Allowed

Antya Govind Bomba v. the State of Maharashtra

Bombay HC30 Jul 2008APEAL/159/2005

Case brief

AI extract

What is this about?

High Court allowed appeal against murder conviction, quashing theSessions Court judgment. The court held that eyewitness testimony relied on was not credible due to material omissions, no strong motive existed, and absconding alone could not sustain the conviction in absence of other clinching evidence.

What did the court decide?

Impugned judgment and order dated 6/1/04 quashed and set aside; Accused ordered to be released.

Antya Govind Bomba Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2008)

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MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 159 OF 2005

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 ANTYA GOVIND BOMBA )
 R/o. Satpala, Taluka Vasai )

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 Dist. Thane. At present in Jail
 C.No.2427 Kalamba Central Prison

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 Kalamba 416 007, Kalapur ) .. APPELLANT

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 VERSUS

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 THE STATE OF MAHARASHTRA ) .. RESPONDENT

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 Mr. Abhaykumar Apte for appellant (appointed).

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 Ms. U. V. Kejariwal, APP

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 CORAM:SMT.RANJANA DESAI &
DR. D.Y. CHANDRACHUD,JJ.

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 DATE ON WHICH THE JUDGMENT IS
 RESERVED : 10TH JULY, 2008
 DATE ON WHICH THE JUDGMENT IS

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 PRONOUNCED:-30TH JULY, 2008

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JUDGMENT:-(Smt. Ranjana Desai, J.)

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 . The appellant ("the accused" for convenience)
 was tried in the court of Additional Sessions
 Judge, Palghar at Palghar in Sessions Case No. 363
 of 2001 for offence punishable under Section 302 of

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 the Indian Penal Code ("IPC" for short). By
 judgment and order dated 6/1/04 learned Sessions
 Judge convicted him of the said offence and
 sentenced him to suffer life imprisonment. Being
 aggrieved by this judgment and order the accused
 has preferred this appeal.

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 2. Gist of the prosecution case may be shortly
 stated:

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 . PW 1 complainant Yamunabai, PW 5 Jaywantibai,
 one Santibai and the accused are the residents of
 village Pendharpada, Murbad. They are all migrant
 labourers. Every year they used to come to Vasai
 to do work on daily wages. Ladkibai (for
 convenience "the deceased") was also the resident
 of village Pendharpada. The deceased had two sons
 and two daughters from her first husband Laxman who
 died ten years back. For about three years prior
 to the incident in question the accused was staying
 with the deceased. They were staying together as
 husband and wife. First wife of the accused had
 left the accused because he ill-treated her.

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 . The accused had come along with other workers to
 Satpala for work. They were staying under the shed

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 of the building owned by PW 6 Anant Naik.
 According to the prosecution the deceased was
 reluctant to continue her relationship with the
 accused because her children had grown up. On
 5/9/01 at about 7 p.m., the deceased, the accused
 and others completed their work and came back to
 the place where they were staying. They cooked
 their food. The accused and the deceased had their
 dinner at about 9 p.m. PW 1 Yamunabai, PW 5
 Jaywantibai and Santibai also had their dinner.
 Thereafter PW 5 Jaywantibai and Santibai slept on
 the ota of the cycle shop. The deceased and the
 accused slept on the ota of a bakery. There was
 some exchange of words between the accused and the
 deceased for some time. PW 1 Yamunabai, PW 5
 Jaywantibai and Santibai went to sleep. According
 to the prosecution during the night PW 1 Yamunabai
 heard sound of footsteps indicating that somebody
 was running away. She woke up and saw the accused
 running away towards Satpala. She went towards the
 deceased and saw that one stone was lying near her
 side. Blood was oozing from her head. Ladkibai
 was dead. PW 4 Vanita and PW 5 Jaywantibai have
 also given somewhat similar version of the
 incident. PW 7 PI Arjun Kurle was attached to
 Virar Police Station at the relevant time. He

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 received information about the murder of one lady
 at Satpala on telephone from Head Constable Sarang
 who was attached to Agashi outpost. PI Kurle went
 to Satpala along with police constables. First
 Information Report ("FIR" for short) of PW 1
 Yamunabai came to be recorded. It is at Exhibit-A.
 On the basis of the FIR investigation was set into
 motion. The accused was absconding. He was
 arrested on 8/9/01 at Dahanu. After completion of
 the investigation the accused came to be charged as
 aforesaid.

