MHCC020061822016 Received on : 05.05.2016 Registered on : 05.05.2016 Decided on : 16.09.2023 Duration : Y M D 07:04: 13 Exh.96 IN THE COURT OF SESSIONS JUDGE FOR GREATER BOMBAY (Presided over by R.R.PATARE, Additional Sessions Judge) Date: 16th September, 2023.
SESSIONS CASE NO.
342 OF 2016 (Crime No.
08 of 2016 of Pydhonie Police Station) Complainant : The State of Maharashtra Represented by : Mrs. Ashwini Raikar for State Accused : Jayanand @ Jaya Mukind Ghule Age: 35 years.
R/a: Damu Nagar, Bhim nagar, Mahatma Gandhi Vikas Mandal, Behind Budhavihar, Kandivali (East), Mumbai.
Represented by : Advocate Mr. Keshav Chavan for accused
Date of offence : 07.01.2016
Date of FIR : 07.01.2016 ::2 ::
Date of Chargesheet : 08.01.2016
Date of Framing of Charges : 19.07.2016.
Date of Commencement of : 23.06.2017 Evidence Date on which judgment is : 16.09.2023 reserved
Date of the Judgment : 16.09.2023
Date of the Sentencing : 16.09.2023 Order, if any Accused details Rank Name of
Date of
Date of Offences Whether Senten Period of of accused arrest release on charged acquitted ce Detention the bail with or impos undergone accus convicted ed during ed Trial for purpose of Section 428 Cr.PC 7.1.2016 ----- 302 of Jayanand @ Jaya IPC Convicted Life 7 years Mukind Ghule LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A.
Prosecution : RANK NAME Exh.No.
NATURE OF EVIDENCE P.W.1 Faiyaaz Abdul Masjid 26 Eye witness Jethwa ::3 :: P.W.2 Shashikant Dinakar Achare 32 Shop owner PW-3 Riyaz Ahmed Moharram Ali 35 Eye witness Khan PW-4 Uttam Namdeo Jadhav 36 Eye witness PW-5 Abdul Karim Rahim 37 Previous owner of Batliwala motorcycle PW-6 Gajanan Laxman Shinde 40 Carrier of muddemal PW-7 Dr. Vaman Kedari Gaikwad 42 Medical officer PW-8 Fauzan s/o Iqbal Merchant 46 Brother of deceased PW-9 Deepak Maruti Gasti 48 Eye witness PW-10 Kirtiram Ramkeval Naik 60 Panch witness PW-11 Santosh Sopan Solankar 71 First investigating officer PW-12 Ravindra Kisan Godse 78 2nd investigating officer PW-13 Mahesh Narayan Mugutrao 80 3rd Investigating officer B. Defence Witnesses, if any : RANK NAME Exh.No.
NATURE OF EVIDENCE P.W.1 Asha Mukind Ghule 94 Mother of accused C. Court Witnesses, if any : Nil LIST OF PROSECUTION/DEFENCE /COURT EXHIBITS A.
Prosecution : Sr.No.
Exhibit Number Description 1 9 Inquest Panchanama dated 7.1.2016 ::4 :: 2 11 Spot Sketch dated 7.1.2016 3 12 Panchanama of receipt of C.C.T.V.
footage dated 8.1.2016 4 13 P.M.Notes dated 7.1.2016 5 14 Certificate of cause of death dated 7.1.2016 6 15 Information of death No.1/16 7 16 (colly) Photographs of P.M. of deceased 8 17 Letter dated 11.1.2016 sent to FSL, Kalina.
9 18 Call details of Idea Company 10 19 Arrest panchanama of accused dated 7.1.2016 11 20 C.A.Report No.B-220/16 dated 16.8.2016.
12 27 Report 13 38 Original agreement 14 39 Delivery note 15 41 Forwarding letter 16 43 Postmortem report 17 44 and 45 C.A.report dated 31.3.2016 and 1.10.2016 18 47 Xerox copy of registration certificate 19 61 Panchanama dated 7.1.16 20 62 Motor Cycle seizure panchanama dated 12.1.2016 21 63 Lable of knife Article-G 22 64 and 65 Labels of Shirt and jeans 23 81 Forwarding letter of blood samples of accused ::5 :: to forensic lab Kalina 24 82 C.A.Report dated 1.10.2016 received from forensic lab Kalina Sr.No.
Articles Description 1 Article A colly Blue shirt of deceased @ wrapper and label 2 Article B colly Banian of deceased @ wrapper and label 3 Article C colly Blue Jeans pants of deceased @ wrapper and label 4 Article D colly A plastic container containing cotton swab stained with blood @ label 5 Article E colly A plastic container containing earth mixed with blood and label 6 Article F colly A plastic container containing simple earth @ label.
7 Article-G Knife 8 Article-H Shirt having black and green strips 9 Article-I Jeans pant 10 Article-J, K,L Mobile Phone, Diary and Key chain alongwith keys 11 Article-M Mobile Phone and Battery 12 Article-N Motor Cycle 13 Article-O colly Mobile Handset, battery and the envelope with lable 14 Article-P Wallet seized from accused 15 Article-J/1 Label of Article-J,K and L. ::6 :: 16 Article-Q colly Mobile alongwith wrapper and label B. Defence : C. Court Exhibits : Court Exhibits Description Sr.No.
1 3 Charge 2 4 Plea 3 83 Evidence closed pursis 4 93 Statement of accused u/sec.
313 of Cr.P.C.
5 95 Evidence closed pursis filed by advocate for accused.
D. Material Objects : NIL
---------------------------------------------------------------------------------------------------- JUDGMENT (Dictated and pronounced in open court)
1. Accused is charged with the offence punishable under Section 302 of Indian Penal Code. Factual matrix:
2. The prosecution case which can be disclosed from the chargesheet and connecting papers thereto may be stated in brief as under;
3. On 7.1.2016 around 6.30 p.m. informant Faiyaaz Abdul Masjid Jethwa visited Krishna Tea and Cold drink house situated at Bapu Khote Cross Lane, near Hamidiya Masjid, Pydhonie, Mumbai-3. His school friend Danish Merchant was present near pan stall adjoining to Krishna Tea and Cold Drink House. He was seated on cycle parked near said ::7 :: pan stall. He was also taking tea. One unknown person of 27-28 years with white T-shirt having green and black lines and jeans pant was talking with Danish Merchant. The informant did not contact Danish Merchant as he was talking with the said person. All of a sudden the person standing near Danish Merchant took out suri (knife) from his pocket and assaulted Danish Merchant on his stomach and chest. The aforesaid person made 7-8 assault on Danish Merchant by Suri (knife). The persons around made hue and cry, however the said person did not stop assaulting Danish Merchant. The informant and other 2-3 persons went forward to caught hold the assailant. At that time the said assailant started running towards Pydhonie police station via Bapu Khote Cross-lane. He was caught hold by police and some persons. He was taken to police station. Thereafter informant returned at the place of incident. Thereafter he, with the help of police and other persons took Danish Merchant at J.J.Hospital, Mumbai for treatment. The doctor examined Danish Merchant and declared him dead. The incident was reported by informant on 7.1.2016. Supplementary statement of informant came to be recorded, wherein he stated that accused assaulted Danish Merchant due to sale transaction of motorcycle.
4. PSI Santosh Solankar received information regarding the incident. He visited J.J.Hospital. On inquiry he came to know that Danish Merchant was declared dead by doctor. He obtained death intimation certificate. He recorded statement of Faiyaaz Jethwa at hospital. He prepared inquest panchanama in presence of two panchas. PSI Santosh Solankar registered crime against accused. He further seized clothes having blood stains, Samsung Mobile Phone, one diary, ::8 :: two keys with chain from the pocket of deceased. He further arrested accused on the same date. One knife was also seized from the possession of accused during personal search. PSI Santosh Solankar visited the place of incident and prepared spot panchanama in present of two panchas. He collected blood samples and one mobile phone from the place of incident. On 8.1.2016 he visited J.J.Hospital and obtained caused of death certificate. Further investigation was handed over to P.I. Mahesh Narayan Mugutrao. He visited place of incident on 8.1.2016 and collected C.C.T.V. footage from the office of Shah and Company situated at Bapu Khote Cross-lane in presence of two panchas. On 12.1.2016 he seized motorcycle having registration No. MH 01 BH 0881 in presence of two panchas. He further recorded statement of witnesses. He forwarded seized muddemal knife, cloths of accused, viscera of deceased and blood samples collected from the place of incident for examination by forensic lab on 11.1.2016. He received postmortem report and C.A. report. Investigation officer further collected CDR report. After completion of investigation chargesheet has been filed before Metropolitan Magistrate Court No.2, Mazgaon at Sewree, Mumbai.
5. Metropolitan Magistrate Court No.2, Mazgaon at Sewree, Mumbai has committed the case when he found offence punishable under 302 of IPC was triable by court of sessions. . Charge and Defence:-
6. The charge of the alleged offences was explained to accused vide Exh.3. Accused pleaded not guilty as per his plea separately recorded at Exh.4. The statement of accused under Section 313 of Code of Criminal ::9 :: Procedure came to be recorded. The defence of accused is of false implication and total denial. He contended that he is innocent and deserves to be acquitted. He also examined defence witness. Points for Determination:-
7. From the above following points arises for my determination in this trial and I have recorded my findings against each of them for the following reasons; Sr. POINTS FINDINGS No. 1 Whether prosecution prove that on 7.1.2016 at 6.30 p.m. near Krishna Tea and Cold Drink House, near Bapu Khote Cross-lane, beside Hamidya Masjid, Pydhonie, Mumbai-3 within In the affirmative. the jurisdiction of Pydhonie police station, accused committed murder of Danish Iqbal Merchant intentionally or knowingly causing his death and thereby committed offence punishable under Section 302 of IPC ?
2. What order ? As per final order. R E A S O N S
8. To substantiate its case prosecution examined in all 13 witnesses referred above. In addition to the oral evidence, prosecution relied on certain documents referred above.
9. With this now, it is to be seen whether prosecution succeeded in legally proving guilt of accused or not. ::10 :: As to Point No.1 : -
10. The factum of homicidal death is in dispute. As such exclusive burden lies on prosecution to not only overruled, possibility of natural, accidental or suicidal death, to prove homicidal death beyond reasonable doubt by reliable and convincing evidence.
11. To establish factum of homicidal death prosecution has relied upon a) Inquest report Exh.9 b) Medical evidence Exh.43 and c) Evidence of PW-1 Faiyaaz Abdul Masjid Jethawa, PW-3 Riyaz Ahemad Moharam Ali Khan and PW-9 Deepak Maruti Gasti. a) Inquest report:
12. The accused has not disputed genuiness of inquest panchanama Exh.9. The prosecution examined PW-11 Santosh Sopan Solankar, witness to inquest panchanama. He deposed that on 7.1.2016, he called two panch witnesses at J.J. Hospital to prepare inquest panchanama. He further deposed that dead body of Danish Merchant was shown to them. Inquest panchanama is proved at Exh.9. Inquest panchanama shows that stabbed injuries on abdomen, chest and arm were present on dead body. PW-11 Santosh Solankar has deposed that inquest panchanama was prepared in presence of two panchas and it bears his signature. Inquest panchanama shows, grievous injuries on vital organ, abdomen and chest etc. As inquest panchanama is not disputed, there is no reason to disbelieve the same. Injuries on dead body of Danish Merchant are proved from the direct evidence of PW-11 Santosh Solankar. ::11 :: b) Medical evidence
13. After inquest was drawn dead body of Danish Merchant, was sent for postmortem examination to J.J.Hospital through police constable buckle No. 080521 attached with Pydhonie police station. The evidence of PW-7 Dr. Vaman Kedare Gaikwad is important in this respect. Dr.Vaman Gaikwad was attached to J.J. Hospital as medical officer at relevant time. On 8.1.2016, he was on duty. He deposed that he received dead body of Danish Iqbal Merchant for postmortem examination with inquest panchanama, annexure- I and II, certificate of death. He further deposed that he performed postmortem examination on the same day between 1.30 a.m. to 3.15 a.m. on the same day. On external examination Dr. Vaman Gaikwad found following injuries on dead body;
1. Injuries on right side of body. a) two stab injury over chest b) one stab injury over mid axillery line right side, described as dangerous type injury. c) one stab injury over right side tricep d) two incised injury
2. Injuries on left side of body; a) one stab injury over chest, described as dangerous injury b) two incised injuries
3. Other surface injuries a) four contusion abrasion
14. On internal examination Dr. Vaman Gaikwad found following ::12 :: injuries on dead body. a) Thorex ribs sharp cut of 1st 2nd 8th on right side. Sharp cut of 6th 7th ribs on left side. b) Pleura lacerated at places (bilateral) (d) and (e) right and left lung, lacerated collapsed, pale. f) Pericardium lacerated pale. g) Heart with weight : Incised injuries over left side auricle and left ventricle sized 6 cm x 1cm myocardium pale. On cut sections clots present. Clots are non detachable. Heart normal size in shape. Column No.21 Abdominal Injuries. Peritoneum lacerated at places. Cavity about 1 liter blood present, blood clots present and non detachable. Liver: Incised injury present of size 2 ½ x 2 ½ cm fresh.
