Ramesh Bhayal Gavit vs State of Maharashtra

P.D. Kode, J.—By the present appeal the appellant-sole accused in the Sessions Case No. 261 of 2005 has challenged the judgment and Order dated 25th November, 2005 passed by the Additional Sessions Judge, Greater Bombay convicting him for commission of offence punishable u/s 302 of Indian Penal Code and sentencing him to suffer life imprisonment and to pay fine of Rs. 1,000/-and in default to suffer R.I for one year. At the said trial the appellant was charged for committing murder of one Anil Gavit on 6th December, 2004 at about 2.00 a.m., on the footpath of Shell Colony. Chembur, Mumbai by hitting him with a stone on the head and thereby causing injuries to him resulting in death of the said person on 10th December, 2004. The said prosecution has emerged out of the charge-sheet submitted by Nehru Nagar Police Station as a result of investigation of FIR No. 319/2004 dated 6th December, 2004 lodged by Suresh Rupjibhai Patel (PW-1).

According to the prosecution, PW-1, Suresh Rupjibhai Patel was original resident of Village Faldara, Tal, and Dist. Balsad, State Gujarat and was doing the work of laying pipeline with the Municipal Contractor PW-4, Jaisinghbhai Yadubhai Gavit of his village. In all 24 labourers were working with PW-4 and out of them the appellant-Ramesh Bhayal Gavit and one Govind was doing the work of cooking and the other labourers were working on the site. At the time of the incident the work was in progress at Govandi. After the work for the day was over all of them were residing in a temporary shed erected on a footpath in front of a Nala at Sahakar Nagar.

According to the prosecution on 5th December. 2004 by 20.00 to 21.00 hrs, all of them after having meal from the appellant and Govind in shed were sleeping on road nearby the footpath. PW-1, Suresh Patel, Govind and Hamesh Bhoya were sleeping in one mosquito net. while deceased Anil and PW-2, Janabhai V. Gavit (Jaanu) were sleeping in another mosquito net. The other labourers were also sleeping in same line beside them. The deceased along with PW-2 was sleeping at the last, towards the side of Tilak Nagar Railway Station. In the midnight there occurred a commotion at said place at 2.00 hrs. on 6th December. 2004 and Hamesh Bhoya worked PW-1. PW-1. Hamesh and Govind went to the place at which the deceased was sleeping to find out the happening. They found that the face of Anil was smeared with blood indicating that somebody had assaulted him. The blood was also spread off the bed and Anil was not in a position to speak. Contractor, PW-4 called the watchman Shiva and asked him to bring the taxi. Shiva working as a day duty watchman was then sleeping. He woke up and brought the taxi. PW-4, Shiva. PW-2 and Laxman Patel went away by telling that they were taking deceased to Sion Hospital. PW-1 and Hamesh followed them to the Sion Hospital.

According to the prosecution. Anil and the appellant were real cousins and about 7 to 8 months prior they had a quarrel at the village. The said quarrel was on the count that wife of the appellant having illicit relationship with deceased-Anil. Since then both of them were not on talking terms with each other and they were sleeping away from each other at a distance away from all of them. The appellant had not been to the hospital when watchman Shiva and PW-1 had admitted Anil at Sion Hospital for treatment. He was also not at the place where he used to sleep. Afterwards when they had surveyed the place they found that bed-sheet of Ramesh was lying at a distance of 100 feel away from the place at which all of them were sleeping. Hence. PW-1 alleging that due to the illicit relationship between the wife of the appellant and deceased-Anil, the appellant might have ran away after assaulting Anil, while he was sleeping lodged the complaint with Nehru Nagar, Police Station of the appellant having attempted to kill Anil by assaulting him with some blunt object while he was sleeping.

According to the prosecution in the intervening night of 5th and 6th December. 2004, Nehru Nagar Police Station received telephonic information from Beat Marshal in Sahakar Nagar that some blood was lying by the side of road and the injured was taken to the Sion Hospital. In response to the said information, Station house Officer Namdeo Vitthal Bangar (PW-6) along with police staff rushed to the Sion Hospital and found that one patient admitted and kept in ICU and was unconscious. The name of the said person was transpired to be Anil Gavit. PW-1. Suresh Rupji Patel. who was also present at the said hospital along with other persons gave the information to the police regarding the circumstances in which the incident had occurred. PW-6 recorded his complaint and registered above referred crime for the offence punishable u/s 307 of Indian Penal Code. As the said injured died without regaining consciousness on 10th December, 2004, the offence was converted to the offence of murder. The investigation of the said crime was made by PW.6 and as a result of the same, he has charge-sheeted the appellant.

