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2018 DIGILAW 119 (BOM)

Nitin Vithalrao Parab v. State of Maharashtra

2018-01-13

B.R.GAVAI, BHARATI H.DANGRE

body2018
JUDGMENT : B.R. Gavai, J. 1. Present appeal takes exception to the Judgment and Order passed by the learned Sessions Judge in Sessions Case No.661 of 2010, thereby convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer Life Imprisonment and to pay fine of Rs 20,000/- and in default to suffer R.I. for one year 2. Prosecution case, as could be gathered from the material placed on record, is thus: 3. Appellant is undisputedly acquainted with deceased Pawankumar Jain. Deceased Pawankumar Jain, on the date of incident i.e. on 02/07/2010, was to close his shop along with his servant Linkeshkumar Jain (P.W.5). At that time, Appellant/Accused No.1 came there and had some talk with deceased Pawankumar Jain. Deceased informed Linkeshkumar Jain (P.W.5) that, he should go home and deceased would shortly follow him. It is the prosecution case that, thereafter, in Maruti800 Car, which was driven by the Appellant, the deceased and the Appellant went away. Thereafter, Linkeshkumar Jain (P.W.5) went home. After reaching home, when he was watching T.V., he came to know about a breaking news of deceased Pawankumar Jain being murdered. He thereafter went to Rajawadi Hospital and identified the body. 4. It appears that, in the meantime, in the jurisdiction of RCF Police Station, it was reported that an accident had taken place near Jyoti Panjab Hotel. When Police Constable Mahadev Shende (P.W.1), on receiving wireless information, went there, he saw that one blue Maruti800 Car was standing there and one person was nabbed by the crowd. He also saw that one another person was running away and a third person was in unconscious condition. P.W.1 Mahadev Shende immediately sent that person to Rajawadi Hospital for treatment. On being inquired about the name of the person who was nabbed by the crowd, Appellant told his name to be Nitin Parab and the name of the other person who had ran away, as Arif Khan. On reaching the Police Station, P.W. 1 came to know that name of the deceased was Pawankumar Jain. He therefore lodged an FIR below Exhibit-19. Appellant was immediately arrested. Accused No.2 came to be arrested subsequently. During investigation, identification parade of accused persons was conducted and it is stated that P.W.1 Mahadev Shende and P.W. 2 Vijay Jadhav had identified Accused No.1 and Accused No.2 in the identification parade. He therefore lodged an FIR below Exhibit-19. Appellant was immediately arrested. Accused No.2 came to be arrested subsequently. During investigation, identification parade of accused persons was conducted and it is stated that P.W.1 Mahadev Shende and P.W. 2 Vijay Jadhav had identified Accused No.1 and Accused No.2 in the identification parade. Accused No.1 was identified as a person who was sitting in the Car, whereas Accused No.2 was identified as a person who ran away. 5. At the conclusion of the investigation, charge-sheet came to be filed before the concerned Metropolitan Magistrate. Since the case was exclusively triable by the learned Sessions Judge, it was committed to the Court of Sessions. The learned Sessions Judge framed charges for the offence punishable under Sections 302, 392, 397 read with Section 120B and 34 of the Indian Penal Code. Both the accused pleaded not guilty. Present Appellant also filed his Written Statement in addition to the answers given by him in his statement recorded under Section 313 of the Criminal Procedure Code. The learned Trial Judge framed the following two points for consideration and answered them as under: POINTS FINDINGS 1. Does the prosecution prove that accused nos.1 and 2 in furtherance of their common intention hatched a conspiracy and committed murder of Pawankumar? PROVED AGAINST ACCUSED NO.1 2. Does the prosecution prove that accused in furtherance of their common intention had committed robbery at the point of deadly weapon and caused hurt to Pawankumar and thereby committed an offence punishable u/S 392, 397, r/w 34 of I.P.C.? NOT PROVED 6. At the conclusion of the trial, the learned Trial Judge acquitted Accused No.2 of the charges levelled against him. Present Appellant was acquitted of the offence punishable under Sections 392, 397 r/w Section 120B and 34 of the Indian Penal Code. However, Appellant was convicted for the offence punishable under Section 302 and sentenced, as aforesaid. Being aggrieved thereby, the present appeal. 