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CASE NO.: Appeal (crl.)  339 of 2002

PETITIONER: State of Maharashtra

RESPONDENT: Raju Bhaskar Potphode

DATE OF JUDGMENT: 18/07/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR & J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Bombay High Court directing acquittal  of respondent-Raju Bhaskar Potphode (hereinafter referred to  as the ’accused’). Accused was found guilty of the offence  punishable under Sections 302 of the Indian Penal Code, 1860  (in short the ’IPC’) and sentenced to undergo imprisonment for  life by learned Additional Sessions Judge, Greater Bombay, in  Sessions Case No.355 of 1993. Accusations which led to the  trial of the accused was that he had on 7.2.1993 at about 4.30  p.m. committed the murder of one Sunil Gore (hereinafter  referred to as the ’deceased’) by stabbing with a knife.   

2.      Prosecution case in a nutshell is as follow:

On 7th February, 1993, the Sai Krupa Cricket Club had  organized Single Wicket Cricket Competition on an open  playground near Sai Mandir, Samarth Nagar, Majaswadi,  Jogeshwari (E). In the said competition boys of Majaswadi  locality 44 boys including the first informant-Ravindranath  Damle, (PW 1), Uday Gore PW 2), Arun Raghunath Paranjape  (PW 3), Santosh Lad (Pw 4), Girish Modak, had participated. At  about 9.00 a.m. after drawing of the lots, as regards which  player was to play with whom, the competition started. Vijay  Potphode the brother of the respondent, and one Mr. Troy had  allegedly taken part in the said competition. At about 4 p.m.,  out of 44 competitors, 6 participants emerged out as winners  and as a further step Vijay and Troy were to play with each  other. As both belong to one and the same club, they refused  to play against each other and requested for a change of draw.  Deceased-Sunil Gore who was responsible for the draw,  however, was not ready and willing to change the draw.  Deceased-Sunil Gore asked Vijay to withdraw from the  competition and to take back subscription if he did not want  to play against Troy. This led to exchange of hot words. The  said altercation was allegedly being witnessed by the  respondent who intervened and started taking the side of his  brother Vijay.  The members of the Sai Krupa Cricket Club  intervened in the said altercation and pacified the situation  and asked the respondent to leave the playground. It is further  alleged that the respondent left and returned back with a knife  and stabbed Sunil Gore on his abdomen. Due to this, Sunil  Gore received stab injuries and collapsed on the ground.  The

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respondent allegedly threatened all not to come near him and  ran away with the knife. Sunil Gore was removed to Cooper  Hospital, however, he was declared dead before admission.  At  about 5.25 p.m. on 7th February 1993 the first informant  Ravindranath (PW 1) went to Jogeshwari Police Station and  lodged the FIR which was reduced into writing vide Exhibit-6  by Uday Bhanu Sharma (PW 12).  An offence was registered  against the accused at CR No.47 of 1993 at Jogeshwari Police  Station on the basis of the FIR.  Shri Sharma (PW 12) took up  the investigation. He visited the hospital.  He held the inquest  on the dead body and a panchanama to that effect was drawn  at Exhibit-11. The dead body was sent for post-mortem  examination.  He visited the spot and drew the panchanama of  the scene of offence at Exhibit-10 in presence of two panchas.  After recording the panchanama of the scene of offence, the  investigating officer recorded statements of witnesses. On 8th  February, 1993 accused Raju Bhaskar Potphode was arrested  from his residence. He was brought to the police station. His  clothes were attached under the seizure panchanama at  Exhibit-34 in presence of the two panchas, viz. George  Anthony D’Souze (PW 8) and Pradeep Shankar Hazale (PW 9).  There were blood stains on the clothes of the accused. Clothes  were packed, labelled and sealed under the signatures of  panchas. The accused was interrogated in presence of the  panchas. On 11th February 1993 the accused made a  statement that he would show the knife. His statement was  recorded at Exhibit-16. In pursuance of the said statement,  the accused led the investigating officer and the panchas to  the spot at Shivtakdi, Satbawadi. The accused pointed out the  place where a search with the help of torch was carried out  and a knife hidden in the grass was found. It was seized under  a panchanama Exhibit 16-A. Knife (Article-6) was produced in  the trial Court. In the meanwhile, the post-mortem  examination of the deceased was conducted by Dr. Baban  Shripati Shinde (PW 7). The clothes of the deceased were also  attached. The post-mortem notes are at Exhibit-19. The blood  stained clothes of the accused, the knife (Article No.6), sample  of blood of deceased and the clothes of the deceased were sent  to the Chemical Analyser. After completion of investigation,  the accused was charge-sheeted for the aforesaid offence in  the court of the Metropolitan Magistrate, Mumbai.

