High Court allowed appeals against murder conviction. Appeals dismissed eyewitness testimony due to significant delays in disclosing the incident to police, declaring evidence unsafe for conviction.
Criminal appeals allowed. Conviction and sentence of both appellants set aside. Both appellants acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 345 OF 2014
Rupesh Babu Thapa @ Hamaliya Arjun Thapa.
Age 32 Years, Occ. Caterer, Residing at Kabutar Galli Footpath, Mahi Matura Marg, SVP Road, Mumbai - 400 064.
Presently lodged in Nasik Road Central Prison, Nasik.
.. Appellant (Org. Accused 1)
Versus
The State of Maharashtra
At the instance of VP Road Police Station C.R. No. 96 of 2012 in C.C. No. 323 PW of 2012 .. Respondent
WITH CRIMINAL APPEAL NO. 227 OF 2014
Lalbihari Kishor Paswan
Convict No. C/9232, Circle No. 3/4, Nasik Road Central Prison, Nasik. .. Appellant (Org. Accused 2)
Versus
The State of Maharashtra
At the instance of VP Road Police Station
.. Respondent
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| Appearances | |
|---|---|
| Ms. Sarojini Upadhyay | Advocate (appointed) for the Appellant in Criminal Appeal No. 345 of 2014 |
| Mrs. Nasreen S.K. Ayubi | Advocate (appointed) for the Appellant in Criminal Appeal No. 227 of 2014 |
| Mrs. A.S. Pai | APP for the State |
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ.
COMMON ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1 has preferred Criminal Appeal No. 345 of 2014 against the Judgment and Order dated 27.12.2013 passed by learned Sessions Judge, City Civil & Sessions Court, Greater Mumbai in Sessions Case No. 620 of 2012. Appellant - Lalbihari Kishor Paswan i.e original accused No. 2 has preferred Criminal Appeal No. 227 of 2014 against the very same Judgment and Order. By the said judgment and order, the
learned Session Judge convicted both the appellants for the
offence punishable under Section 302 r/w 34 of IPC and sentenced each of them to suffer rigorous imprisonment for
life and fine of Rs. 5000/- each, in default R.I. for six months.
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The learned Sessions Judge further convicted appellant - Rupesh Babu Thapa i.e accused No. 1 for the offence punishable under Section 37(1)(a) r/w 134 of Bombay Police Act and sentenced him to suffer rigorous imprisonment for six months. Learned Sessions Judge directed that both the sentences of imprisonment of accused No. 1 shall run concurrently.
As both the appeals are directed against the very same Judgment and Order, we are deciding both the appeals together. For the sake of convenience, we shall refer to the appellants as they were referred before the trial Court i.e appellant - Rupesh Babu Thapa will be referred as accused No. 1 and appellant - Lalbihari Kishor Paswan will be referred as accused No. 2.
was situated near Gol Deul (Round Temple) in
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Kabutar Galli at S.V.P. Road, Mumbai. He was residing there along with accused No. 1 - Rupesh Thapa, accused No. 2 - Lalbihari, deceased Bablu Thapa and one other person. Rohitkumar was working with caterers. Both the accused and the deceased used to work with caterers. Both the accused persons and the deceased were in habit of taking liquor and drugs.
night, they slept there.
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Rohitkumar was standing outside. Accused No. 1 - Rupesh Thapa and the deceased then went towards the Gol Temple. Rohitkumar and accused No. 2 Lalbihari went to Kabutar Galli. They took drugs. Accused No. 1 - Rupesh Thapa and the deceased came there and they started drinking liquor. After sometime, accused No. 1 - Rupesh Thapa and the deceased told Rohitkumar and accused No. 2 - Lalbihari to give them money. Both Rohitkumar and accused No.2 - Lalbihari refused to give money. Then the deceased took out a razor and assaulted Rohitkumar on the arm. The deceased also assaulted accused No. 2 - Lalbihari with razor on the chest. Then both of
them ran away.
(d) Accused No. 2 - Lalbihari told Rohitkumar that
they will go and search for both the persons and assault them. Both of them started searching for
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the deceased and accused No. 1 - Rupesh Thapa. When accused No. 2 - Lalbihari saw Bablu Thapa, accused No.2 - Lalbihari told Rohitkumar to assault Bablu Thapa but Rohitkumar refused. Then accused No. 2 Lalbihari went and held hand of Bablu Thapa and gave him a fist blow on the chest. Then accused No. 1 Rupesh Thapa took out
a knife and stabbed Bablu Thapa on his neck. Bablu Thapa started screaming and running. Then accused No. 2 Lalbihari caught Bablu Thapa by neck and made him fall down. Then both accused ran away.
(e) People gathered at the spot. Meanwhile police
vehicle came to the spot on seeing the crowd. Police went inside the crowd and saw Bablu Thapa lying there. Police made inquiry about the identity of the person but no one gave any answer. Rohitkumar too did not give any answer. He did
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not say anything to the police. Then police took the body of Bablu Thapa to the hospital. After sometime, Rohitkumar went to chowky to inquire whether Bablu Thapa was dead or alive. Police asked him his identity whereupon Rohitkumar replied that Bablu Thapa was his friend. The next morning, Rohitkumar told the police that he had
witnessed the incident.
(f) As stated earlier, the police had arrived at the spot. ASI Indulkar who was in the police patrolling van, on seeing the crowd at S.V.P. Road, came to the spot. He saw one person (deceased Bablu Thapa) lying there with cut injury on the neck. They took the person to J.J. Hospital where he was declared dead. PW 2 ASI Indulkar then lodged F.I.R. The F.I.R was against unknown persons. After lodging the F.I.R., investigation commenced. After completion of investigation, charge sheet
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came to be filed.
the parties, the judgment delivered by the learned Sessions
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Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no cogent and reliable evidence to prove the guilt of both the accused beyond reasonable doubt.
