MHCC020097682016 Presented on :03/08/2016 Decided on :26/02/2021 Duration on :04-Y/06-M/23D IN THE COURT OF SESSIONS FOR GREATER BOMBAY, AT BOMBAY.
SESSIONS CASE NO.
551 OF 2016 CASE NO.
497/PW/2016 EXHIBIT NO.
78 The State of Maharashtra At the instance of Bhandup Police Station, C.R.No.147/2016 ….
Prosecution Versus Ramsudhar @ Zinkya Ramjangeshwar Choudhari Age- 33 years Add- Room No.1, Munshimahal, Ramlakhan Yadav Chawl, Water Tank Road, Jamil Nagar, Behind Ahilya Vidyalaya, Bhandup (W), Mumbai-78.
...Accused Appearances : Ld.
APP Mrs. Ashwini Raykar for the State.
Ld.
Adv.
Mr. Mooman for the accused.
S.C. 551/2016 2 Date : 26.02.2021 CORAM :HIS HONOUR THE ADDITIONAL SESSIONS JUDGE SHRI.
A. H. LADDHAD DATE : 26/02/2021 (Court Room No.56)
JUDGMENT OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE .
----------------------------------------------------------------------------------------------------1. The accused is facing charge for the offence punishable under section 302 of Indian Penal Code ("I.P.C". in short). The prosecution case is as under :
2. On 08.04.2016 at about 9.00 p.m., the first informant Shubham Kurmi and his friend Abbaz Shaikh were going to Jamil Nagar ground to play Cricket. On their way, near to Litter-bin at Jamil Nagar, in front of Girija Medical Store, Bhandup (West), Mumbai – 400 078, he found mob. He got to know that one person is being assaulted. Therefore, he immediately made phone call on 100 number from mobile phone of his friend Abbaz. Thereafter, he went to see the person being assaulted. Upon that, he found Akhilesh Singh @ Lotela was lying prostate on the floor, blood was oozing from his body and his clothes were smeared in blood. As Akhilesh was suffering from pain, he was groaning for help. Therefore, he went towards him and asked “D;k gqvk ? ”. Upon that, Akhilesh stated “f>aaD;kus ekjk” and he was groaning. The first informant immediately with the help of his friend Abbaz took Akhilesh to Dr. Farad. As they reach, Dr. Farad told to take Akhilesh to Mulund Hospital immediately. Therefore, the first S.C. 551/2016 3 Date : 26.02.2021 informant and his friend Abbaz put the Akhilesh into Auto-rikshaw and asked driver to take him at Mulund General Hospital. At that time, the first informant came to know from the mob that, due to old enmity, “Zinkya” assaulted Akhilesh.
3. As the clothes of the first informant were smeared in blood therefore, he went to his home to change the clothes. After sometime, Beat Marshal of Bhandup Police made a phone call on phone number 8268079300 to Abbaz and made inquiry about the phone call made by him. Therefore, he went to police and thereafter, the police brought him to Bhandup Police Station. The police made an inquiry about the incident with him. At that time, police informed him that Akhilesh died at Mulund General Hospital.
4. Thus, the first informant informed that on 08.04.2019 at about 9.00 p.m. the accused due to old enmity with Akhilesh committed his murder by sharp edge weapon. Therefore, he made report (Exh.59) with Bhandup Police Station.
5. On the basis of the aforesaid report (Exh.59), PSI Suhas Rahane lodged FIR No. 147 of 2016 (Exh. 58) against the accused “Zinkya” for offence punishable u/s. 302 of I.P.C. and thereby, set criminal law in motion.
6. PSI Suhas Rahane (PW-15), on 08.04.2016 seized blood stain clothes of the deceased and prepared Cloth Seizure S.C. 551/2016 4 Date : 26.02.2021 Panchnama (Exh. 21). He further prepared Inquest Panchnama (Exh.20) in the hospital and sent dead body for post-mortem. He has visited the spot of incident, collected blood stain soil, simple soil and prepared spot panchnama (Exh.18) on 09.04.2016 he seized blood stain clothes of Shubham Kurmi (PW.1), Mohd. Salim Halim Shaikh @ Mama (PW.9) and Abbaz Rukhmudding Shaikh and prepared Cloth Seizure Panchnama (Exh.32).
7. On 10.04.2016 PSI R.S. Sawant arrested the accused under Arrest Panchnama (Exh.65 colly). PI Patankar (PW. 16) on 10.04.2016 seized clothes of the accused containing blood stain and prepared Clothes Seizure Panchnama (Exh. 52).
8. During custody on 12.04.2016, the accused showed his willingness to make Confessional Statement and produce knife used in commission of an offence. Accordingly, PI Patankar (PW-16) recorded Confessional Memorandum of the accused (Exh.48) and in pursuance of the same the accused produced knife (Art. E) which was hided by him behind Electric D.P. situated at Jai Durga Nagar, Pansare Compound, Hanuman Nagar, P.N. Road, Bhandup. Accordingly, PI Patankar recorded Discovery Panchnama (Exh. 50).
9. On 16.04.2016, PI Patankar sent Muddemal to Forensic Laboratory with requisition (Exh. 59) and after recording the statement of relevant witnesses, completed investigation and filed chargesheet against the accused for the offence punishable u/s. 302 of I.P.C. S.C. 551/2016 5 Date : 26.02.2021
10. My Predecessor framed charge (Exh.7) against the accused for the offence punishable u/s 302 of IPC. The accused did not plead guilty (Exh.8). The prosecution in order to prove guilt of the accused, examined in all 16 witnesses. PW. 1 – Shubham Kurmi, the first informant (Exh. 13), PW.2 – Suhasini Naik, eye Witness to the incident (Exh.16), PW.3 – Dinesh Pandey, Panch Witness to Spot Panchnama (Exh. 17), PW.4 – Radheshyam Singh, Panch Witness to Inquest Panchnama (Exh.19), PW.5 – Kishor Naik, (Exh.23), PW.6 – Ramesh Yadav, eye Witness (Exh25), PW.7 – Rafiq Mohd. Haroon Shaikh, eye Witness (Exh.31), PW.8 Mahesh Gawade, Auto Rikshaw Driver who took the deceased to Mulund General Hospital (Exh.34), PW.9 – Salim Halim Shaikh, Brother of Abbas who took the deceased to Dr. Farad (Exh.35), PW.10 – Manoj Patil, Noddle Officer of Airtel Company (Exh. 39), PW. 11 – Dr. Sanjay Wathore, who conducted Post-mortem report of the deceased (Exh. 43), PW.12 Anwar Ali Shaukat Ali Shaikh, Panch witness to Discovery Panchnama (Exh. 47), PW.13 – Karanshingh Khushwah, Panch Witness to Seizure of Clothes of the accused (Exh. 51), PW. 14 – Chandramul Loharsingh, Father of the deceased (Exh. 54), PW.15 – Suhas Lahanu Rahane, PSI, who conducted part of investigation (Exh.57), PW.16 – PI Mahesh Patankar, who completed investigation and filed Charge-sheet (Exh.64). The prosecution has closed their side by filing pursis (Exh.72).
11. I have recorded statement of the accused as per Section 313 of Cr.P.C. (Exh.73). On the basis of cross-examination and as per S.C. 551/2016 6 Date : 26.02.2021 statement recorded u/s 313 of Cr. P. C, it appears that the accused took defense that his name is not “Zinkya” and he is falsely implicated in the crime. The accused did not adduce any evidence.
12. I have heard Ld. APP Mrs. Raykar for the State and Ld. Advocate Mr. Mooman for the accused. Thus, after perusing the oral as well as documentary evidence adduced by the prosecution and after hearing their arguments, following points arise for my determination and I gave my findings accordingly. POINTS FOR DETERMINATION Sr. No POINTS FINDINGS
1. Whether the prosecution proved YES that, the death of deceased Akhilesh Singh @ Lotela is homicidal death?
2. Whether the prosecution proved that the accused on 08.04.2016 at 9.00 p.m. at Jamil Nagar, opposite to Girija Medical Stores, Near to litter bin, No Bhandup (West), Mumbai assaulted the deceased Akhilsh Singh @ Lotela by knife and caused his death thus, committed an offence punishable u/s. 302 of Indian Penal Code? S.C. 551/2016 7 Date : 26.02.2021 Sr. No POINTS FINDINGS
3. What order? Accused is acquitted as per final order. REASONS As to point no. 1 :
13. The prosecution in order to prove that the deceased died due to homicidal death, is relying on the Inquest Panchnama (Exh.20). PW.4 is the Panch Witness to the Inquest Panchnama. He has deposed in his oral evidence that on 08.04.2016, he was present at Mulund General Hospital. Upon request of police, he acted as a Panch Witness to the Inquest Panchnama (Exh.20). He has deposed that the deceased was having injury on forehead above left eyebrow. One bleeding injury on chest and left rib.
14. I have perused the Inquest Panchnama (Exh.20). PW.16 while preparing the Inquest Panchnama mentioned the injuries on forehead of 7 cm. x 0.5 cm., stab injury on chest of 2 cm., on left side rib of 2 cm., internal stab wound of 2cm, stab wound of 2 cm on right side rib of the deceased. Likewise, the intestine material from right side found come out from the body. Thus, inquest Panchnama refers to in all 5 stab wound injury and one sharp cut injury on the deceased.
15. The prosecution examined Dr. Sanjay Wathore (PW-11). He has prepared Post-mortem report (Exh.46). He has mentioned following external injuries : S.C. 551/2016 8 Date : 26.02.2021
1. Sharp Cut (incise) injury on forehead. Oblique from right eyebrow and left forehead 7cm X ½ cm. X bone deep.
2. Stab injury on the left chest 1’’ above the nipple medially 2 ½ cm. x 1 cm. x 10 cm. Deep, directing inwards and medially from 3rd and 4th rib cutting pericardium and piercing inside the left ventricle cavity 1 cm. tailing.
3. Stab injury on the left chest on lower side 5’’ below left nipple 2 cm. x 1 ½ cm. tailing 2 cm. directing outwards downwards with exit wound on lateral side 1 ½ cm. x 1 cm.
4. Stab injury on the right lower chest below right nipple 3 cm. x 1 cm. x abdominal cavity deep. Piercing liver and outside of intestine with intestine intramesenteric hemorrhage.
5. Stab injury on abdomen 4 cm. x 1 ½ cm. on right side lateral side of umbilicus 1 ½” abdominal cavity deep directing towards spine.
6. Incise injury on right thumb on lateral side 1 cm. x ¼ cm. x ¼ cm.
7. Incise injury on nape of the neck posteriorly horizontal 5 cm. x ½ cm. x ½ cm.
16. Dr. Sanjay Wathore (PW-11) further mentioned following internal injuries:- a. Thorax wall punctured, ribs and cartilages intact. b. pleura punctured. c. Larynx Trachea and bronchi contains blood stained S.C. 551/2016 9 Date : 26.02.2021 flow. d. Right lung and left lung are pale, Thoracic cavities contains 1 litter blood and blood clots. e. Pericardium punctured. f. Heart punctured at the left ventricle deep inside cavity. g. Walls punctured. h. Peritoneum and Cavity contains 100 ml. Blood. i. Stomach contains 100 ml semi digested, semi solid. j. Liver puncture through and though by stab injury corresponding to injury no. 4 of column no. 17
17. He has further deposed that, injuries mentioned in Column No. 17 of Post-mortem report are fresh injuries and are ante-mortem. He opined cause of death is due to hemorrhagic shock with stab injuries. Thus, on perusal of the aforesaid material, I have no hesitation to came to the conclusion that, death of the deceased is homicidal death. Therefore, I answer point no. 1 in affirmative. As to point no. 2 :
18. The accused specifically denied that he is known by name “Zinkya”. PW. 5 in his oral evidence has deposed that he knows the accused “Zinkya” as he is residing in his locality. He has identified the accused in the court by name “Zinkya”. During cross-examination except suggestion that he identified the accused on the say of parents of the deceased, no suggestion was put to him that the accused never been called by name “Zinkya”. S.C. 551/2016 10 Date : 26.02.2021
19. Salim Halim Shaikh (PW-9) in his evidence has deposed that at the time of incident his brother carried the injured in the hospital of “Dr. Beg”. Doctor told them to shift the injured to big Hospital. At that time he lifted the injured and carried him to Mulund General Hospital. He further deposed that he knew the injured and the accused “Zinkya” because in earlier incident the friend of injured assaulted the friend of the accused. He identified the accused in the court by name “Zinkya”.