15. Dr.Vaman Gaikwad deposed that he found multiple stab injuries. He further deposed that injuries mentioned in coloumn 17 and 20 are ante-mortem. Dr. Vaman Gaikwad had opined that, death of Danish Merchant is caused due to shock due to multiple stab injuries. In the opinion of Dr. Vaman Gaikwad probable cause of death due to the hemorrhagic shock due to multiple injuries. Dr. Vaman Gaikwad has proved postmortem report at Exh.43. From cross-examination of medical officer, it is apparent that defence does not dispute that deceased sustained external injuries in coloumn 17 of the postmortem report. Dr. Vaman Gaikwad is independent witness. He has no reason to grind an axe against the accused. Nothing substantial could be elicited in the cross-examination of the medical officer to discard his ::13 :: testimony. His testimony being reliable has to be accepted. Hence opinion given by Dr. Vaman Gaikwad regarding cause of death can be safely considered as final cause of death. c) Evidence of PW-1 Faiyaaz Abdul Masjid Jethawa, PW-3 Riyaz Ahemad Moharam Ali Khan and PW-9 Deepak Maruti Gasti.
16. The prosecution has examined PW-1 Faiyaaz Abdul Masjid Jethwa. PW-1 Faiyaaz is informant. He deposed that on 7.1.2016 he visited Shrikrushna Tea and Cold drink house situation at Bapu Khote Lane, within the limit of Pydhonie police station. He further deposed that he had seen deceased Danish Merchant along with one person. The aforesaid person standing near Danish Merchant suddenly took out knife from pocket and stab Danish on his abdomen and chest. He deposed that the aforesaid person gave 7-8 knife blows to Danish. The prosecution examined eye witness Riyaz Khan. He deposed that on 7.1.2016 around 6.00 p.m. he saw one boy in sitting position on the bicycle in front of his kiosk alongwith another boy. He deposed that one boy assaulted the other boy who was sitting on bicycle with knife. The prosecution examined PW-9 Deepak Gasti. He is eye witness to the incident. He deposed that on 7.1.2016 around 6.25 p.m. he saw one boy repeatedly assaulting another boy by means of knife. The oral evidence of informant and eye witnesses referred above get support from the medical evidence and inquest panchanama on record. PW-1 Faiyaaz Masjid states that Danish Merchant sustained injury on his abdomen and chest as a consequence of assault made by accused. The oral evidence of PW-1 Faiyaaz remained unshattered during the cross- examination on the point of injuries sustained by Danish Merchant. His ::14 :: testimony being reliable cannot be discarded on the point of injuries sustained by deceased Danish.
17. From the nature of injury shown in the postmortem report, uncontroverted inquest report and oral evidence of witnesses referred above, it can be safely concluded that prosecution has overruled possibility of natural, accidental or suicidal death and legally proved fact of homicidal death.
18. Next question for consideration is whether death of Danish Merchant is culpable homicide amount to murder, and that death of Danish Merchant has been caused by or in consequences of act of accused. Real crux of dispute between the parties is whether death was caused due to or inconsequence of the act of accused. The burden is on prosecution to establish guilt of accused beyond all reasonable doubt.
19. The prosecution case exclusively based on direct evidence. According to prosecution on 7.1.2016 around 6.30 Danish Merchant was present in front of Shrikrushna Tea and Cold drink house at Bapu Khote Lane, situated within the limits of Pydhonie police station alongwith accused. It is alleged that accused assaulted Danish Merchant by a knife and caused injuries.
20. Prosecution has examined PW-1 Faiyaaz. He made following statements in his evidence. The incident occurred on 7.1.2016 around
6.30 p.m. in front of Krushna Tea and cold drink house at Bapu Khote lane and in front of Pydhonie police station. He visited said hotel for taking tea. He saw Danish drinking tea by sitting on cycle and one ::15 :: person was standing near him. The aforesaid person was having similar hight of witness and was wearing white T-shirt and jeans having blue and green strips and was well built and whitish complex (gehu colour). He saw the person standing near Danish suddenly took out knife from pocket and stabbed Danish on his stomach and chest. The aforesaid person gave 7-8 knife blows to Danish. Danish collapsed on the ground and thereafter the assailant started running towards Pydhonie police station. He himself and three to four persons chased the said assailant but could not caught hold him. The said person with knife went towards police station. He returned towards Danish at that time he saw blood was oozing from his body. Danish was taken to J.J. hospital with the help of police. The doctor at J.J.Hospital declared that Danish was dead. He reported the incident to police station as per Exh.23. He came to know that Danish had sold bike to that person, however bike was not transferred in the name of purchaser and therefore the said person was insisting Danish to return the money and the incident occurred on that ground.
21. It is the defence of accused that PW-1 Faiyaaz was not present at the time of incident. The Learned advocate for accused made reference to the statement made during cross-examination by PW-1 Faiyaaz and tried to demonstrate that witness has made self contradictory statement. He pointed out that PW-1 Faiyaaz claim himself to be a friend of deceased Danish, however he made statement that he did not talk with deceased Danish despite that he had seen Danish at tea and cold drink stall before the incident. The said conduct of PW-1 Faiyaaz was unnatural. He would further argue that PW-1 Faiyaaz is interested witness to help the prosecution. He further pointed out from the ::16 :: statement made during cross-examination by PW-1 Faiyaaz that accused was not acquainted to him and therefore identification of accused by PW-1 Faiyaaz is doubtful.
22. During cross-examination PW-1 Faiyaaz deposed that 5-6 unknown persons were present when he was taking tea at hotel. He deposed that Danish was sitting on carrier of cycle at the distance of 10ft from him. He further deposed that incident occurred suddenly therefore he did not attempt to save Danish. During cross-examination it is brought on record that cloths of PW-1 Faiyaaz were having bloodstain. PW-1 Faiyaaz also admitted the said fact during cross- examination.
23. Prosecution has examined PW-3 Riyas Ahmed Moharram Ali Khan. He made following statements in his evidence. On 07.01.2016 he was present at Krushna Tea House, Bapu Khote Cross Lane, Mumbai-
9. At that time he was running Betel Kiosk near Krushna Tea House. On 07.01.2016 he opened his kiosk at about 6.30 pm at that time a boy was sitting on the bicycle in front of his kiosk. Another boy (accused) came there and assaulted the boy who was sitting on the bicycle, with knife. He came to know name of that boy as Danish. There was chaos on the spot. Some persons were taking tea infront of Krushna Hotel, Danish felled on them. The boy (accused) who assaulted with knife ran towards police chowky. He and another person followed that boy (accused). Police caught hold that boy (accused). One boy and other persons picked up Danish and took him to the hospital.
24. During cross-examination PW-3 Riyaz deposed that distance ::17 :: between Krishna Tea house and his Kiosk was 4-5 feet. During cross- examination it is tried to bring on record that deceased Danish was not acquainted to the witness prior to the incident. It is further tried to bring on record that PW-3 Riyaz did not witness the incident. However, during cross-examination PW-3 Riyaz deposed that deceased Danish was at the distance of 4-5 feet from his Kiosk. He was sitting at that place prior to incident for 5-10 minutes. He deposed that the incident of assault by knife lasted after 5 minutes. He further deposed during cross-examination that he focused on incident after attending two customers. He further deposed that he cannot state as to what incident exactly was going on as he was busy in attending customers. He also deposed during cross-examination that 2-3 police persons followed accused and caught hold him.
25. Prosecution has examined PW-9 Deepak Maruti Gasti. He made following statements in his evidence. On 7.1.2016 around 6.25 p.m. he visited shop of xerox at Bapu Khote cross lane. At that time he saw fighting between two persons. He saw knife in the hand of one person. He also saw that the person holding knife was assaulting another person repeatedly by knife. He had seen the assailant running from the spot of incident after assault. He had also seen that victim collapsed near Hindu Hotel in injured condition. Assailant was caught hold by Police constable Uttam Jadhav and Rane Head Constable. He also chased the assailant. The assailant was taken before PSI Godse. Assailant disclosed his name as Jayanand Mukind Ghule on inquiry.
26. During cross-examination PW-9 Deepak deposed that xerox shop was at the distance of 10-15 feet from tea stall. He had been to xerox ::18 :: shop at 6.25 p.m. He was in civil dress. He further deposed that there were 10-15 persons at tea stall. He further deposed during cross- examination that incident started after 5 minutes, when he reached at xerox shop. He further deposed that persons at tea stall did not try to caught hold the assailant. PW-9 Deepak deposed that he chased the assailant. He further deposed that accused was caught hold by Mr. Jadhav and Mr. Rane. He further deposed that thereafter accused was taken to police station. The Learned advocate for accused made reference to the statement made during cross-examination by PW-9 Deepak and tried to point out discrepancy as regards seizure of knife by making reference to the evidence of panch witnesses and evidence of investigating officer.
27. In addition to the above oral evidence, the prosecution also relied on evidence of PW-2 Shashikant Achare. He deposed that he is doing service with Gandhi Kothari and Company as a salesman. He was called by Pydhonie police station on 9.1.2016. Accordingly he visited Pydhonie police station. One person was present in the police station. Police made inquiry with him regarding the said person at that time he identified the said person and informed to police that the said person visited his shop on 7.1.2016 and demanded knife. He further deposed that he had shown some knife to the said person. The said person selected one knife and paid the price of knife. He also issued purchase bill. The witness has identified knife Article-G before the Court. The witness has also identified accused before the Court. During cross- examination it is tried to suggest that accused did not visit shop on 7.1.2016 to purchase the knife. It is further suggested that witness did not issue purchase bill of knife. However witness has denied all the ::19 :: suggestions put to him.
28. The prosecution has examined PW-4 Uttam Namdeo Jadhav. He deposed that on 07.01.2016 he was working on the post of police peon with Pydhonie police station. On that day he was on day duty between
9.00 am till 8.00 pm. He was standing with police hawaldar Mr. Rane (24716) at the gate of police station on the ground floor. At that time, some people came from Bapu Khote cross lane shouting as “pakdo pakdo”. One person holding knife with blood stains was seen by him. He caught hold the said person. Police person namely Gasti came behind the said person and caught hold the said person. The said person was taken at 1st floor of police station and was produced before PSI Godse. The person disclosed his name as Jayanand Mukund Dhule, aged 28 years on inquiry made by PSI Godse. PSI Godse took search of said person and seized one knife from that person. Full sleeves white shirt having black strips, blue colour jean pant and article from pocket of pant were also seized during the personal search of said person. He identified knife Article-G, blue colour jeans pant Article-I, Shirt Article- H, during evidence.
