Judgment:
Dr. Arijit Pasayat, J.
Challenge in this appeal is to the
judgment rendered by a Division Bench of the Bombay High Court directing
acquittal of respondent-Raju Bhaskar Potphode (hereinafter referred to
as the 'accused'). Accused was found guilty of the offence punishable
under Sections 302 of the Indian Penal Code, 1860 (in short the 'IPC')
and sentenced to undergo imprisonment for life by learned Additional
Sessions Judge, Greater Bombay, in Sessions Case No.355 of 1993.
Accusations which led to the trial of the accused was that he had on
7.2.1993 at about 4.30 p.m. committed the murder of one Sunil Gore
(hereinafter referred to as the 'deceased') by stabbing with a knife.
Prosecution case in a nutshell is as follow:
On 7th February, 1993, the Sai Krupa Cricket Club had
organized Single Wicket Cricket Competition on an open
playground near Sai Mandir, Samarth Nagar, Majaswadi,
Jogeshwari (E). In the said competition boys of Majaswadi
locality 44 boys including the first informant-Ravindranath
Damle, (PW 1), Uday Gore PW 2), Arun Raghunath Paranjape
(PW 3), Santosh Lad (Pw 4), Girish Modak, had participated. At
about 9.00 a.m. after drawing of the lots, as regards which
player was to play with whom, the competition started. Vijay
Potphode the brother of the respondent, and one Mr. Troy had
allegedly taken part in the said competition. At about 4 p.m.,
out of 44 competitors, 6 participants emerged out as winners
and as a further step Vijay and Troy were to play with each
other. As both belong to one and the same club, they refused
to play against each other and requested for a change of draw.
Deceased-Sunil Gore who was responsible for the draw,
however, was not ready and willing to change the draw.
Deceased-Sunil Gore asked Vijay to withdraw from the
competition and to take back subscription if he did not want
to play against Troy. This led to exchange of hot words. The
said altercation was allegedly being witnessed by the
respondent who intervened and started taking the side of his
brother Vijay. The members of the Sai Krupa Cricket Club
intervened in the said altercation and pacified the situation
and asked the respondent to leave the playground. It is further
alleged that the respondent left and returned back with a knife
and stabbed Sunil Gore on his abdomen. Due to this, Sunil
Gore received stab injuries and collapsed on the ground.
The
respondent allegedly threatened all not to come near him and
ran away with the knife. Sunil Gore was removed to Cooper
Hospital, however, he was declared dead before admission. At
about 5.25 p.m. on 7th February 1993 the first informant
Ravindranath (PW 1) went to Jogeshwari Police Station and
lodged the FIR which was reduced into writing vide Exhibit-6
by Uday Bhanu Sharma (PW 12). An offence was registered
against the accused at CR No.47 of 1993 at Jogeshwari Police
Station on the basis of the FIR. Shri Sharma (PW 12) took up
the investigation. He visited the hospital. He held the inquest
on the dead body and a panchanama to that effect was drawn
at Exhibit-11. The dead body was sent for post-mortem
examination. He visited the spot and drew the panchanama of
the scene of offence at Exhibit-10 in presence of two panchas.
After recording the panchanama of the scene of offence, the
investigating officer recorded statements of witnesses. On 8th
February, 1993 accused Raju Bhaskar Potphode was arrested
from his residence. He was brought to the police station. His
clothes were attached under the seizure panchanama at
Exhibit-34 in presence of the two panchas, viz. George
Anthony D'Souze (PW 8) and Pradeep Shankar Hazale (PW 9).
There were blood stains on the clothes of the accused. Clothes
were packed, labelled and sealed under the signatures of
panchas. The accused was interrogated in presence of the
panchas. On 11th February 1993 the accused made a
statement that he would show the knife. His statement was
recorded at Exhibit-16. In pursuance of the said statement,
the accused led the investigating officer and the panchas to
the spot at Shivtakdi, Satbawadi.
