03 Jul 2121

The evidence of witnesses has to be weighed and not to be counted having regard to the searching testimony of wife of the deceased - Bombay High Court

Case : Laxman Babulal Rajput and Ors. v. The State of Maharashtra Criminal Appeal No. 601 of 1998

Court : Bombay High Court

Bench : Justice Prasanna B. Varale and Justice Surendra P. Tavade

Decided on : 03 Jul 2121

Relevant Statutes

Sections 143, 144, 148, 302, 324,326, 449 r/w Section 149 and 34 of the Indian Penal Code 1860 

Brief Facts and Procedural History

1. The Deceased resides at Indira Nagar Hutment, Creek Side Road, and Mumbai with his family members. His Wife (The Informant) knows the appellants residing in the Said Hutment. On 17.04.1984, the Informant was going to attend a call of nature where the Original Accused No 2, 5, 6, 7 teased the Informant. The Deceased happened to pass and scolded the original accused 5 to 7. On the same day, the original accused no. 5 to 7 assaulted the deceased. 

2. On 19.04.1984, the Informant with her husband (Sampat) and her cousin brother named Mohan Shetty were sitting at home. All 2-3 accused entered into the hut of the informant and they were armed with swords, knives, iron rods and bamboo sticks. Afterwards the Deceased ran away from the hut. The Original Accused No 4 assaulted the Informant Cousin with Knife and Mohan Shetty (Cousin) ran away from the Hut. Afterwards, the Accused followed the deceased and the Informant saw her husband in creek water. The Original Accused No 2, 5, 6, 7 were assaulting him with sword, Knife, iron rods and bamboo sticks. The Informant raised shouts ‘Bachao Bachao’. In the meantime, Appellant No. 1 and 3 came and blew an iron rod on her right leg which resulted in her becoming semi-conscious and fell down. 

3. Afterwards, Dattaram More and his wife Smt. Lilla More came to rescue her and took her to the hospital and during the time when she is taken to the hospital, she was brought to the Police Station where she narrated the incident to Mr. Pathan and further she was taken to the hospital where Mr. Pathan recorded her stamen and treated as F.I.R. After this case was registered under Section 144, 148, 326, 324, 449, 143 r/w Section 149 and 34 of the Indian Penal Code 1860. During the course of the investigation, the statements of Mohan Shetty, Datta More, Smt. Lilla More and Gopi Pallaswamy. The Accused No 1 was arrested and Accused No 2 to 7 were surrendered and put under arrest. 

4. A charge sheet was filed against the original accused No 1 to 7 before the Metropolitan Magistrate, Mumbai. But the offence under Section 302 was triable by the Court of Session so the case was committed to the Court of Session. The Additional Session Judge convicted the accused by order dated 20 06.1998 under Section 144,148, 302, 324, 449 r/w section 149 of Indian Penal Code 1860. The Accused No 1, 2 and 3 preferred an appeal against the above-impugned order. 

The Issue of the Case

Whether the Appellant has committed the offence under Section 144, 148, 302, 324, 449 r/w Section 149 and 34  of the Indian Penal Code 1860  or on the basis of sole testimony conviction can be made?

The Observations of the Court:

1. The Honourable Bombay High Court observed that testimony of the prosecution has established the motive for the incident and referred one of the judgments i.e. S.G. Gundequada @ Moganna vs. State of Yealur Police, Hassan (1996  Cri.L. J.852), it was held that if the prosecution has not been able to prove the case on motive, it will not be a ground to throw overboard the prosecution case where such witness is an eye witness.

2. The Honourable Bombay High court observed that there were sufficient lights available at the spot which states that the Prosecution Witness (Smt. Molli Sampat Pilley) had the opportunity to witness the incident of assault on her husband. The Honourable High court observed that that panch –witnesses were not traceable but the Mr. Pathan (PW-9) has proved the execution of the scene of the offence panchnama and therefore there is no reason to discard the contents of the panchnama which shows that there was sufficient light at the spot of the incident.

3. The Honorable Bombay High court after the examination of evidence observed that the prosecution has proved the identity of the Appellants as assailants of the Deceased (Sampat). The Honourable High court observed that the statement was recorded in the hospital which was further read over to her and afterwards she signed the statement which means there is no ambiguity about the statement that it was not recorded in the Police Station but at Copper Hospital. 

4. The Honourable Bombay High Court observed that Prosecution Witness (Smt. Molli Sampat Pilley) had been to creekside where she was assaulted and lying in the injured condition and this fact was partly corroborated by Leela More (PW). The prosecution has not challenged the acquittal of the Original Appellant No. 6 and 7 but all accused were involved in the crime and also had the common object to kill the deceased. The Honourable High Court held that Charges under Section 144, 148 and 149 of the Indian Penal Code, 1860 has been proved against the appellants.

5. The Honourable Bombay High Court after observing all the story held that the Prosecution Witness (Smt. Molli Sampat Pilley) was supported by the medical evidence and it is cogent, correct, and reliable and inspires confidence. It is the duty of the Court to act upon such testimony.

The Decision Held by the Court

1. The Honourable High Court held that there is no need to interfere with the findings of the learned trial court and the Learned Trial Court has rightly held that Appellant Guilty under Section 144, 148, 302, 324, 449 r/w Section 149 of the Indian Penal Code 1860 

2. The Appeal was dismissed and the appellant was ordered to surrender bail bonds.

3. The Appellants are directed to appear before the trial Court on 26.07.2021 to undergo sentence and in case of default, the trial Court is directed to take necessary steps for securing the presence of the original Accused Nos.1 to 3 for undergoing sentence.

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