7. Mr Pradhan, learned Counsel appearing on behalf of the Appellant, submits that the learned Trial Judge has grossly erred in convicting the Appellant. He submits that, the learned Trial Judge has disbelieved the sole eye witness P.W. 8 Mayur Keni, finding that his evidence was not trustworthy. Learned Counsel further submits that, the learned Trial Judge has also found that the prosecution has failed to prove the motive. He submits that, the learned Trial Judge has disbelieved the sole eye witness P.W. 8 Mayur Keni, finding that his evidence was not trustworthy. Learned Counsel further submits that, the learned Trial Judge has also found that the prosecution has failed to prove the motive. It is submitted that, the conclusion is based only on the basis of the explanation given by the Appellant being found to be not reliable. Learned Counsel therefore submits that, the appeal deserves to be allowed and the Appellant be acquitted of the charges levelled against him. 8. Mrs. Takalkar, learned APP appearing on behalf of the State, vehemently opposes the appeal. She submits that, even if the evidence of P.W. 8 Mayur Keni is ignored, from the evidence of P.W. 5 Linkeshkumar Jain, it would be clear that it is the Appellant who was last seen in the company of the deceased. She submits that, from the evidence of P.W. 2 Vijay Jadhav, it would be clear that the deceased was found in injured condition in the company of the Appellant and Accused No.2. She submits that, the prosecution having proved that the deceased and the Appellant went together and when deceased was found in injured condition, the Appellant was with him along with Accused No.2, burden entirely shifted on the Appellant, which has not been discharged by him. Learned APP therefore submits that the appeal deserves to be dismissed. 9. With the assistance of the learned Counsel appearing on behalf of the Appellant and the learned APP, we have scrutinized the evidence on record. Perusal of the material on record, would reveal that the prosecution has heavily relied on the evidence of P.W. 8 Mayur Keni. However, it appears that the version given by him could be a script of some scene in a movie. His evidence in the cross-examination is totally shattered. Apart from that, his statement was recorded after a period of one month from the date of incident. No explanation was given for his statement being not recorded earlier, though he states that he met police for the first time after 7 to 8 days after the incident. We therefore find that, the learned Trial Judge was totally justified in disbelieving his evidence, holding him to be a got up witness. 10. That leaves us with evidence of P.W. 5 Linkeshkumar Jain and P.W. 2 Vijay Jadhav. We therefore find that, the learned Trial Judge was totally justified in disbelieving his evidence, holding him to be a got up witness. 10. That leaves us with evidence of P.W. 5 Linkeshkumar Jain and P.W. 2 Vijay Jadhav. P.W. 5 Linkeshkumar Jain states in his evidence that, when the deceased and the said witness were about to close the shop, Appellant came there. He had a talk with the Appellant. Deceased asked him to go home and thereafter in blue Maruti800 Car, deceased and the Appellant both went away. Appellant had himself admitted the fact with regard to he being in the company of the deceased. As such, we find that there cannot be any quarrel with the fact that the Appellant was with the deceased from around 9.15 P.M. on the date of incident. Insofar as evidence of P.W. 2 Vijay Jadhav is concerned, though he states that they were required to follow the vehicle to stop it, his cross-examination would reveal that in his statement recorded under section 161, he has stated that the Car was stationary near Bombay Shoe Company. It could thus be clearly seen that, his version that he was required to follow the Car to stop it, is totally in contradiction with what he has stated in his police statement. 11. In view of the position admitted by the Appellant that, he was with the deceased from the time they left the shop of the deceased till they were found in the area of RCF Police Station, the question that we will have to put to ourselves is, as to whether the prosecution has discharged the initial burden of proving its case beyond the reasonable doubt and as to whether the explanation given by the Appellant could be said to be plausible or not. 12. From the material placed on record, it would reveal that Mahadev Shende (P.W.1) and Vijay Jadhav (P.W.2) have identified Accused No.2 in the identification parade. Evidence of these witnesses so far as identification of accused is concerned, has been disbelieved by the learned Trial Judge. From the evidence of Linkeshkumar Jain (P.W.5), it is clear that accused and the deceased were very well acquainted with each other and they used to frequently go together. Appellant has given his Written Statement under Section 233(2) of the Criminal Procedure Code. From the evidence of Linkeshkumar Jain (P.W.5), it is clear that accused and the deceased were very well acquainted with each other and they used to frequently go together. Appellant has given his Written Statement under Section 233(2) of the Criminal Procedure Code. In brief, he has stated that when both of them were travelling together in his Car, they saw a man of their common acquaintance. Deceased got down from the Car and had a word with him for some time and then Pawankumar told him that he would like to go back and the said man would also accompany in the said Car. He has stated that, thereafter when they were proceeding towards Chembur, hot arguments between Pawankumar and Accused No.2 took place. Then it took a violent turn and Accused No.2 whipped out some weapon and started assaulting Pawankumar. In the said incident, one blow landed on his left forearm, resulting in a bleeding incise wound. He has further stated that in the said scuffle, right side glass of the window where Pawankumar was sitting was also damaged. When