29. During cross-examination questions are put the witness as regards time of seizure of knife. The presence of witness during personal search of accused is also denied during cross-examination. PW-4 Uttam deposed during cross-examination that they did not take out knife from the possession of accused immediately after his arrest. He further deposed that bloodstain on the said knife were not completely dry when he saw the knife. ::20 ::
30. The prosecution led oral evidence of PW-12 Ravindra Kisan Godse Police Station Officer. He deposed that on 7.1.2016 he was on duty at Pydhonie police station. On 7.1.2016 police Head Constable Rane, Police Naik Jadhav, Police Constable Patil brought one accused at Pydhonie police station around 6.45 p.m. The aforesaid person was holding knife. There were bloodstains on the cloths of said person. The police staff informed to him that the said person assaulted his friend by knife and that they have caught hold him while running away. He further deposed that the said person disclosed his name as Jayanand Mukind Ghule on inquiry. He further deposed that he took personal search of accused and seized knife, white colour Shirt having bloodstain and pant. He further deposed that he found driving licence, Adhar Card, PAN Card, ATM Card of Indian Bank, Local Railway Ticket and purchase receipt of knife in the wallet of accused. He deposed that he seized the above articles in present of two panchas. Panchanama is produced on record at Exh.61. The witness also identified the articles and accused during his oral evidence.
31. During cross-examination PW-12 Ravindra Godse deposed that he seized knife from the possession of accused only on arrival of panch witnesses. He further deposed that he himself prepared panchanama Exh.67. He further deposed that knife was having fresh bloodstains. During cross-examination the procedure adopted by PW-12 Ravindra Godse for seizure of articles is disputed on behalf of defence. However PW-13 Ravindra Godse denied all the suggestions put to him in the that regard during cross-examination.
32. The prosecution led oral evidence of PW-10 Kirtiram Naik, panch ::21 :: witness to seizure panchanama Exh. 61. PW-10 deposed that on 7.1.2016 he visited Pydhonie police station on the call of police. He had seen accused Ghule at police station. His clothes were having blood stains. Police seized his clothes. He further deposed that one knife was also seized from the possession of accused. Witness also deposed regarding seizure of SIM car, currency note, railway ticket, bill etc from the possession of accused. PW-10 Kirtiram has supported the case of prosecution and proved seizure panchanama as per Exh.61. He further deposed that after 5 days again he was called by police. He deposed that brother of deceased had brought yellow colour Pulsar Motor Cycle having registration No. MH 01-BH-0881 at police station. The police seized the said motorcycle in his presence as per panchanama Exh.62.
33. During cross-examination it is suggested to the witness that articles are not seized in his presence. PW-10 Kirtiram Naik admits during cross-examination that print out of panchnama was not obtained from the laptop in his presence. However it is also brought on record during cross-examination that witness visited police station at 7.30 p.m. The accused was present in detection room alongwith police. He was present in detection room for 30-45 minutes. He further deposed that accused was holding knife in his hand. He further deposed that bloodstains were appearing on the hand, face, clothes of accused and on knife.
34. The prosecution has examined PW-8 Fauzan Merchant, the brother of deceased Danish. He deposed that he had seen accused, when he was taking motor cycle from his brother Danish. On the day of incident his brother has received phone call from accused and that he ::22 :: heard the conversation between accused and his brother. On inquiry his brother informed him that accused was demanding money of Motor Cycle. His brother Danish had sold motor cycle to accused bearing MH 01 BH 0881 for Rs.55,000/- and all the required documents were given to accused. Accused was in need of money, therefore, accused returned the said motor cycle to Danish but Danish had no money to return to accused at that time. On the day of incident Danish went by walk to meet accused as motor cycle could not start. On 12.1.2016 police seized motorcycle in presence of two panchas.
35. During cross-examination he admits that he did not produce documents of motor cycle to police. During cross-examination it is suggested to the witness that he did not hear conversation between accused and his brother Danish. PW-8 Fauzan Merchant is examined to prove alleged transaction of motorcycle between accused and deceased Danish.
36. The prosecution also led evidence of PW-5 Abdul Karim Rahim Batliwala, previous owner of motorcycle having registration No. MH01 BH 0881 he deposed that he sold said motorcycle to deceased Danish Iqbal Merchant on 23.11.2015. The stamp paper and delivery note regarding the said transaction is proved at Exh.38 and 39 respectively. During cross-examination it is suggested to the witness that document Exh.38 and 39 are prepared as per the instruction of police. However witness has denied all the suggestions put to him during cross- examination.
37. The prosecution examined PW-11 Santosh Solankar, police station ::23 :: officer on duty. He deposed that on 7.1.2016 around 6.30 p.m. to 7.00 p.m. one accused was brought at police station. He was holding bloodstained knife. He further deposed that he received information that the said person assaulted another person by knife and the injured is taken to J.J.Hospital. On the said information he made entry in station diary and went to J.J.Hospital. On inquiry with doctor it was informed that the injured died before he was brought to hospital. He further deposed that he obtained death intimation certificate. He further deposed that he obtained Crime No and ADR Numbai on phone call. He deposed that he recorded the statement of informant Faiyaaz Jethawa at police station. He further deposed that he prepared inqurest panchanama in presence of two panchas. Inquest panchanama is not in dispute. He further deposed that he registered crime in terms of FIR Exh.27. PW-11 Santosh Solankar also deposed regarding seizure of clothes of deceased, seizure of Samsung Mobile Phone, key with chain etc.. The witness has also identifying the articles during oral evidence. He further deposed that he arrested accused under arrest panchanama Exh.19. He further deposed that on the same day he visited the place of incident and prepared spot panchanama Exh.10 in present of two panchas and rough map Exh.11. During cross-examination procedure of recording statement of informant is disputed on behalf of defence. The steps taken by PW-11 Santosh Solankar during investigation are also denied during cross-examination. However, PW-11 Santosh Solankar has denied all the adverse suggestions put to him during cross- examination.
38. The prosecution has examined PW-13 Mahesh Mugutrao, Investigating officer. He deposed all the steps taken for investigation. ::24 :: During oral evidence it is brought on record that PW-13 Mahesh Mugutrao has seized C.C.TV footage under panchanama exh.31. He further deposed that he seized motorcycle having registration No. MH 01-BH-08821 under seizure panchanama in presence of two panchanmas. He further deposed that he referred articles by examination of Chemical analyser. He deposed that he received CA report. PW-13 Mahesh Mugutrao after completion of investigation he submitted chargesheet against accused.
39. In the above backdrop, it is necessary to appreciate the evidence on record. The prosecution is relying on the oral evidence of PW-1 Faiyaaz, PW-3 Riyaz and PW-9 Deepak to prove murder of Danish Merchant. It is settled that law does not required the court to count the witnesses. As per the settled position, evidence is to be weight and not counted. It is quality of evidence which is of significance not the quantity. A useful reference may be made to the case of Kunju Vs. State of Tamilnadu reported in AIR 2008 SC 1381. The Hon’ble Supreme Court has laid down that, ‘a conviction can be based on testimony of sole eye witness and a test is whether his evidence has ring of truth and it is cogent and credible worthwhile or otherwise. Corroboration would be required only if a witness is neither wholly reliable or wholly unreliable’.
40. It is the defence of accused that he is falsely implicated in the crime. It is settled law that, the party has to laid down the factual foundation and prove by leading imputable evidence in respect of false implication. However, in such case, the court has to adopt the careful approach an analysis the evidence to find whether it is cogent and ::25 :: credible evidence.
41. The case of prosecution is based principally on the deposition of PW-1 Faiyaaz, PW-3 Riyaz and PW-9 Deepak who have stated to have witness assault on Danish Merchant at the instance of accused. These witness have stated that they were present at the place of incident.
42. PW-1 Faiyaaz stated that on 7.1.2016 around 6.30 p.m. he came at Krishna Tea and Cold drink house at Bapu Khote Lane for taking tea. At that time he saw Danish drinking tea by sitting on cycle and one person standing near him. PW-1 Faiyaaz also described the said person in his evidence. He further stated that the persons standing near Danish Merchant suddenly took out knife from pocket and stabbed Danish Merchant on his abdomen, chest etc. He deposed that the aforesaid person gave 7-8 blows to Danish. Another witness PW-3 Riyaz stated that on 7.1.2016 around 6.00 p.m. he saw one boy in sitting position on bicycle in front of his Kiosk. He further deposed that one another boy was present with him. He deposed that the said boy assaulted the boy who was in sitting position on bicycle with knife. The prosecution examined another eye witness PW-9 Deepak Gasti, Police Constable attached to Pydhonie police station. He stated that on 7.1.2016 he visited xerox shop situated at Bapu Khote Cross-lane. At that time he witness fighting between two persons. One of them had knife in his hand and was assaulting another person repeatedly with the said knife. He further deposed that he chased the person who assaulted by knife when he was running away from the place of incident. ::26 ::
43. The Learned Advocate for accused pointed out that PW-1 Faiyaaz did not talk to Danish despite friendship between them. He further pointed out that PW-1 Faiyaaz did not come forward to rescue the victim at the time of incident. He further point out that PW.1 stated that he had taken Danish to hospital and that bloodstain were appearing on his clothes. He pointed out that PW.1 Faiyaaz did not produce his cloths having blood stains before investigating officer. He would submit that the above conduct of PW-1 Faiyaaz was unnatural and therefore creates doubt regarding his presence at the place of incident. PW-1 Faiyaaz clarified during cross-examination that Danish was talking with one boy. Therefore he did not talk to Danish. He further clarified that the incident occurred suddenly therefore he did not attempt to save Danish. He further deposed that as the person was dead and the bloodstain of dead person were appearing on his clothes, so he disposed off clothes without informing to the police.
44. PW-3 Riyaz deposed that on 7.1.2016 he was present in his Kiosk at about 6.00 p.m. At that time he saw a boy in a sitting position on the bicycle in front of his Kiosk. He further deposed that another boy came to said boy and assaulted him with knife. PW-3 Riyaz identified accused during oral evidence. He further deposed that he came to know name of injured as Danish. The Learned advocate for accused made reference to cross-examination of PW-3 Riyaz and tried to point out that PW-1 Riyaz did not witness the incident as he was dealing with the customer. PW-3 Riyaz deposed during cross-examination that deceased was at the distance of 4-5 feet from his Kiosk. He also deposed that the incident of assault by knife lasted upto five minutes. He further specifically deposed that he focus on incident after attending two customers. From ::27 :: the oral evidence of PW-3 Riyaz it is proved that he did not witness the entire evidence but he had witnessed few assault made by accused by knife to deceased Danish.
45. Another eye witness PW-9 Deepak Gasti deposed that on 7.1.2016 around 6.25 p.m. he visited shop of xerox situated at Bapu Khote cross lane. At that time he witness fighting between two persons. He witness one person holding knife and assaulting another person repeatedly by said knife. PW-9 Deepak Gasti was attached to Pydhonie police station during the relevant time. PW-9 Deepak Gasti was subjected to searching cross-examination but nothing could come out which would help the accused.
46. The Learned advocate for accused would submit that prosecution has examined friend of deceased Danish. He would further submit that evidence of PW-1 Faiyaaz cannot be admitted in evidence. He would further submit that evidence of eye witnesses are unreliable. There is variance in their evidence. The Learned advocate relied on the case of State of Maharashtra Vs.Jaysingh Vitthal Shetke and ors reported in 2021 ALL MR (Cri) 4419 and case of Mohammed Iqbal @ Munna Abdul Sattar and another Vs. State of Maharashtra reported in 2016 ALL MR (Cri) 4530 in support of his contention. He would further submit that bloodstain clothes of PW-1 Faiyaaz are not seized during investigation and therefore it creates doubt in the oral evidence of PW-1 Faiyaaz.
