body in the area of Chikhalwadi which was the limit of R.C.F. Police Station and they should attend the matter by reaching the spot. So police officers from RC.F. Police Station left for the site in accordance with the information. WSI Anjelin then showed them the place. Fire Brigade was called and they could take out the body from the water tank. However, since the smell still continued, again a requisition was made for the Fire Brigade and they could recover the second dead body. It is the case of the prosecution that WSI Anjelin (PW 1) visited the water tank near the railway bridge in the area known as Priyadarshani Circle on receiving a wireless Message at 4.55 p.m. on 27-8-1997 that a foul smell is spreading from the said water tank and on the basis of that information she had reached the spot. Therefore, RC.F. Police Station registered Crime No.205 of 1997 in R.C.F. Police Station, Sub-Division Trombay treating WSI Anjelin as the informer. The report was recorded as a F.I.R and a case under Sections 302,201 read with Sections 34 and 120-B came to be registered against unknown persons. The police prepared an inquest panchanama of the dead bodies and the spot panchanama. Dead bodies were photographed and were sent to Rajawadi Hospital for conducting autopsy. 3. In the course of investigation the police got information about the suspect i.e. about Phillips John Baptist as the person who was visiting Jyoti. So they arrested him and his brother-in-law i.e. Satyanarayan appellant original accused no.2 who was found with him in Rahul Nagar. Dead bodies were photographed and were sent to Rajawadi Hospital for conducting autopsy. 3. In the course of investigation the police got information about the suspect i.e. about Phillips John Baptist as the person who was visiting Jyoti. So they arrested him and his brother-in-law i.e. Satyanarayan appellant original accused no.2 who was found with him in Rahul Nagar. It is after the arrest of these two suspects the police were able to arrest the remaining accused persons on the basis of the information received by them. 4. In the course of investigation the police recorded statements of witnesses. They could also discover weapons from all the accused persons under Section 27 of the Evidence Act which were used in committing the murder. On the arrest of the accused persons, police seized their clothes. All the material seized during the course of investigation came to be forwarded to the Forensic Science Laboratory and after the investigation was completed, charge-sheet came to be filed. The Learned Metropolitan Magistrate committed the case to the Court of Sessions, Greater Bombay, for trial. 5. All the appellants-accused were charged for having hatched a conspiracy to commit murder of the two victims and for having formed an unlawful assembly whose common object was to commit murder with deadly weapons i.e. choppers, knives and iron rods and to cause disappearance of evidence by disposing of their dead bodies by throwing them in water tank. They were also charged for having committed offence under Arms Act as well as under the Bombay Police Act. The accused persons pleaded not guilty and claimed to be tried. Their defence was of false implication. 6. In support of their case the prosecution examined Anwar Amin Sahab Bagi (PW 2) as an eye witness. On the point of motive and conspiracy, PW 3 Jyoti and wife of appellant-original accused no.2 Smt. Laxmi P. Baptist (PW 4) who are star witnesses of the prosecution, in addition to Smt. Mangal C. Kamble (PW 8), the landlady of the hut, in order to establish that the alleged offence was committed by the accused persons. 7. The prosecution also examined panchas who were witnesses to the arrest, seizure of clothes and discovery of weapons from the respective accused persons and relied upon the medical and forensic laboratory reports. 7. The prosecution also examined panchas who were witnesses to the arrest, seizure of clothes and discovery of weapons from the respective accused persons and relied upon the medical and forensic laboratory reports. The trial Court found that the prosecution has failed to establish case against all the accused persons except the appellants - original accused nos.1 and 2 and that is how they came to be convicted. 8. It is submitted by the learned counsel for the appellants that the prosecution case is based on evidence of witnesses who were unreliable for the reason that their statements have been recorded only after accused persons came to be arrested and their evidence before the Court suffers from various infirmities as regards the manner in which the incident occurred and the complicity of the accused persons. It is submitted that in so far as PW 2 Anwar Bagi is concerned, he claims to have witnessed the incident but left the scene of occurrence before the incident actually occurred. Further, this witness has made a material improvement in his case so as to implicate the appellant - original accused no.2 Satayanarayan and, therefore, it would be unsafe to base a conviction on such evidence. The trial Court ignored this material omission and the fact that PW 2 Anwar Bagi is not an eye witness. 9. It is submitted that he is the sole witness examined by the prosecution about the incident. 