This is the criminal appeal filed by the state government under section 378 of Cr.P.C judgment passed by the Session judge on 15.11.2017 challenging acquittal of five accused that were punished under Sections 302, 427, 504 read with Sections 143 and 149 of the Indian Penal Code.
The P.W.5 Mohd Irfan acted as an eye witness of the alleged incident on the basis of which the case of the prosecution was affirmed. On the date of the incident at night, the three persons viz. Bhatti Master (cook)-Vilas Gaikwad, waiter-Raju Telgote, and witness Mohd. Irfan (PW-5) was sitting beside Jitesh Gupta in Dhaba. It was revealed that he is the childhood friend of Jitesh and both reside in the same town. He(Mohd Irfan) encountered the entire incident and was thereafter examined by the party narrating the incident and informed about the role of accused persons.
The counsel pleads that P.W.5, Mohd Irfan, directed a true narrative of the incident on the date of occurrence and acted in a natural and reasonable manner. Therefore, his testimony must be relied upon and deserved to be given due importance for tracking the offense punishable under different sections of IPC.
The counsel pleads before the court that the testimony of P.W.5, Mohd Irfan can be questioned since he is merely a chance witness and also an interested witness. During cross-examination, Mohd Irfan could not recall the conversation between Jitesh and the accused person. He could not state on what aspects, the dispute was initiated. Moreover, on further examination, he submitted that he neither informed the police station even after he witnessed the whole incident nor interfered with the dispute.
Furthermore, Mohd Irfan, the sole eye witness behaved in the most unnatural and unrealistic manner which can be evidently be seen because of the fact that he did not go to Jitesh house but rather went to sleep additionally does not felt the relevance of such a grave incident to be informed to brothers and relative of deceased though he was acquainted with them. Most emphasis has been ignored by Mohd Irfan that on the date of occurrence, a person wearing black jerkin took out a knife while another person said ‘Maro Saleko which is the material omission of his part of the testimony of the witness. The P.W.5 during examination stated that the accused persons were in a black Indigo car while during cross-examination, he was unable to reveal which accused was sitting in the driver seat and backseat. Therefore, no reliance could be placed on the sole testimony of P.W.5 because of inconsistency and omission.
The court took the reference of the case Deochand Sukte .v. The state of Maharashtra, [reported in 2010 ALL MR (Cri) 80] and the case of Murlidhar Dongardive. v. State of Maharashtra, [reported in 2008 ALL MR (Cri) 110], in such case, the prosecution sole eye witness was unreliable. Therefore, Bombay High Court observed that there is a need for corroboration.
State of Maharashtra v. Mohan Ranjwan, [reported in 2017 (3) Bom.C.R. (Cri) 459], in this case also the witness did not inform anyone acquainted with the deceased till he reached his home. Therefore, such misleading conduct of the witness puts a question about the authenticity and validity of the testimony.
The court observed that even though there were three witnesses present at the crime scene but the prosecution chose only Mohd Irfan. The oral testimony submitted revealed that he was plying auto-rickshaw from Railway Station to Murtizapur town and on that date, he went to the petrol pump which was nearest to Dhaba. Therefore, the respondent’s argument that Mohd Irfan was a mere chance witness gained significance throughout the proceeding.
The court concluded that the respondent was unable to establish perversity in the judgment of the Session Judge. The importance must also be given to the finding recorded by the decision of the Trial Court as the court has had the benefit of ascertaining the conduct of witnesses. Thus, such an order or decision of the Trial court cannot be set aside and quashed and consequently, the criminal appeal is rejected and dismissed.
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