B.A. Masodkar, J.
1. At about 8.30 p.m. on March 29, 1980 in an open place situate in between Building No. E-17 and E-18 at Shahu Nagar, Dharavi, an incident occurred in which Joy Joseph Vergis was assaulted. He received several injuries and in an unconscious state was taken to the Sion Hospital. There, he was admitted by Dr. Prafulla Kulkarni (P.W. 11). He eventually, died after two months on June 1, 1980 while in the hospital and without regaining consciousness. That he met with homicidal death is clear from the testimony of Dr. Kulkarni (P.W. 11), his injury certificate (Exhibit 21), in whose treatment he was as well of the other two doctors, namely Dr. Tekchand Vira (P.W. 9) and Dr. Narendra Rege (P.W. 10) and the eventual post-mortem performed by Dr. (Miss) Smita Karnik (P.W. 12) whose post-mortem notes are at Exhibit 24. The medical evidence shows that the victim received fatal confused lacerated wounds on the front to parietal region, temporal region and the nasal bone as a result of which internal damage led to unconsciousness. This evidence clearly shows that Joy met with his homicidal death.
2. For the purpose of sustaining the conviction of the accused, we have to turn to the testimony of three witnesses, which the prosecution claims are the eye-witnesses, being Francis Mathias (P.W. 2), who resides in the neighbourhood, Anthony Monjely (P.W. 3), brother of the deceased, and Merrykutti Monjely (P.W. 5), the mother of the deceased Joy.
3. The testimony of these three eye-witnesses, which was read to us closely by both the learned Counsel, clearly goes to show that the incident occurred at a distance from the place where Merrykutti and Anthony resided. In fact, Merrykutti's evidence shows that she resides on the 4th floor and it was Francis who went and informed Merrykutti about the assault. Francis in his testimony goes on to narrate the incident that at about 8 p.m. he noticed that Joy was surrounded by some persons and he was being beaten by some weapons. As he was frightened, he moved away and then afterwards he thought of informing Merrykutti (P.W. 5), the mother of the deceased Joy. According to him, he would not be able to identify anyone as the assailant. He gave the reason that lights were not very bright and that in such light one could not recognise a person unless he knew him. Joy's mother resided on the 4th floor of G-2 building opposite the building of the witness. After he called, she came down and proceeded to the scene of offence in the company of the witness. When they reached the scene of offence, they found Joy lying down and nobody present there. Joy was then removed by his (Joy's) mother, brother and one Deepak Rajan to the hospital, but the witness further corroborated that he was not certain whether the mother went to the hospital or not. In the cross-examination too he has asserted that he saw the persons striking Joy, but he was not very certain whether he stated so before the police. He further stated that it is possible that at the time when he was being assaulted he has rushed to the residence of Joy so as to inform his mother. He is not even certain whether he told the police that some persons were striking Joy with some weapons. When confronted, he admits that he has not stated so, the contradiction being with regard to some weapons. The testimony of Francis (P.W. 2) thus rules out the identification by him of the accused as one of the assailants. It further shows that the mother could not be the eye-witness, because it was he who went to the mother, that is, Merrykutti (P.W. 5), and in her company both of them came together and when they reached, the injured was lying alone and nobody was present there. He does not mention the presence of brother Anthony, though he knows the family, except that his brother also took the injured joy in a taxi to the hospital. The say of Anthony (P.W. 3), on the other hand, is that he is the eye-witness. According to Anthony, he has seen his brother being surrounded by 3 or 4 persons and amongst them was the accused, Sudhakar Kambli, with an iron bar. He, however, states in the examination-in-chief itself that as he was frightened, he did not raise a alarm. He did not go anywhere. He saw his mother coming along with Francis and then he joined them, the story which is not supported by Francis. He speaks about strained relations between Sudhakar Kambli, the accused, on the other hand and the deceased Joy on the other. According to him, as there were mercury lights, he could see the assault. His cross-examination shows that he must not be the eye-witness. He stated that although he saw the incident, he was merely standing because he was afraid and nervous. Even according to him, he did not look up at any other place whether any other people were watching. He admits that his house is just at a distance of 150 feet. He further admits that the boys who were with Sudhakar Kambli, the accused, were not known to him, but he had seen the accused. He is unable to say about the weapons which the other boys were having. Material contradiction have been brought on record. In that regard he tried to impute the shouts that assault should be started which is not found in his police statement. He asserts that after his mother and Francis (P.W. 2) came, he joined them and at that time the accused along with all the assailants ran away. He places himself at that spot casually because he was returning home at about 8.15 p.m. The testimony of Anthony clearly shows that Merrykutti (P.W. 5) must not have witnessed any part of the incident and she must have arrived on the scene of offence, as Francis asserts, after Francis contacted her and in all probability even Anthony (P.W. 3) must have joined them. We have already indicated that Anthony's claim that he joined Francis and Merrykutti is not supported by Francis, the only independent witness. Merrykutti asserts contrary to this position that she is an eye-witness. According to her, at 8.30 p.m. her neighbour one Mrs. Mathai informed her that assault was going on and boys were assaulting Joy. According to her, as soon as Mrs. Mathai informed her, she (Merrykutti) came out from the balcony saw what was happening. Then she saw Francis calling her out from the building. She came down and along with him proceeded towards the place of the incident. She saw Anthony coming towards the building and according to her at the time she noticed her son coming out of the Vishvabhuvan hotel rushing out being chased by a few boys, one of them having iron bar in hand and hitting her son Joy on his head. She identifies the accused as Sudhakar Kambli, who resides in the same locality. She asserts that the accused gave 3 to 4 blows with the Iron bar. According to her, further, the boys too were hitting Joy on the hands and legs. According to her further, as a result of this, her son fell down. When he fell down, all the boys ran away. Except the accused, she does not identify anyone. The claim of Merrykutti, (P.W. 5) of having watched the incident from the beginning to the end in this manner is clearly under cloud by reason of the testimony of Francis (P.W. 2). He has stated in no unmistakable terms that it was he who after seeing the assault by some persons on Joy approached the building where Merrykutti was residing, gave her a call, she came out and when they reached the spot, Joy was lying in an injured condition and that no one was there. The testimony of Merrykutti itself stands contradicted on material aspects with regard to her claim to be the eye-witness to the whole incident. Her cross-examination too shows that relations between the accused and the deceased Joy were not happy and were strained. Under such circumstances, her claim to be eye-witness cannot be accepted. Furthermore, it does not appear that Merrykutti must have made immediate disclosure to the notice about the name of the accused as is apparent from the testimony of Police Constable Maroti Chavan (P.W. 8), who was posted at the Sion Hospital and who took the entry in the casualty register. In the main incident described no name is mentioned except 'Eka Esam', that is, one person and it is only in the column which is meant for writing names, the name of the accused and others is inserted. Though Police Constable Maroti Chavan tries to state that the entry was made as per the narration of Merry Kutti (P.W. 5). Merrykutti's testimony does not support it, for Merrykutti does not say that she disclosed all this to Police Constable Maroti Chavan (P.W. 8).
4. All this evidence is far from satisfactory. It does not show that the accused was one of the persons holding the bar and assaulting the deceased Joy.
5. In the result, the conviction is unsustainable. The judgment of conviction and sentence is, therefore, set aside and this appeal is accepted and the accused is acquitted of the offence for which he was found guilty. He be released forthwith.