47. It is settled that merely because the witnesses were closely related to the deceased person, their testimony cannot be discarded. When there is allegations of intrestedness, the same has to be ::28 :: established, mere statement that witness being relatives of the deceased, they are likely to falsely implicate the accused that cannot be ground to discard the evidence which is otherwise cogent and credible. PW-1 Faiyaaz has stated chronology of incident occurred on 7.1.2016. He has categorically deposed that the person standing near Danish Merchant suddenly took out knife from pocket and stabbed Danish Merchant on his abdomen, chest etc. PW-1 Faiyaaz has identified accused during oral evidence. PW-1 Faiyaaz is subjected to searching cross-examination but his testimony is consistent. The evidence of PW.1 Faiyaaz is found be credible. His testimony get support from the oral evidence of two eye witnesses examined on behalf of prosecution. In the above backdrop, it is not possible to accept the submission of the learned advocate appearing from accused that evidence of witness PW-1 Faiyaaz, being friend cannot be admitted in evidence.
48. Next objection on behalf of defence is delay in filing complaint. The learned advocate made reference to first information report and pointed out that there is delay in reporting the incident. He would further argue that investigating officer has not promptly recorded the statement of accused and therefore, possibility of false implication of accused cannot be ruled out. The learned advocate would submit that delay caused is fatal to the case of prosecution. The learned advocate relied on the case of State of Maharashtra Vs. Parshu Ramaji Khillare and ors reported in 2018 ALL MR (Cri) 343 and case of State of Maharashtra Vs. Pramod Dhanraj Gajbhiye reported in 2018 ALL MR (Cri) 1863. The accused also disputed the place of recording the statement of the first informant. The learned advocate appearing for accused pointed out that police were present at the scene of occurrence. ::29 :: However no discloser was made to police. He submits that FIR made by PW-1 Faiyaaz is after thought and concocted. Admittedly PW-1 Faiyaaz was the friend of deceased Danish. In the cross-examination of this witness, no question regarding the reasons for the alleged delay in lodging the FIR was asked, though, witness was cross-examined at length. Mere delay in lodging FIR is not sufficient to exclude the case of prosecution when story put forth by prosecution is reliable. On behalf of accused, no reliable circumstances are brought on record to create doubt in the oral evidence of PW-1 Faiyaaz, for false implication of the accused in the present case. In the above backdrop, delay caused for lodging FIR is not fatal to the case of prosecution. It is noteworthy to see that on behalf of accused no circumstances are pointed out to create doubt in the oral evidence of PW-3 Riyaz and PW-9 Deepak Gasti. PW-3 Riyaz and PW-9 Deepak Gasti are independent witnesses. They have no reason to grind axe against the accused. Nothing substantial could be elicited during the cross-examination of both the witnesses to discard their testimony. Their testimony being reliable as to be accepted. Facts of the present case are not identical to the case law cited supra, hence will not come to the help of the case.
49. The next objection on behalf of defence is regarding seizure of knife. The Learned advocate for accused pointed out that investigating officer has seized bloodstain knife from the possession of accused in presence of PW-10 Kirtiram Naik. He further pointed out that seizure panchanama came to be prepared after 7.15 p.m. however accused was in the custody of police at 6.45 p.m. He would argue that there is no explanation as to whether accused was made to hold knife till PW-10 Kirtiram Naik attended police station or whether it was taken out from ::30 :: the possession of accused and again it was handed over to accused for the purpose of seizure panchanama. He made reference to the oral evidence of PW-9 Deepak Gasti and pointed out from his evidence that knife was taken out from the possession of accused by PSI Godase when accused was produced before him by police. He would submit that there is variance in the evidence of witnesses regarding seizure of knife from the possession of accused. He would further argued that seizure of knife is not proved beyond all reasonable doubt.
50. PW-9 Deepak Gasti deposed during cross-examination that they produced the assailant before PSI Godase. PSI Godse snatched knife from the assailant. He further admits that knife from the assailant was not seized in his presence. He further shown ignorance as to when knife was seized by police. PW-4 Uttam Jadhav is examined on behalf of prosecution. According to prosecution PW-4 Uttam Jadhav was present with police Head Constable Rane at the gate of police station on ground floor. At that time one person having knife with blood stain came towards police station. He deposed that he caught hold the said person. He further deposed that the said person was produced before PSI Godse. He further deposed that during personal search of said person PSI Godse seized knife. PW-4 Uttam Jadhav has made statement during cross-examination that they did not take out knife from accused when accused was caught hold by them. The prosecution has examined PW-12 Ravindra Godse, who seized knife from the possession of accused. PW-12 Ravindra Godse deposed that he seized knife in question having bloodstain from the possession of accused in presence of two panchas. During cross-examination PW-12 Ravindra Godse deposed that the knife was in the hand of accused when it was seized ::31 :: by him. He further deposed that he seized the knife after arrival of panch witness. The prosecution has produced on record reliable and convincing evidence to establish that knife in question was seized from the possession of accused before panch witnesses. In this backdrop the statement of PW-9 Deepak Gasti that PSI Godse snatched the knife from the assailant when the assailant was produced before him is not fatal to the case of prosecution. From the cumulative reading of evidence the prosecution it is established that knife in question was seized from the possession of accused in presence of two panchas.
51. The another objection on behalf of defence is that accused was not having intention to cause death of deceased Danish Merchant. Learned advocate would submit that the death of Danish Merchant is caused in a sudden fight in the hit of passion, upon a sudden quarrel. He would submit that accused cannot be hold guilty for offence punishable under Section 302 of Indian Penal Code. In the alternative he would submit that the offence, which can be said to be proved against the accused, would be one under section 304 Part-II of Indian Penal Code. In support of his submission he relied on the case of Prabhu Prasad Sah Vs. State of Bihar reported in 1977 CRI. L.J. 346, case of Bagdi Ram Vs. State of M.P. reported in (2004) 12 SCC 302, case of Birkwdao @ Vikram @ Vikcy Narzary Vs. State of Goa reported in 2018 ALL M.R. (Cri) 1325, case of Datta Anganappa Bagadi Vs State of Maharashtra reported in 2019 ALL MR (Cri) 3567.
52. I have read judgments cited supra on behalf of defence. In the case on hand the prosecution has established that accused purchased knife used for commission of offence from shop called Gandhi Kothari ::32 :: and Company on 7.1.2016. The prosecution has also examined employee of said shop namely PW-2 Shashikant Achare to establish that knife in question was purchased from his shop by the accused. PW-2 identified knife Article G during evidence. He also identified the accused before the court. It is not the defence of accused that the incident occurred due to sudden fight. The eye witnesses deposed that accused took out knife and assaulted deceased on his abdomen, chest etc… Case of sudden fight is not made out nor establish from the evidence on record. No suggestion are put to the witnesses on behalf of defence to indicate that incident occurred due to sudden fight. The facts of the present case are not identical with the facts of case law cited supra. In such circumstances the contention of accused that incident occurred in the result of sudden fight cannot be accepted.
53. The prosecution has established time, date and place of incident. The spot panchanama is not in dispute. The investigating officer has categorically deposed that he visited place of occurrence and prepared spot panchanama in presence of two panchas. He further deposed that he has collected blood samples from the scene of occurrence. The defence has not disputed spot panchnama as such there is no reason to discard the same. The evidence of investigating officer is found reliable and convincing. No circumstances are pointed out to discard the evidence of investigating officer.
54. The prosecution has proved that Danish Merchant died in consequence of assault made by accused. The incident dated 7.1.2016 is proved from the evidence of PW-1 Faiyaaz Jethwa, PW-3 Riyas and PW-9 Deepak Gasti. The witnesses referred above have specifically ::33 :: stated that accused assaulted Danish Merchant by means of knife. The prosecution has brought on record the conclusive and specific evidence to prove that accused was having motive to cause death of Danish Merchant. The prosecution has not on record cogent and firmly established evidence to prove the circumstances pointing guilt of accused. From the nature of injury and the part of body selected is sufficient to prove the intention of accused that he was not having any other intention but to cause death of Danish Merchant. The death of Danish Merchant is proved. The prosecution has established by evidence that death of Danish Merchant has been caused by act of accused. The intention of accused to cause death is also proved in the present case. Merely because eye witness is friend, his evidence cannot per se be discarded. The prosecution has established guilt of accused may not reasonable doubt. In the result accused is held guilty for offence punishable under Section 302 of Indian Penal Code. In this circumstances point no.1 answered in the affirmative. I stop here to hear accused on the point of punishment. (Shri. R.R.PATARE) Additional Sessions Judge, City Civil and Sessions Court, Date : 16.09.2023 For Greater Bombay
55. Heard accused on the point of sentence. The advocate appearing for accused is also heard on the point of sentence. Accused states that he is innocent. He requested to take lenient view. The learned advocate appearing for accused also requested to take lenient view in the matter of punishment. ::34 ::
56. On the other hand, the learned APP requested to give maximum punishment.
57. Section 302 of the Indian Penal Code provides the punishment for murder. It stipulate a punishment of death or imprisonment for life and fine. Once an offender is found by the Court to be guilty of the offence of murder, then it has to be sentenced the offender to either death sentence or imprisonment for life. The Court has no power to impose any other lesser sentence. The extreme penalty of death can be inflicted to gravest cases of extreme culpability. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the given circumstances of the crime and provided and only provided, the opinion to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. The rarest of rare case is not made out, therefore, imprisonment for life is appropriate punishment in the present case.
58. Section 357-A of the Code of Criminal Procedure empowers to grant compensation to the victim of crime under the scheme prepared by the Government. Sub-section (2) of Section 357-A of Code of Criminal Procedure empowers Court to make recommendation for compensation. This is fit case where compensation under Section 357- A of Code of Criminal Procedure can be granted. Hence, following order. ::35 :: ORDER
1. Accused Jayanand @ Jaya Mukind Ghule is convicted under Section 235 (2) of the Criminal Procedure Code of the offences punishable under section 302 Indian Penal Code and he is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.25,000/-, in default of payment of fine amount, he shall suffer simple imprisonment for two years.
2. The District Legal Service Authority, Mumbai is hereby recommended to decide the quantum of compensation to the legal heirs of deceased Danish Merchant under Section 357 A of Code of Criminal Procedure.
3. Accused is entitled to set off under Section 428 of Code of Criminal Procedure for period already under gone by him as under trial prisoner since the date of his detention in jail as per rules.
4. Seized muddemal weapon i.e. knife be referred to District Collector Mumbai for disposal according to law after appeal period over.
5. Seized vehicle be returned to its registered owner after appeal period is over, if not already returned.
6. Seized Muddemal mobile handset be returned to its registered owner after appeal period is over, if not already returned.
7. Rest of the seized muddemal being worthless, shall be destroyed, after appeal period is over. ::36 ::
8. Copy of this judgment be given to the accused free of cost as per the provisions of Section 363 (1) of the Code of Criminal Procedure. (Judgment dictated and pronounced in open court) Digitally signed by RAJESH RAJESH RAOSAHEB RAOSAHEB PATARE PATARE Date:
2023.09.18 14:55:21 +0530 (Shri. R.R.PATARE) Additional Sessions Judge, City Civil and Sessions Court, Date : 16.09.2023 For Greater Bombay Dictated on : 16.09.2023 Transcribed On : 16.09.2023 Signed on : 16.09.2023 ::37 :: “ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER” UPLOAD DATE AND TIME : 18.09.2023 AT 05.24 pm NAME OF STENOGRAPHER :Mrs. Prajakta K. More NAME OF THE JUDGE HHJ SHRI.R.R.Patare (C.R.No.56) Date of Pronouncement of 16.09.2023 Judgment Order signed by the P.O. On 16.09.2023 Order uploaded on 18.09.2023
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SESSIONS CASE NO.