The prosecution had examined in all 8 witnesses at the trial i.e. above referred two witnesses and the labourers PW-2, Janabhai Vestabhai Gavit, PW-3 Sunil R. Patel and their employer PW-4 Jaisinghbhai Yadubhai Gavit. PW. 5, Das Kashinath, panch witness for seizure panchanama (Exhibit-15) and the seizure of the articles from the spot, PW-7. Dr. Harish Manilal Pathak, regarding the autopsy performed upon the corpse of the deceased at Sion Hospital and Investigating Officer. PW-8, Devidas Ambar Desai, who had submitted the charge-sheet.

Dr. Yug Chaudhary, learned counsel for the appellant urged that though the appellant is not disputing the deceased having met with homicidal death and the said fact is duly established from the evidence of PW-7. Dr. Harish Manilal Pathak and so also relevant part of the evidence of PW-8, Devidas Ambar Desai regarding investigation effected, still is disputing the conclusion erroneously arrived by the trial Court of the guilt of the appellant on the basis of the circumstances established by prosecution evidence which do not reach to such a conclusion. Learned counsel urged that the prosecution mainly rest upon the evidence of PW-2 Janabhai Gavit for establishing that the appellant was the person who had attacked the deceased by means of a stone. It was urged that considering the evidence of PW-2 in proper perspective, the same reveals that no value can be given to the identification of the appellant made by him. It was urged that his evidence reveals that he has never seen the face of the person and/or face of the appellant; who he claims to be standing at a distance of 20 feet away from the place of the incident, after he had awoke from the sleep in said night. Learned counsel further submitted that the entire identification made by PW-2 is on the basis of having seen a bed-sheet, similar to that of an appellant, by which the person seen by him had covered his face. Learned counsel further urged that considering the evidence of PW-2 as a whole and particularly the admission given by him that the bed-sheet seen by him was like the bed-sheets which are available in plenty in the market, no value can be attached to identification made by him.

Learned counsel further submitted that excluding the evidence of PW.2 and particularly wrong identification made by him, hardly their exist any evidence connecting the appellant with the incident in which the deceased sustained injuries which ultimately resulted in his death. Learned counsel by drawing our attention to the evidence of PW-3 urged that said evidence reveals that though the examination-in-chief of the said witness sounds that when he had also awoke after the occurrence of the incident, the appellant was missing from the place where he used to sleep beside the said witness, further scrutiny of the evidence of PW-3 does not reveal that in the relevant night he had seen the appellant sleeping beside him. It was urged that in such state of affairs hardly any inference as wrongly drawn by the trial Court can be drawn that the appellant was missing in the said night soon after the incident. Learned counsel further urged that though the prosecution has relied upon the evidence of PW-1 and PW-4 for showing that the appellant had probable motive for commission of crime because there were illicit relations in between the deceased and wife of the appellant, even the said evidence taken as it is reveals that such a incident had occurred about 5 to 6 months prior to the occurrence of main incident and the said matter was duly settled and the appellant had already paid Rs. 1.000/- to the village panchas regarding said incident. It was further submitted that the next circumstance relied by the prosecution that blood stains were found upon the clothes particularly the shirt of the appellant is also inconsequential taking into account the size of the stains of the blood allegedly found on the shirt and further more the prosecution being unable to, establish that the said blood stains were of similar blood group ''A'' as that of the deceased as established by the prosecution. Learned counsel thus contended that even taking into consideration all the circumstances which are said to be established by the prosecution evidence the said within themselves fails to form a formidable chain leading to the sole inference of the guilt of the appellant. Learned counsel thus contended that the trial Court in such state of affairs ought to have acquitted the appellant rather than convicting him by drawing erroneous unjustified inferences out of the said circumstances which can be said to have been established by the prosecution.

On the other hand learned APP supported the judgment given by the trial Court. By inviting our attention to the matter stated in paragraph No. 17 of the judgment urged that therein trial Court has carefully listed out the circumstances established from the evidence adduced by the prosecution at the trial. It was urged that all the said circumstances within themselves form a chain leading to sole inference of the guilt of the appellant. He thus contended that no interference is warranted with the reasoned judgment delivered by the trial Court for coming to conclusion of the guilt of the appellant. He thus prayed for dismissal of the appeal, lacking any merit.

