Bombay HC: How to appreciate prosecution evidence when investigating officer has failed to secure independent witnesses even though incident occurred in public place?

As such there are major contradictions in the evidence of these five witnesses. What is more surprising is that the Investigating Officer did not get any independent witness in the reservation hall, where hundreds of persons are always present during reservation hours. The argument of the Applicant that a false case has been concocted against him and he has been intentionally removed from the railway platform, where he was running a food stall, appears to be probable. In my opinion, the Applicant has been able to probabilise his case. The evidence of the prosecution witnesses appears to be wholly doubtful. The learned trial court and the appellate court in fact could not have accepted such a contrary evidence of constables and head constable belonging to the same department. {Para 5}

 IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 149 of 2005

Decided On: 21.08.2014

George Cyriac Maruthukunnel Vs. The State of Maharashtra

Hon'ble Judges/Coram: M.L. Tahaliyani, J.

Citation: 2015 ALL MR (Cri) 897, MANU/MH/2748/2014

1. This Criminal Revision Application is filed against the order passed by the Additional Sessions Judge, Greater Bombay, partly allowing the Appeal of the Applicant. The Applicant was convicted by the learned Metropolitan Magistrate, 35th Court, C.S.T., Mumbai for the offence punishable under sections 353 and 504 of the Indian Penal Code.

2. The learned Additional Sessions Judge acquitted the Applicant of the offence punishable under section 504 of the IPC and maintained his conviction for the offence punishable under section 353 of the IPC.

3. The allegations against the Applicant in brief, before the learned trial Magistrate's Court, were that the Applicant had assaulted and/or used criminal force against R.P.F. Police Constable, while he was discharging his duties, as R.P.F. Constable. The incident in question had occurred in the main reservation hall.

4. The PW-1, who is the Complainant and victim of the offence, has stated in his evidence that he was on duty in the reservation hall and that he was alone, not accompanied by any other constable or head constable. It is alleged that the Applicant entered the reservation hall and started abusing PW-1 and head constable, accusing them of taking bribes. PW-1 had stopped and prevented him from causing nuisance and advancing filthy abuses; however, the Applicant instead of maintaining peace, assaulted PW-1 and had filthily abused him. This evidence of PW-1 is supported by police constables PW-2 Chandane and PW-3 Sudhakar Patil. However, PW-4 Police Constable - Lokhande has given totally a different story and he has stated that there was scuffle between the Applicant and the PW-1. He has not stated anything about the alleged assault on the part of the Applicant. PW-5 Sharad Sawant has also not specified when the incident took place. PW-6 has also given altogether a different story. He has stated that the PW-1 was lying on the floor and the Applicant was assaulting him.

5. As such there are major contradictions in the evidence of these five witnesses. What is more surprising is that the Investigating Officer did not get any independent witness in the reservation hall, where hundreds of persons are always present during reservation hours. The argument of the Applicant that a false case has been concocted against him and he has been intentionally removed from the railway platform, where he was running a food stall, appears to be probable. In my opinion, the Applicant has been able to probabilise his case. The evidence of the prosecution witnesses appears to be wholly doubtful. The learned trial court and the appellate court in fact could not have accepted such a contrary evidence of constables and head constable belonging to the same department.

6. Both the courts below could have taken note of the fact that there is no explanation as to why an independent person has not been examined by the prosecution.

7. In the result, the Revision Application is allowed. The judgment and order passed by the learned Additional Sessions Judge, Greater Mumbai, in Criminal Appeal No. 177 of 2013 is set aside.

8. The Applicant is acquitted of the offence punishable under section 353 of the IPC. His bail bond stands cancelled. The Revision Application stands disposed of accordingly.

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