342 OF 2016 (Crime No.
08 of 2016 of Pydhonie Police Station) Complainant : The State of Maharashtra Represented by : Mrs. Ashwini Raikar for State Accused : Jayanand @ Jaya Mukind Ghule Age: 35 years.
R/a: Damu Nagar, Bhim nagar, Mahatma Gandhi Vikas Mandal, Behind Budhavihar, Kandivali (East), Mumbai.
Represented by : Advocate Mr. Keshav Chavan for accused
Date of offence : 07.01.2016
Date of FIR : 07.01.2016 ::2 ::
Date of Chargesheet : 08.01.2016
Date of Framing of Charges : 19.07.2016.
Date of Commencement of : 23.06.2017 Evidence Date on which judgment is : 16.09.2023 reserved
Date of the Judgment : 16.09.2023
Date of the Sentencing : 16.09.2023 Order, if any Accused details Rank Name of
Date of
Date of Offences Whether Senten Period of of accused arrest release on charged acquitted ce Detention the bail with or impos undergone accus convicted ed during ed Trial for purpose of Section 428 Cr.PC 7.1.2016 ----- 302 of Jayanand @ Jaya IPC Convicted Life 7 years Mukind Ghule LIST OF PROSECUTION/DEFENCE/COURT WITNESSES A.
Prosecution : RANK NAME Exh.No.
NATURE OF EVIDENCE P.W.1 Faiyaaz Abdul Masjid 26 Eye witness Jethwa ::3 :: P.W.2 Shashikant Dinakar Achare 32 Shop owner PW-3 Riyaz Ahmed Moharram Ali 35 Eye witness Khan PW-4 Uttam Namdeo Jadhav 36 Eye witness PW-5 Abdul Karim Rahim 37 Previous owner of Batliwala motorcycle PW-6 Gajanan Laxman Shinde 40 Carrier of muddemal PW-7 Dr. Vaman Kedari Gaikwad 42 Medical officer PW-8 Fauzan s/o Iqbal Merchant 46 Brother of deceased PW-9 Deepak Maruti Gasti 48 Eye witness PW-10 Kirtiram Ramkeval Naik 60 Panch witness PW-11 Santosh Sopan Solankar 71 First investigating officer PW-12 Ravindra Kisan Godse 78 2nd investigating officer PW-13 Mahesh Narayan Mugutrao 80 3rd Investigating officer B. Defence Witnesses, if any : RANK NAME Exh.No.
NATURE OF EVIDENCE P.W.1 Asha Mukind Ghule 94 Mother of accused C. Court Witnesses, if any : Nil LIST OF PROSECUTION/DEFENCE /COURT EXHIBITS A.
Prosecution : Sr.No.
Exhibit Number Description 1 9 Inquest Panchanama dated 7.1.2016 ::4 :: 2 11 Spot Sketch dated 7.1.2016 3 12 Panchanama of receipt of C.C.T.V.
footage dated 8.1.2016 4 13 P.M.Notes dated 7.1.2016 5 14 Certificate of cause of death dated 7.1.2016 6 15 Information of death No.1/16 7 16 (colly) Photographs of P.M. of deceased 8 17 Letter dated 11.1.2016 sent to FSL, Kalina.
9 18 Call details of Idea Company 10 19 Arrest panchanama of accused dated 7.1.2016 11 20 C.A.Report No.B-220/16 dated 16.8.2016.
12 27 Report 13 38 Original agreement 14 39 Delivery note 15 41 Forwarding letter 16 43 Postmortem report 17 44 and 45 C.A.report dated 31.3.2016 and 1.10.2016 18 47 Xerox copy of registration certificate 19 61 Panchanama dated 7.1.16 20 62 Motor Cycle seizure panchanama dated 12.1.2016 21 63 Lable of knife Article-G 22 64 and 65 Labels of Shirt and jeans 23 81 Forwarding letter of blood samples of accused ::5 :: to forensic lab Kalina 24 82 C.A.Report dated 1.10.2016 received from forensic lab Kalina Sr.No.
Articles Description 1 Article A colly Blue shirt of deceased @ wrapper and label 2 Article B colly Banian of deceased @ wrapper and label 3 Article C colly Blue Jeans pants of deceased @ wrapper and label 4 Article D colly A plastic container containing cotton swab stained with blood @ label 5 Article E colly A plastic container containing earth mixed with blood and label 6 Article F colly A plastic container containing simple earth @ label.
7 Article-G Knife 8 Article-H Shirt having black and green strips 9 Article-I Jeans pant 10 Article-J, K,L Mobile Phone, Diary and Key chain alongwith keys 11 Article-M Mobile Phone and Battery 12 Article-N Motor Cycle 13 Article-O colly Mobile Handset, battery and the envelope with lable 14 Article-P Wallet seized from accused 15 Article-J/1 Label of Article-J,K and L. ::6 :: 16 Article-Q colly Mobile alongwith wrapper and label B. Defence : C. Court Exhibits : Court Exhibits Description Sr.No.
1 3 Charge 2 4 Plea 3 83 Evidence closed pursis 4 93 Statement of accused u/sec.
313 of Cr.P.C.
5 95 Evidence closed pursis filed by advocate for accused.
D. Material Objects : NIL
---------------------------------------------------------------------------------------------------- JUDGMENT (Dictated and pronounced in open court)
1. Accused is charged with the offence punishable under Section 302 of Indian Penal Code. Factual matrix:
2. The prosecution case which can be disclosed from the chargesheet and connecting papers thereto may be stated in brief as under;
3. On 7.1.2016 around 6.30 p.m. informant Faiyaaz Abdul Masjid Jethwa visited Krishna Tea and Cold drink house situated at Bapu Khote Cross Lane, near Hamidiya Masjid, Pydhonie, Mumbai-3. His school friend Danish Merchant was present near pan stall adjoining to Krishna Tea and Cold Drink House. He was seated on cycle parked near said ::7 :: pan stall. He was also taking tea. One unknown person of 27-28 years with white T-shirt having green and black lines and jeans pant was talking with Danish Merchant. The informant did not contact Danish Merchant as he was talking with the said person. All of a sudden the person standing near Danish Merchant took out suri (knife) from his pocket and assaulted Danish Merchant on his stomach and chest. The aforesaid person made 7-8 assault on Danish Merchant by Suri (knife). The persons around made hue and cry, however the said person did not stop assaulting Danish Merchant. The informant and other 2-3 persons went forward to caught hold the assailant. At that time the said assailant started running towards Pydhonie police station via Bapu Khote Cross-lane. He was caught hold by police and some persons. He was taken to police station. Thereafter informant returned at the place of incident. Thereafter he, with the help of police and other persons took Danish Merchant at J.J.Hospital, Mumbai for treatment. The doctor examined Danish Merchant and declared him dead. The incident was reported by informant on 7.1.2016. Supplementary statement of informant came to be recorded, wherein he stated that accused assaulted Danish Merchant due to sale transaction of motorcycle.
4. PSI Santosh Solankar received information regarding the incident. He visited J.J.Hospital. On inquiry he came to know that Danish Merchant was declared dead by doctor. He obtained death intimation certificate. He recorded statement of Faiyaaz Jethwa at hospital. He prepared inquest panchanama in presence of two panchas. PSI Santosh Solankar registered crime against accused. He further seized clothes having blood stains, Samsung Mobile Phone, one diary, ::8 :: two keys with chain from the pocket of deceased. He further arrested accused on the same date. One knife was also seized from the possession of accused during personal search. PSI Santosh Solankar visited the place of incident and prepared spot panchanama in present of two panchas. He collected blood samples and one mobile phone from the place of incident. On 8.1.2016 he visited J.J.Hospital and obtained caused of death certificate. Further investigation was handed over to P.I. Mahesh Narayan Mugutrao. He visited place of incident on 8.1.2016 and collected C.C.T.V. footage from the office of Shah and Company situated at Bapu Khote Cross-lane in presence of two panchas. On 12.1.2016 he seized motorcycle having registration No. MH 01 BH 0881 in presence of two panchas. He further recorded statement of witnesses. He forwarded seized muddemal knife, cloths of accused, viscera of deceased and blood samples collected from the place of incident for examination by forensic lab on 11.1.2016. He received postmortem report and C.A. report. Investigation officer further collected CDR report. After completion of investigation chargesheet has been filed before Metropolitan Magistrate Court No.2, Mazgaon at Sewree, Mumbai.
5. Metropolitan Magistrate Court No.2, Mazgaon at Sewree, Mumbai has committed the case when he found offence punishable under 302 of IPC was triable by court of sessions. . Charge and Defence:-
6. The charge of the alleged offences was explained to accused vide Exh.3. Accused pleaded not guilty as per his plea separately recorded at Exh.4. The statement of accused under Section 313 of Code of Criminal ::9 :: Procedure came to be recorded. The defence of accused is of false implication and total denial. He contended that he is innocent and deserves to be acquitted. He also examined defence witness. Points for Determination:-
7. From the above following points arises for my determination in this trial and I have recorded my findings against each of them for the following reasons; Sr. POINTS FINDINGS No. 1 Whether prosecution prove that on 7.1.2016 at 6.30 p.m. near Krishna Tea and Cold Drink House, near Bapu Khote Cross-lane, beside Hamidya Masjid, Pydhonie, Mumbai-3 within In the affirmative. the jurisdiction of Pydhonie police station, accused committed murder of Danish Iqbal Merchant intentionally or knowingly causing his death and thereby committed offence punishable under Section 302 of IPC ?
2. What order ? As per final order. R E A S O N S
8. To substantiate its case prosecution examined in all 13 witnesses referred above. In addition to the oral evidence, prosecution relied on certain documents referred above.
9. With this now, it is to be seen whether prosecution succeeded in legally proving guilt of accused or not. ::10 :: As to Point No.1 : -
10. The factum of homicidal death is in dispute. As such exclusive burden lies on prosecution to not only overruled, possibility of natural, accidental or suicidal death, to prove homicidal death beyond reasonable doubt by reliable and convincing evidence.
11. To establish factum of homicidal death prosecution has relied upon a) Inquest report Exh.9 b) Medical evidence Exh.43 and c) Evidence of PW-1 Faiyaaz Abdul Masjid Jethawa, PW-3 Riyaz Ahemad Moharam Ali Khan and PW-9 Deepak Maruti Gasti. a) Inquest report:
12. The accused has not disputed genuiness of inquest panchanama Exh.9. The prosecution examined PW-11 Santosh Sopan Solankar, witness to inquest panchanama. He deposed that on 7.1.2016, he called two panch witnesses at J.J. Hospital to prepare inquest panchanama. He further deposed that dead body of Danish Merchant was shown to them. Inquest panchanama is proved at Exh.9. Inquest panchanama shows that stabbed injuries on abdomen, chest and arm were present on dead body. PW-11 Santosh Solankar has deposed that inquest panchanama was prepared in presence of two panchas and it bears his signature. Inquest panchanama shows, grievous injuries on vital organ, abdomen and chest etc. As inquest panchanama is not disputed, there is no reason to disbelieve the same. Injuries on dead body of Danish Merchant are proved from the direct evidence of PW-11 Santosh Solankar. ::11 :: b) Medical evidence
13. After inquest was drawn dead body of Danish Merchant, was sent for postmortem examination to J.J.Hospital through police constable buckle No. 080521 attached with Pydhonie police station. The evidence of PW-7 Dr. Vaman Kedare Gaikwad is important in this respect. Dr.Vaman Gaikwad was attached to J.J. Hospital as medical officer at relevant time. On 8.1.2016, he was on duty. He deposed that he received dead body of Danish Iqbal Merchant for postmortem examination with inquest panchanama, annexure- I and II, certificate of death. He further deposed that he performed postmortem examination on the same day between 1.30 a.m. to 3.15 a.m. on the same day. On external examination Dr. Vaman Gaikwad found following injuries on dead body;
1. Injuries on right side of body. a) two stab injury over chest b) one stab injury over mid axillery line right side, described as dangerous type injury. c) one stab injury over right side tricep d) two incised injury
2. Injuries on left side of body; a) one stab injury over chest, described as dangerous injury b) two incised injuries
3. Other surface injuries a) four contusion abrasion
14. On internal examination Dr. Vaman Gaikwad found following ::12 :: injuries on dead body. a) Thorex ribs sharp cut of 1st 2nd 8th on right side. Sharp cut of 6th 7th ribs on left side. b) Pleura lacerated at places (bilateral) (d) and (e) right and left lung, lacerated collapsed, pale. f) Pericardium lacerated pale. g) Heart with weight : Incised injuries over left side auricle and left ventricle sized 6 cm x 1cm myocardium pale. On cut sections clots present. Clots are non detachable. Heart normal size in shape. Column No.21 Abdominal Injuries. Peritoneum lacerated at places. Cavity about 1 liter blood present, blood clots present and non detachable. Liver: Incised injury present of size 2 ½ x 2 ½ cm fresh.
