REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                       OF 2008   (Arising out of SLP (Crl.) No. 5496 of 2007)

Sunil   ....Appellant

Versus

State of Maharashtra ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1.  Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court,  Aurangabad  Bench  dismissing  the  appeals  filed  by

several accused persons.  The present appeal is by original accused No. 6

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(hereinafter referred to as the A6).  He was convicted for various offences

punishable  under  the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’)  and

sentenced  to  undergo  custodial  imprisonment  and  fine  with  default

stipulation.   The  High  Court  dismissed  the  appeal  so  far  as  the  present

appellant is concerned, we are not concerned with the other appeals.

3. Prosecution version in a nutshell is as follows:

A.S.I.  Yadav Satpute(P.W. 11) who was attached to police  station,

Pathardi and was on duty as a Police Station officer on 7.3.1998, received a

phone call at about 2230 hrs. informing him that there was stone pelting at

Rangar Galli and, therefore, he sent the necessary police force. He made an

entry at sr. no. 30 in the station diary and at about 10.45 p.m. sent a message

to the Control Room and the other police stations. An entry in this behalf

was recorded in the  station diary at  sr.  no.  32.  Sanjay Shahane (P.W. 4)

came to the police station and A.S.I. Satpute (P.W. 11) recorded the report

of'  Sanjay (P.W. 4) at  Exh. 125. An entry in this behalf was accordingly

made in the station diary at sr. no.33. Sanjay Shahane (P.W. 4) immediately

left the police station on receiving message that his uncle Jaikumar (P.W. 2)

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had become unconscious.  Thereafter  at  about  2355 hrs.,  original  accused

No.13 Pratibha came to the police station and gave a report in respect of a

non-cognizable offence. An entry in respect thereof was made in the station

diary at  sr.  no.  34.  Original  accused  No.10  Amol  and  juvenile  offender

Rama were referred to the hospital as they had sustained minor injuries. The

Xerox copy of the entries in the station diary are Exh. 156. A.P.I. Shinde

(P.W. 12) who was also attached to Police Station, Pathardi took over the

investigation of Crime No.33 of 1998 from A.S.I. P.W. 11 Satpute as the

crime had been registered  on  the  basis  of  the  first  information  report  of

Sanjay Shahane (P.W.4). A.P.I.  Shinde (P.W. 12) received a copy of the

statement  of  Digambar (P.W. 1).  On 8.3.1998,  A.P.I. Shinde accordingly

visited the mortuary and drew the inquest panchnama of the dead bodies of

Dhananjay and Santosh vide inquest panchnamas at Exhs. 116 and 117 in

the presence of witnesses. Thereafter on the same day he visited the scene of

the  offence  at  about  9.30  A.M.  and  drew  the  scene  of  the  offence

panchnama at Exh. 111 in the presence of P.W. 1 Digambar. The scene of

the offence was pointed out by P.W. 4 Sanjay Shahane and the spot is  a

narrow lane to  the  south  of  the main  road of  Pathardi.  The narrow lane

which  is  the  scene  of  the  offence  is  known  as  Rangar  Galli.  Deceased

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Dhananjay had been killed in front of the house of one Pandurang Kasar

while  deceased  Sanjay  had  been  killed  in  front  of  the  house  of  one

Bhagirath Bajaj. The lane was of a width of about 4 ft. with stone flooring.

Dried bloodstains were noticed in front of the house of Bhagirath Bajaj as

well as in front of the house of Pandurang Kasar.  The distance between the

two spots where the murder of deceased Sanjay and deceased Dhananjay

had been committed is at about 10 ft.  The spot panchnama further records

that at a distance of 25 ft. house of one Vilas Rodi is situated and an electric

bulb is affixed on the door of his house. At a distance of 30 ft. towards the

southern side, there is an electric pole with tube light. A Ganpati temple is

at a distance of 300 ft. and adjacent to the said Ganpati temple is the house

of  complainant.  On  the  same  day,  accused  Mukund,  accused  Rajendra,

accused  Santosh,  accused  Satish,  accused  Manoj,  accused  Rakesh  and

accused Sunil came to be  arrested vide arrest panchnama at Exh. 152. On

the same daly at about 12.30 p.m., accused Sandip, accused Sharad, accused

Rama,  accused  Amol,  accused  Sanjay,  accused  Sunil,  accused  Nitin  and

accused Pratibha came to be arrested vide arrest panchnama at Exh. 153.

The accused who were found to have sustained injuries  were referred to

Rural  Hospital.  On  8.3.1998,  statements  of  12  witnesses  came  to  be

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recorded. The clothes of deceased Dhananjay and Santosh were seized vide

seizure memo at Exh. 142 in the presence of P.W. 9 Gulab.  

The trial court relied on the evidence of some of the witnesses who

were  stated  to  be  eye witnesses  and found  the  appellant  guilty  as  noted

below:

S.NO Offence  Punishable under Section

Sentence Fine

1. Sec.302,  r/w  Sec.  149 IPC

Imprisonment for life

Fine of Rs.1000/-IDRI for one month  

2. Sec. 143 of IPC R.I. for 1 month Fine of Rs.100/- IDRI for 5 days

3. Sec. 144 of IPC R.I. for 6 month Fine of Rs.100/- IDRI for 5 days

4. Sec. 147 of IPC R.I. for 6 month Fine of Rs.100/- IDRI for 5 days

5. Sec. 148 of IPC R.I. for 6 month Fine of Rs.100/- IDRI for 5 days

6. Sec.506 r/w 149 of IPC R.I. for 6 month Fine of Rs.100/- IDRI for 5 days

In appeal the High Court confirmed the conviction and the sentence

qua the appellant.  

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4. In support of the appeal learned counsel for the appellant submitted

that  only  role  attributed  to  the  appellant  is  that  he  caught  hold  of  the

deceased while facilitating the assault by others.

5. Learned  counsel  for  the  State  supported  the  judgment  of  the  trial

court and the High Court so far as the present appellant is concerned.   

6. It is to be seen from the evidence of PWs 2&6 that the presence of the

present  appellant  has  not  been  established.   PW  2  is  the  father  of  the

deceased and PW 6 is the person in front of whose house the occurrence

took place. PW 2 in his cross examination has clearly stated that he had not

stated  before  police  that  the  appellant  had  caught  hold  of  the  deceased.

Similarly, PW 6 on whose evidence great emphasis was laid by the courts

below, referred to the presence of several others.  He categorically described

the presence  of  the  various  accused persons,  weapons  held  by them and

individual overt acts.  He, however, categorically admitted that he had not

seen  the  present  appellant  at  the  scene  of  occurrence.   It  is  of  some

significance that the appellant took the positive stand that he was not in the

village at the relevant point of time and was at the distance of nearly 200 km

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from the place of occurrence.  The trial court and the High Court referred to

this aspect but came to conclusions based on surmises that he could have

come back by changing one vehicle to another for travelling the distance

from the place where he had gone to the place of occurrence.  

7. In view of the aforesaid infirmities the inevitable conclusion is that

the prosecution has failed to establish the accusations so far as the present

appellant is concerned.  He is acquitted of the charges and his conviction is

set aside.  The bail bonds executed by him for giving effect to the order of

bail passed by this Court’s order dated 25.1.2008 shall stand discharged.

8. Appeal is allowed.

............................... ...................J.

(Dr. ARIJIT PASAYAT)

……..…………........................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi October 16, 2008

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