Allowed

Nitin Ramdas Sonawane v. the State of Maharashtra

Bombay HC18 Oct 2013APEAL/479/2013

Case brief

AI extract

What is this about?

In two criminal appeals, the High Court examined convictions under Section 307 IPC. The Court held that despite joint trial, testimony of the accused, medical evidence was weak. The Test Identification Parade was conducted violating rules. Consequently, the challenge to conviction succeeded.

What did the court decide?

Appellants are acquitted and ordered to be released forthwith.

Nitin Ramdas Sonawane Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.479 OF 2013

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Nitin Ramdas Sonawane ) Age: 28 years, Occ: Labour ) R/o. Dingore, Tal:Junnar ) District : Pune. ) ...Appellant (lodged at Kolhapur Central Orig. Accused No.2 Prison)

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vs.

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The State of Maharashtra ...Respondent

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AND CRIMINAL APPEAL NO.1375 OF 2012

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Sushil Bharat Sonavane ) Age 26 years, Indian ) inhabitant, Occ:Service ) R/o. Room No.2, Kasturi ) Complex, Shahpur ) District: Thane ) ...Appellant Presently in Judicial ) Orig. Accused No.1 Custody(Thane Central Prison)

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vs.

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The State of Maharashtra ...Respondent

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Mr. Shyamrishi Pathak for the Appellant in Appeal No.479/13. Mr. Ashish Chavan for the Appellant in Appeal No.1375/12. Ms. A. A. Mane, APP, for the Respondent – State.

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CORAM : A. H. JOSHI, J. RESERVED ON : 26^th September, 2013 DELIVERED ON : 18th October, 2013

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J U D G M E N T

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1] Both these appeals are arising out of common judgment rendered in Sessions Case No.535 of 2011 dated 25^th October, 2012.

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2] Appellants were tried in Sessions Case No. 535 of 2011. They were charged for an offence punishable under Section 307 read with Section 34 of the Indian Penal Code.

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3] The learned Sessions Judge found that the accused were identified and considering the collective effect of identification and about recovery of weapons, held them guilty of the offences charged and ordered conviction under Section 307 of the Indian Penal Code and sentence.

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4] Heard both learned advocates and learned APP. Perused the record.

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5] The submissions which are foundation of challenge to conviction and sentence are summarized as follows:-

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(a) The testimony of PW-1 & 2 fails to narrate the description of the accused persons therefore even though PW-1 and PW-2 have identified the accused persons during T.I. Parade as well as during the trial, the identification cannot be relied upon in absence of all connecting facts.

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(b) The clothes of the accused having blood stains are not connected with the incident and since the sample of blood of accused was not taken, it is not proved that the clothes were preserved and dispatched for chemical analysis in a sealed condition.

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(d) The memorandum of statement under Section 27 of Evidence Act cannot be relied upon since since panch witness admit that they were called for recording memorandum since the accused had agreed to give recovery, thus the panchnama of recovery and the memorandum statement come in the cloud of doubt.

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(e) The medical evidence cannot be relied upon since the medical attendant who has attained the victim in Rajawadi Hospital is not called to depose, nor his want of availability duly proved.

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(f) PW-8 the medical witness had failed to bring the original case papers.

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(g) PW-8 had not himself treated the patient.

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(h) The loss of eye sight suffered by PW-2 due to the assault is not proved to be due to assault.

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(i) The fracture to the nose and foot were not proved by evidence of X-ray examination and statement of witness.

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(j) The injury to be grave that in ordinary course it would not resulted into death is not proved.

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6] In support of the charge prosecution has examined in all 11 witnesses which are as follows:-

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PW-1 Ganesh Bhumayya Battu is the injured and first informant.

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PW-2 Rajesh Suresh Shah is eye witness. PW-3 Brijraj Ramnaresh Yadav is witness of recovery of clothes of accused.

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PW-4 Namdeo Bhiku Mohite is the panch witness. PW-5 I.O. P.S.I. Manisha Pravinkumar Jadhav is the panch witness.

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PW-6 Salim Mehmood Sayed is the witness of recovery of weapons.

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PW-7 Salim Ahmed Mustak Shaikh is the witness of recovery of blood stained clothes.

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PW-8 Dr. Jagdish Balaram Jadhav, Medical Officer is the medical witness to prove injuries.

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PW-9 Shekhar Tukaram Naik is the police constable who has recorded FIR.

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PW-10 Sudha S. Brahma is the Special Executive Officer who has conducted the T.I. Parade.

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PW-11 Shri R. S. Kamble, P.I. Is the investigating officer.

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7] Case rests on statement of PW-1 and 2 who are eye witnesses as well as witnesses of identification of the accused persons in the T.I. Parade.