20. During his cross-examination it has brought on record that he do not remember the date when his statement was recorded by the Police, he do not remember the registration number of auto-rickshaw, he was not present when his brother carried the injured to “Dr. Beg”, he had talked with the police in the hospital and police taken down the name of injured and of auto-rickshaw driver. The advocate of accused has put him specific suggestion that as the Police has shown him the accused “Zinkya” therefore, he has identified him in the court. He further stated that he knows him since his childhood. He denied to the suggestion that name of the accused is not “Zinkya”. Thus, from the suggestion given during cross-examination itself, it appears to me that defense has admitted the name of accused as “Zinkya”. Moreover, during his cross-examination it has specifically brought on record that he knew the accused since his childhood. Therefore, on perusal of the aforesaid evidence of PW. 5 & PW.9, in my view, the prosecution brought sufficient material to prove that the accused alias name is “Zinkya”. S.C. 551/2016 11 Date : 26.02.2021
21. It is argued by Ld. APP Mrs. Ashwini Raykar that Dr. Sanjay Wathore (PW-11) during his evidence has opined that the cause of death is due to hemorrhagic shock with stab injuries. He further opined that the incise injuries and stab injuries found on the vital part of the body, can be caused by knife (Art. E) which was recovered at the instance of accused. The recovery of knife (Art.E) is from isolated place. “Anwar Ali Shaukat Ali Shaikh” (PW-12) has proved the discovery of knife. The FSL report (Exh.70) shows human blood on the knife. There are no injuries found on the person of accused. The aforesaid material is sufficient to prove that the accused is the author of weapon.
22. It would further argue that PSI Suhas Lahanu Rahane (PW-15) has prepared Spot Panchnama (Exh.18). He collected blood stain soil and simple soil from the spot and seized and sealed in the presence of Dinesh Pandey (PW-3). The FSL report (Exh.70) shows human blood of “B” group found in the blood stain soil seized from the spot. The report further shows that the clothes of the deceased containing the blood group “B”. The testimony of Dinesh Pandey (PW-3), Panch Witness to the spot did not shake by the defence during cross-examination. There is no cross- examination on sealing and seizure of the material from the spot, put by defence. There is no question put by the defence about the presence of street light on the spot. Thus, Ld. APP contended that prosecution has proved Spot Panchnama. S.C. 551/2016 12 Date : 26.02.2021
23. It is further contended that, although Ramesh Yadav (PW-6) did not support the case of prosecution, but, his testimony to the extent that he saw two boys carrying injured on the road. The defence have admitted the presence of Shubham Kurmi (PW-1) on the spot. The clothes of Shubham Kurmi (PW-1) found smeared with blood group “B” which is the blood group of the accused. PSI Suhas Lahanu Rahane (PW-15) specifically deposed that, he has recorded report as per say of Shubham Kurmi (PW-1). The prosecution duly proved omissions in the statement of Shubham Kurmi (PW-1), wherein he has stated that, when Shubham Kurmi (PW-1) went near to the deceased and asked about the cause of death, the deceased stated that he was assaulted by the accused.
24. It is further vehemently contended that the Investigating Officer has no enmity with the accused. PSI Suhas Lahanu Rahane (PW-15) set criminal law in motion at the instance of Shubham Kurmi (PW-1). There is immediate registration of FIR. Therefore, from the aforesaid material, it is sufficient to come to the conclusion that the accused has caused death of the deceased.
25. It is further argued that, the prosecution has duly proved through the evidence of Kishor Naik (PW-5) that the accused made extra judicial confession of the crime to him. The evidence of Manoj Patil (PW-10) is corroborated with the version of Kishor Naik (PW-5) to the fact that on the day of incident, the S.C. 551/2016 13 Date : 26.02.2021 accused made phone call to him. The prosecution through Rafiq Mohd. Haroon Shaikh ( PW-7) and Salim Halim Shaikh (PW-.9) duly proved that the alias name of the accused is “Zinkya”. There is no mis-identity of the accused. Thus, in substance Ld. APP argued that, as the prosecution proved the presence of Shubham Kurmi (PW-1) on the spot, the blood stain of “B” Group is found on the clothes of the deceased, the knife recovered at the instance of accused containing human blood, the evidence of Kishor Naik (PW-5) is sufficient to prove extra judicial confession of the crime made by the accused and the identity of the accused is established by the prosecution to Rafiq Mohd. Haroon Shaikh (PW.7) and Salim Halim Shaikh (PW-.9), thus, from the aforesaid evidence, the prosecution has proved the guilt of the accused beyond reasonable doubt and hence, Ld. APP prayed for conviction of the accused.
26. Ld. Advocate Mr. Mooman for the accused argued that the prosecution cited Suhasini Naik (PW.2), Ramesh Yadav (PW-6) and Rafiq Mohd. Haroon Shaikh (PW-7) as eye witnesses to the incident. The prosecution utterly failed to prove their presence at the time of alleged incident. None of the witnesses deposed about how many blows were given by the accused . The prosecution did not examine single witness from the mob allegedly gathered at the time of assault. Shubham Kurmi (PW-1) although deposed that alongwith him his friend “Abbas” was also present but the prosecution failed to examine him. None of the witnesses have seen the actual act of assault nor any of the witnesses, including S.C. 551/2016 14 Date : 26.02.2021 Shubham Kurmi (PW-1), deposed about the presence of the accused on the spot at the time of incident. As per the version of Shubham Kurmi (PW-1), deceased was taken firstly to Dr. Beg but there is no medical certificate of injury issued by him nor he was examined to prove how many injuries were present on the person of the deceased.
27. It is further vehemently argued that none of the witnesses were confronted with the clothes of the deceased to prove that they have seen the deceased on the day of incident neither prosecution showed photograph of the deceased to any of the witnesses to prove that ‘Art. B’ and ‘Art. C’ were clothes on the person of the deceased. The accused was arrested after two days of incident. No accused will preserve blood stain cloths for two days. The cloth seizure Panchnama of accused (Exh.52) shows blood stains on two side of shirt. The panch witness Karansing Kushwaha (PW.13) do not speak about the blood stain on the chest side of shirt of the accused. The FSL report shows bloods stains on the pocket side of his shirt. The FSL report (Exh 70) do not show diameter of stains. The accused was having injuries on his person. The Investigating Officer did not obtain blood group of the accused. Therefore, no inference can be drawn that blood found on the cloths of the accused is of the deceased.
28. It is further argued that extra judicial confession is weak piece of evidence. The Investigating Officer did not obtain the phone number of Kishor Naik (PW-.5). There is no material to S.C. 551/2016 15 Date : 26.02.2021 show that the accused made phone call to Kishor Naik (PW-.5). Moreover, there is unexplained delay in recording statement of Kishor Naik (PW-.5). Hence, no value can be given to alleged extra judicial confession.
29. He would further urge that PW.11 deposed that the injuries described in column 17 can be caused by more than one weapon. It can be caused by “Gupti”. The discovery is from open place. The confessional statement is not voluntary. Hence, he has submitted that the prosecution utterly failed to prove that the accused is the author of the weapon. Thus, he has submitted none of the circumstances proved by the prosecution beyond reasonable doubt. Hence, he prayed for acquittal of the accused.
30. The prosecution's case solely lies on the evidence of PW.1, the first informant, PW.2, eye witness, who has seen the accused assaulting the deceased, PW. 5, to whom, the accused after incident made extra judicial confession of the crime on phone call and told him that his mother- PW.2, has seen him assaulting the deceased, so made him understand not to disclose the same to anyone, PW.6 who has seen the accused leaving after commission of the crime from the spot of incident, PW.7, who has seen the accused near his shop before commission of the crime and heard the scream as “zinkya mat mar, zinkya mat mar”, recovery of weapon at the instance of the accused and FSL report Exh.70, in which the shirt of the accused found with human blood and on his pant found human blood of B group. S.C. 551/2016 16 Date : 26.02.2021
31. PW. 1 in his oral evidence deposed that on the day of incident, at around 8.00 to 9.00 p.m., he was proceeding towards Jamil Nagar along with his friend to watch cricket match. From the road, he saw mob gathered in the lane. One person was found lying on the road in a pool of blood. He and his friend “Abbas” took him to “Dr. Farhan Beg”. But, he refused to admit the injured and advised to take him to big hospital. Then somebody took injured to hospital by auto-rickshaw. He further deposed that he was acquainted with the injured by face as he was residing in his locality. His name was “Lotela”. Somebody has informed to the police about the incident.
32. PW.1 during examination in chief, denied that he has lodged the report in the Police Station but, he has admitted his signature on the report (Exh.59) and printed form of FIR (Exh.58). He refused to verify the contents of the FIR. Therefore, Ld. APP was permitted to cross-examined him. During cross-examination, he has admitted that injured was found lying infront of one Girija Medical Store. His friend “Abbas” was carrying mobile phone. The Police made phone call on the mobile phone of Abbas and called them in the Police Station. He admitted that he has produced his shirt (Art.A) which was on his person on the day of incident. He has also identified his shirt.
33. During cross-examination, conducted by the Ld. Advocate for the accused, he has admitted his presence on the spot where, injured was found lying between 8.45 p.m. to 9.00 p.m. During S.C. 551/2016 17 Date : 26.02.2021 cross-examination, he has deposed that, the deceased was not in position to speak. It took 2-3 minutes to take the injured to “Dr. Farhan Beg”. The deceased was not in position to narrate the incident to “Dr. Farhan Beg”. In the hospital police inquired with him about the incident and thereafter he was called in the police station. He has admitted to the suggestion given by the defense that father of deceased met him in the Hospital but he told him that he do not know about the incident. He did not identify the accused in the Court.
34. Thus, PW.1 who is the star witness of the prosecution though admitted his presence on the spot, he took the injured to “Dr. Beg” and also admitted that upon call made by police he and his friend went to the police station but denied that the deceased told him the cause of his death and lodging of report. The prosecution proved omissions of report (Exh.59) through PW. 15. Therefore, Ld. APP argued that although PW.1 did not support to the case of prosecution on material aspect of the cause of death, but admission of his presence on the spot and immediate lodging of FIR by PW.15, there is no scope for false implication of the accused. PW. 15 has no enmity with the accused to falsely implicate him in the crime.
35. Per contra Ld. Adv. Mooman for the accused argued that during cross-examination PW.1 deposed that he was present in the hospital. Police inquired with him. He informed to the father of deceased that he do not know anything about the incident. Thus, it S.C. 551/2016 18 Date : 26.02.2021 is submitted by him that PW. 1 did not disclose the cause of death when he was in the Hospital. On the contrary, the father of the deceased, while he was in the Hospital, made statement (Exh. 64) that some unknown person has killed his son. Therefore, lodging of report against the accused at the instance of PW.1 is highly doubtful. In fact the statement (Exh.64) is first in point of time, which indicate information given by father of the deceased with respect to commission of cognizable offence. Therefore, report (Exh. 59) cannot be treated as first information report.
