Allowed

Sudam Hirya Chavan v. the State of Maharashtra

Bombay HC19 Oct 2013APEAL/69/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction for robbery, holding that the judgment below was unsustainable. The conviction relied solely on the testimony of a single witness recorded four months later, without supporting physical evidence, which the Court found created grave doubt.

What did the court decide?

Judgment and order under appeal set aside; Appellant set at liberty forthwith.

Sudam Hirya Chavan Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2013)

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cr appeal 69.12

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smt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 69 OF 2012

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Mr. Sudam Hirya Chavan	)
Aged 40 years, Occupation Labour	)
Residing at Borivel Shivar,	)
Taluka – Daund, District – Pune.	)
(Yerwade Central Prison)	)	.. Appellant.
Vs.
1. The State of Maharashtra	)
(At the instance of Daund Railway	)
Police Station).	)	.. Respondent.

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Shri D.G. Khamkar, Appointed by Court for the appellant.

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Shri V.B. Konde Deshmukh, APP for the respondent.

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CORAM : A. H. JOSHI, J. RESERVED ON : 14TH OCTOBER, 2013. PRONOUNCED ON : 19TH OCTOBER, 2013.

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JUDGEMENT

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Heard.

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This is an Appeal filed by the accused, who was tried in Sessions Case No. 46 of 2011.

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He has been convicted by the judgment and order dated 16^th December, 2011, passed by learned Extra Jt. (Adhoc)

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cr appeal 69.12

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District Judge and Addl. Sessions Judge, Baramati, which reads as under:

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“ ORDER

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Accused is hereby convicted u/s. 235 of Cr.P.C., for the offence u/sec. 395 of I.P.C. and sentenced to suffer R.I. for the period of Ten years with a fine of Rs.2,000/-, i/d to suffer S.I. for One year .

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He is convicted u/s. 235 of Cr.P.C., for the offence u/s. 152 of Railway Act and sentenced to suffer R.I. for the period of Five years .

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He is convicted u/s. 235 of Cr.P.C., for the offence u/s. 332 of I.P.C. and sentenced to suffer R.I. for the period of Three years with a fine of Rs.500/-, i/d to suffer S.I. for One month.

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He is also convicted u/s. 235 of Cr.P.C., for the offence u/s. 3 rw 25 of Arms Act and sentenced to suffer R.I. for the period of One year with a fine of Rs.500/-, id to suffer S.I. for Fifteen days .

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He is acquitted under sec. 232 of Cr.P.C. for the offence under sec. 353 of IPC.

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All the sentences are to run concurrently.

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Set off be given for the period from 24-5-10 to

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23-6-10, during which he was in the custody.

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Muddemal articles i.e. pistol be returned to police constable Patil and sickle be sent to District Magistrate.”

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(Quoted from Page 78 of the Appeal)

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The charge was that the Appellant is one amongst other 10 accused persons, who had committed robbery in the railway bogie. All other accused fled away. The Appellant is the only accused, who was caught on the spot.

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cr appeal 69.12

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The robbery is claimed to be of ornament – Mangalsutra belonging to Mahadevi Arvind Nikambe, PW3.

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The incident occurred at mid night of 23^rd and 24^th May, 2010 at 1.00 p.m. The mangalsutra of PW3 was snatched by the accused by inserting his hand through the window of the bogie. She claims that she has seen the accused, who had inserted hand through the window of the bogie and the hand was caught by other witness. She claims that she has seen the accused because the incident continued for quite some time.

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The Prosecution has examined the following witnesses :

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P.W. No.1	-	Shri Vijay Dinkar Patil
P.W. No.2	-	Shri Gokul Shivdash Sonawani
P.W. No.3	-	Ms. Mahadevi Arvind Nikambe
P.W. No.4	-	Shri Allauddin Ibrahim Bagwan
P.W. No.5	-	Shri Sagar Namdeo Waghmare
P.W. No.6	-	Shri Madhav Dagadoba Yadav
P.W. No.7	-	Dr. Shirish Nilkanth Kumthekar
P.W. No.8	-	Dr. N.K. Sajeev
P.W. No.9	-	Shri Harpalsinh Erasinh Sengar

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PW3 is the only witness of the incident. PW7 and PW8, who are medical witnesses, and all other witnesses are either witnesses of arrest, lodgment of FIR, Investigation etc.

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On 24^th May, 2010, PW8 Dr. N.K. Sajeev had examined the injured Shri Vijay Dinkar Patil, PW1, who is working as

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cr appeal 69.12

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constable with Daund Railway and the injured Shri Gokul Shivdash Sonawani, PW2, who is Inspector of Railway Police.

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PW7 Dr. Shirish Nilkanth Kumthekar had given medical treatment to Mahadevi Arvind Nikambe, PW3 on 7^th August, 2013.

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These two medical witnesses i.e. PW7 and PW8 are of no use, since they did not prove anything that is incriminating against appellant.

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The entire case rests on testimony of PW3.

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It is pertinent to note that incident has occurred on 24^th May, 2010 and FIR was registered on the same day i.e. 24^th May, 2010 by Vijay Dinkar Patil, who is PW1.

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Version of PW1 does not reveal as to whose ornament was snatched and even the Investigating Officer does not say whether he came to know that PW3 was the person whose mangalsutra was snatched.

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PW9 admits that PW3 Mahadevi Arvind Nikambe's statement was recorded on 17^th September, 2010.

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The learned advocate Mr. D.G. Khamkar appointed as Amicus Curie for the accused has argued that :

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cr appeal 69.12

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(a) The entire prosecution story is based on totally uncertain and fishy story.

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(b) No identification parade was conducted.

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(d) The entire prosecution story is under grave shadow of doubt.

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(e) The accused is implicated, falsely and sheerly because he belongs to the Pardhi Community and police claim that he was found and that he was caught on the spot.

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(f) PW3 is a sheer chance witness.

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The learned APP supported the conviction on the basis of reasons recorded in the judgement.

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It is pertinent to note that any incriminating material was not found from the person accused and from spot i.e. particularly stolen mangalsutra.

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The statement of Dr. Shirish Nilkanth Kumthekar, PW7, from whom Mahadevi Arvind Nikambe took treatment is gravely suspicious, rather it does not prove injury during the incident.

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Entire case of prosecution rests on the testimony of PW3 Mahadevi Arvind Nikambe. PW3 has stated in the examination-inchief as follows :

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“..... Other persons were pelting the stones on the railway. I saw the person before releasing his hand as

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cr appeal 69.12

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he had pulled me towards window. Accused before the court is the same. Since a scuffle was going on for long time hence, I had an opportunity to see the accused.....”

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(Quoted from Page 33 of the Appeal)

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This version is too scant to hook and book the accused as offender, even prima facie, much less conclusively.

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The fact that Mahadevi was contacted and her statement was recorded particularly 4 months after the incidence, brings the very fact of her involvement and in the incidence under grave shadow of doubt.

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The version of police witness can be relied only to the extent that they had caught the accused at the scene of offence and nothing more.

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Result is that conviction is found to be passed on suspicion than on evidence, and is wholly unsustainable. Therefore, appeal succeeds. Judgement and Order under Appeal is set aside. The Appellant is set at liberty forthwith.

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Amicus – Advocate Mr. D.G. Khamkar be paid fee of a sum of Rs.3,500/- within one month from today.

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Sudam Hirya Chavan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sudam Hirya Chavan 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

Statutes considered

Parties & counsel

Coram

Case details

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