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8] The manner in which incident occurred is narrated by

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PW-1 whose testimony is at page No.59 of the paper book. His testimony is divide in two parts first is in the narration of incident and about T.I. Parade.

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9] As regards incident, version of PW-1 is as follows:-

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“1. I am businessman by profession. On 29/03/2011 at about 8.00 a.m. I had gone to shop. I closed my shop in the evening at about 7.00 to 7.30 p.m. I was returning to home. At about 8.30 p.m. my friend Rajesh Shah met me at Hirachand Desai Marg, Sainath Juice Center, Ghatkopar(W), Mumbai. I and my friend Rajesh Shah went to hotel Vasant Vihar for tea. After taking tea we both came out of the hotel and started proceeding towards Bata Showroom. It was at about 11.00 to 11.15 p.m. We reached at the Naka which was just nearby to Bata Showroom. Vijay Aakhade, whom I was knowing and his two friends met me there. They showed me one paper and asked me address of RTO. I told the address of RTO to them and I went ahead. At the same time Vijay Aakhade assaulted me on my head with sickle(Koyta). I turned back and I saw that Vijay Aakhade was holding sickle. The friends of Vijay Aakhade were also holding sickles. Vijay Aakhade and his two companion assaulted me with sickles on my head, right eye, left ear, nose, neck, right ribs, left hand and on both legs. I sustained fracture injury to my nose and left hand. I suffered permanent privation of the sight of right eye. My friend Rajesh Shah intervened to rescue me. The friend of Vijay Aakhade, who was wearing shirt having checks, started chasing my friend Rajesh Shah. However Rajesh

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Shah succeeded in bolting from the spot.”

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10] As regards T.I. Parade, this witness states as follows:-

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“5. On 27/06/2011 I was called by police at Ghatkopar Police Station and thereafter I had gone to Thane prison for Test Identification Parade. The identification parade was held by SEO in presence of two panchas. These two accused persons and other 12 dummy accused persons were in Thane jail. I was directed by SEO to identify assailants. During identification parade I have identified the assailants who are present before the Court.”

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11] In so far as the testimony of PW-2 R. Shah is concerned, as regards incident, he states as follows:-

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“1. I am serving with Rajesh Multichannel Pvt. Ltd. On 29/03/2011 I was on duty. I resumed the duty at 11.00 a.m. I left my office at about 8.00 p.m. to 8.15 p.m. and I was just passing from Juice center. Ganesh Battu met me there. Thereafter I and Ganesh Battu went to Hotel Vasant Vihar for tea. We were chit chatting in the hotel for one and half hour. At about 11.00 p.m. we both came out of hotel and started proceeding towards Bata Showroom. Vijay Aakhade and his two friends met Ganesh Battu and Vijay Aakhade asked Ganesh Battu the address of RTO. Ganesh Battu told the address of RTO to them and we proceeded ahead. Vijay Aakhade and his two friends came from back side and assaulted Ganesh Battu on his head with sickle. I made he and cry and intervened to rescue Ganesh Battu from the

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clutches of the assailants. Out of three assailants one started chasing me and therefore I started running away from the spot of occurrence as I apprehended that the assailants will also assault me with sickle. I succeeded in bolting from the spot. I turned back and I noticed that assailant was not there, therefore I returned back to the spot of occurrence. All the assailants raised their hands holding sickles in their hands and threatened the people of dire consequences.”

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12] As regards T.I. Parade Rajesh Shah states as follows:-

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“On 26/06/2011 I received the message from police and therefore on 27/06/2011 I went to Thane Prison for test identification parade. On 27/06/2011 test identification parade was held by SEO. During identification parade I had identified two assailants. The accused present before the Court are the same persons whom I identified during identification parade.”

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13] The evidence of Special Executive Officer Sudha S. Brahma, PW-10 is of general in nature.

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14] Other witnesses have made effort to prove the seizure of clothes, the description of spot of incident, seizure of weapon etc. and the statements of those witnesses would not be of much significance.

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15] It is seen that the prosecution is unable shatter any of the grounds raised by the appellant. The testimony of PW-

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1 as regards identification of accused is not strengthened by other evidence. The T.I. Parade was conducted in violation of rules of acquainting SEO with facts of case. SEO states that she has not met the investigating officer before hand. Therefore this witness does not inspire confidence. No care was taken to ensure that the identity of accused persons to remain undisclosed.

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16] In the background that the medical evidence is so extremely weak and T.I. Parade is under serious doubt, the conviction cannot be sustained.

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17] In the result, appeal succeeds. Accused appellants are acquitted. They be released forthwith.

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( A. H. JOSHI, J.)

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wadhwa

Nitin Ramdas Sonawane v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Nitin Ramdas Sonawane v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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