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2012 DIGILAW 159 (BOM)

State of Maharashtra v. Ramnath Gopinath Patil

2012-01-23

M.L.TAHALIYANI, V.M.KANADE

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Judgment (V.M. Kanade, J.) Heard the learned APP appearing for the State. It appears from the record that the appeal was admitted on 1-9-1986 [Coram : Sawant & Kolse Patil, JJ.]. Thereafter the Criminal Appeal Branch forwarded the matter in Criminal Appeal No.257 of 1986 to the Criminal 'B' Branch in 2010. However, despite the number of efforts being taken by the office, the judgment & order disposing of the appeal was not found in the said case. The office came to the conclusion that the appeal is still pending for final hearing, and therefore, the Registrar (Judicial) passed an order dated 19-11-2011 that the matter may be placed for disposal. When this fact was brought to our notice on 7th December, 2011 matter was kept for direction on 12th December, 2011, and thereafter it was peremptorily fixed for hearing since it was one of the oldest case pending on the file of this Court. 2. We have heard the learned APP appearing for the appellant at length. He has taken us through the judgment and order of the trial court and notes of evidences, and records & proceedings. 3. The State has preferred this appeal against the acquittal, being aggrieved by the judgment & order passed by the Sessions Court, Mumbai dated 24th December, 1985 whereby the Sessions Court was pleased to acquit respondent Nos.1 to 7 for the offences punishable under Section 143, 147, 302 read with Section 149 and Section 302 read with Section 34 of the I. P. Code. All the accused were also acquitted for the other offences with which they were charged. 4. The prosecution case in brief is that one Maxi Pascol Mendonca was traveling in auto rickshaw at about 10.30 a.m. on 2-2-1984 from Kanjur-Marg to Andheri in order to attend the Sessions Court case at Andheri. According to the prosecution, said Maxi Mendonca had committed a murder of one Nanji Shah, and therefore, the Respondents/accused in order to take revenge of the death of Nanji Shah had conspired to kill said Maxi Mendonca and had, accordingly, followed said Maxi in two separate taxis and they had finally intercepted the rickshaw and had assaulted him with various types of lethal weapons and has inflicted 36 incised wounds. As a result, the said Maxi died as he succumbed to the injuries which were inflicted upon him. 5. As a result, the said Maxi died as he succumbed to the injuries which were inflicted upon him. 5. The prosecution relied on the evidence of three eye witnesses -PW 14-Abdul Sattar Hamid Mulla, PW 4-Gurubaxsing Harising Sudam and PW 6 -Lalji Sitaram Tiwari, and also the other circumstantial evidence regarding recovery of weapons and the Chemical Analyser's report. Out of three eye witnesses, two eye witnesses namely PW 4 Gurubaxsing, PW 6 Lalji turned hostile and they did not support the prosecution case. PW 14 Abdul Sattar was the only eye witness who had identified some of the accused in the identification parade. The trial court came to the conclusion that the incident had taken place, as alleged by the prosecution and also held that the motive has been established by the prosecution. The court, however, came to the conclusion that the respondents were entitled to get benefit of doubt since the testimony of the eye witness PW 14 Abdul Sattar could not be relied upon. So far as the recovery of weapons is concerned, the court also did not rely on the said recovery and gave cogent reasons for not relying upon the testimony of PW 14 Abdul Sattar and not accepting the evidence of recovery of weapons at the instance of the accused. 6. We have perused the judgment of the trial court. The trial court in paragraph 40 to 42 has considered the evidence of the eye witnesses. In paragraph 38 to 41 the trial court also observed that the statement of PW 14 came to be recorded almost five days after the incident, though the witnesses were available at about 11.00 a.m. to the Police Officers and the Police Officers chose not to record statement of the witnesses but proceeded to record the panchanama of scene of offence. The court also noticed that statements of PW 4 Gurubaxsing Sudam and PW 6 Lalji Tiwari who were other two eye witnesses, were recorded at 4.00 p.m., though they were available at 11.00 a. m. and therefore, in our view, the trial court was right in coming to the conclusion that this delay created suspicion in the mind of the court regarding evidence of these two witnesses. The trial court has also noted that the investigating officer has not given any explanation for the delay in recording statements of these witnesses immediately. The trial court has also noted that the investigating officer has not given any explanation for the delay in recording statements of these witnesses immediately. Taking into consideration the various circumstances on record, the trial court came to the conclusion that it was difficult to rely on the testimony of PW 14 Abdul Sattar. The trial court has also observed that witnesses had to be traced after efforts of four days, indicating that he was trying to avoid confrontation with the police. The trial court, therefore, in our view, has rightly come to the conclusion that so far as evidence of PW 14 Abdul Sattar is concerned, his evidence regarding happening of the incident had to be accepted but his evidence about identification of the individuals could not be accepted. The trial court has given various further reasons for coming to the said conclusion. In our view, the trial court has given cogent reasons why the testimony of this solitary eye witness could not be relied upon and why the discovery at the instance of the accused was not acceptable, and therefore, at this stage, it is not possible to interfere with the said finding and convert the said order of acquittal into conviction. 7. It is a well settled position in law that this Court while exercising the jurisdiction under Section 378 of the Criminal Procedure Code, is not expected to substitute the plausible view taken by the trial court and convert an order of acquittal into an order of conviction. One other factor also which cannot be lost sight of is that the judgment and order was delivered by the trial court in 1985, and more than 27 years have elapsed after the order of acquittal has been passed. Apart from that, the judgment is well reasoned and it has taken into consideration all the aspects of evidence and material on record while arriving at the said finding. Criminal Appeal is, therefore, dismissed.