36. I have perused the evidence of PW.1, cloth seizure Panchnama (Exh.21) and inquest Panchnama (Exh.20). As per version of PW. 11, the deceased was brought to the Hospital on 09.04.2016 at about 9.25 pm and he was declared dead at about
9.40 pm. PW. 15 seized the cloths of deceased and prepared cloth seizure Panchnama (Exh.21) between 10.00 pm to 10.30 pm and inquest Panchnama (Exh.20) was prepared between 10.30 pm to
11.30 pm.
37. During cross examination conducted by defence it has been brought on record that he reached in the hospital at about 10.30 pm. When he reached in the hospital he did not know the assailant. On 08.04.2016 his statement was recorded by the police and obtained his signature. The case diary entry shows the ADR report prepared by PSI Suhas Lahanu Rahane (PW.15) at about
11.50 pm. The ADR report shows that PSI Suhas Lahanu Rahane S.C. 551/2016 19 Date : 26.02.2021 (PW.15) has recorded statement of Chandramul Lohar Singh (PW.14) and Mohd Salim Shaik (PW.9)
38. During cross-examination by defense PSI Suhas Lahanu Rahane (PW.15) has deposed that he has recorded statement of Chandramul Lohar Singh (PW.14) in ADR proceeding. At the same time, he has also admitted that it nowhere reflected from the said statement (Exh.64) that it was taken for the purpose of ADR. Thus, on analysis of aforesaid material, although it nowhere reflects from statement(Exh.64) that it was recorded for ADR, but other material shows that the said statement (Exh.64) was recorded for the purpose of ADR only. Hence, I am not agreeable with the submission of the defence advocate that (Exh.64) is first point in time giving information of cognizable offence.
39. On the contrary PSI Suhas Lahanu Rahane (PW.15) deposed that after sending dead body for post-mortem, he came to police station and recorded FIR on the basis of report given by Shubham Kurmi (PW.1). FIR (Exh.58) shows that police received information on 08.04.2016 at about 9.45 pm and entry in general diary was taken on 09.04.2016 at about 12.45 am. Shubham Kurmi (PW.1) during his cross examination has deposed that in the hospital he was inquired by one police officer and thereafter, he went to police station. He further deposed that Chandramul Lohar Singh (PW.14) inquired with him about the incident, but he told him that he do not know about the same. This creates doubt whether the deceased really disclosed him name of the assailant. S.C. 551/2016 20 Date : 26.02.2021 There is no suggestion put to Shubham Kurmi (PW.1) by prosecution either during cross-examination or re-examination that at what time he has put his signature on printed proforma of FIR (Exh. 58) & Report (Exh. 59). No doubt Shubham Kurmi (PW.1) did not support to the case of prosecution, but he is the only witness, as per the case of prosecution, to whom the deceased disclosed the cause of death. On the basis of other material his presence is admitted but except oral testimony of PSI Suhas Lahanu Rahane (PW.15), there is no other material available to come to the conclusion that deceased disclosed cause of death to him. Therefore, above material creates doubt in my mind, whether really the deceased disclosed that the accused has assaulted him. Therefore, I am of the view, that the evidence of Subham Kurmi (PW.1) is not much helpful to the prosecution.
40. Suhasini Shantaram Naik (PW. 2) in her oral evidence deposed that she knows “Zinkya” as he is residing in her locality. Her son also knows him. On the day of incident she heard commotion as “Zinkya maru nakos, Zinkya maru nakos,” so she also raised the same voice and left from there. She did not see the incident. Thus, she did not support the case of prosecution. During her cross-examination by APP, she denied to suggestions of the case of the prosecution. The prosecution proved omissions in her statement through PI Mahesh Maruti Patankar (PW.16). As Suhasini Shantaram Naik (PW. 2) did not support the prosecution and only evidence of PI Mahesh Maruti Patankar (PW.16) is S.C. 551/2016 21 Date : 26.02.2021 available, in my view, without coroboration evidence of PI Mahesh Maruti Patankar (PW.16) cannot be consider.
41. PW. 5 in his evidence deposed that on 08.04.2016 at around
9.30 p.m. he has received phone call of “Zinkya”. He informed him that he has killed Lotela and his mother saw him. He gave understanding to tell his mother not to tell about the incident to anybody. He further deposed that the name of victim was Akhilesh @ Lotela, he was residing in his locality. He has also identified the accused in the court by name “Zinkya”.
42. PI Mahesh Maruti Patankar (PW.16) during investigation vide, its letter dated 31.05.2016 (Exh.40) in order to obtain CDR and SDR of phone numbers 7710902522, 997637440, 9967635644, issued letter to the nodal officer of Bhartia Airtel Company. Manoj Manikrao Patil (PW.10) vide, its letter (Exh.41) informed that above phone numbers are standing in the name of the accused. The accused in his statement u/s 313 of Cr.P.C. stated that the aforesaid numbers are in use of his family members and he do not use the same. PI Mahesh Maruti Patankar (PW.16) in his evidence has deposed that call details of the phone of the accused reveled that he made phone call on 08.04.2016 at about 9.37 pm.
43. Therefore, Ld. APP Mrs. Raykar, argued that Kishor Shantaram Naik (PW.5) during his cross examination deposed that he do not remember the sim number of the accused by which he made phone call. Thus, she has submitted that the defense S.C. 551/2016 22 Date : 26.02.2021 admitted that the accused made phone call to the Kishor Shantaram Naik (PW.5) on the day of incident. The CDR and SDR details corroborate the aforesaid fact. Therefore, the extra judicial confession made by the accused to Kishor Shantaram Naik (PW.5) and understanding given by him to Kishor Shantaram Naik (PW.5) about not to disclose the incident to anyone, is being proved by the prosecution.
44. Per contra Ld. Advocate Mr. Mooman argued that the investigation officer did not seize the mobile phone of Kishor Shantaram Naik (PW.5), did not produce purchase bill of his phone nor bring on record the phone number of Kishor Shantaram Naik (PW.5). There is a delay in recording statement of Kishor Shantaram Naik (PW.5). His statement was recorded by PI Mahesh Maruti Patankar (PW.16) on 25.04.2016. Kishor Shantaram Naik (PW.5) deposed that since the day of incident till 25.04.2016 police did not contact him nor he went to the police station and he was at Mumbai. Even till recording of his statement he did not disclose to anyone that the accused made phone call to him and gave extra judicial confession of the crime. Even the voice of “Zinkya” is not confirmed with him by the prosecution. Thus, he has submitted that non-disclosure of material fact at earliest opportunity cast serious doubt on the version of witness.
45. Mr. Mooman further argued that Manoj Patil (PW.10), nodal officer, did not state when Sim of phone number 7710902522 was reactivated. There is no proof that on 08.04.2016, the above phone S.C. 551/2016 23 Date : 26.02.2021 was active. Therefore, he has submitted that circumstance of alleged extra judicial confession is not proved at all by the prosecution. In support of his submissions he has relied on the judgment of Hon'ble Apex Court reported in 1979 Cr. L. J. 1217 in case of Lakhanpal -vs- State of Madhya Pradesh, 1977 Cr. L. J. 985 in case of Satbir Singh -vs- State of Punjab.
46. I have perused the evidence of Kishor Shantaram Naik (PW.5). During his cross-examination he has deposed that he and his mother, Suhasini Shantaram Naik (PW.2), went together for recording of statement. It appears from statement of Suhasini Shantaram Naik (PW.2) that it was recorded by Kishor Shantaram Naik (PW.5) on 11.04.2016. Admittedly, statement of Kishor Naik (PW.5) was recorded on 25.04.2016 i.e. after 17 days from the date of incident.
47. Kishor Shantaram Naik (PW.5) during his evidence deposed that he was present in Mumbai. He did not disclose anyone the aforesaid fact of accused made phone call to him and admitted the guilt. PI Mahesh Maruti Patankar (PW.16) during his cross examination deposed that prior to 25.04.2016 he tried to record statement of Kishor Shantaram Naik (PW.5) and therefore on 11.04.2016, he visited his house but he was not available in his house. Upon question being put to him by the defense that did he issue any summons of appearance to Kishor Shantaram Naik (PW.5), PI Mahesh Maruti Patankar (PW.16) deposed that he personally visited his house. He further deposed that after S.C. 551/2016 24 Date : 26.02.2021 11.04.2016 he made phone call to Kishor Shantaram Naik (PW.5). But Kishor Shantaram Naik (PW.5) did not utter a single word that PW.16 visited to his house or made phone call to him.
48. Thus, upon considering the version of Kishor Shantaram Naik (PW.5) and Mahesh Maruti Patankar (PW.16), it appears to me that Kishor Shantaram Naik (PW.5) has visited the police station on 11.04.2016 but PI Mahesh Maruti Patankar (PW.16) did not record his statement on that day. Kishor Shantaram Naik (PW.5) was very much available in Mumbai. Inspite of that, PI Mahesh Maruti Patankar (PW.16) recorded his statement on 25.04.2016. Thus, there is delay in recording of his statement and no plausible explanation given by PI Mahesh Maruti Patankar (PW.16) of such delay. Therefore, the version of Kishor Shantaram Naik (PW.5) is not reliable to prove that extra judicial confession of the crime made by the accused. Even neither PSI Suhas Lahanu Rahane (PW.15) nor Mahesh Maruti Patankar (PW.16) obtained the phone call details of Kishor Shantaram Naik (PW.5). None of them have brought on record the phone number of Kishor Shantaram Naik (PW.5). In my view, mere proof of phone call made by the accused, in the absence of proof of phone number to whom call is made, is not sufficient to infer that on 08.04.2016 at about 9.37 pm, the accused made phone call to Kishor Shantaram Naik (PW.5) and made extra judicial confession. Moreover, there is no proof of details of alleged communication between the accused and Kishor Shantaram Naik (PW.5). Therefore, in my view, there is no coroborative material brought on record by the prosecution S.C. 551/2016 25 Date : 26.02.2021 to show that the accused made phone call to Kishor Shantaram Naik (PW.5) and made extra judicial confession of the guilt. Therefore, I do not wish to discuss the judgments relied by the defense advocate on the point of admissibility of extra judicial confession.
49. Ramesh Jagannath Yadav (PW. 6) is the proprietor of Girija Medical store. In his examination in chief he only deposed that he has seen two boys carrying injured boy on road. His shop is abutting to road and adjacent to mobile repairing shop. But latter on he did not support to the case of prosecution. During cross- examination conducted by the Ld. APP, he has admitted that he know a person by name “Zinkya” and incident occurred on 08.04.2016 at around 8.45 pm. But he denied to the suggestion that he has seen the accused assaulting the deceased and leaving from the spot.
50. Rafiq Mohd. Haroon Shaikh (PW.7) is the proprietor of “Alshifa Enterprises”, a mobile repairing shop. He has deposed that the Girija Medical store is situated on his right side shop. On the day of incident he was present at his shop but he was busy and did not see the incident. Thus, Rafiq Mohd. Haroon Shaikh (PW.7) did not support the case of prosecution and nothing elicited from his cross-examination conducted by the prosecution.