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 3. In support of its case the prosecution examined
 as many as seven witnesses. PW 1 Yamunabai is the
 complainant. PW 4 Vanita Thakare and PW
 Jaywantibai are the labourers who claim that they
 had seen the accused running away. PW 2 is Dr.
 Alokkumar Singh who had done post-mortem on the
 deceased. PW 6 Anant Naik is the owner of the
 building, in the compound of which the labourers
 were staying. He has acted as a pancha to the spot
 panchnama Exhibit-50. PW 7 is PI Arjun Kurle, who
 was attached to Virar Police Station as Police
 Inspector at the relevant time. He has given the
 details of investigation conducted by him.

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 4. The defence of the accused was one of denial.
 According to him he has been falsely involved in
 this crime on suspicion. After perusing the
 evidence on record, learned Sessions Judge came to
 a conclusion that the prosecution has proved its
 case beyond reasonable doubt. He, therefore,
 convicted the accused as aforesaid and hence this
 appeal.

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 5. We have heard Mr. Abhaykumar Apte, learned
 counsel for the appellant-accused. Mr. Apte
 submitted that the case against the accused rests
 on circumstantial evidence. He submitted that
 apart from the evidence of the three ladies that
 they had seen the accused running away in the
 night, the prosecution does not have any other
 cogent evidence to substantiate its case against
 the accused. Learned counsel submitted that
 evidence of these three witnesses also does not
 inspire confidence. There are material omissions
 in their evidence. Learned Counsel further
 submitted that the fact that the accused was
 arrested about two days after the date of incident

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 cannot be taken against him because absconding by

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 itself does not necessarily lead to the guilt of
 the accused. There must be other clinching

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 circumstances indicating his guilt. Such evidence
 is absent in this case. Learned counsel submitted
 that the impugned judgment and order is based on
 conjectures and surmises and hence deserves to be
 set aside.

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 6. Learned APP Ms. Kejariwal on the other hand
 submitted that the chain of circumstantial evidence
 is complete and it points directly to the guilt of
 the accused. She submitted that in this case no
 other hypothesis but that of the guilt of the
 accused is possible on the basis of evidence
 adduced by the prosecution. Learned APP submitted
 that, therefore, the impugned judgment and order be
 confirmed.

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 7. Dr. Alokkumar Singh who was at the relevant
 time working as medical officer at the Virar Rural
 Hospital had done post-mortem on the deceased. He
 had prepared post-mortem notes which are at
 Exhibit-12. The injuries suffered by the deceased
 are described in the post-mortem notes as under:

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 . "1) fracture of left parietal bone, it was a

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 compound fracture of size 2 x 2cms, 1cm. wide.

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 2) C.L.W. behind left ear vertical of size 7 cm x

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 2 cm. tissue deep

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 3) C.L.W. over right middle finger lateral aspect
 horizintal 3cm x 1 cm x 3 x 2 cm deep."

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 . The cause of death is stated as

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 "Cardiorespiratory arrest secondary to head

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 injury". There can be, therefore, no doubt that
 the deceased died due to head injury which led to
 cardiorespiratory arrest.

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 8. The prosecution story rests on the evidence of
 three labourers, who were working along with the
 accused and the deceased at the agricultural land
 at Satpala. According to PW 1 Yamunabai the
 accused was the second husband of the deceased.

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 The deceased used to tell the accused that she
 cannot continue her relationship with him because
 her children had grown up. However, the accused,
 kept following her everywhere. According to PW 1

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 Yamunabai on the day of incident all of them
 returned from their work from Satpala. They had
 their meals. She, PW 5 Jaywantibai and Santibai
 slept on the ota of the house of one cycle owner.
 The accused and the deceased slept on the ota of

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 another house. There was some exchange of words
 between the accused and the deceased. According to
 her after sometime she heard sound of footsteps
 suggesting as if someone was running away. She
 woke up. In the light of street light she saw the
 accused running away towards Satpala Naka. All of
 them went towards the deceased. There was a stone
 lying near her. She was dead. According to
 Yamunabai police recorded her FIR which is at
 Exhibit-A.