Santosh. As the prosecution story narrated above is taken from the evidence of PW 1 Rohitkumar, we will not overburden the judgment by repeating the same here. In short, the evidence of PW 1 Rohitkumar shows that both the accused, deceased and he were friends. Rohitkumar saw accused No. 1 Rupesh Thapa giving a blow with knife on the neck of Bablu Thapa. Thereafter, he saw accused No. 2 -
Lalbihari caught Bablu Thapa by the neck and made him fall down. Thereafter, both the accused ran away.
the learned counsel for the accused by pointing out that
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though Rohitkumar is an eye witness to the incident, when police came to the spot where Bablu Thapa was lying injured or dead, Rohitkumar did not mention anything to the police about witnessing the incident. In fact, Rohitkumar has stated in his examination-in-chief that when Bablu Thapa was assaulted, people gathered at the spot. Police vehicle, on seeing the crowd, came to the spot. Police went inside the crowd and saw Bablu Thapa was murdered. Police inquired about the identity of the person but no one gave any answer. Rohitkumar also did not give any answer to the police about the identity of the deceased. Thereafter, Rohitkumar went to the garden and slept. Thereafter, Rohitkumar went to the chowky to inquire whether Bablu Thapa was alive or dead. Police inquired with Rohitkumar whereupon Rohitkumar replied that Bablu Thapa was his friend. Rohitkumar them again went to the garden and slept. The next day morning, police came and took him to V.P. Road Police Chowky. They made inquiry with Rohit Kumar. Rohitkumar replied that Bablu Thapa was his friend. Thereafter, Rohitkumar stated
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to the police that both the accused had assaulted Bablu Thapa.
spot, Rohitkumar was present at the spot, however, he did not mention anything about identity of the deceased to the police though police made inquiry about the identity of the
deceased. Rohitkumar also did not inform the police that Bablu Thapa was assaulted by both the accused. This delay on the part of Rohitkumar of informing the police that he had witnessed the incident raises grave doubt about the veracity of his evidence. The incident occurred on 20.5.2012 at about 7.30 a.m. however, Rohitkumar informed the police that he had witnessed the two accused assaulting the deceased only
in the morning of 21.5.2012.
a.m.,. At that time, he was working in vadapav shop. There
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was scuffle amongst three people. One caught hold of the
other and inflicted a fist blow from the front and the third person caught hold of hair of the second person and cut his throat. The victim shouted for help and tried to run away whereupon the first person ran behind the victim, made him fall down and thereafter, he ran away. Santosh has identified accused No. 2 - Lalbihari as the person who inflicted fist blow and accused No. 1 - Rupesh Thapa as the one who cut throat of the deceased. Santosh had also identified the accused persons in identification parade. Santosh has stated that police also reached the spot and took the injured to J.J. Hospital.
morning of 20.5.2012, however, the statement of Santosh was recorded on 23.5.2012 which is not only clear from the evidence of Santosh but it is also clear from the evidence of Investigating Officer PW 14 PI Kale. PW 2 Santosh stated
that after the assault when the accused ran away, crowd
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gathered at the spot. Police also reached the spot and took the injured to J.J. Hospital, however, at that time, Santosh did not inform the police about witnessing the incident. What is most interesting to note is that Santosh has acted as a panch to the inquest panchnama which took place at J.J. Hospital. Though Santosh had opportunity to interact with the police especially during the inquest panchnama, he kept quiet about witnessing the incident and did not inform the police that he was an eye witness to the incident. Santosh has admitted that police had inquired with him but yet Santosh did not disclose anything to the police. Thereafter on 23.5.2012, he went to the Police Station at about 10.00 a.m.
and disclosed about being an eye witness to the incident. Santosh has also admitted that he did not disclose to his
other colleagues in the shop that he had witnessed the incident. This fact of Santosh belatedly informing the police that he had witnessed the incident again raises serious doubt
about reliability of his evidence. Looking to the conduct of Santosh and the delay on his part to inform the police that
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he had witnessed the incident, we do not find it safe to rely upon his testimony. Same is the case with the other eye witness i.e PW 1 Rohitkumar.
10. The prosecution has tried to rely on the circumstance of
recovery of weapon and clothes at the instance of accused No. 1 - Rupesh Thapa, however, the panch witness i.e PW 9 Riyaz Ansari has admitted that API Patankar introduced him to accused No. 1 - Rupesh Thapa. This panch witness has admitted that he knew API Patankar quite well. Looking to this fact that the relations between the panch witness and API Patankar were quite close, we do not think it safe to rely on the testimony of PW 9 panch witness Riyaz Ansari.
pass the following order:-
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O R D E R
(i) The Criminal Appeals are allowed.
[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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3 issues framed by the court
Whether cogent and reliable evidence exists to prove the guilt of the appellants beyond reasonable doubt based on the delayed testimony of eyewitnesses.
Whether the delay by eyewitnesses Rohitkumar and Santosh in informing the police about witnessing the incident undermines the reliability of their testimony.
Whether the benefit of doubt should be given to the accused due to the lack of safe evidence despite conviction for murder.
2 provisions across 2 enactments
Rupesh Babu Thapa
Lalbihari Kishor Paswan
The State of Maharashtra
V.K. Tahilramani
Mridula Bhatar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