51. Thus, the testimony of Suhasini Shantaram Naik (PW.2), Kishor Shantaram Naik (PW.5), Ramesh Jagannath Yadav (PW.6) & S.C. 551/2016 26 Date : 26.02.2021 Rafiq Mohd. Haroon Shaikh (PW.7) do not establishes the case of prosecution at all. The next circumstance relied by the prosecution is discovery of Weapon Art. E. Anwarali Shaukatali Shaikh (PW.12) is the panch to the disclosure statement (Exh.48) and discovery of weapon. During examination in chief, he has supported to the case of prosecution. He has deposed that on 12.04.2016 he has witness disclosure statement made by the accused and in pursuance of which he has produce knife (Art. E). But during cross-examination he gave damaging admission that confessional memorandum was already prepared by the police and he has signed subsequently. It was read over to him by the police.
52. Ld. APP vehemently argued that during cross-examination Anwarali Shaukatali Shaikh (PW.12) denied to the suggestion that he was informed that the accused was going to make disclosure statement and will be producing the weapon used in the crime. He also inquired with the accused and the accused stated him about the crime. The testimony of Anwarali Shaukatali Shaikh (PW.12) is not challenged on the point of sealing and seizure of weapon. The blood stain found on the weapon, which is confirmed by FSL report (Exh.70), showing that it contains human blood. The accused produced weapon which was hidded by him behind Electric DP, which is isolated place. Therefore, it was only within knowledge of the accused where he has kept the weapon. Therefore, she has argued that discovery of weapon is proved by the prosecution beyond all reasonable doubt. S.C. 551/2016 27 Date : 26.02.2021
53. Per contra Ld. Advocate Mooman argued that there is no proof that the accused made voluntary confessional statement. No accused would hid the weapon after commission of the offence. The Investigating Officer did not record the statement of owner of house on whose back side of the house, the said DP was situated. Anwarali Shaukatali Shaikh (PW.12) did not depose that he has seen the blood stain on the weapon. Moreover, Dr. Sanjay Deoba Wathore (PW.11) admitted that the injuries on the person of deceased can be possible by “Gupti” or other sharp edge weapon. Admittedly the weapon was not send by the Investigating Officer for query. There is no finger print expert opinion. Hence, alleged discovery cannot be incriminating circumstance against the accused. In support of his submissions he has relied on the judgment of Hon'ble Apex Court reported in AIR 1956 SC. 217 in case of Aher Raja Khima -vs- State of Saurashtra, AIR 1987 SC 1507 in case of Kansa Behra -vs- State of Orissa.
54. I have perused evidence of Dr. Sanjay Deoba Wathore (PW.11) and Anwarali Shaukatali Shaikh (PW.12). The admission on the part of Anwarali Shaukatali Shaikh (PW.12) that the confessional memorandum (Exh 48) was already prepared, creates a doubt in my mind about the voluntaryness of statement made by the accused. The admission made by PW.11 in his cross- examination that the injuries mentioned in column 17 of Post- morterm report may be caused by “Gupti” and those may be caused by more than one weapon again strengthens, the doubt whether the injuries mentioned in column 17 of P.M. report are S.C. 551/2016 28 Date : 26.02.2021 caused by Art. E. Moreover, IO did not obtain the weapon query report after its recovery. Therefore, in my view, the aforesaid circumstance of discovery of weapon at the instance of the accused do not connect with the guilt of the accused. Even otherwise also there is no substantive evidence on record. The discovery of weapon is corroborative piece of evidence. Hence, in my view, prosecution failed to prove circumstance of discovery of weapon at the instance of the accused, beyond reasonable doubt. As there is no convincing evidence available on the circumstance of discovery of weapon at the instance of the accused, I do not find necessary to discuss the citations relied by the defense.
55. The next circumstance relied by the prosecution is the blood stain on the cloths of the accused. PSI Suhas Rahane (PW.15) in his evidence deposed that on 08.04.2016 at about 9.45 pm he has received intimation from Mulund General Hospital about death of one unknown person. Accordingly, after making entry in the General Case Diary, he along with Constable Shetty proceeded towards the hospital. When he reached in the hospital, Doctor declared the deceased as dead. Therefore, he proceeded to prepare Seizure Panchnama (Exh.21) and seized blood stained clothes of the deceased (Art. B, C and D). The dead body was identified by the father of the deceased. He has prepared Inquest Panchnama (Exh.20). Thereafter, he has obtained FIR Number from Police Station and sent the dead body for Post-Mortem. He went to the Police Station and registered the FIR on the basis of report given by Shubham Kurmi (PW.1), against one “Zinkya”. S.C. 551/2016 29 Date : 26.02.2021
56. PSI Suhas Lahanu Rahaje (PW. 15) seized the cloths of deceased vide seizure Panchnama (Exh.21). Radheshyam Ramsundar Singh (PW.4) is the panch to the cloth seizure panchnama of deceased and inquest Panchnama (Exh.20). Radheshyam Ramsundar Singh (PW.4) in his evidence has deposed that on 08.04.2016 he was in the Mulund General Hospital. At the request of police he acted as panch. In his presence police prepared inquest and Cloth Seizure Panchnama. He has identified the clothes of the deceased (Art. B to Art. D). During cross- examination except denial nothing has been brought on record to disbelieve his testimony.
57. PI Patankar (PW.16) in his evidence deposed that on 16.04.2016 vide, letter (Exh.69), he has sent seized Muddemal to FSL through WPC Manisha Charade. The aforesaid seized muddemal consist of blood sample and blood stained cloths of the deceased. The FSL report (Exh.70) shows human blood of group “B” found on the clothes of the deceased. But the FSL report (Exh. 71) shows that the blood was haemolysed and hence unsuitable for blood grouping. Thus, the blood group of the deceased could not be assessed.
58. Ld. APP Mrs. Ashwini Raykar argued that, the inquest and cloth seizure Panchnama of the deceased (Exh.20 & Exh.21) shows that the deceased clothes were smeared in the pool of blood. Neither accused nor any other witnesses had any injuries to doubt S.C. 551/2016 30 Date : 26.02.2021 that the blood on the clothes of deceased may be of other persons. The FSL report (Exh.70) shows human blood of group “B” on the cloths of the deceased and it is nothing but the blood group of the deceased only. The cloths of accused also shows human blood of group “B”. The accused did not explain the blood stains on his cloths. Hence, hence, aforesaid circumstance goes to show involvement of the accused in the crime. As the defense did not explain the reason of blood stain on the cloths of the accused, an adverse inference needs to be drawn against the accused.
59. Per contra Ld. Adv Mooman argued that FSL report (Exh.71) with respect to blood group of the deceased is inconclusive. The chemical analyzer is under duty to described in its report about the number of blood stain on the articles and extent of blood stain. FSL report (Exh.70) do not reflect above material. Hence, FSL report (Exh.70) cannot be relied upon and no inference could be drawn that the blood group of the deceased was “B”. In support of his submissions he has relied on the judgment of Hon'ble Apex Court reported in AIR 1956 SC 51 in case of Prabhu Babaji Navle - vs- State of Bombay.
60. It is further argued that the accused was assaulted by the police. PSI Sawant prepared Arrest Panchnama and form (Exh.65 colly) of the accused. The prosecution did not examine him. There is no evidence that after arrest the accused was medically examined. Hence, possibility of blood stains on his clothes is of the S.C. 551/2016 31 Date : 26.02.2021 accused cannot be ruled out. He has further argued that mere blood stains cannot be an incriminating circumstance against the accused.
61. The defense although argued that the accused was having injuries at the time of his arrest. But he has not put single suggestion to any of the witnesses. Moreover, the case dairy shows that the medical examination of the accused was conducted immediately after his arrest. Hence, I am unable to accept the contentions of the defense that the accused was having any injuries on his person. During entire investigation there is not a single document or material on record to show that except deceased any body had bleeding injuries. Therefore, although the FSL report (Exh. 71) with respect to the blood of the deceased is haemolysed but the blood found on the cloths of the deceased is human blood having blood group B, in my view, it is the blood group of the deceased only.
62. The defense admitted cloth seizure Panchnama (Exh.32) of Shubham Kurmi (PW.1), Mohd. Salim Halim Shaikh @ Mama (PW.9) and Abbaz Rukhmudding Shaikh. The FSL report (Exh.70) shows blood stain of Group B on the cloths of Salim Hamid, PW.1 and Arbaz Shaikh. The testimony of Karansing Kushwaha (PW13) panch to cloth seizure of accused is not shaken during cross- examination. He has supported the prosecution. His testimony is reliable. The FSL report is unambiguously shows human blood found on the shirt of the accused and blood of group B is found on S.C. 551/2016 32 Date : 26.02.2021 his pant. The accused did not explain how his cloths are having blood stains. The aforesaid circumstances, goes to show that it is nothing but the blood of the deceased which was found on the cloths of the accused.
63. In the case Prabhu Babaji Navle (Supra) , the C.A. report was slovenly and perfunctory, therefore, Hon'ble Apex Court held that C.A. should indicate the number of blood stains found on each exhibit and the extent of each stain, unless they are too minute or too numerous to be described in detail. In case in hand, C.A. report although does not mention the diameter of blood stain on each exhibits but there is no material to create doubt that report (Exh.70) is perfunctory. Hence, with due respect, in my view, the above case law is not applicable in given facts and circumstance of the case.
64. Thus, after considering the entire material brought by the prosecution, it appears that the plinth of prosecution case is demolished by evidence of direct witnesses Shubham Kurmi (PW.1), Suhasini Naik (PW.2), Kishor Naik (PW.5), Ramesh Yadav (PW.6) & Rafiq Mohd. Haroon Shaikh (PW.7). The circumstantial evidence in the nature of discovery of weapon and extra judicial confession is not at all reliable. The only circumstance against the accused is the blood stain of group “B” found on his cloths, in my view, that itself is not sufficient to prove the guilt of the accused. Hence, in my view, the accused needs to be acquitted. Therefore, I answered point no.2 in negative. S.C. 551/2016 33 Date : 26.02.2021
65. As to point no. 3 : In order to answer above point I thus, proceed to pass following order:- ORDER
1. Accused Ramsudhar @ Zinkya Ramjangeshwar Choudhari is hereby acquitted for the offence punishable under Section 302 of the Indian Penal Code in connection with C.R.No.147/2016 registered with Bhandup Police Station, Mumbai vide under Section 235(1) of the Code of Criminal Procedure.
2. The accused is in jail. He be set at liberty if, not required in any other case.
3. Art-A:- Brown Shirt, Art-B :-Jeans Pant, Art-C:- T-shirt and Art-D:-Underwear, Art-F (colly):-White colour full sleeves shirt and blue colour jeans being worthless, be destroyed after appeal period is over.
4. Art.E:- Knife be sent to Collector, Mumbai through Bhandup Police Station for proper disposal as per law after appeal period is over.
5. The marked and unmarked articles, if any, shall be disposed of, after appeal period is over. S.C. 551/2016 34 Date : 26.02.2021
6. Accused shall furnish P.R. bond of Rs. 15,000/- and Surety of like amount as per the Provision of Section 437-A of the Code of Criminal Procedure.
7. Judgment is pronounced and dictated in open Court. (A. H. LADDHAD) DATE: 26/02/2021 ADDITIONAL SESSIONS JUDGE GREATER MUMBAI Dictated on : 26/02/2021 Transcribed on : 26/02/2021 Signed on : 03/03/2021 S.C. 551/2016 35 Date : 26.02.2021 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.” 04.03.2021 11.30 a.m. (Ms. V. V. Sawant) UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge (With Court HHJ SHRI A. H. LADDHAD room No.) (C.R.No.56) Date of Pronouncement of 26.02.2021
JUDGMENT/ORDER
JUDGMENT/ORDER signed by 03.03.2021 P.O.on
JUDGMENT/ORDER uploaded on 04.03.2021
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SESSIONS CASE NO.