3.      Accused pleaded innocence and false implication.   Therefore, trial was conducted. In order to establish the  accusations 12 witnesses were examined.  It was claimed that  PWs 1 to 4, namely, Uday Gore, Arun Raghunath Paranjape,  Santosh Lad and Girish Modak were the eye-witnesses of the  occurrence.  During trial, however, except PW-2 others resiled  from the statements made during investigation. PW-1  Ravindranath Damle partially supported the prosecution  version but claimed that he had not seen the occurrence. PWs  3 and 4 totally denied to have witnessed the incident. The Trial  Court placing reliance on the evidence of PW-2 recorded  conviction and imposed sentence as aforesaid.        

4.      Accused-respondent preferred an appeal before the High  Court. It was submitted essentially that the evidence of PW-2  lacks credence and he is not a reliable witness.  Stand of the  State on the other hand was that PW-2 was a close relative of  the deceased and there is no reason as to why he will falsely  implicate the accused.  The High Court analysed the evidence  of PW-2 in great detail considering the fact that he was a  relative of the deceased. However, it found that evidence of  PW-2 to be unreliable and not worthy of credence and  accordingly directed the acquittal.

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5.      Learned counsel for the appellant-State submitted that  there is no reason for PW-2 to falsely implicate the accused.   His presence was but natural and the aspects highlighted by  the High Court about the credibility of the evidence of PW-2  are not founded on any rational basis.  Learned counsel for  the respondent-accused on the other hand supported the  order of the High Court.   

6.      Several factors have been highlighted by the High Court  to cast doubt on the varsity of PW-2’ s evidence.  Firstly, it  noted that his name was not indicated in the FIR.   Furthermore, his conduct at the time of incident about what  he did at that time corrodes the credibility of his version.  He  admitted that he did not inform the deceased that the accused  was coming with a knife loudly proclaiming that he wanted to  harm the deceased. Additionally, his conduct was quite  unnatural because he did not take the deceased either to the  hospital or police station and stated to have been gone his  home directly.  Neither did he take him to the hospital which  was nearby nor inform the police at the police station which  was also situated close-by.  The statement was also discrepant  as to whether he returned from home after he had left the  deceased in an injured condition.  At one stage he stated to  have come after about 10 minutes, but in his cross- examination he admitted that he did not return.               7.      Learned counsel for the appellant submitted that he may  have gone to inform the relatives. Interestingly, none of the  relatives came near the spot.  The injured was taken to the  hospital by other. High Court found it unnatural that the PW- 2 did not bother to provide medical assistance. He also did not  inform the police. He claimed to have left for his home.   Whether he came back or not is another doubtful question  because as noted above he himself admitted in cross- examination that he stayed at home. As rightly observed by  the High Court it is quite unnatural conduct on the part of a  close relative that he would leave the relative in a pool of blood  not bothering to take him to the hospital and not to return  after having left the spot. Further his conduct in not informing  the police is another relevant factor. 8.      It will be noticed that the Trial Court placed reliance on  the so-called discovery of alleged weapon pursuant to the  disclosure by the accused.  The High Court has rightly noticed  that the knife was found in an open space and was clearly  visible.  Investigating Officer admitted that anybody could have  seen the knife even without much effort.

9.      The Investigating Officer claimed to have recorded the  statement of this witness on the date of occurrence.  But the  witness himself stated that it was not recorded on that date.   The High Court found that his presence at the time of  occurrence was highly doubtful. The High Court observed that  his conduct does not appear to be natural and trustworthy,  and, therefore, allowed the appeal.  Several important aspects  were noted by the High Court to discard the testimony of PW- 2. The reasons do not suffer from any infirmity to warrant  interference. The cumulative effect of the infirmities as noticed  by the High Court goes to the root of the matter. In the  circumstances, we do not find any reason to interfere with the  conclusions arrived at by the High Court. The appeal is  without merit and is dismissed.