10. It is further submitted that in so far as PW 3 Jyoti is concerned, her evidence also suffers from material omission and is unsafe to rely upon for the reason that she was not at the scene of occurrence at the time of the incident. She has also deposed about the aspect of conspiracy and as her evidence has not been relied upon by the trial Court on this count, it deserves to be discarded. In so far as PW 4 Smt. Laxmi, wife of Baptist, is concerned, she has been declared hostile and it can be found out from the admission given by her in cross-examination that she was detained in police custody for eight days. In so far as PW 4 Smt. Laxmi, wife of Baptist, is concerned, she has been declared hostile and it can be found out from the admission given by her in cross-examination that she was detained in police custody for eight days. In so far as Smt. Mangal Kamble (PW 8), the landlady is concerned, she has also not witnessed the incident and the common factor on the basis of which the evidence of these witnesses deserves to be discarded is that their statements came to be recorded after arrest of the accused persons and there is unexplained delay of 8 to 9 days. 11. It is submitted that all other independent witnesses examined in this case as panchas cannot be relied upon for the reason that they are all prototype witnesses and the trial Court has not relied upon them in so far as their evidence in respect of the co-accused are concerned from whom clothes and weapons of assault came to be seized. Therefore, this is a case of no evidence and prosecution having miserably failed to prove its case the appellants deserve to be acquitted. 12. The learned APP, on the other hand, submitted that Anwar Bagi (PW 2) is a witness who has deposed to the effect that the appellant/accused along with other accused persons whom he could not identify, were last seen with the deceased persons, after he was assaulted by them and he ran away from the scene of offence i.e. the hut where Jyoti used to stay and, therefore, the only inference which can be drawn i.e. the appellants accused having committed the murder along with 5 others and as this witness has not been able to identify the other co-accused in the case, they have been given the benefit of doubt. In so far as the delay in recording the statement of the witnesses is concerned, it is submitted by the learned APP that the offence was detected late by the police and only after getting the necessary information they could trace down the witnesses. In so far as the delay in recording the statement of the witnesses is concerned, it is submitted by the learned APP that the offence was detected late by the police and only after getting the necessary information they could trace down the witnesses. It is further submitted that all these witnesses were otherwise friends of the accused and, therefore, on their own it was not expected of them to have gone to the police station and deposed against them and, therefore, merely because the other co-accused person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, may be proved. The Court below has rightly noted that on the basis of section 27 of the Evidence Act, the fact that has been proved by the prosecution is only regarding the discovery made of a dead body from the open tank at the instance of the appellant. No more and no less. That however, does not mean that the chain of circumstances leading to the inevitable conclusion that the appellant was responsible for the death of the deceased can be said to have been established by the prosecution. In such a case, therefore, finding of guilt even under section 304(1), I.P. Code as recorded by the trial Court cannot be sustained. 9. The next question is whether the appellant could have been found guilty of the offence under section 201 of I.P. Code on the basis of discovery of dead body of deceased at the instance of the appellant, which would persuade the court to infer that the appellant had caused disappearance of evidence of a serious offence by dumping the dead body in a gunny bag in the open tank in the compound of Mafatlal and Company. In the first place, the trial Court has already acquitted the appellant of the charge of Section 201 of I.P. Code though the appellant was charged of that offence in the charge as framed. In the first place, the trial Court has already acquitted the appellant of the charge of Section 201 of I.P. Code though the appellant was charged of that offence in the charge as framed. Assuming that this court was required to go into the question as to whether the appellant can be found guilty of offence under section 201 of I.P. Code, as mentioned earlier there is absolutely no evidence collected by the prosecution or brought on record to establish the fact that the dead body recovered from the tank at the instance of the appellant was of Ajay @ Shivkumar Singh. This was necessary as the appellant was tried for offence in relation to the death of deceased Ajay @ Shivkumar Singh. Unless that fact was to be established the appellant cannot be found guilty of offence under section 201 of I.P. Code of causing disappearance of the dead body of some person other than Ajay @ Shivkumar Singh as such. The dead body found at the instance of the appellant if pertains to some other person, the appellant cannot be found guilty for causing disappearance of dead body of deceased Ajay and to convict him on that basis. In any case, the State has not challenged the finding recorded by the trial Court in relation to offence under Section 201, I.P. Code. Therefore, it is not necessary to elaborate on this aspect any further. 10. Accordingly, this appeal succeeds. The impugned Judgment and Order is set aside. The appellant is acquitted of the offence punishable under section 304(1) of the I.P. Code. The appellant is directed to be set at liberty forthwith. 11. While parting the Court expresses a word of concern for the shoddy investigation done in this case. Copy of this order be forwarded to the Secretary, Home Department, Government of Maharashtra for necessary action. 12. All concerned to act on the copy of the operative order passed by this court to be issued duly authenticated by the office. Appeal allowed.