551 OF 2016 CASE NO.
497/PW/2016 EXHIBIT NO.
78 The State of Maharashtra At the instance of Bhandup Police Station, C.R.No.147/2016 ….
Prosecution Versus Ramsudhar @ Zinkya Ramjangeshwar Choudhari Age- 33 years Add- Room No.1, Munshimahal, Ramlakhan Yadav Chawl, Water Tank Road, Jamil Nagar, Behind Ahilya Vidyalaya, Bhandup (W), Mumbai-78.
...Accused Appearances : Ld.
APP Mrs. Ashwini Raykar for the State.
Ld.
Adv.
Mr. Mooman for the accused.
S.C. 551/2016 2 Date : 26.02.2021 CORAM :HIS HONOUR THE ADDITIONAL SESSIONS JUDGE SHRI.
A. H. LADDHAD DATE : 26/02/2021 (Court Room No.56)
JUDGMENT OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE .
----------------------------------------------------------------------------------------------------1. The accused is facing charge for the offence punishable under section 302 of Indian Penal Code ("I.P.C". in short). The prosecution case is as under :
2. On 08.04.2016 at about 9.00 p.m., the first informant Shubham Kurmi and his friend Abbaz Shaikh were going to Jamil Nagar ground to play Cricket. On their way, near to Litter-bin at Jamil Nagar, in front of Girija Medical Store, Bhandup (West), Mumbai – 400 078, he found mob. He got to know that one person is being assaulted. Therefore, he immediately made phone call on 100 number from mobile phone of his friend Abbaz. Thereafter, he went to see the person being assaulted. Upon that, he found Akhilesh Singh @ Lotela was lying prostate on the floor, blood was oozing from his body and his clothes were smeared in blood. As Akhilesh was suffering from pain, he was groaning for help. Therefore, he went towards him and asked “D;k gqvk ? ”. Upon that, Akhilesh stated “f>aaD;kus ekjk” and he was groaning. The first informant immediately with the help of his friend Abbaz took Akhilesh to Dr. Farad. As they reach, Dr. Farad told to take Akhilesh to Mulund Hospital immediately. Therefore, the first S.C. 551/2016 3 Date : 26.02.2021 informant and his friend Abbaz put the Akhilesh into Auto-rikshaw and asked driver to take him at Mulund General Hospital. At that time, the first informant came to know from the mob that, due to old enmity, “Zinkya” assaulted Akhilesh.
3. As the clothes of the first informant were smeared in blood therefore, he went to his home to change the clothes. After sometime, Beat Marshal of Bhandup Police made a phone call on phone number 8268079300 to Abbaz and made inquiry about the phone call made by him. Therefore, he went to police and thereafter, the police brought him to Bhandup Police Station. The police made an inquiry about the incident with him. At that time, police informed him that Akhilesh died at Mulund General Hospital.
4. Thus, the first informant informed that on 08.04.2019 at about 9.00 p.m. the accused due to old enmity with Akhilesh committed his murder by sharp edge weapon. Therefore, he made report (Exh.59) with Bhandup Police Station.
5. On the basis of the aforesaid report (Exh.59), PSI Suhas Rahane lodged FIR No. 147 of 2016 (Exh. 58) against the accused “Zinkya” for offence punishable u/s. 302 of I.P.C. and thereby, set criminal law in motion.
6. PSI Suhas Rahane (PW-15), on 08.04.2016 seized blood stain clothes of the deceased and prepared Cloth Seizure S.C. 551/2016 4 Date : 26.02.2021 Panchnama (Exh. 21). He further prepared Inquest Panchnama (Exh.20) in the hospital and sent dead body for post-mortem. He has visited the spot of incident, collected blood stain soil, simple soil and prepared spot panchnama (Exh.18) on 09.04.2016 he seized blood stain clothes of Shubham Kurmi (PW.1), Mohd. Salim Halim Shaikh @ Mama (PW.9) and Abbaz Rukhmudding Shaikh and prepared Cloth Seizure Panchnama (Exh.32).
7. On 10.04.2016 PSI R.S. Sawant arrested the accused under Arrest Panchnama (Exh.65 colly). PI Patankar (PW. 16) on 10.04.2016 seized clothes of the accused containing blood stain and prepared Clothes Seizure Panchnama (Exh. 52).
8. During custody on 12.04.2016, the accused showed his willingness to make Confessional Statement and produce knife used in commission of an offence. Accordingly, PI Patankar (PW-16) recorded Confessional Memorandum of the accused (Exh.48) and in pursuance of the same the accused produced knife (Art. E) which was hided by him behind Electric D.P. situated at Jai Durga Nagar, Pansare Compound, Hanuman Nagar, P.N. Road, Bhandup. Accordingly, PI Patankar recorded Discovery Panchnama (Exh. 50).
9. On 16.04.2016, PI Patankar sent Muddemal to Forensic Laboratory with requisition (Exh. 59) and after recording the statement of relevant witnesses, completed investigation and filed chargesheet against the accused for the offence punishable u/s. 302 of I.P.C. S.C. 551/2016 5 Date : 26.02.2021
10. My Predecessor framed charge (Exh.7) against the accused for the offence punishable u/s 302 of IPC. The accused did not plead guilty (Exh.8). The prosecution in order to prove guilt of the accused, examined in all 16 witnesses. PW. 1 – Shubham Kurmi, the first informant (Exh. 13), PW.2 – Suhasini Naik, eye Witness to the incident (Exh.16), PW.3 – Dinesh Pandey, Panch Witness to Spot Panchnama (Exh. 17), PW.4 – Radheshyam Singh, Panch Witness to Inquest Panchnama (Exh.19), PW.5 – Kishor Naik, (Exh.23), PW.6 – Ramesh Yadav, eye Witness (Exh25), PW.7 – Rafiq Mohd. Haroon Shaikh, eye Witness (Exh.31), PW.8 Mahesh Gawade, Auto Rikshaw Driver who took the deceased to Mulund General Hospital (Exh.34), PW.9 – Salim Halim Shaikh, Brother of Abbas who took the deceased to Dr. Farad (Exh.35), PW.10 – Manoj Patil, Noddle Officer of Airtel Company (Exh. 39), PW. 11 – Dr. Sanjay Wathore, who conducted Post-mortem report of the deceased (Exh. 43), PW.12 Anwar Ali Shaukat Ali Shaikh, Panch witness to Discovery Panchnama (Exh. 47), PW.13 – Karanshingh Khushwah, Panch Witness to Seizure of Clothes of the accused (Exh. 51), PW. 14 – Chandramul Loharsingh, Father of the deceased (Exh. 54), PW.15 – Suhas Lahanu Rahane, PSI, who conducted part of investigation (Exh.57), PW.16 – PI Mahesh Patankar, who completed investigation and filed Charge-sheet (Exh.64). The prosecution has closed their side by filing pursis (Exh.72).
11. I have recorded statement of the accused as per Section 313 of Cr.P.C. (Exh.73). On the basis of cross-examination and as per S.C. 551/2016 6 Date : 26.02.2021 statement recorded u/s 313 of Cr. P. C, it appears that the accused took defense that his name is not “Zinkya” and he is falsely implicated in the crime. The accused did not adduce any evidence.
12. I have heard Ld. APP Mrs. Raykar for the State and Ld. Advocate Mr. Mooman for the accused. Thus, after perusing the oral as well as documentary evidence adduced by the prosecution and after hearing their arguments, following points arise for my determination and I gave my findings accordingly. POINTS FOR DETERMINATION Sr. No POINTS FINDINGS
1. Whether the prosecution proved YES that, the death of deceased Akhilesh Singh @ Lotela is homicidal death?
2. Whether the prosecution proved that the accused on 08.04.2016 at 9.00 p.m. at Jamil Nagar, opposite to Girija Medical Stores, Near to litter bin, No Bhandup (West), Mumbai assaulted the deceased Akhilsh Singh @ Lotela by knife and caused his death thus, committed an offence punishable u/s. 302 of Indian Penal Code? S.C. 551/2016 7 Date : 26.02.2021 Sr. No POINTS FINDINGS
3. What order? Accused is acquitted as per final order. REASONS As to point no. 1 :
13. The prosecution in order to prove that the deceased died due to homicidal death, is relying on the Inquest Panchnama (Exh.20). PW.4 is the Panch Witness to the Inquest Panchnama. He has deposed in his oral evidence that on 08.04.2016, he was present at Mulund General Hospital. Upon request of police, he acted as a Panch Witness to the Inquest Panchnama (Exh.20). He has deposed that the deceased was having injury on forehead above left eyebrow. One bleeding injury on chest and left rib.
14. I have perused the Inquest Panchnama (Exh.20). PW.16 while preparing the Inquest Panchnama mentioned the injuries on forehead of 7 cm. x 0.5 cm., stab injury on chest of 2 cm., on left side rib of 2 cm., internal stab wound of 2cm, stab wound of 2 cm on right side rib of the deceased. Likewise, the intestine material from right side found come out from the body. Thus, inquest Panchnama refers to in all 5 stab wound injury and one sharp cut injury on the deceased.
15. The prosecution examined Dr. Sanjay Wathore (PW-11). He has prepared Post-mortem report (Exh.46). He has mentioned following external injuries : S.C. 551/2016 8 Date : 26.02.2021
1. Sharp Cut (incise) injury on forehead. Oblique from right eyebrow and left forehead 7cm X ½ cm. X bone deep.
2. Stab injury on the left chest 1’’ above the nipple medially 2 ½ cm. x 1 cm. x 10 cm. Deep, directing inwards and medially from 3rd and 4th rib cutting pericardium and piercing inside the left ventricle cavity 1 cm. tailing.
3. Stab injury on the left chest on lower side 5’’ below left nipple 2 cm. x 1 ½ cm. tailing 2 cm. directing outwards downwards with exit wound on lateral side 1 ½ cm. x 1 cm.
4. Stab injury on the right lower chest below right nipple 3 cm. x 1 cm. x abdominal cavity deep. Piercing liver and outside of intestine with intestine intramesenteric hemorrhage.
5. Stab injury on abdomen 4 cm. x 1 ½ cm. on right side lateral side of umbilicus 1 ½” abdominal cavity deep directing towards spine.
6. Incise injury on right thumb on lateral side 1 cm. x ¼ cm. x ¼ cm.
7. Incise injury on nape of the neck posteriorly horizontal 5 cm. x ½ cm. x ½ cm.
16. Dr. Sanjay Wathore (PW-11) further mentioned following internal injuries:- a. Thorax wall punctured, ribs and cartilages intact. b. pleura punctured. c. Larynx Trachea and bronchi contains blood stained S.C. 551/2016 9 Date : 26.02.2021 flow. d. Right lung and left lung are pale, Thoracic cavities contains 1 litter blood and blood clots. e. Pericardium punctured. f. Heart punctured at the left ventricle deep inside cavity. g. Walls punctured. h. Peritoneum and Cavity contains 100 ml. Blood. i. Stomach contains 100 ml semi digested, semi solid. j. Liver puncture through and though by stab injury corresponding to injury no. 4 of column no. 17
17. He has further deposed that, injuries mentioned in Column No. 17 of Post-mortem report are fresh injuries and are ante-mortem. He opined cause of death is due to hemorrhagic shock with stab injuries. Thus, on perusal of the aforesaid material, I have no hesitation to came to the conclusion that, death of the deceased is homicidal death. Therefore, I answer point no. 1 in affirmative. As to point no. 2 :
18. The accused specifically denied that he is known by name “Zinkya”. PW. 5 in his oral evidence has deposed that he knows the accused “Zinkya” as he is residing in his locality. He has identified the accused in the court by name “Zinkya”. During cross-examination except suggestion that he identified the accused on the say of parents of the deceased, no suggestion was put to him that the accused never been called by name “Zinkya”. S.C. 551/2016 10 Date : 26.02.2021
19. Salim Halim Shaikh (PW-9) in his evidence has deposed that at the time of incident his brother carried the injured in the hospital of “Dr. Beg”. Doctor told them to shift the injured to big Hospital. At that time he lifted the injured and carried him to Mulund General Hospital. He further deposed that he knew the injured and the accused “Zinkya” because in earlier incident the friend of injured assaulted the friend of the accused. He identified the accused in the court by name “Zinkya”.