he was trying to stop the Car, Accused No.2 threatened him not to stop or he would finish him as well. He has stated that thereafter he mustered courage to control and drive the car with an intention to take the deceased to the Hospital. He took the Car towards nearest Inlaks Hospital. He states that, when they were reaching the Hospital, he made a show that there was a breakdown of the Car and therefore he got down close to Inlaks Hospital and started pushing the Car as he wanted to take the deceased to the Hospital. He states that, in the mean time, Accused No.2 got down and started running away. People who gathered, saw Pawankumar lying in injured condition. He tried to explain the situation but the crowd was not willing to listen. Since he received injury, he was also taken to the Hospital. 13. From the evidence of Vijay Jadhav (P.W.2) itself, it would be clear that, though in examination-in-chief, he has stated that he was required to follow the Car, in his cross-examination, he has admitted that he has stated before the Police that the Car was found stationery near Bombay Shoe Company. 13. From the evidence of Vijay Jadhav (P.W.2) itself, it would be clear that, though in examination-in-chief, he has stated that he was required to follow the Car, in his cross-examination, he has admitted that he has stated before the Police that the Car was found stationery near Bombay Shoe Company. It could thus be seen that version given by the Appellant is also corroborated by the evidence of P.W.2 Vijay Jadhav. Not only that, he has stated that in the incident windshield of the Car broke down. However, version of P.W.2 would show that he has claimed that he had to break the glass and while doing so he has received injuries. However, in cross-examination, he has admitted that he was neither taken to the Hospital, nor has he produced any injury certificate on record. 14. Per contra, the arrest panchanama of the Appellant, which is below Exhibit30 and specifically column No.15 thereof would reveal that there was a fresh injury on the right hand of the Appellant. Not only that, the injury certificate below Exhibit29 would also reveal that the Appellant had suffered incise wound on his left hand. Prosecution has not at all explained the injury suffered by the Appellant. It was the duty of the prosecution to have explained the injury which was found on the person of the Appellant. 15. By now, it is a settled principle of law that a mere circumstance of non-explanation or false explanation cannot be a circumstance which can be used against the accused. The initial burden to prove the case beyond reasonable doubt would be on the prosecution. Only after the prosecution discharges the said burden, the false explanation or non-explanation can be used as a circumstance to fortify the finding of fact, which the Court finds to have been proved on the basis of other circumstances. Reference in this respect could be made to the Judgment of the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra ( AIR 1984 SC 1622 ). It is further to be noted that the learned Trial Judge himself had found that the prosecution has failed to prove the motive. The learned Trial Judge has rightly held that in each and every case, it is not necessary to prove the motive. No doubt, in a case of direct evidence motive need not be proved. It is further to be noted that the learned Trial Judge himself had found that the prosecution has failed to prove the motive. The learned Trial Judge has rightly held that in each and every case, it is not necessary to prove the motive. No doubt, in a case of direct evidence motive need not be proved. However, in a case of circumstantial evidence, motive plays a vital role. 16. We further find that, the approach adopted by the learned Trial Judge is also totally unknown to law. The point that has been framed by the learned Trial Judge is, as to whether the prosecution proves that accused Nos. 1 and 2 in furtherance of their common intention hatched a conspiracy and committed murder of Pawankumar. The answer given by the learned Trial Judge is that, it is proved against Accused No.1. It is a basic principle of law that, for hatching a conspiracy atleast two minds have to meet. 17. In our view, learned Trial Judge ought to have framed separate point for the offence punishable under Section 120B and another point for the offence punishable under Section 302 IPC. The observation made by the learned Trial Judge in para 13, would reveal that the learned Judge has proceeded on the premise that it is for the accused to prove his defence, even though prosecution fails to prove its case beyond the reasonable doubt. 18. Firstly, we find that the prosecution has failed to prove its case beyond reasonable doubt and secondly, explanation given by the Appellant cannot be said to be totally false or not plausible. It is a settled law that, in a case of benefit of doubt, it has to go to the accused and not to the prosecution. We therefore find that, appeal deserves to be allowed and as such is allowed. 19. In the result, following order is passed: ORDER Appeal is allowed. The order of conviction and sentence is set aside. Appellant is directed to be set at liberty forthwith, if not required in any other case.