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 9. In the cross-examination she has reiterated
 that she saw the accused running away when she woke
 up. She has stated that when she witnessed the
 accused running away she was in a sitting position.
 Therefore, when the incident of stone throwing took
 place she was sleeping. Though she says that she
 heard the sound of footsteps, surprisingly she does
 not say that she heard the cry of the deceased. If
 she could wake up because of the sound of
 footsteps, it is inconceivable that she would not
 hear the cry of the deceased. According to the
 prosecution the stone which was lying near the
 deceased weighed about 20 Kg. If such a stone was
 thrown on the deceased, which led to her death she
 must have certainly raised a loud cry. The fact

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 that Yamunabai does not refer to any such cry, in
 our opinion, makes her evidence suspect.

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 10. PW 4 Vanita is also a labourer. She was
 working with Yamunabai, the deceased and others at
 Satpala. She has also stated that the accused was
 staying with the deceased. According to her the
 children of the deceased from her first husband did
 not like the accused staying with the deceased.
 She has stated that on the date of incident after
 their evening meal, the deceased and the accused
 slept on the ota of the bakery whereas she and
 other labourers slept on the ota of a cycle shop.
 According to her she woke up from the sleep hearing
 the cries of Jaywantibai "Poryano Utha", (daughters
 wake up from sleep). She has further stated that
 when she woke up she saw the accused running away
 from the spot of incident in the street light. In
 her cross-examination she has stated that when she
 saw the accused running away from the spot she was
 in a sitting position. An omission has been
 brought on record that she had not told the police
 that on hearing her mother’s cry "Poryano Utha" she
 woke up. The evidence of Vanita also cannot be
 relied upon for the same reasons which persuade us
 to hold that Yamunabai is not a reliable witness.

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 She has also not seen the actual incident. She has
 added that her mother woke her up. However, this
 was not disclosed by her to the police. She does
 not say that she had heard any cry of the deceased.
 It is unsafe to rely on the evidence of such a
 witness.

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 11. PW 5 Jaywantibai is the mother of PW 4 Vanita.
 She has also deposed about the relationship between
 the deceased and the accused. According to her
 after their meal the accused and the deceased slept
 on the ota of a bakery while she and others slept
 under the shed of the cycle shop. She has further
 stated that she woke up from sleep when she heard
 the footsteps of the accused. In the street light,
 she saw him running away from the spot. According
 to her thereafter she went towards the deceased
 along with others. She found a stone lying on the
 other side of the deceased. She noticed that the
 deceased had received head injury and blood was
 oozing from it. In her cross-examination a
 significant omission has been brought on record.
 She had not disclosed to the police that she woke
 up from the sleep after hearing the sound of
 footsteps of the accused caused while he was
 running away from the spot and that she saw him in

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 the street light. In our opinion, no reliance can
 be placed on her evidence.

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 12. Thus evidence of PW 1 Yamunabai, PW 4 Vanita
 and PW 5 Jaywantibai does not inspire confidence.
 In any case even if it is assumed for a moment that
 it is credible, all that it states is that the
 accused was seen running away from the spot. To
 bring home guilt to the accused some other evidence
 connecting the accused to the crime in question is
 necessary. The prosecution has not been able to
 establish any strong motive to kill the deceased.
 The fact remains that the accused and the deceased
 were staying together. In fact on the day of
 incident they chose a different place to sleep.
 Barring a feeble attempt to suggest that there was
 some exchange of words between the accused and the
 deceased and that the deceased used to tell the
 accused that she does not want to continue her
 relationship, there is nothing on record to suggest
 that their relations were strained. The
 prosecution has not been able to establish any
 strong motive to kill the deceased.

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 13. It is pertinent to note that the accused was
 arrested at Dahanu on 8/9/01 by Kasa Police Station

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 at Patilpada, District Dahanu. Exhibit-32 is the
 arrest panchnama which is brought on record by PW 7
 Arjun Kurle. Exhibit-32 states that there were no
 blood stains on the clothes of the accused.