20. During his cross-examination it has brought on record that he do not remember the date when his statement was recorded by the Police, he do not remember the registration number of auto-rickshaw, he was not present when his brother carried the injured to “Dr. Beg”, he had talked with the police in the hospital and police taken down the name of injured and of auto-rickshaw driver. The advocate of accused has put him specific suggestion that as the Police has shown him the accused “Zinkya” therefore, he has identified him in the court. He further stated that he knows him since his childhood. He denied to the suggestion that name of the accused is not “Zinkya”. Thus, from the suggestion given during cross-examination itself, it appears to me that defense has admitted the name of accused as “Zinkya”. Moreover, during his cross-examination it has specifically brought on record that he knew the accused since his childhood. Therefore, on perusal of the aforesaid evidence of PW. 5 & PW.9, in my view, the prosecution brought sufficient material to prove that the accused alias name is “Zinkya”. S.C. 551/2016 11 Date : 26.02.2021
21. It is argued by Ld. APP Mrs. Ashwini Raykar that Dr. Sanjay Wathore (PW-11) during his evidence has opined that the cause of death is due to hemorrhagic shock with stab injuries. He further opined that the incise injuries and stab injuries found on the vital part of the body, can be caused by knife (Art. E) which was recovered at the instance of accused. The recovery of knife (Art.E) is from isolated place. “Anwar Ali Shaukat Ali Shaikh” (PW-12) has proved the discovery of knife. The FSL report (Exh.70) shows human blood on the knife. There are no injuries found on the person of accused. The aforesaid material is sufficient to prove that the accused is the author of weapon.
22. It would further argue that PSI Suhas Lahanu Rahane (PW-15) has prepared Spot Panchnama (Exh.18). He collected blood stain soil and simple soil from the spot and seized and sealed in the presence of Dinesh Pandey (PW-3). The FSL report (Exh.70) shows human blood of “B” group found in the blood stain soil seized from the spot. The report further shows that the clothes of the deceased containing the blood group “B”. The testimony of Dinesh Pandey (PW-3), Panch Witness to the spot did not shake by the defence during cross-examination. There is no cross- examination on sealing and seizure of the material from the spot, put by defence. There is no question put by the defence about the presence of street light on the spot. Thus, Ld. APP contended that prosecution has proved Spot Panchnama. S.C. 551/2016 12 Date : 26.02.2021
23. It is further contended that, although Ramesh Yadav (PW-6) did not support the case of prosecution, but, his testimony to the extent that he saw two boys carrying injured on the road. The defence have admitted the presence of Shubham Kurmi (PW-1) on the spot. The clothes of Shubham Kurmi (PW-1) found smeared with blood group “B” which is the blood group of the accused. PSI Suhas Lahanu Rahane (PW-15) specifically deposed that, he has recorded report as per say of Shubham Kurmi (PW-1). The prosecution duly proved omissions in the statement of Shubham Kurmi (PW-1), wherein he has stated that, when Shubham Kurmi (PW-1) went near to the deceased and asked about the cause of death, the deceased stated that he was assaulted by the accused.
24. It is further vehemently contended that the Investigating Officer has no enmity with the accused. PSI Suhas Lahanu Rahane (PW-15) set criminal law in motion at the instance of Shubham Kurmi (PW-1). There is immediate registration of FIR. Therefore, from the aforesaid material, it is sufficient to come to the conclusion that the accused has caused death of the deceased.
25. It is further argued that, the prosecution has duly proved through the evidence of Kishor Naik (PW-5) that the accused made extra judicial confession of the crime to him. The evidence of Manoj Patil (PW-10) is corroborated with the version of Kishor Naik (PW-5) to the fact that on the day of incident, the S.C. 551/2016 13 Date : 26.02.2021 accused made phone call to him. The prosecution through Rafiq Mohd. Haroon Shaikh ( PW-7) and Salim Halim Shaikh (PW-.9) duly proved that the alias name of the accused is “Zinkya”. There is no mis-identity of the accused. Thus, in substance Ld. APP argued that, as the prosecution proved the presence of Shubham Kurmi (PW-1) on the spot, the blood stain of “B” Group is found on the clothes of the deceased, the knife recovered at the instance of accused containing human blood, the evidence of Kishor Naik (PW-5) is sufficient to prove extra judicial confession of the crime made by the accused and the identity of the accused is established by the prosecution to Rafiq Mohd. Haroon Shaikh (PW.7) and Salim Halim Shaikh (PW-.9), thus, from the aforesaid evidence, the prosecution has proved the guilt of the accused beyond reasonable doubt and hence, Ld. APP prayed for conviction of the accused.
26. Ld. Advocate Mr. Mooman for the accused argued that the prosecution cited Suhasini Naik (PW.2), Ramesh Yadav (PW-6) and Rafiq Mohd. Haroon Shaikh (PW-7) as eye witnesses to the incident. The prosecution utterly failed to prove their presence at the time of alleged incident. None of the witnesses deposed about how many blows were given by the accused . The prosecution did not examine single witness from the mob allegedly gathered at the time of assault. Shubham Kurmi (PW-1) although deposed that alongwith him his friend “Abbas” was also present but the prosecution failed to examine him. None of the witnesses have seen the actual act of assault nor any of the witnesses, including S.C. 551/2016 14 Date : 26.02.2021 Shubham Kurmi (PW-1), deposed about the presence of the accused on the spot at the time of incident. As per the version of Shubham Kurmi (PW-1), deceased was taken firstly to Dr. Beg but there is no medical certificate of injury issued by him nor he was examined to prove how many injuries were present on the person of the deceased.
27. It is further vehemently argued that none of the witnesses were confronted with the clothes of the deceased to prove that they have seen the deceased on the day of incident neither prosecution showed photograph of the deceased to any of the witnesses to prove that ‘Art. B’ and ‘Art. C’ were clothes on the person of the deceased. The accused was arrested after two days of incident. No accused will preserve blood stain cloths for two days. The cloth seizure Panchnama of accused (Exh.52) shows blood stains on two side of shirt. The panch witness Karansing Kushwaha (PW.13) do not speak about the blood stain on the chest side of shirt of the accused. The FSL report shows bloods stains on the pocket side of his shirt. The FSL report (Exh 70) do not show diameter of stains. The accused was having injuries on his person. The Investigating Officer did not obtain blood group of the accused. Therefore, no inference can be drawn that blood found on the cloths of the accused is of the deceased.
28. It is further argued that extra judicial confession is weak piece of evidence. The Investigating Officer did not obtain the phone number of Kishor Naik (PW-.5). There is no material to S.C. 551/2016 15 Date : 26.02.2021 show that the accused made phone call to Kishor Naik (PW-.5). Moreover, there is unexplained delay in recording statement of Kishor Naik (PW-.5). Hence, no value can be given to alleged extra judicial confession.
29. He would further urge that PW.11 deposed that the injuries described in column 17 can be caused by more than one weapon. It can be caused by “Gupti”. The discovery is from open place. The confessional statement is not voluntary. Hence, he has submitted that the prosecution utterly failed to prove that the accused is the author of the weapon. Thus, he has submitted none of the circumstances proved by the prosecution beyond reasonable doubt. Hence, he prayed for acquittal of the accused.
30. The prosecution's case solely lies on the evidence of PW.1, the first informant, PW.2, eye witness, who has seen the accused assaulting the deceased, PW. 5, to whom, the accused after incident made extra judicial confession of the crime on phone call and told him that his mother- PW.2, has seen him assaulting the deceased, so made him understand not to disclose the same to anyone, PW.6 who has seen the accused leaving after commission of the crime from the spot of incident, PW.7, who has seen the accused near his shop before commission of the crime and heard the scream as “zinkya mat mar, zinkya mat mar”, recovery of weapon at the instance of the accused and FSL report Exh.70, in which the shirt of the accused found with human blood and on his pant found human blood of B group. S.C. 551/2016 16 Date : 26.02.2021
31. PW. 1 in his oral evidence deposed that on the day of incident, at around 8.00 to 9.00 p.m., he was proceeding towards Jamil Nagar along with his friend to watch cricket match. From the road, he saw mob gathered in the lane. One person was found lying on the road in a pool of blood. He and his friend “Abbas” took him to “Dr. Farhan Beg”. But, he refused to admit the injured and advised to take him to big hospital. Then somebody took injured to hospital by auto-rickshaw. He further deposed that he was acquainted with the injured by face as he was residing in his locality. His name was “Lotela”. Somebody has informed to the police about the incident.
32. PW.1 during examination in chief, denied that he has lodged the report in the Police Station but, he has admitted his signature on the report (Exh.59) and printed form of FIR (Exh.58). He refused to verify the contents of the FIR. Therefore, Ld. APP was permitted to cross-examined him. During cross-examination, he has admitted that injured was found lying infront of one Girija Medical Store. His friend “Abbas” was carrying mobile phone. The Police made phone call on the mobile phone of Abbas and called them in the Police Station. He admitted that he has produced his shirt (Art.A) which was on his person on the day of incident. He has also identified his shirt.
33. During cross-examination, conducted by the Ld. Advocate for the accused, he has admitted his presence on the spot where, injured was found lying between 8.45 p.m. to 9.00 p.m. During S.C. 551/2016 17 Date : 26.02.2021 cross-examination, he has deposed that, the deceased was not in position to speak. It took 2-3 minutes to take the injured to “Dr. Farhan Beg”. The deceased was not in position to narrate the incident to “Dr. Farhan Beg”. In the hospital police inquired with him about the incident and thereafter he was called in the police station. He has admitted to the suggestion given by the defense that father of deceased met him in the Hospital but he told him that he do not know about the incident. He did not identify the accused in the Court.
34. Thus, PW.1 who is the star witness of the prosecution though admitted his presence on the spot, he took the injured to “Dr. Beg” and also admitted that upon call made by police he and his friend went to the police station but denied that the deceased told him the cause of his death and lodging of report. The prosecution proved omissions of report (Exh.59) through PW. 15. Therefore, Ld. APP argued that although PW.1 did not support to the case of prosecution on material aspect of the cause of death, but admission of his presence on the spot and immediate lodging of FIR by PW.15, there is no scope for false implication of the accused. PW. 15 has no enmity with the accused to falsely implicate him in the crime.
35. Per contra Ld. Adv. Mooman for the accused argued that during cross-examination PW.1 deposed that he was present in the hospital. Police inquired with him. He informed to the father of deceased that he do not know anything about the incident. Thus, it S.C. 551/2016 18 Date : 26.02.2021 is submitted by him that PW. 1 did not disclose the cause of death when he was in the Hospital. On the contrary, the father of the deceased, while he was in the Hospital, made statement (Exh. 64) that some unknown person has killed his son. Therefore, lodging of report against the accused at the instance of PW.1 is highly doubtful. In fact the statement (Exh.64) is first in point of time, which indicate information given by father of the deceased with respect to commission of cognizable offence. Therefore, report (Exh. 59) cannot be treated as first information report.
