Dinesh @ Dhebarya Virendra Bhatkar vs The State of Maharashtra

V.K. Tahilramani, J.—The appellant has preferred this appeal against the judgment and order dated 29.8.2007 passed by the learned Additional Sessions Judge, Bombay in Sessions Case No. 907 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under sections 302, 392 and 397 read with 392 of the Indian Penal Code. For the offence u/s. 302 of the Indian Penal Code, the learned Sessions Judge sentenced him to R.I. for life and fine of Rs. 1000/-, in default, R.I. for six months. For the offence u/s. 392 of the Indian Penal Code, the appellant was sentenced to R.I. for seven years and fine of Rs. 500/-, in default, R.I. for one month; and for the offence u/s. 397 r/w 392 of the Indian Penal Code, the appellant was sentenced to imprisonment for seven years. The prosecution case briefly stated is as under:

Satya Medchelmy, PW1, is the first informant in the present case. PW1 Satya was residing alongwith his family consisting of his father, mother, wife, brother and brother''s wife at Ganesh Nagar hutment, Siddharth Nagar, Goregaon (West), Mumbai. Satya, his brother and his father i.e., the deceased Yellappa were doing labour work. The premises in which Satya and his family were residing consisted of one room in which there was a loft. Satya''s brother and his brother''s wife used to sleep on the loft. Due to want of place in the room, Yellappa used to sleep in the lane outside the room. At the time of the incident, as there was construction work going on of gutter in the lane, Satya''s father Yellappa used to sleep on the first floor of one under construction building, which was called Vajankata building. On 9.6.2006, after having dinner, Yellappa went to the said building with his bedding at about 11 pm. On 10.6.2006 at about 7 am, Satya''s mother was going for domestic work. She was passing by the Vajankata building. She noticed some persons were gathered there. Hence, she also went there and saw her husband Yellappa in an injured condition. She immediately came back and informed PW1 Satya about it. Satya rushed to the said building alongwith his family members. He tried to wake up his father but he found that his father''s body was cold. There were injuries on the head, forehead, eyes, legs of Yellappa. He also found that the teeth of Yellappa were broken. Satya noticed that his father Yellappa was dead. Satya also found that the money on the person of Yellappa had been robbed. Satya went to the first floor and saw that the bedding of Yellappa i.e., mat and pillow were blood stained. One blood stained bamboo was lying there. Satya then lodged FIR (exhibit 15). Thereafter, investigation commenced. The dead body of Satya was sent for postmortem. PW6 Dr. Kachare performed the postmortem on the dead body of Yellappa. Dr. Kachare found the following injuries on the body of Yellappa:

i) Contused Lacerated Wound at left frontal side, horizontal, 5cm x 2cm x bone deep reddish in colour

ii) CLW at right forehead, above right eyelid, 3cm x 1.5 cm x Bd. reddish in colour

iii) CLW at right lateral of eyeball, 2.5 cm x 1.5 cm x Bd. reddish in colour.

iv) CLW at right maxillary region cm x 2 cm x Bd. reddish in colour.

v) Contusion over right eyeball 6cm x 6cm, reddish in colour

vi) Evidence of fracture dislocation both maxillae, on palpation.

vii) Evidence of fracture dislocation mandible on palpation

viii) Evidence of fracture nasal bridge.

ix) Compound fracture right Tibia-Fibula, upper 1/3 with bone fragments projection externally from muscle.

x) Contused abrasion over anterior of left knee joint involving upper 1/3 of left lower leg, anterior, 15 cm x 9 cm reddish in colour.

xi) Contused abrasion over right posterior of shoulder joint 2cm x 1.5 cm reddish in colour

xii) Abrasion over posterior of left elbow 2cm x 2cm reddish in colour

xiii) Contused abrasion over posterior of left forefinger 4cm x 2.5 cm reddish in colour

xiv) Abrasion over posterior of right elbow 8cm x 5cm reddish in colour.

Head: Injuries under the scalp:

i) Contusion over tempo-parietal region 8 cm x 5cm, reddish in colour

ii) Contusion over frontal region 5cm x 5cm reddish in colour Brain: Extra dural haemorrhage at right temporoparietal region reddish 8cm x 6cm.:

Subarachnoid haemorrhages are seen.

According to Dr. Kachare, all abovesaid injuries are ante mortem. Dr. Kachare further opined that all the external and internal injuries are possible by hard and blunt object like bamboo, pipe etc. and these injuries were possible by wooden bamboo (art 2). In his opinion, cause of death is haemorrhage and shock, due to polytrama (unnatural). Injuries No. 1 to 3 mentioned above were sufficient to cause instant death.

After completion of investigation, chargesheet came to be filed.

Charge came to be framed against the appellant under sections 302, 392 and 397 r/w 392 of the Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.

We have heard the learned Advocate for the appellant and learned A.P.P. for the State. We have carefully considered their arguments, the judgment and order passed by the learned Sessions Judge and the evidence on record. After minutely considering the same, we are of the opinion that there is no reliable evidence to show that the appellant robbed Yellappa and committed his murder.

The prosecution has relied upon evidence against the appellant of recovery of shorts, shirt and underwear of the appellant. PW3 Rahim Karim Khan is the panch witness, who has deposed on this aspect. This witness has stated that the appellant made a statement about his clothes which he would hand over to the police. Thereafter, the appellant led the police with panchas to a latrine and took out his clothes. These clothes were seized by the police and memorandum and Panchanama in relation to the seizure are at exhibits 19 and 19A. The panch witness has stated that blood stains were seen on the clothes. These clothes were sent to the C.A. As per the C.A. report, the clothes of the appellant were found stained with blood of ''A'' group. The clothes of the deceased were also found stained with blood of ''A'' group. The blood group of the appellant was found to be ''O''. Thus, it was submitted by the prosecution that it is a strong incriminating factor that the blood group of the deceased was found on the clothes of the appellant. However, on perusal of the evidence of this panch witness, it is seen that he was a friend of the police constable, who called him for making Panchanama. He has admitted that he knew the police constable by name Garde attached to the Goregaon police station, that is where the C.R. in this case has been registered. He has admitted that police constable Garde was his friend. Looking to the fact that one of the constables associated with this case was the friend of this panch witness, we do not think it safe to rely on the evidence of this panch witness.

Excluding the above piece of evidence, the only other evidence against the appellant is that cash was recovered at his instance. PW4 panch witness Radheshyam has deposed on this aspect. He has stated that an amount of Rs. 800/- was recovered at the instance of the appellant. This cash has not been identified by the complainant or any other witness in this case. In such case, it cannot be said that the evidence of PW4 panch witness Radheshyam cogently and convincingly connects the appellant with the crime. There is no other evidence on record to connect the appellant with the crime.

In view of the above facts, we are of the opinion that the appellant deserves to be given the benefit of doubt, hence, the conviction and sentence of the appellant as imposed by the learned Sessions Judge would have to be set aside and is accordingly set aside. The appellant is acquitted of the offences u/s. 302, 392 and 397 r/w 392 of the Indian Penal Code. He be released forthwith, if not required in any other offence. Appeal is allowed in above terms.

Office to communicate this order to the Appellant and the Superintendent of jail where the appellant is lodged i.e., Nashik Road Central Prison. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Mr. Toraskar who has very ably conducted the matter. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs. 2,500/-.