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 14. PW 7 PI Arjun Kurle has stated that
 information was received by Virar Police Station
 about the arrest of the accused by Kasa Police
 Station. Therefore, Head Constable Sarang went to
 Kasa Police Station and he brought the accused to
 Virar Police Station. At Virar Police Station
 Panchnama Exhibit-32 was drawn. Under this
 panchnama the accused was taken in custody by Virar
 Police Station in their C.R. No,. 159 of 2001.
 Clothes worn by the accused were taken charge of.
 Surprisingly it is stated in this panchnama that
 there were blood stains on those clothes. PW 7 PI

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 Kurle has also stated that there were blood stains
 on the clothese of the accused. But this case of
 the prosecution is falsified by the Chemical
 Analyser’s report which is at Exhibit-40. Exhibit
 40 states that on Exhibits 12 and 13 i.e. full
 shirt and half pant respectively of the accused no
 blood was detected. Thus the prosecution story

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 that blood stained clothes were seized from the
 person of the accused must be discarded. It

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 appears to be a concoction and the Chemical
 Analyser’s report completely exposes this
 concoction.

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 15. It is true that the accused was arrested two
 days after the date of incident. Undoubtedly
 absconding can be a relevant circumstance, however,
 the accused cannot be convicted merely on the basis
 of the fact that he was absconding. There has to
 be other cogent material to establish the
 involvement of the accused. InMatru alias Girish
Chandra v. The State of U.P., AIR 1971 SC 1050,
 the Supreme Court has discussed the relevance of
 the accused’s conduct in absconding from the scene
 of offence. We may quote the relevant observations
 of the Supreme Court.

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 . "Now mere absconding by itself does
 not necessarily lead to a firm conclusion
 of guilty mind. Even an innocent man may
 feel panicky and try to evade arrest when
 wrongly suspected of a grave crime: such
 is the instinct of self preservation.
 The act of absconding is no doubt
 relevant piece of evidence to be
 considered along with other evidence but

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 its value would always depend on the
 circumstances of each case. Normally the
 Courts are disinclined to attach much
 importance to the act of absconding,
 treating it as a very small item in the
 evidence for sustaining conviction. It
 can scarcely be held as a determining
 link in completing the chain of
 circumstantial evidence which must admit
 of no other reasonable hypothesis than

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 that of the guilt of the accused."

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 16. In this case, there is no other clinching
 evidence which can form a chain of circumstances
 pointing directly to the guilt of the accused.
 Therefore, the fact that for two days the accused
 was not traceable by itself would not lead to his
 guilt.

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 17. In our opinion, therefore, the prosecution has
 failed to establish its case beyond reasonable
 doubt. The circumstances on record do not
 conclusively establish the guilt of the accused.
 They do not point unerringly to the guilt of the
 accused. The accused must, therefore, get benefit
 of doubt. The impugned judgment and order of

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 conviction and sentence must, therefore, be set
 aside. Hence the following order:

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 . The judgment and order dated 6/1/04 passed by
 the Additional Sessions Judge, Palghar in Sessions
 Case No. 363 of 2001 is quashed and set aside.
 Accused Antya Govind Bomba is ordered to be
 released unless otherwise required in any other
 case. Appeal is disposed of.

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 JUDGE

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 JUDGE

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 159 OF 2005

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 ANTYA GOVIND BOMBA .. APPELLANT

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 VERSUS

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 THE STATE OF MAHARASHTRA .. RESPONDENT

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 Mr. Abhaykumar Apte for appellant (appointed).

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 Ms. U. V. Kejariwal, APP

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 CORAM:SMT.RANJANA DESAI &
DR. D.Y. CHANDRACHUD,JJ.

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 DATED:30/7/2008

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 P.C.:

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 . For the reasons separately recorded in the
 judgment, this court has passed the following
 order:

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 . "The judgment and order dated 6/1/04 passed by
 the Additional Sessions Judge, Palghar in Sessions
 Case No. 363 of 2001 is quashed and set aside.
 Accused Antya Govind Bomba is ordered to be
 released unless otherwise required in any other

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 case. Appeal is disposed of".

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 JUDGE

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 JUDGE

Antya Govind Bomba v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Antya Govind Bomba v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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