36. I have perused the evidence of PW.1, cloth seizure Panchnama (Exh.21) and inquest Panchnama (Exh.20). As per version of PW. 11, the deceased was brought to the Hospital on 09.04.2016 at about 9.25 pm and he was declared dead at about
9.40 pm. PW. 15 seized the cloths of deceased and prepared cloth seizure Panchnama (Exh.21) between 10.00 pm to 10.30 pm and inquest Panchnama (Exh.20) was prepared between 10.30 pm to
11.30 pm.
37. During cross examination conducted by defence it has been brought on record that he reached in the hospital at about 10.30 pm. When he reached in the hospital he did not know the assailant. On 08.04.2016 his statement was recorded by the police and obtained his signature. The case diary entry shows the ADR report prepared by PSI Suhas Lahanu Rahane (PW.15) at about
11.50 pm. The ADR report shows that PSI Suhas Lahanu Rahane S.C. 551/2016 19 Date : 26.02.2021 (PW.15) has recorded statement of Chandramul Lohar Singh (PW.14) and Mohd Salim Shaik (PW.9)
38. During cross-examination by defense PSI Suhas Lahanu Rahane (PW.15) has deposed that he has recorded statement of Chandramul Lohar Singh (PW.14) in ADR proceeding. At the same time, he has also admitted that it nowhere reflected from the said statement (Exh.64) that it was taken for the purpose of ADR. Thus, on analysis of aforesaid material, although it nowhere reflects from statement(Exh.64) that it was recorded for ADR, but other material shows that the said statement (Exh.64) was recorded for the purpose of ADR only. Hence, I am not agreeable with the submission of the defence advocate that (Exh.64) is first point in time giving information of cognizable offence.
39. On the contrary PSI Suhas Lahanu Rahane (PW.15) deposed that after sending dead body for post-mortem, he came to police station and recorded FIR on the basis of report given by Shubham Kurmi (PW.1). FIR (Exh.58) shows that police received information on 08.04.2016 at about 9.45 pm and entry in general diary was taken on 09.04.2016 at about 12.45 am. Shubham Kurmi (PW.1) during his cross examination has deposed that in the hospital he was inquired by one police officer and thereafter, he went to police station. He further deposed that Chandramul Lohar Singh (PW.14) inquired with him about the incident, but he told him that he do not know about the same. This creates doubt whether the deceased really disclosed him name of the assailant. S.C. 551/2016 20 Date : 26.02.2021 There is no suggestion put to Shubham Kurmi (PW.1) by prosecution either during cross-examination or re-examination that at what time he has put his signature on printed proforma of FIR (Exh. 58) & Report (Exh. 59). No doubt Shubham Kurmi (PW.1) did not support to the case of prosecution, but he is the only witness, as per the case of prosecution, to whom the deceased disclosed the cause of death. On the basis of other material his presence is admitted but except oral testimony of PSI Suhas Lahanu Rahane (PW.15), there is no other material available to come to the conclusion that deceased disclosed cause of death to him. Therefore, above material creates doubt in my mind, whether really the deceased disclosed that the accused has assaulted him. Therefore, I am of the view, that the evidence of Subham Kurmi (PW.1) is not much helpful to the prosecution.
40. Suhasini Shantaram Naik (PW. 2) in her oral evidence deposed that she knows “Zinkya” as he is residing in her locality. Her son also knows him. On the day of incident she heard commotion as “Zinkya maru nakos, Zinkya maru nakos,” so she also raised the same voice and left from there. She did not see the incident. Thus, she did not support the case of prosecution. During her cross-examination by APP, she denied to suggestions of the case of the prosecution. The prosecution proved omissions in her statement through PI Mahesh Maruti Patankar (PW.16). As Suhasini Shantaram Naik (PW. 2) did not support the prosecution and only evidence of PI Mahesh Maruti Patankar (PW.16) is S.C. 551/2016 21 Date : 26.02.2021 available, in my view, without coroboration evidence of PI Mahesh Maruti Patankar (PW.16) cannot be consider.
41. PW. 5 in his evidence deposed that on 08.04.2016 at around
9.30 p.m. he has received phone call of “Zinkya”. He informed him that he has killed Lotela and his mother saw him. He gave understanding to tell his mother not to tell about the incident to anybody. He further deposed that the name of victim was Akhilesh @ Lotela, he was residing in his locality. He has also identified the accused in the court by name “Zinkya”.
42. PI Mahesh Maruti Patankar (PW.16) during investigation vide, its letter dated 31.05.2016 (Exh.40) in order to obtain CDR and SDR of phone numbers 7710902522, 997637440, 9967635644, issued letter to the nodal officer of Bhartia Airtel Company. Manoj Manikrao Patil (PW.10) vide, its letter (Exh.41) informed that above phone numbers are standing in the name of the accused. The accused in his statement u/s 313 of Cr.P.C. stated that the aforesaid numbers are in use of his family members and he do not use the same. PI Mahesh Maruti Patankar (PW.16) in his evidence has deposed that call details of the phone of the accused reveled that he made phone call on 08.04.2016 at about 9.37 pm.
43. Therefore, Ld. APP Mrs. Raykar, argued that Kishor Shantaram Naik (PW.5) during his cross examination deposed that he do not remember the sim number of the accused by which he made phone call. Thus, she has submitted that the defense S.C. 551/2016 22 Date : 26.02.2021 admitted that the accused made phone call to the Kishor Shantaram Naik (PW.5) on the day of incident. The CDR and SDR details corroborate the aforesaid fact. Therefore, the extra judicial confession made by the accused to Kishor Shantaram Naik (PW.5) and understanding given by him to Kishor Shantaram Naik (PW.5) about not to disclose the incident to anyone, is being proved by the prosecution.
44. Per contra Ld. Advocate Mr. Mooman argued that the investigation officer did not seize the mobile phone of Kishor Shantaram Naik (PW.5), did not produce purchase bill of his phone nor bring on record the phone number of Kishor Shantaram Naik (PW.5). There is a delay in recording statement of Kishor Shantaram Naik (PW.5). His statement was recorded by PI Mahesh Maruti Patankar (PW.16) on 25.04.2016. Kishor Shantaram Naik (PW.5) deposed that since the day of incident till 25.04.2016 police did not contact him nor he went to the police station and he was at Mumbai. Even till recording of his statement he did not disclose to anyone that the accused made phone call to him and gave extra judicial confession of the crime. Even the voice of “Zinkya” is not confirmed with him by the prosecution. Thus, he has submitted that non-disclosure of material fact at earliest opportunity cast serious doubt on the version of witness.
45. Mr. Mooman further argued that Manoj Patil (PW.10), nodal officer, did not state when Sim of phone number 7710902522 was reactivated. There is no proof that on 08.04.2016, the above phone S.C. 551/2016 23 Date : 26.02.2021 was active. Therefore, he has submitted that circumstance of alleged extra judicial confession is not proved at all by the prosecution. In support of his submissions he has relied on the judgment of Hon'ble Apex Court reported in 1979 Cr. L. J. 1217 in case of Lakhanpal -vs- State of Madhya Pradesh, 1977 Cr. L. J. 985 in case of Satbir Singh -vs- State of Punjab.
46. I have perused the evidence of Kishor Shantaram Naik (PW.5). During his cross-examination he has deposed that he and his mother, Suhasini Shantaram Naik (PW.2), went together for recording of statement. It appears from statement of Suhasini Shantaram Naik (PW.2) that it was recorded by Kishor Shantaram Naik (PW.5) on 11.04.2016. Admittedly, statement of Kishor Naik (PW.5) was recorded on 25.04.2016 i.e. after 17 days from the date of incident.
47. Kishor Shantaram Naik (PW.5) during his evidence deposed that he was present in Mumbai. He did not disclose anyone the aforesaid fact of accused made phone call to him and admitted the guilt. PI Mahesh Maruti Patankar (PW.16) during his cross examination deposed that prior to 25.04.2016 he tried to record statement of Kishor Shantaram Naik (PW.5) and therefore on 11.04.2016, he visited his house but he was not available in his house. Upon question being put to him by the defense that did he issue any summons of appearance to Kishor Shantaram Naik (PW.5), PI Mahesh Maruti Patankar (PW.16) deposed that he personally visited his house. He further deposed that after S.C. 551/2016 24 Date : 26.02.2021 11.04.2016 he made phone call to Kishor Shantaram Naik (PW.5). But Kishor Shantaram Naik (PW.5) did not utter a single word that PW.16 visited to his house or made phone call to him.
48. Thus, upon considering the version of Kishor Shantaram Naik (PW.5) and Mahesh Maruti Patankar (PW.16), it appears to me that Kishor Shantaram Naik (PW.5) has visited the police station on 11.04.2016 but PI Mahesh Maruti Patankar (PW.16) did not record his statement on that day. Kishor Shantaram Naik (PW.5) was very much available in Mumbai. Inspite of that, PI Mahesh Maruti Patankar (PW.16) recorded his statement on 25.04.2016. Thus, there is delay in recording of his statement and no plausible explanation given by PI Mahesh Maruti Patankar (PW.16) of such delay. Therefore, the version of Kishor Shantaram Naik (PW.5) is not reliable to prove that extra judicial confession of the crime made by the accused. Even neither PSI Suhas Lahanu Rahane (PW.15) nor Mahesh Maruti Patankar (PW.16) obtained the phone call details of Kishor Shantaram Naik (PW.5). None of them have brought on record the phone number of Kishor Shantaram Naik (PW.5). In my view, mere proof of phone call made by the accused, in the absence of proof of phone number to whom call is made, is not sufficient to infer that on 08.04.2016 at about 9.37 pm, the accused made phone call to Kishor Shantaram Naik (PW.5) and made extra judicial confession. Moreover, there is no proof of details of alleged communication between the accused and Kishor Shantaram Naik (PW.5). Therefore, in my view, there is no coroborative material brought on record by the prosecution S.C. 551/2016 25 Date : 26.02.2021 to show that the accused made phone call to Kishor Shantaram Naik (PW.5) and made extra judicial confession of the guilt. Therefore, I do not wish to discuss the judgments relied by the defense advocate on the point of admissibility of extra judicial confession.
49. Ramesh Jagannath Yadav (PW. 6) is the proprietor of Girija Medical store. In his examination in chief he only deposed that he has seen two boys carrying injured boy on road. His shop is abutting to road and adjacent to mobile repairing shop. But latter on he did not support to the case of prosecution. During cross- examination conducted by the Ld. APP, he has admitted that he know a person by name “Zinkya” and incident occurred on 08.04.2016 at around 8.45 pm. But he denied to the suggestion that he has seen the accused assaulting the deceased and leaving from the spot.
50. Rafiq Mohd. Haroon Shaikh (PW.7) is the proprietor of “Alshifa Enterprises”, a mobile repairing shop. He has deposed that the Girija Medical store is situated on his right side shop. On the day of incident he was present at his shop but he was busy and did not see the incident. Thus, Rafiq Mohd. Haroon Shaikh (PW.7) did not support the case of prosecution and nothing elicited from his cross-examination conducted by the prosecution.