15. Dr.Vaman Gaikwad deposed that he found multiple stab injuries. He further deposed that injuries mentioned in coloumn 17 and 20 are ante-mortem. Dr. Vaman Gaikwad had opined that, death of Danish Merchant is caused due to shock due to multiple stab injuries. In the opinion of Dr. Vaman Gaikwad probable cause of death due to the hemorrhagic shock due to multiple injuries. Dr. Vaman Gaikwad has proved postmortem report at Exh.43. From cross-examination of medical officer, it is apparent that defence does not dispute that deceased sustained external injuries in coloumn 17 of the postmortem report. Dr. Vaman Gaikwad is independent witness. He has no reason to grind an axe against the accused. Nothing substantial could be elicited in the cross-examination of the medical officer to discard his ::13 :: testimony. His testimony being reliable has to be accepted. Hence opinion given by Dr. Vaman Gaikwad regarding cause of death can be safely considered as final cause of death. c) Evidence of PW-1 Faiyaaz Abdul Masjid Jethawa, PW-3 Riyaz Ahemad Moharam Ali Khan and PW-9 Deepak Maruti Gasti.
16. The prosecution has examined PW-1 Faiyaaz Abdul Masjid Jethwa. PW-1 Faiyaaz is informant. He deposed that on 7.1.2016 he visited Shrikrushna Tea and Cold drink house situation at Bapu Khote Lane, within the limit of Pydhonie police station. He further deposed that he had seen deceased Danish Merchant along with one person. The aforesaid person standing near Danish Merchant suddenly took out knife from pocket and stab Danish on his abdomen and chest. He deposed that the aforesaid person gave 7-8 knife blows to Danish. The prosecution examined eye witness Riyaz Khan. He deposed that on 7.1.2016 around 6.00 p.m. he saw one boy in sitting position on the bicycle in front of his kiosk alongwith another boy. He deposed that one boy assaulted the other boy who was sitting on bicycle with knife. The prosecution examined PW-9 Deepak Gasti. He is eye witness to the incident. He deposed that on 7.1.2016 around 6.25 p.m. he saw one boy repeatedly assaulting another boy by means of knife. The oral evidence of informant and eye witnesses referred above get support from the medical evidence and inquest panchanama on record. PW-1 Faiyaaz Masjid states that Danish Merchant sustained injury on his abdomen and chest as a consequence of assault made by accused. The oral evidence of PW-1 Faiyaaz remained unshattered during the cross- examination on the point of injuries sustained by Danish Merchant. His ::14 :: testimony being reliable cannot be discarded on the point of injuries sustained by deceased Danish.
17. From the nature of injury shown in the postmortem report, uncontroverted inquest report and oral evidence of witnesses referred above, it can be safely concluded that prosecution has overruled possibility of natural, accidental or suicidal death and legally proved fact of homicidal death.
18. Next question for consideration is whether death of Danish Merchant is culpable homicide amount to murder, and that death of Danish Merchant has been caused by or in consequences of act of accused. Real crux of dispute between the parties is whether death was caused due to or inconsequence of the act of accused. The burden is on prosecution to establish guilt of accused beyond all reasonable doubt.
19. The prosecution case exclusively based on direct evidence. According to prosecution on 7.1.2016 around 6.30 Danish Merchant was present in front of Shrikrushna Tea and Cold drink house at Bapu Khote Lane, situated within the limits of Pydhonie police station alongwith accused. It is alleged that accused assaulted Danish Merchant by a knife and caused injuries.
20. Prosecution has examined PW-1 Faiyaaz. He made following statements in his evidence. The incident occurred on 7.1.2016 around
6.30 p.m. in front of Krushna Tea and cold drink house at Bapu Khote lane and in front of Pydhonie police station. He visited said hotel for taking tea. He saw Danish drinking tea by sitting on cycle and one ::15 :: person was standing near him. The aforesaid person was having similar hight of witness and was wearing white T-shirt and jeans having blue and green strips and was well built and whitish complex (gehu colour). He saw the person standing near Danish suddenly took out knife from pocket and stabbed Danish on his stomach and chest. The aforesaid person gave 7-8 knife blows to Danish. Danish collapsed on the ground and thereafter the assailant started running towards Pydhonie police station. He himself and three to four persons chased the said assailant but could not caught hold him. The said person with knife went towards police station. He returned towards Danish at that time he saw blood was oozing from his body. Danish was taken to J.J. hospital with the help of police. The doctor at J.J.Hospital declared that Danish was dead. He reported the incident to police station as per Exh.23. He came to know that Danish had sold bike to that person, however bike was not transferred in the name of purchaser and therefore the said person was insisting Danish to return the money and the incident occurred on that ground.
21. It is the defence of accused that PW-1 Faiyaaz was not present at the time of incident. The Learned advocate for accused made reference to the statement made during cross-examination by PW-1 Faiyaaz and tried to demonstrate that witness has made self contradictory statement. He pointed out that PW-1 Faiyaaz claim himself to be a friend of deceased Danish, however he made statement that he did not talk with deceased Danish despite that he had seen Danish at tea and cold drink stall before the incident. The said conduct of PW-1 Faiyaaz was unnatural. He would further argue that PW-1 Faiyaaz is interested witness to help the prosecution. He further pointed out from the ::16 :: statement made during cross-examination by PW-1 Faiyaaz that accused was not acquainted to him and therefore identification of accused by PW-1 Faiyaaz is doubtful.
22. During cross-examination PW-1 Faiyaaz deposed that 5-6 unknown persons were present when he was taking tea at hotel. He deposed that Danish was sitting on carrier of cycle at the distance of 10ft from him. He further deposed that incident occurred suddenly therefore he did not attempt to save Danish. During cross-examination it is brought on record that cloths of PW-1 Faiyaaz were having bloodstain. PW-1 Faiyaaz also admitted the said fact during cross- examination.
23. Prosecution has examined PW-3 Riyas Ahmed Moharram Ali Khan. He made following statements in his evidence. On 07.01.2016 he was present at Krushna Tea House, Bapu Khote Cross Lane, Mumbai-
9. At that time he was running Betel Kiosk near Krushna Tea House. On 07.01.2016 he opened his kiosk at about 6.30 pm at that time a boy was sitting on the bicycle in front of his kiosk. Another boy (accused) came there and assaulted the boy who was sitting on the bicycle, with knife. He came to know name of that boy as Danish. There was chaos on the spot. Some persons were taking tea infront of Krushna Hotel, Danish felled on them. The boy (accused) who assaulted with knife ran towards police chowky. He and another person followed that boy (accused). Police caught hold that boy (accused). One boy and other persons picked up Danish and took him to the hospital.
24. During cross-examination PW-3 Riyaz deposed that distance ::17 :: between Krishna Tea house and his Kiosk was 4-5 feet. During cross- examination it is tried to bring on record that deceased Danish was not acquainted to the witness prior to the incident. It is further tried to bring on record that PW-3 Riyaz did not witness the incident. However, during cross-examination PW-3 Riyaz deposed that deceased Danish was at the distance of 4-5 feet from his Kiosk. He was sitting at that place prior to incident for 5-10 minutes. He deposed that the incident of assault by knife lasted after 5 minutes. He further deposed during cross-examination that he focused on incident after attending two customers. He further deposed that he cannot state as to what incident exactly was going on as he was busy in attending customers. He also deposed during cross-examination that 2-3 police persons followed accused and caught hold him.
25. Prosecution has examined PW-9 Deepak Maruti Gasti. He made following statements in his evidence. On 7.1.2016 around 6.25 p.m. he visited shop of xerox at Bapu Khote cross lane. At that time he saw fighting between two persons. He saw knife in the hand of one person. He also saw that the person holding knife was assaulting another person repeatedly by knife. He had seen the assailant running from the spot of incident after assault. He had also seen that victim collapsed near Hindu Hotel in injured condition. Assailant was caught hold by Police constable Uttam Jadhav and Rane Head Constable. He also chased the assailant. The assailant was taken before PSI Godse. Assailant disclosed his name as Jayanand Mukind Ghule on inquiry.
26. During cross-examination PW-9 Deepak deposed that xerox shop was at the distance of 10-15 feet from tea stall. He had been to xerox ::18 :: shop at 6.25 p.m. He was in civil dress. He further deposed that there were 10-15 persons at tea stall. He further deposed during cross- examination that incident started after 5 minutes, when he reached at xerox shop. He further deposed that persons at tea stall did not try to caught hold the assailant. PW-9 Deepak deposed that he chased the assailant. He further deposed that accused was caught hold by Mr. Jadhav and Mr. Rane. He further deposed that thereafter accused was taken to police station. The Learned advocate for accused made reference to the statement made during cross-examination by PW-9 Deepak and tried to point out discrepancy as regards seizure of knife by making reference to the evidence of panch witnesses and evidence of investigating officer.
27. In addition to the above oral evidence, the prosecution also relied on evidence of PW-2 Shashikant Achare. He deposed that he is doing service with Gandhi Kothari and Company as a salesman. He was called by Pydhonie police station on 9.1.2016. Accordingly he visited Pydhonie police station. One person was present in the police station. Police made inquiry with him regarding the said person at that time he identified the said person and informed to police that the said person visited his shop on 7.1.2016 and demanded knife. He further deposed that he had shown some knife to the said person. The said person selected one knife and paid the price of knife. He also issued purchase bill. The witness has identified knife Article-G before the Court. The witness has also identified accused before the Court. During cross- examination it is tried to suggest that accused did not visit shop on 7.1.2016 to purchase the knife. It is further suggested that witness did not issue purchase bill of knife. However witness has denied all the ::19 :: suggestions put to him.
28. The prosecution has examined PW-4 Uttam Namdeo Jadhav. He deposed that on 07.01.2016 he was working on the post of police peon with Pydhonie police station. On that day he was on day duty between
9.00 am till 8.00 pm. He was standing with police hawaldar Mr. Rane (24716) at the gate of police station on the ground floor. At that time, some people came from Bapu Khote cross lane shouting as “pakdo pakdo”. One person holding knife with blood stains was seen by him. He caught hold the said person. Police person namely Gasti came behind the said person and caught hold the said person. The said person was taken at 1st floor of police station and was produced before PSI Godse. The person disclosed his name as Jayanand Mukund Dhule, aged 28 years on inquiry made by PSI Godse. PSI Godse took search of said person and seized one knife from that person. Full sleeves white shirt having black strips, blue colour jean pant and article from pocket of pant were also seized during the personal search of said person. He identified knife Article-G, blue colour jeans pant Article-I, Shirt Article- H, during evidence.