The accused pointed out the
place where a search with the help of torch was carried out
and a knife hidden in the grass was found. It was seized under
a panchanama Exhibit 16-A. Knife (Article-6) was produced in
the trial Court. In the meanwhile, the post-mortem
examination of the deceased was conducted by Dr. Baban
Shripati Shinde (PW 7). The clothes of the deceased were also
attached. The post-mortem notes are at Exhibit-19. The blood
stained clothes of the accused, the knife (Article No.6), sample
of blood of deceased and the clothes of the deceased were sent
to the Chemical Analyser. After completion of investigation,
the accused was charge-sheeted for the aforesaid offence in
the court of the Metropolitan Magistrate, Mumbai.
3. Accused pleaded innocence and false implication.
Therefore, trial was conducted. In order to establish the
accusations 12 witnesses were examined. It was claimed that
PWs 1 to 4, namely, Uday Gore, Arun Raghunath Paranjape,
Santosh Lad and Girish Modak were the eye-witnesses of the
occurrence. During trial, however, except PW-2 others resiled
from the statements made during investigation. PW-1
Ravindranath Damle partially supported the prosecution
version but claimed that he had not seen the occurrence. PWs
3 and 4 totally denied to have witnessed the incident. The Trial
Court placing reliance on the evidence of PW-2 recorded
conviction and imposed sentence as aforesaid.
4. Accused-respondent preferred an appeal before the High
Court. It was submitted essentially that the evidence of PW-2
lacks credence and he is not a reliable witness. Stand of the
State on the other hand was that PW-2 was a close relative of
the deceased and there is no reason as to why he will falsely
implicate the accused. The High Court analysed the evidence
of PW-2 in great detail considering the fact that he was a
relative of the deceased. However, it found that evidence of
PW-2 to be unreliable and not worthy of credence and
accordingly directed the acquittal.
5. Learned counsel for the appellant-State submitted that
there is no reason for PW-2 to falsely implicate the accused.
His presence was but natural and the aspects highlighted by
the High Court about the credibility of the evidence of PW-2
are not founded on any rational basis. Learned counsel for
the respondent-accused on the other hand supported the
order of the High Court.
6. Several factors have been highlighted by the High Court
to cast doubt on the varsity of PW-2' s evidence. Firstly, it
noted that his name was not indicated in the FIR.
Furthermore, his conduct at the time of incident about what
he did at that time corrodes the credibility of his version. He
admitted that he did not inform the deceased that the accused
was coming with a knife loudly proclaiming that he wanted to
harm the deceased. Additionally, his conduct was quite
unnatural because he did not take the deceased either to the
hospital or police station and stated to have been gone his
home directly. Neither did he take him to the hospital which
was nearby nor inform the police at the police station which
was also situated close-by. The statement was also discrepant
as to whether he returned from home after he had left the
deceased in an injured condition. At one stage he stated to
have come after about 10 minutes, but in his cross-examination he admitted that he did not return.
7. Learned counsel for the appellant submitted that he may
have gone to inform the relatives. Interestingly, none of the
relatives came near the spot. The injured was taken to the
hospital by other. High Court found it unnatural that the PW-2 did not bother to provide medical assistance. He also did not
inform the police. He claimed to have left for his home.
Whether he came back or not is another doubtful question
because as noted above he himself admitted in cross-examination that he stayed at home. As rightly observed by
the High Court it is quite unnatural conduct on the part of a
close relative that he would leave the relative in a pool of blood
not bothering to take him to the hospital and not to return
after having left the spot. Further his conduct in not informing
the police is another relevant factor.
8. It will be noticed that the Trial Court placed reliance on
the so-called discovery of alleged weapon pursuant to the
disclosure by the accused. The High Court has rightly noticed
that the knife was found in an open space and was clearly
visible. Investigating Officer admitted that anybody could have
seen the knife even without much effort.
9. The Investigating Officer claimed to have recorded the
statement of this witness on the date of occurrence. But the
witness himself stated that it was not recorded on that date.
The High Court found that his presence at the time of
occurrence was highly doubtful. The High Court observed that
his conduct does not appear to be natural and trustworthy,
and, therefore, allowed the appeal. Several important aspects
were noted by the High Court to discard the testimony of PW-2. The reasons do not suffer from any infirmity to warrant
interference. The cumulative effect of the infirmities as noticed
by the High Court goes to the root of the matter. In the
circumstances, we do not find any reason to interfere with the
conclusions arrived at by the High Court. The appeal is
without merit and is dismissed.
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