We have carefully considered the record with the assistance of the parties and given thoughtful consideration to the submissions advanced for ascertaining merits of the same. Firstly considering the evidence of PW-2 Janabhai Gavit, we find substance in the criticism advanced by the learned counsel for the appellant that the evidence of Janabhai is not useful to the prosecution to advance the case and in particular to establish the guilt of the appellant as probably being the person who have assaulted the deceased by means of an stone. We are of such a opinion as though PW-2, Janabhai claimed in his evidence of having seen the appellant at a distance of 20 feet away from the place of incident, after PW-2 had woken up from the sleep, still considering his evidence as a whole the same in terms reveals that said identification is not based upon any of the visual impressions of face of the appellant seen by him in the relevant night. On the contrary his claim is apparently based on the basis of the identification of the bed-sheet which was worn by the said person seen by him. His evidence amply makes it clear that he has not seen the face of the appellant. Furthermore as rightly pointed by learned counsel for the appellant, PW-2 during his cross-examination has given an admission that bed-sheet identified by him was the type of bed-sheets readily available in the market. Needless to add that the same takes away value if any of the identification made by him. Thus other part of his evidence though may be useful for the prosecution to establishing occurrence of the incident and during the same the deceased being attacked and having received injuries which has ultimately led to his death, still his evidence is not at all helpful for the, prosecution for establishing the guilt of the appellant. With regard to the evidences of PW-1, PW-2, PW-3 and PW-4, it is not in dispute that none of them have witness the incident. Though as pointed out by the learned APP the evidence of PW-1 and to some extent that of PW-4 establishes that earlier an incident had occurred in between the appellant and the deceased. The careful perusal of the evidence of said witnesses also, reveal that the said dispute was settled and the appellant had paid Rs. 1,051/- towards the fine in view of an mistake occurred on his part. It was thus rightly urged on behalf of appellant that even accepting the said evidence at the most, the same would be useful to the prosecution only to the extent of establishing that the appellant could have a probable motive for assaulting the deceased.

Now considering the evidence of the remaining witnesses, regarding to seizure of the blood-stained clothes of the appellant. However as rightly pointed by learned counsel for the appellant the prosecution being not able to establish the said blood which is also not of an appreciable size was that of the deceased, even said circumstances also cannot be said to be much useful to the prosecution.

Though the learned APP tried to canvass by laying finger upon the evidence of PW-3 that the evidence of said witness reveals that the appellant used to sleep besides him and at the relevant night the appellant was found missing, after PW-3, had awoke from the sleep, due to the occurrence of an incident points towards guilt of appellant. We are unable to agree with said submissions canvassed by learned APP. The perusal of the evidence of PW-3 reveals that though he has stated that the appellant used to sleep by his side and in the relevant night after hearing the commotion when he awoke, he had found that the appellant was not by his side, further answers given by the said witness during his cross-examinations does not reveal that on the relevant night he had seen the appellant going for a sleep. His evidence also reveals that he used to go to the bed immediately after meals, while the appellant used to go to the bed later on after finishing the kitchen work. He further admitted that in the said night he had not seen the appellant going to bed. Thus considering the evidence of PW-3 in proper perceptive, we are unable to accept that by the said evidence the prosecution has established that the deceased was found missing soon after the incident. Thus considering the circumstances which are found to have been established by the prosecution evidence, we are unable to agree with the submissions of learned APP that the findings arrived the trial Court that the circumstances established within themselves form a formidable chain leading to the sole inference of the guilt of the appellant. In view of the same, findings to such effect arrived by the trial Court cannot be legally sustained and the same is liable to be quashed and set aside.

In the premises appeal is allowed. The judgment and Order passed by the trial Court convicting the appellant for the offence punishable u/s 302 of I.P.C. and sentencing him to suffer R.I for life and directing him to pay fine of Rs. 1,000/- and in default to suffer R.I for one year is quashed and set aside.

The appellant is acquitted from the offence punishable u/s 302 of the Indian Penal Code. If the fine amount is paid, the same be refunded to the appellant. The Appellant be released forthwith, unless he is required in any other case.

Appeal is accordingly allowed and disposed of.