29. During cross-examination questions are put the witness as regards time of seizure of knife. The presence of witness during personal search of accused is also denied during cross-examination. PW-4 Uttam deposed during cross-examination that they did not take out knife from the possession of accused immediately after his arrest. He further deposed that bloodstain on the said knife were not completely dry when he saw the knife. ::20 ::
30. The prosecution led oral evidence of PW-12 Ravindra Kisan Godse Police Station Officer. He deposed that on 7.1.2016 he was on duty at Pydhonie police station. On 7.1.2016 police Head Constable Rane, Police Naik Jadhav, Police Constable Patil brought one accused at Pydhonie police station around 6.45 p.m. The aforesaid person was holding knife. There were bloodstains on the cloths of said person. The police staff informed to him that the said person assaulted his friend by knife and that they have caught hold him while running away. He further deposed that the said person disclosed his name as Jayanand Mukind Ghule on inquiry. He further deposed that he took personal search of accused and seized knife, white colour Shirt having bloodstain and pant. He further deposed that he found driving licence, Adhar Card, PAN Card, ATM Card of Indian Bank, Local Railway Ticket and purchase receipt of knife in the wallet of accused. He deposed that he seized the above articles in present of two panchas. Panchanama is produced on record at Exh.61. The witness also identified the articles and accused during his oral evidence.
31. During cross-examination PW-12 Ravindra Godse deposed that he seized knife from the possession of accused only on arrival of panch witnesses. He further deposed that he himself prepared panchanama Exh.67. He further deposed that knife was having fresh bloodstains. During cross-examination the procedure adopted by PW-12 Ravindra Godse for seizure of articles is disputed on behalf of defence. However PW-13 Ravindra Godse denied all the suggestions put to him in the that regard during cross-examination.
32. The prosecution led oral evidence of PW-10 Kirtiram Naik, panch ::21 :: witness to seizure panchanama Exh. 61. PW-10 deposed that on 7.1.2016 he visited Pydhonie police station on the call of police. He had seen accused Ghule at police station. His clothes were having blood stains. Police seized his clothes. He further deposed that one knife was also seized from the possession of accused. Witness also deposed regarding seizure of SIM car, currency note, railway ticket, bill etc from the possession of accused. PW-10 Kirtiram has supported the case of prosecution and proved seizure panchanama as per Exh.61. He further deposed that after 5 days again he was called by police. He deposed that brother of deceased had brought yellow colour Pulsar Motor Cycle having registration No. MH 01-BH-0881 at police station. The police seized the said motorcycle in his presence as per panchanama Exh.62.
33. During cross-examination it is suggested to the witness that articles are not seized in his presence. PW-10 Kirtiram Naik admits during cross-examination that print out of panchnama was not obtained from the laptop in his presence. However it is also brought on record during cross-examination that witness visited police station at 7.30 p.m. The accused was present in detection room alongwith police. He was present in detection room for 30-45 minutes. He further deposed that accused was holding knife in his hand. He further deposed that bloodstains were appearing on the hand, face, clothes of accused and on knife.
34. The prosecution has examined PW-8 Fauzan Merchant, the brother of deceased Danish. He deposed that he had seen accused, when he was taking motor cycle from his brother Danish. On the day of incident his brother has received phone call from accused and that he ::22 :: heard the conversation between accused and his brother. On inquiry his brother informed him that accused was demanding money of Motor Cycle. His brother Danish had sold motor cycle to accused bearing MH 01 BH 0881 for Rs.55,000/- and all the required documents were given to accused. Accused was in need of money, therefore, accused returned the said motor cycle to Danish but Danish had no money to return to accused at that time. On the day of incident Danish went by walk to meet accused as motor cycle could not start. On 12.1.2016 police seized motorcycle in presence of two panchas.
35. During cross-examination he admits that he did not produce documents of motor cycle to police. During cross-examination it is suggested to the witness that he did not hear conversation between accused and his brother Danish. PW-8 Fauzan Merchant is examined to prove alleged transaction of motorcycle between accused and deceased Danish.
36. The prosecution also led evidence of PW-5 Abdul Karim Rahim Batliwala, previous owner of motorcycle having registration No. MH01 BH 0881 he deposed that he sold said motorcycle to deceased Danish Iqbal Merchant on 23.11.2015. The stamp paper and delivery note regarding the said transaction is proved at Exh.38 and 39 respectively. During cross-examination it is suggested to the witness that document Exh.38 and 39 are prepared as per the instruction of police. However witness has denied all the suggestions put to him during cross- examination.
37. The prosecution examined PW-11 Santosh Solankar, police station ::23 :: officer on duty. He deposed that on 7.1.2016 around 6.30 p.m. to 7.00 p.m. one accused was brought at police station. He was holding bloodstained knife. He further deposed that he received information that the said person assaulted another person by knife and the injured is taken to J.J.Hospital. On the said information he made entry in station diary and went to J.J.Hospital. On inquiry with doctor it was informed that the injured died before he was brought to hospital. He further deposed that he obtained death intimation certificate. He further deposed that he obtained Crime No and ADR Numbai on phone call. He deposed that he recorded the statement of informant Faiyaaz Jethawa at police station. He further deposed that he prepared inqurest panchanama in presence of two panchas. Inquest panchanama is not in dispute. He further deposed that he registered crime in terms of FIR Exh.27. PW-11 Santosh Solankar also deposed regarding seizure of clothes of deceased, seizure of Samsung Mobile Phone, key with chain etc.. The witness has also identifying the articles during oral evidence. He further deposed that he arrested accused under arrest panchanama Exh.19. He further deposed that on the same day he visited the place of incident and prepared spot panchanama Exh.10 in present of two panchas and rough map Exh.11. During cross-examination procedure of recording statement of informant is disputed on behalf of defence. The steps taken by PW-11 Santosh Solankar during investigation are also denied during cross-examination. However, PW-11 Santosh Solankar has denied all the adverse suggestions put to him during cross- examination.
38. The prosecution has examined PW-13 Mahesh Mugutrao, Investigating officer. He deposed all the steps taken for investigation. ::24 :: During oral evidence it is brought on record that PW-13 Mahesh Mugutrao has seized C.C.TV footage under panchanama exh.31. He further deposed that he seized motorcycle having registration No. MH 01-BH-08821 under seizure panchanama in presence of two panchanmas. He further deposed that he referred articles by examination of Chemical analyser. He deposed that he received CA report. PW-13 Mahesh Mugutrao after completion of investigation he submitted chargesheet against accused.
39. In the above backdrop, it is necessary to appreciate the evidence on record. The prosecution is relying on the oral evidence of PW-1 Faiyaaz, PW-3 Riyaz and PW-9 Deepak to prove murder of Danish Merchant. It is settled that law does not required the court to count the witnesses. As per the settled position, evidence is to be weight and not counted. It is quality of evidence which is of significance not the quantity. A useful reference may be made to the case of Kunju Vs. State of Tamilnadu reported in AIR 2008 SC 1381. The Hon’ble Supreme Court has laid down that, ‘a conviction can be based on testimony of sole eye witness and a test is whether his evidence has ring of truth and it is cogent and credible worthwhile or otherwise. Corroboration would be required only if a witness is neither wholly reliable or wholly unreliable’.
40. It is the defence of accused that he is falsely implicated in the crime. It is settled law that, the party has to laid down the factual foundation and prove by leading imputable evidence in respect of false implication. However, in such case, the court has to adopt the careful approach an analysis the evidence to find whether it is cogent and ::25 :: credible evidence.
41. The case of prosecution is based principally on the deposition of PW-1 Faiyaaz, PW-3 Riyaz and PW-9 Deepak who have stated to have witness assault on Danish Merchant at the instance of accused. These witness have stated that they were present at the place of incident.
42. PW-1 Faiyaaz stated that on 7.1.2016 around 6.30 p.m. he came at Krishna Tea and Cold drink house at Bapu Khote Lane for taking tea. At that time he saw Danish drinking tea by sitting on cycle and one person standing near him. PW-1 Faiyaaz also described the said person in his evidence. He further stated that the persons standing near Danish Merchant suddenly took out knife from pocket and stabbed Danish Merchant on his abdomen, chest etc. He deposed that the aforesaid person gave 7-8 blows to Danish. Another witness PW-3 Riyaz stated that on 7.1.2016 around 6.00 p.m. he saw one boy in sitting position on bicycle in front of his Kiosk. He further deposed that one another boy was present with him. He deposed that the said boy assaulted the boy who was in sitting position on bicycle with knife. The prosecution examined another eye witness PW-9 Deepak Gasti, Police Constable attached to Pydhonie police station. He stated that on 7.1.2016 he visited xerox shop situated at Bapu Khote Cross-lane. At that time he witness fighting between two persons. One of them had knife in his hand and was assaulting another person repeatedly with the said knife. He further deposed that he chased the person who assaulted by knife when he was running away from the place of incident. ::26 ::
43. The Learned Advocate for accused pointed out that PW-1 Faiyaaz did not talk to Danish despite friendship between them. He further pointed out that PW-1 Faiyaaz did not come forward to rescue the victim at the time of incident. He further point out that PW.1 stated that he had taken Danish to hospital and that bloodstain were appearing on his clothes. He pointed out that PW.1 Faiyaaz did not produce his cloths having blood stains before investigating officer. He would submit that the above conduct of PW-1 Faiyaaz was unnatural and therefore creates doubt regarding his presence at the place of incident. PW-1 Faiyaaz clarified during cross-examination that Danish was talking with one boy. Therefore he did not talk to Danish. He further clarified that the incident occurred suddenly therefore he did not attempt to save Danish. He further deposed that as the person was dead and the bloodstain of dead person were appearing on his clothes, so he disposed off clothes without informing to the police.
44. PW-3 Riyaz deposed that on 7.1.2016 he was present in his Kiosk at about 6.00 p.m. At that time he saw a boy in a sitting position on the bicycle in front of his Kiosk. He further deposed that another boy came to said boy and assaulted him with knife. PW-3 Riyaz identified accused during oral evidence. He further deposed that he came to know name of injured as Danish. The Learned advocate for accused made reference to cross-examination of PW-3 Riyaz and tried to point out that PW-1 Riyaz did not witness the incident as he was dealing with the customer. PW-3 Riyaz deposed during cross-examination that deceased was at the distance of 4-5 feet from his Kiosk. He also deposed that the incident of assault by knife lasted upto five minutes. He further specifically deposed that he focus on incident after attending two customers. From ::27 :: the oral evidence of PW-3 Riyaz it is proved that he did not witness the entire evidence but he had witnessed few assault made by accused by knife to deceased Danish.
45. Another eye witness PW-9 Deepak Gasti deposed that on 7.1.2016 around 6.25 p.m. he visited shop of xerox situated at Bapu Khote cross lane. At that time he witness fighting between two persons. He witness one person holding knife and assaulting another person repeatedly by said knife. PW-9 Deepak Gasti was attached to Pydhonie police station during the relevant time. PW-9 Deepak Gasti was subjected to searching cross-examination but nothing could come out which would help the accused.
46. The Learned advocate for accused would submit that prosecution has examined friend of deceased Danish. He would further submit that evidence of PW-1 Faiyaaz cannot be admitted in evidence. He would further submit that evidence of eye witnesses are unreliable. There is variance in their evidence. The Learned advocate relied on the case of State of Maharashtra Vs.Jaysingh Vitthal Shetke and ors reported in 2021 ALL MR (Cri) 4419 and case of Mohammed Iqbal @ Munna Abdul Sattar and another Vs. State of Maharashtra reported in 2016 ALL MR (Cri) 4530 in support of his contention. He would further submit that bloodstain clothes of PW-1 Faiyaaz are not seized during investigation and therefore it creates doubt in the oral evidence of PW-1 Faiyaaz.
