Amit Mishra vs The State of Maharashtra

A.B. Choudhari, J.—Being aggrieved by the judgment and order dated 5.6.1996 passed by 4th Additional Sessions Judge, Nagpur, in Session Trial No. 424 of 1993, whereby the Appellant was convicted for the offence punishable u/s 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 500/-, so also for the offence punishable u/s 397 of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 500/-, in default to suffer further rigorous imprisonment for three months, the present appeal was filed.

SUBMISSIONS:

In support of the appeal, Mr. Daga, learned Counsel for the Appellant, made following submissions:

(i) the prosecution case was solely based on the testimony of P.W.1 Natasha who stated in her evidence that she did not actually witness the incident of assault on the deceased by the Appellant. She only stated that she saw the Appellant running from out of the house and then boarded a scooter. It was risky to base conviction on such type of evidence in the absence of availability of direct evidence of assault by the Appellant on the deceased- old lady.

(ii) Perusal of first information report (Ex.44) merely shows that the first page refers only to a boy as assailant and does not refer to the name of the Appellant Amit Mishra. It is only the second page of FIR that at the end thereof, name of Amit Mishra is mentioned as the said boy. There is reason to believe that the second page of FIR was inserted with a view to implicate the Appellant as murderer.

(iii) there are circumstances to infer that the case could be one of mistaken identity. Two tutors including the Appellant used to come to the house of Petitioner''s grand father.

(iv) P.W.1 Natasha did not disclose the name of the Appellant/accused immediately after the incident to her grand father or to the persons who rushed on the spot. She had hardly an opportunity to see the Appellant thrice, as claimed by her.

(v) The printed FIR shows that it was lodged at 3 p.m. whereas information received by the Control Room as per Ex.61 was at 1-30 p.m. It was, therefore, doubtful as to whether really the name of the Appellant was disclosed at the threshold. The police had brought Appellant Amit at about p.m. for identification before P.W.1 Natasha, which shows that till that time nobody knew the real assailant and, therefore, the claim made by P.W.1 Natasha that she had seen the Appellant running away from her house was false.

(vi) The other evidence relied upon by the trial court about discovery of the weapon and articles sold has not been proved in accordance with law, and therefore no reliance could be placed on such type of evidence to convict the Appellant for serious offence of murder.

(vii) The usual time of production of accused persons before the Magistrate is 3 p.m., but in this case admittedly the Appellant was produced at 1 p.m., that too under the orders of the Court, and this abnormal conduct has not been explained by the prosecution. Finally, he prayed for acquittal of the Appellant.

Per contra, learned A.P.P. supported the impugned judgment and argued that the evidence of P.W.1 Natasha is well corroborated and there is no reason why her evidence should be discarded. No enmity has been even pointed out and it is a clear cut case for commission of murder for committing robbery. He prayed for dismissal of the appeal.

CONSIDERATION:

We have gone through the impugned judgment and order of conviction so also the evidence of prosecution witnesses. We have also considered the submissions made by the learned Counsel for the parties.

P.W.1 Natasha is the star witness of prosecution in this case. From perusal of her evidence, we find that she was well acquainted with the Appellant since the Appellant used to come to her house to teach Chemistry every day to her maternal uncle''s son Prashant. On the fateful day, she and her grand mother were in the house and she was in the bed room watching Television. At about 12-15 p.m. she saw a boy who pushed the door and entered the house. Thereafter she opened the door of the bed room and saw the Appellant was rushing towards main road from the house. She also saw her grand mother lying in a pool of blood and also at that moment she saw Appellant Amit peeping through the window of the kitchen. She rushed out of the house and saw Appellant went away by the scooter. Thereafter she informed her grand father about the incident. Perusal of cross-examination of this witness, to our mind, has not shattered her testimony at all on material particulars. Perusal of FIR, to our mind, does not show that the same was manipulated, as argued by the learned Counsel for the Appellant. We have seen the FIR (Ex.44) and we are satisfied that there is no such manipulation by adding page 2, as stated. P.S.I. Sushila (P.W.8), who recorded the F.I.R. (Ex.44) and who signed the same, was not asked a single question on this line. In fact, P.W.8 Sushila, who had recorded the F.I.R. as per the say of P.W.1 Natasha, could have been cross-examined as to whether page No. 2 in the FIR was subsequently inserted wherein the name of the Appellant appears as assailant. Apart from that, we are satisfied with the reasons recorded by the trial Court on this aspect, and instead of repeating those reasons, we quote relevant portion from para 15 of the impugned judgment, which reads thus:

In the instant case, P.S.I. Bhowate P.W.8 received an information from the control room that assailant assaulted to deceased Ratna Shahani and caused her death. Thus, from this information itself, it is seen that it is cryptic and there is no any details of such information. It is not a prosecution case that Natasha P.W.1 gave information to control room or any of the police station. According to her, she phoned to her grand father and Sanjay uncle and they immediately rushed to the spot along with other neighbourers. So, there is quite probable that somebody out of them might have given the information to the control room. In view of these facts and circumstances, the observations made in the above rulings, have perfect application and so I do not find any force in the submission of learned defence counsel Shri Daga. Similarly, I do not find any force in the submission that the contents of page No. 2 have been subsequently inserted. No doubt, there is no mention of the name of accused No. 1 Amit Mishra in the F.I.R. at Ex.44 when she had an opportunity to see him while pushing door, throwing match-stick in the kitchen room. However, in the initial part of the FIR, there is mention of his name. Further it is true that there is mention in the FIR that the scooter was blue in colour by which the assailant left. However, these two minor contradictions are not sufficient to discard the evidence of P.W.1 Natasha.

We have already found that the evidence of P.W.1 Natasha inspires confidence and in the absence of any damage to her sole testimony before the Court, in cross-examination or otherwise, we have no reason to differ with the finding recorded by the trial Court who has found that she had correctly identified the Appellant and there was no reason to assume any mistake in identifying the Appellant. We quote the relevant portion from para 11 of the impugned judgment, with which we are in total agreement, which reads thus:

Firstly, it has been challenged on the ground that she had no opportunity to see accused No. 1 face to face. Secondly, it has been challenged that two tutors one for chemistry subject and another for physics subject used to teach Prashant and as both of them were of same age group, there is every possibility of mistake in identity. Further her evidence has been challenged in respect of the identification of the scooter. Then it has been also challenged on the ground of her conduct immediately after the occurrence, i.e. she did not disclose the name of accused No. 1 Amit Mishra either to her grand father or to the person who immediately rushed on the spot. It has been suggested to this witness that she did not know the name of chemistry teacher till writing of F.I.R. Ex.44 and she had no seen Amit Mishra on that day minutely. Natasha is a natural witness. She was present in the house at the time of occurrence. It is clearly seen from her testimony that she had opportunity to see the accused No. 1 Amit Mishra thrice. Firstly when the assailant pushed the door of her room, secondly when assailant stood at the side of window and thrown a burning match-stick and thirdly when he left the spot by scooter. Natasha came to reside with her grand mother and grand father on 8th April, 1993. After her arrival the accused started visiting the house for taking tuition of Prashant. Though she has stated in her cross-examination that she has no talk with the physics tutor or chemistry tutor face to face, she has denied the suggestion that she never saw any tutor while coming and going. Not only she stated that both the tutors used to visit the house for teaching Prashant, she stated that chemistry tutor used to visit during 2 to 3 p.m. and physics tutor used to visit at 6 p.m. Further, she has stated that before the tuition Prashant had telephonic talk with Amit Mishra and thereafter Amit Mishra used to visit the house to teach Prashant.

The evidence of discovery of the weapon as well as robbed material has well been proved by the prosecution before the trial Court and looking to the said evidence and the findings recorded by the trial court, we find no fault with the trial court in relying upon the said evidence. We quote the relevant portion from para 17 of the judgment of the trial court on this aspect, which reads thus:

Then for the proof of the circumstance of discovery of a fact that the accused Amit Mishra sold the ornaments to accused No. 2, the discovery of a shop and subsequent facts that the recovery of register maintained in the shop of accused No. 2. The prosecution relies upon evidence of Mohan Deogirkar P.W.5. This witness stated that on 11.5.1993 at about 3 to 3.15 p.m. the accused No. 1 Amit Mishra at police station Sitabuldi made statement that he would show the shop of Laxmanrao Bangre jewellers where he sold gold ornaments for Rs. 13001/-. Then he stated that after his statement was reduced into form of memorandum vide EX.50, they went by jeep in a lane of Bapurao, Itwara. At the instance of accused No. 1 driver stopped the jeep, pointed out towards the shop of Laxmanrao Bangre. The accused No. 2 Vinod was sitting on the counter and in his presence accused No. 1 again made a statement that he sold gold ornaments in this shop. This witness has further stated that a register maintained in the shop was seized from accused No. 2. A relevant entry at Sr. No. 97 was shown to him. Though this witness has been sufficiently cross-examined, nothing has transpired to discredit his testimony in regard to the statement made by the accused No. 1, thereafter a fact discovered that he sold gold ornaments to accused No. 2 and the shop where he sold the ornaments and the register wherein there is any entry of purchase of such ornaments came to be seized.

The submission that the Appellant was not produced at 3 p.m. but was produced at 1 p.m. as per the orders of the Magistrate will have to be rejected since there is no such record that he was produced at 1 p.m. or that he was not produced at 3 p.m. That is merely an imagination and, therefore, we reject the said submission.

For the above reasons therefore, we do not find any error on the part of the learned Sessions Judge in recording a finding of conviction against the Appellant. Resultantly, we find no merit in this appeal and the same is dismissed.