51. Thus, the testimony of Suhasini Shantaram Naik (PW.2), Kishor Shantaram Naik (PW.5), Ramesh Jagannath Yadav (PW.6) & S.C. 551/2016 26 Date : 26.02.2021 Rafiq Mohd. Haroon Shaikh (PW.7) do not establishes the case of prosecution at all. The next circumstance relied by the prosecution is discovery of Weapon Art. E. Anwarali Shaukatali Shaikh (PW.12) is the panch to the disclosure statement (Exh.48) and discovery of weapon. During examination in chief, he has supported to the case of prosecution. He has deposed that on 12.04.2016 he has witness disclosure statement made by the accused and in pursuance of which he has produce knife (Art. E). But during cross-examination he gave damaging admission that confessional memorandum was already prepared by the police and he has signed subsequently. It was read over to him by the police.
52. Ld. APP vehemently argued that during cross-examination Anwarali Shaukatali Shaikh (PW.12) denied to the suggestion that he was informed that the accused was going to make disclosure statement and will be producing the weapon used in the crime. He also inquired with the accused and the accused stated him about the crime. The testimony of Anwarali Shaukatali Shaikh (PW.12) is not challenged on the point of sealing and seizure of weapon. The blood stain found on the weapon, which is confirmed by FSL report (Exh.70), showing that it contains human blood. The accused produced weapon which was hidded by him behind Electric DP, which is isolated place. Therefore, it was only within knowledge of the accused where he has kept the weapon. Therefore, she has argued that discovery of weapon is proved by the prosecution beyond all reasonable doubt. S.C. 551/2016 27 Date : 26.02.2021
53. Per contra Ld. Advocate Mooman argued that there is no proof that the accused made voluntary confessional statement. No accused would hid the weapon after commission of the offence. The Investigating Officer did not record the statement of owner of house on whose back side of the house, the said DP was situated. Anwarali Shaukatali Shaikh (PW.12) did not depose that he has seen the blood stain on the weapon. Moreover, Dr. Sanjay Deoba Wathore (PW.11) admitted that the injuries on the person of deceased can be possible by “Gupti” or other sharp edge weapon. Admittedly the weapon was not send by the Investigating Officer for query. There is no finger print expert opinion. Hence, alleged discovery cannot be incriminating circumstance against the accused. In support of his submissions he has relied on the judgment of Hon'ble Apex Court reported in AIR 1956 SC. 217 in case of Aher Raja Khima -vs- State of Saurashtra, AIR 1987 SC 1507 in case of Kansa Behra -vs- State of Orissa.
54. I have perused evidence of Dr. Sanjay Deoba Wathore (PW.11) and Anwarali Shaukatali Shaikh (PW.12). The admission on the part of Anwarali Shaukatali Shaikh (PW.12) that the confessional memorandum (Exh 48) was already prepared, creates a doubt in my mind about the voluntaryness of statement made by the accused. The admission made by PW.11 in his cross- examination that the injuries mentioned in column 17 of Post- morterm report may be caused by “Gupti” and those may be caused by more than one weapon again strengthens, the doubt whether the injuries mentioned in column 17 of P.M. report are S.C. 551/2016 28 Date : 26.02.2021 caused by Art. E. Moreover, IO did not obtain the weapon query report after its recovery. Therefore, in my view, the aforesaid circumstance of discovery of weapon at the instance of the accused do not connect with the guilt of the accused. Even otherwise also there is no substantive evidence on record. The discovery of weapon is corroborative piece of evidence. Hence, in my view, prosecution failed to prove circumstance of discovery of weapon at the instance of the accused, beyond reasonable doubt. As there is no convincing evidence available on the circumstance of discovery of weapon at the instance of the accused, I do not find necessary to discuss the citations relied by the defense.
55. The next circumstance relied by the prosecution is the blood stain on the cloths of the accused. PSI Suhas Rahane (PW.15) in his evidence deposed that on 08.04.2016 at about 9.45 pm he has received intimation from Mulund General Hospital about death of one unknown person. Accordingly, after making entry in the General Case Diary, he along with Constable Shetty proceeded towards the hospital. When he reached in the hospital, Doctor declared the deceased as dead. Therefore, he proceeded to prepare Seizure Panchnama (Exh.21) and seized blood stained clothes of the deceased (Art. B, C and D). The dead body was identified by the father of the deceased. He has prepared Inquest Panchnama (Exh.20). Thereafter, he has obtained FIR Number from Police Station and sent the dead body for Post-Mortem. He went to the Police Station and registered the FIR on the basis of report given by Shubham Kurmi (PW.1), against one “Zinkya”. S.C. 551/2016 29 Date : 26.02.2021
56. PSI Suhas Lahanu Rahaje (PW. 15) seized the cloths of deceased vide seizure Panchnama (Exh.21). Radheshyam Ramsundar Singh (PW.4) is the panch to the cloth seizure panchnama of deceased and inquest Panchnama (Exh.20). Radheshyam Ramsundar Singh (PW.4) in his evidence has deposed that on 08.04.2016 he was in the Mulund General Hospital. At the request of police he acted as panch. In his presence police prepared inquest and Cloth Seizure Panchnama. He has identified the clothes of the deceased (Art. B to Art. D). During cross- examination except denial nothing has been brought on record to disbelieve his testimony.
57. PI Patankar (PW.16) in his evidence deposed that on 16.04.2016 vide, letter (Exh.69), he has sent seized Muddemal to FSL through WPC Manisha Charade. The aforesaid seized muddemal consist of blood sample and blood stained cloths of the deceased. The FSL report (Exh.70) shows human blood of group “B” found on the clothes of the deceased. But the FSL report (Exh. 71) shows that the blood was haemolysed and hence unsuitable for blood grouping. Thus, the blood group of the deceased could not be assessed.
58. Ld. APP Mrs. Ashwini Raykar argued that, the inquest and cloth seizure Panchnama of the deceased (Exh.20 & Exh.21) shows that the deceased clothes were smeared in the pool of blood. Neither accused nor any other witnesses had any injuries to doubt S.C. 551/2016 30 Date : 26.02.2021 that the blood on the clothes of deceased may be of other persons. The FSL report (Exh.70) shows human blood of group “B” on the cloths of the deceased and it is nothing but the blood group of the deceased only. The cloths of accused also shows human blood of group “B”. The accused did not explain the blood stains on his cloths. Hence, hence, aforesaid circumstance goes to show involvement of the accused in the crime. As the defense did not explain the reason of blood stain on the cloths of the accused, an adverse inference needs to be drawn against the accused.
59. Per contra Ld. Adv Mooman argued that FSL report (Exh.71) with respect to blood group of the deceased is inconclusive. The chemical analyzer is under duty to described in its report about the number of blood stain on the articles and extent of blood stain. FSL report (Exh.70) do not reflect above material. Hence, FSL report (Exh.70) cannot be relied upon and no inference could be drawn that the blood group of the deceased was “B”. In support of his submissions he has relied on the judgment of Hon'ble Apex Court reported in AIR 1956 SC 51 in case of Prabhu Babaji Navle - vs- State of Bombay.
60. It is further argued that the accused was assaulted by the police. PSI Sawant prepared Arrest Panchnama and form (Exh.65 colly) of the accused. The prosecution did not examine him. There is no evidence that after arrest the accused was medically examined. Hence, possibility of blood stains on his clothes is of the S.C. 551/2016 31 Date : 26.02.2021 accused cannot be ruled out. He has further argued that mere blood stains cannot be an incriminating circumstance against the accused.
61. The defense although argued that the accused was having injuries at the time of his arrest. But he has not put single suggestion to any of the witnesses. Moreover, the case dairy shows that the medical examination of the accused was conducted immediately after his arrest. Hence, I am unable to accept the contentions of the defense that the accused was having any injuries on his person. During entire investigation there is not a single document or material on record to show that except deceased any body had bleeding injuries. Therefore, although the FSL report (Exh. 71) with respect to the blood of the deceased is haemolysed but the blood found on the cloths of the deceased is human blood having blood group B, in my view, it is the blood group of the deceased only.
62. The defense admitted cloth seizure Panchnama (Exh.32) of Shubham Kurmi (PW.1), Mohd. Salim Halim Shaikh @ Mama (PW.9) and Abbaz Rukhmudding Shaikh. The FSL report (Exh.70) shows blood stain of Group B on the cloths of Salim Hamid, PW.1 and Arbaz Shaikh. The testimony of Karansing Kushwaha (PW13) panch to cloth seizure of accused is not shaken during cross- examination. He has supported the prosecution. His testimony is reliable. The FSL report is unambiguously shows human blood found on the shirt of the accused and blood of group B is found on S.C. 551/2016 32 Date : 26.02.2021 his pant. The accused did not explain how his cloths are having blood stains. The aforesaid circumstances, goes to show that it is nothing but the blood of the deceased which was found on the cloths of the accused.
63. In the case Prabhu Babaji Navle (Supra) , the C.A. report was slovenly and perfunctory, therefore, Hon'ble Apex Court held that C.A. should indicate the number of blood stains found on each exhibit and the extent of each stain, unless they are too minute or too numerous to be described in detail. In case in hand, C.A. report although does not mention the diameter of blood stain on each exhibits but there is no material to create doubt that report (Exh.70) is perfunctory. Hence, with due respect, in my view, the above case law is not applicable in given facts and circumstance of the case.
64. Thus, after considering the entire material brought by the prosecution, it appears that the plinth of prosecution case is demolished by evidence of direct witnesses Shubham Kurmi (PW.1), Suhasini Naik (PW.2), Kishor Naik (PW.5), Ramesh Yadav (PW.6) & Rafiq Mohd. Haroon Shaikh (PW.7). The circumstantial evidence in the nature of discovery of weapon and extra judicial confession is not at all reliable. The only circumstance against the accused is the blood stain of group “B” found on his cloths, in my view, that itself is not sufficient to prove the guilt of the accused. Hence, in my view, the accused needs to be acquitted. Therefore, I answered point no.2 in negative. S.C. 551/2016 33 Date : 26.02.2021
65. As to point no. 3 : In order to answer above point I thus, proceed to pass following order:- ORDER
1. Accused Ramsudhar @ Zinkya Ramjangeshwar Choudhari is hereby acquitted for the offence punishable under Section 302 of the Indian Penal Code in connection with C.R.No.147/2016 registered with Bhandup Police Station, Mumbai vide under Section 235(1) of the Code of Criminal Procedure.
2. The accused is in jail. He be set at liberty if, not required in any other case.
3. Art-A:- Brown Shirt, Art-B :-Jeans Pant, Art-C:- T-shirt and Art-D:-Underwear, Art-F (colly):-White colour full sleeves shirt and blue colour jeans being worthless, be destroyed after appeal period is over.
4. Art.E:- Knife be sent to Collector, Mumbai through Bhandup Police Station for proper disposal as per law after appeal period is over.
5. The marked and unmarked articles, if any, shall be disposed of, after appeal period is over. S.C. 551/2016 34 Date : 26.02.2021
6. Accused shall furnish P.R. bond of Rs. 15,000/- and Surety of like amount as per the Provision of Section 437-A of the Code of Criminal Procedure.
7. Judgment is pronounced and dictated in open Court. (A. H. LADDHAD) DATE: 26/02/2021 ADDITIONAL SESSIONS JUDGE GREATER MUMBAI Dictated on : 26/02/2021 Transcribed on : 26/02/2021 Signed on : 03/03/2021 S.C. 551/2016 35 Date : 26.02.2021 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.” 04.03.2021 11.30 a.m. (Ms. V. V. Sawant) UPLOAD DATE AND TIME NAME OF STENOGRAPHER Name of the Judge (With Court HHJ SHRI A. H. LADDHAD room No.) (C.R.No.56) Date of Pronouncement of 26.02.2021
JUDGMENT/ORDER
JUDGMENT/ORDER signed by 03.03.2021 P.O.on
JUDGMENT/ORDER uploaded on 04.03.2021
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