47. It is settled that merely because the witnesses were closely related to the deceased person, their testimony cannot be discarded. When there is allegations of intrestedness, the same has to be ::28 :: established, mere statement that witness being relatives of the deceased, they are likely to falsely implicate the accused that cannot be ground to discard the evidence which is otherwise cogent and credible. PW-1 Faiyaaz has stated chronology of incident occurred on 7.1.2016. He has categorically deposed that the person standing near Danish Merchant suddenly took out knife from pocket and stabbed Danish Merchant on his abdomen, chest etc. PW-1 Faiyaaz has identified accused during oral evidence. PW-1 Faiyaaz is subjected to searching cross-examination but his testimony is consistent. The evidence of PW.1 Faiyaaz is found be credible. His testimony get support from the oral evidence of two eye witnesses examined on behalf of prosecution. In the above backdrop, it is not possible to accept the submission of the learned advocate appearing from accused that evidence of witness PW-1 Faiyaaz, being friend cannot be admitted in evidence.
48. Next objection on behalf of defence is delay in filing complaint. The learned advocate made reference to first information report and pointed out that there is delay in reporting the incident. He would further argue that investigating officer has not promptly recorded the statement of accused and therefore, possibility of false implication of accused cannot be ruled out. The learned advocate would submit that delay caused is fatal to the case of prosecution. The learned advocate relied on the case of State of Maharashtra Vs. Parshu Ramaji Khillare and ors reported in 2018 ALL MR (Cri) 343 and case of State of Maharashtra Vs. Pramod Dhanraj Gajbhiye reported in 2018 ALL MR (Cri) 1863. The accused also disputed the place of recording the statement of the first informant. The learned advocate appearing for accused pointed out that police were present at the scene of occurrence. ::29 :: However no discloser was made to police. He submits that FIR made by PW-1 Faiyaaz is after thought and concocted. Admittedly PW-1 Faiyaaz was the friend of deceased Danish. In the cross-examination of this witness, no question regarding the reasons for the alleged delay in lodging the FIR was asked, though, witness was cross-examined at length. Mere delay in lodging FIR is not sufficient to exclude the case of prosecution when story put forth by prosecution is reliable. On behalf of accused, no reliable circumstances are brought on record to create doubt in the oral evidence of PW-1 Faiyaaz, for false implication of the accused in the present case. In the above backdrop, delay caused for lodging FIR is not fatal to the case of prosecution. It is noteworthy to see that on behalf of accused no circumstances are pointed out to create doubt in the oral evidence of PW-3 Riyaz and PW-9 Deepak Gasti. PW-3 Riyaz and PW-9 Deepak Gasti are independent witnesses. They have no reason to grind axe against the accused. Nothing substantial could be elicited during the cross-examination of both the witnesses to discard their testimony. Their testimony being reliable as to be accepted. Facts of the present case are not identical to the case law cited supra, hence will not come to the help of the case.
49. The next objection on behalf of defence is regarding seizure of knife. The Learned advocate for accused pointed out that investigating officer has seized bloodstain knife from the possession of accused in presence of PW-10 Kirtiram Naik. He further pointed out that seizure panchanama came to be prepared after 7.15 p.m. however accused was in the custody of police at 6.45 p.m. He would argue that there is no explanation as to whether accused was made to hold knife till PW-10 Kirtiram Naik attended police station or whether it was taken out from ::30 :: the possession of accused and again it was handed over to accused for the purpose of seizure panchanama. He made reference to the oral evidence of PW-9 Deepak Gasti and pointed out from his evidence that knife was taken out from the possession of accused by PSI Godase when accused was produced before him by police. He would submit that there is variance in the evidence of witnesses regarding seizure of knife from the possession of accused. He would further argued that seizure of knife is not proved beyond all reasonable doubt.
50. PW-9 Deepak Gasti deposed during cross-examination that they produced the assailant before PSI Godase. PSI Godse snatched knife from the assailant. He further admits that knife from the assailant was not seized in his presence. He further shown ignorance as to when knife was seized by police. PW-4 Uttam Jadhav is examined on behalf of prosecution. According to prosecution PW-4 Uttam Jadhav was present with police Head Constable Rane at the gate of police station on ground floor. At that time one person having knife with blood stain came towards police station. He deposed that he caught hold the said person. He further deposed that the said person was produced before PSI Godse. He further deposed that during personal search of said person PSI Godse seized knife. PW-4 Uttam Jadhav has made statement during cross-examination that they did not take out knife from accused when accused was caught hold by them. The prosecution has examined PW-12 Ravindra Godse, who seized knife from the possession of accused. PW-12 Ravindra Godse deposed that he seized knife in question having bloodstain from the possession of accused in presence of two panchas. During cross-examination PW-12 Ravindra Godse deposed that the knife was in the hand of accused when it was seized ::31 :: by him. He further deposed that he seized the knife after arrival of panch witness. The prosecution has produced on record reliable and convincing evidence to establish that knife in question was seized from the possession of accused before panch witnesses. In this backdrop the statement of PW-9 Deepak Gasti that PSI Godse snatched the knife from the assailant when the assailant was produced before him is not fatal to the case of prosecution. From the cumulative reading of evidence the prosecution it is established that knife in question was seized from the possession of accused in presence of two panchas.
51. The another objection on behalf of defence is that accused was not having intention to cause death of deceased Danish Merchant. Learned advocate would submit that the death of Danish Merchant is caused in a sudden fight in the hit of passion, upon a sudden quarrel. He would submit that accused cannot be hold guilty for offence punishable under Section 302 of Indian Penal Code. In the alternative he would submit that the offence, which can be said to be proved against the accused, would be one under section 304 Part-II of Indian Penal Code. In support of his submission he relied on the case of Prabhu Prasad Sah Vs. State of Bihar reported in 1977 CRI. L.J. 346, case of Bagdi Ram Vs. State of M.P. reported in (2004) 12 SCC 302, case of Birkwdao @ Vikram @ Vikcy Narzary Vs. State of Goa reported in 2018 ALL M.R. (Cri) 1325, case of Datta Anganappa Bagadi Vs State of Maharashtra reported in 2019 ALL MR (Cri) 3567.
52. I have read judgments cited supra on behalf of defence. In the case on hand the prosecution has established that accused purchased knife used for commission of offence from shop called Gandhi Kothari ::32 :: and Company on 7.1.2016. The prosecution has also examined employee of said shop namely PW-2 Shashikant Achare to establish that knife in question was purchased from his shop by the accused. PW-2 identified knife Article G during evidence. He also identified the accused before the court. It is not the defence of accused that the incident occurred due to sudden fight. The eye witnesses deposed that accused took out knife and assaulted deceased on his abdomen, chest etc… Case of sudden fight is not made out nor establish from the evidence on record. No suggestion are put to the witnesses on behalf of defence to indicate that incident occurred due to sudden fight. The facts of the present case are not identical with the facts of case law cited supra. In such circumstances the contention of accused that incident occurred in the result of sudden fight cannot be accepted.
53. The prosecution has established time, date and place of incident. The spot panchanama is not in dispute. The investigating officer has categorically deposed that he visited place of occurrence and prepared spot panchanama in presence of two panchas. He further deposed that he has collected blood samples from the scene of occurrence. The defence has not disputed spot panchnama as such there is no reason to discard the same. The evidence of investigating officer is found reliable and convincing. No circumstances are pointed out to discard the evidence of investigating officer.
54. The prosecution has proved that Danish Merchant died in consequence of assault made by accused. The incident dated 7.1.2016 is proved from the evidence of PW-1 Faiyaaz Jethwa, PW-3 Riyas and PW-9 Deepak Gasti. The witnesses referred above have specifically ::33 :: stated that accused assaulted Danish Merchant by means of knife. The prosecution has brought on record the conclusive and specific evidence to prove that accused was having motive to cause death of Danish Merchant. The prosecution has not on record cogent and firmly established evidence to prove the circumstances pointing guilt of accused. From the nature of injury and the part of body selected is sufficient to prove the intention of accused that he was not having any other intention but to cause death of Danish Merchant. The death of Danish Merchant is proved. The prosecution has established by evidence that death of Danish Merchant has been caused by act of accused. The intention of accused to cause death is also proved in the present case. Merely because eye witness is friend, his evidence cannot per se be discarded. The prosecution has established guilt of accused may not reasonable doubt. In the result accused is held guilty for offence punishable under Section 302 of Indian Penal Code. In this circumstances point no.1 answered in the affirmative. I stop here to hear accused on the point of punishment. (Shri. R.R.PATARE) Additional Sessions Judge, City Civil and Sessions Court, Date : 16.09.2023 For Greater Bombay
55. Heard accused on the point of sentence. The advocate appearing for accused is also heard on the point of sentence. Accused states that he is innocent. He requested to take lenient view. The learned advocate appearing for accused also requested to take lenient view in the matter of punishment. ::34 ::
56. On the other hand, the learned APP requested to give maximum punishment.
57. Section 302 of the Indian Penal Code provides the punishment for murder. It stipulate a punishment of death or imprisonment for life and fine. Once an offender is found by the Court to be guilty of the offence of murder, then it has to be sentenced the offender to either death sentence or imprisonment for life. The Court has no power to impose any other lesser sentence. The extreme penalty of death can be inflicted to gravest cases of extreme culpability. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the given circumstances of the crime and provided and only provided, the opinion to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. The rarest of rare case is not made out, therefore, imprisonment for life is appropriate punishment in the present case.
58. Section 357-A of the Code of Criminal Procedure empowers to grant compensation to the victim of crime under the scheme prepared by the Government. Sub-section (2) of Section 357-A of Code of Criminal Procedure empowers Court to make recommendation for compensation. This is fit case where compensation under Section 357- A of Code of Criminal Procedure can be granted. Hence, following order. ::35 :: ORDER
1. Accused Jayanand @ Jaya Mukind Ghule is convicted under Section 235 (2) of the Criminal Procedure Code of the offences punishable under section 302 Indian Penal Code and he is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.25,000/-, in default of payment of fine amount, he shall suffer simple imprisonment for two years.
2. The District Legal Service Authority, Mumbai is hereby recommended to decide the quantum of compensation to the legal heirs of deceased Danish Merchant under Section 357 A of Code of Criminal Procedure.
3. Accused is entitled to set off under Section 428 of Code of Criminal Procedure for period already under gone by him as under trial prisoner since the date of his detention in jail as per rules.
4. Seized muddemal weapon i.e. knife be referred to District Collector Mumbai for disposal according to law after appeal period over.
5. Seized vehicle be returned to its registered owner after appeal period is over, if not already returned.
6. Seized Muddemal mobile handset be returned to its registered owner after appeal period is over, if not already returned.
7. Rest of the seized muddemal being worthless, shall be destroyed, after appeal period is over. ::36 ::
8. Copy of this judgment be given to the accused free of cost as per the provisions of Section 363 (1) of the Code of Criminal Procedure. (Judgment dictated and pronounced in open court) Digitally signed by RAJESH RAJESH RAOSAHEB RAOSAHEB PATARE PATARE Date:
2023.09.18 14:55:21 +0530 (Shri. R.R.PATARE) Additional Sessions Judge, City Civil and Sessions Court, Date : 16.09.2023 For Greater Bombay Dictated on : 16.09.2023 Transcribed On : 16.09.2023 Signed on : 16.09.2023 ::37 :: “ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER” UPLOAD DATE AND TIME : 18.09.2023 AT 05.24 pm NAME OF STENOGRAPHER :Mrs. Prajakta K. More NAME OF THE JUDGE HHJ SHRI.R.R.Patare (C.R.No.56) Date of Pronouncement of 16.09.2023 Judgment Order signed by the P.O. On 16.09.2023 Order uploaded on 18.09.2023
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