Criminal Appeal No. 16 of 2011. Case: Raju Narayan Shirke Vs State of Goa. High Court of Bombay (India)

Case NumberCriminal Appeal No. 16 of 2011
CounselFor Appellant: Mahesh Amonkar, Adv. and For Respondents: C. A. Ferreira, Public Prosecutor
JudgesMohit S. Shah , C.J. and F. M. Reis, J.
IssueCriminal Procedure Code (2 of 1974) - Section 313; Indian Penal Code (45 of 1860) - Section 300
Citation2012 CriLJ 3269
Judgement DateFebruary 21, 2012
CourtHigh Court of Bombay (India)

Judgment:

F. M. Reis, J.

1. Heard Shri Mahesh Amonkar, learned Counsel appearing for the Appellant and Shri C. A. Ferreira, learned Public Prosecutor, appearing for the Respondent-State.

2. The challenge in the above Appeal is to the conviction of the Appellant in Sessions Case No. 4/2006 passed by the learned Sessions Judge, North Goa, at Panaji, under Section 302 of the Indian Penal Code for which he has been sentenced to undergo imprisonment for life and pay a fine of ` 10,000/- and in default to undergo simple imprisonment for a period of six months.

3. It was the case of the prosecution/Respondents that the Appellant and the deceased were residing in a house at Piddukarwada, Jogiwada, IDC Road Bicholim and that there were frequent quarrels between the two over drinks relating to the use of a portion of the house by the accused who was admittedly married to the sister of the deceased. It is further their contention that the Appellant was doing his tailoring job in a portion of the house of the deceased who was residing with his aged mother and sister and that on the fateful night, the Appellant had stabbed the said deceased Sanjay in his stomach using a knife when he had gone to have a wash after dinner and caused bleeding injuries to him. It is further the case of the prosecution that the Appellant had soon thereafter left the house and was detained only during the early hours of the next morning whilst returning home by the Police who were keeping guard on him. It is further their case that the incident of assault was a fall out of a difference between the Appellant and the deceased relating to the house property belonging to the deceased and his mother and his married sister residing in the portion of the rear side with the Appellant.

4. The defence raised by the Appellant was of denial and of false implication.

5. After charges were framed against the Appellant by the learned Session Judge, the Appellant pleaded not guilty to the charge under Section 302 of the Indian Penal Code and claimed to be tried.

6. In support of their case, the prosecution examined 19 witnesses mainly being family members, Doctors, Police and other witnesses to establish the charge against the Appellant who broadly denied the case of the prosecution in his statement under Section 313 of the Cr.P.C.

7. After appreciating the evidence on record and going through the material adduced by the prosecution, the learned Sessions Judge found the Appellant guilty of having committed offences under Section 302, Indian Penal Code and directed him to undergo imprisonment and fine referred to hereinabove.

8. Being aggrieved by the said judgment dated 31.07.2010 which continued on 21.08.2010, the Appellant has preferred the present Appeal.

9. Shri Mahesh Amonkar, learned counsel appearing for the Appellant, has advanced submission to the effect that the prosecution has failed to discharge the burden to establish that they have proved the charge beyond reasonable doubt. Learned counsel further pointed out that there is no direct evidence on record to establish that the Appellant had committed the crime. The learned counsel has pointed out that the prosecution is only relying upon circumstantial evidence and that the prosecution has failed to establish the circumstances which could disclose that the Appellant had committed the offence. The learned Counsel has first taken us through the evidence of PW.7, Rukmini Pawar, mother-in-law of the Appellant as well as the evidence of PW.10, Revathy Pawar, the wife of the Appellant PW.11, Milan Shirke, and pointed out that there are inconsistencies with the versions made therein and, as such, such inconsistencies should be to the benefit of the Appellant. Learned Counsel has taken us through the evidence of PW.7, Rukmini Pawar, and pointed out that though she claims that she was at the house, there is nothing incriminating stated by her in her deposition. Learned Counsel further pointed out that the evidence of PW.10, Revathy Pawar, cannot also be accepted as, apparently, her version is only due to the sympathy to her deceased brother who had expired. The learned Counsel, as such submits, that once such evidence is discarded, there is nothing on record to establish that the Appellant has committed the alleged offence. The learned Counsel thereafter took us through the evidence of PW.1, Dinesh Rajput, PW.2, Sudir Pawar, PW.15, Savita Pawar and PW.17, Ulhas Parab, and pointed out that reading the evidence as a whole of the aforesaid witnesses would disclose that the prosecution has failed to establish the chain of circumstances which could incriminate the Appellant in the alleged crime. The learned Counsel has further pointed out that the mother of the deceased, PW.7, was only the eye-witness who has not stated anything which could incriminate the Appellant in the alleged crime. The learned Counsel further pointed out that different versions were narrated with regard to the words allegedly stated by the deceased after his alleged assault. The learned Counsel, as such submits, that these versions of PW.7, are to be disbelieved. The learned Counsel has taken us through the evidence of PW.1, Dinesh, and evidence of PW.15, Savita, and pointed out that reading the evidence of the said witnesses as a whole, can by no stretch of imagination, be said to be incriminating to the Appellant herein. The learned counsel has also taken us through the medical evidence and the depositions of the Doctors and others examined by the prosecution and pointed out that there were no blood stains on the clothes or nail clippings of the Appellant and that there is no forensic evidence as against the Appellant. The learned counsel has also taken us through the pancha-nama and the witnesses examined by the prosecution and pointed out that there is nothing on record to suggest even remotely that the Appellant had committed the alleged crime and, as such, the learned Sessions Judge was not justified to convict the Appellant for offences punishable under Section 302 of the Indian Penal Code. The learned Counsel further pointed out that, in any event and without prejudice to the above submissions, going through the evidence as a whole, the Appellant could have been convicted at the most for an offences punishable under Section 304 of the Indian Penal Code as the evidence discloses that there was provocation on the part of the victim.

10. On the other hand, Shri C. A. Ferreira, learned Public Prosecutor appearing for the State, has pointed out that the prosecution established beyond reasonable doubt that the Appellant has committed the offence punishable under Section 302 of the Indian Penal Code. Learned Public Prosecutor, has submitted that there is no...

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