Mansimran Kaur

Mumbai, June 13, 2022: While affirming that suspicion however, strong cannot take the place of proof, the Bombay High Court has allowed an appeal filed by the appellants against the order of their conviction under  Sections 302 and 447 read with Section 34 of the Indian Penal Code.

The Division bench of Justice Sadhana S. Jadhav and Justice Milind N.  Jadhav observed that there were discrepancies, omissions and contradictions in the testimony of the sole eye- witness of the prosecution, and thus on the basis of lack of evidence the appeal was allowed in the instant matter. 

The appellants in the instant case were convicted for the offence punishable under Sections 302 and 447 read with Section 34 of the Indian Penal Code and were sentenced to suffer imprisonment for life under and fine of Rs 10, 000/- each in case of default through judgment and order dated January 19, 2016, hence the present appeal was preferred. 

Facts relevant for the adjudication of the present appeal were that Shewale family owned  about 5.5 acre of irrigated agricultural land in village Nagaon.The Shewale family consisted  of Nimba Shewale, his wife Taibai, their sons Samadhan, Gorakh and Ganesh and daughter-in-law Poonam, wife of Samadhan. The accused-appellants were also agriculturalists. The cause of dispute between the Shewale family and the family of the accused was on account of a common way through the agricultural land.  There was an altercation that occurred between Vijay, Suresh and Samadhan. The accused stabbed the deceased. The police failed to record the statement of Samadhan. However, Taibai narrated the incident, on account of which the case was registered and a charge- sheet was filed. 

After giving anxious consideration to the submissions, the Court noted that the entire case of the prosecution was based on the testimony of the. the mother of the deceased, who claimed to be the eye- witness in the present case. It was further noted by the Court that it was established by the prosecution that the relations between the family and the family of the deceased were not cordial for quite a long time. Civil proceedings were pending before the Revenue Court. However, pendency of civil litigation by itself would not establish the motive to kill, the Court stated. 

The Court took into account the photographs from the crime scene and noted that it was difficult to believe that the first witness from the prosecution’s side must have actually seen the incident. The presence of the accused at the spot while proceeding to their own house could not be held against the accused as they had residences in the same area There was no evidence on record to show that the deceased was dragged, the Court noted. 

The fact that the cause of death was cardio respiratory failure due to blood loss by itself showed that Samadhan was not extended with medical aid immediately, remarked the Bench. The Court also took into account the discrepancies, omissions and contradictions in the evidence of the witness which caused a shadow of doubt on the credibility of the testimony. The evidence of eye-witness has to be a sterling testimony and has to be proved before the Court of law beyond reasonable doubt, observed the Court.

In view of the aforesaid observations and discrepancies in the evidence produced, it was opined that the prosecution failed to prove the engagement of the accused beyond reasonable doubt in the assault of the victim and thus, the conviction of the appellants was quashed and set aside

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