LexSUNIL versus STATE OF MAHARASHTRA
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-· (2008] 14 S.C.R. 533 SUNIL - v. STATE OF MAHARASHTRA (Criminal Appeal No. 1620 of 2008) OCTOBER 16, 2008 • [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA,JJ.] A B Penal Code, 1860: s. 302 r. w. s. 149 - Conviction under - Correctness of- On facts, held: Not correct- Evidence of wit- c ,_ nesses did not establish presence of accused at the place of occurrence. The trial Court convicted the appellant under s.302 . r.w. s.149 IPC, ss. 143, 144, 147, 148 and s. 506 r.w. 149 IPC on the basis of evidence of eyewitnesses. High Court D affirmed the conviction. Hence the present appeal. Allowing the appeal, the Court HELD: 1. The evidence of PWs 2 and 6 did not es tab-· lish the presence of the appellant at the place of occur- E rence. PW 2 is the father of the deceased and PW 6 is the person in front of whose house the occurrence took place. PW 2 in his cross examination clearly stated that he did not state before police that the appellant caught hold of the deceased. Similarly, PW 6 on whose evidence great F emphasis was laid by the courts below, categorically de- scribed the presence of various accused persons, the weapons held by thein and the individual overt acts. He, however, categorically admitted that he had not seen the appellant at the scene of occurrence. It is of some signifi- . G · cance that t_he appellarit,took the positive stand that he was not in the village at the relevant point of time and was ' ' at the distance of nearly 200 km from the place of occur- rence. The trial court. and High Court referred to this as- , 533 .. H ...... - \ 534 SUPREME COURT REPORTS [2008] 14 S.C.R. " ~ A pect but came to conclusion based on surmises that he could have come back by changing one vehicle to an- other for travelling the distance from the place where he had gone to the place of occurrence. In view of the afore- said infirmities, the inevitable conclusion is that the pros- B ecution failed to establish the accusations so far as the appellant is concerned. He is acquitted of the charges. t-~ [Para 7] [537 D to H; 538-A] CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1620 of 2008 c From the final Judgment and Order dated 20.4.2007 of the High Court of Judicature of Bombay in Criminal Appeal No. 235 of 2006 AV. Sawant, S.S. Rangrej, N.Y. Deshmukh, Neetu S. / D Chauhan and Rameshwar Prasad Goyal for the Appellant. Aparjita Singh and Ravindra Keshavrao Adsure for the ·y- Respondent. The Judgment of the Court was delivered by E DR. ARIJIT PASAYAT, J. 1. Leave granted. - ' 2. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Aurangabad Bench dismiss- ing the appeals filed by several accused persons. The present F appeal is by original accused No. 6 (hereinafter ·referred to as ~,_.,, the A6). He was convicted for various offences punishable un- der the Indian Penal Code, 1860 (in short the 'IPC') and sen- tenced to undergo custodial imprisonment and fine with default stipulation. The High Court dismissed the appeal so far as the G present appellant is concerned, we are not concerned with the other appeals. f ,,f.. + 3. Prosecution version in a nutshelltis as follows: AS.I. Yadav Satpute(P.W. 11) who was attached to police H station, Pathardi and was on duty as aPolice Station officer on SUNIL v. STATE OF MAHARASHTRA 535 [DR. ARIJIT PASAYAT, J.] ---4 7 .3.1998, received a phone call at about 2230 hrs. informing A him that th1::re was stone pelting at Rangar Galli and, therefore, he sent the necessary police force. He made an entry at sr. no. 30 in the station diary and at about 10.45 p.m. sent a message to the Control Room and the other police stations. An entry in this behalf was recorded in the station diary at sr. no. 32. Sanjay 8 --~ Shahane (P.W. 4) came to the police station and AS.I. Satpute (P.W. 11) recorded the report of Sanjay (P.W. 4) at Exh. 125. An entry in this behalf was accordingly made in the station diary at sr. no.33. Sanjay Shahane (P.W. 4) immediately left the police station on receiving message that his uncle Jaikumar (P.W. 2) c had become unconscious. Thereafter at about 2355 hrs., origi- nal accused No.13 Pratibha came to the police station and gave a report in respect of a non-cognizable offence. An entry in re- spect thereof was made in the station diary at sr. no. 34. Origi- nal accused No.1 O Amal and juvenile offender Rama were re- D ferred to the hos
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