1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 26 of 2005
Appellants : 1) Deepak @ Oharilal Joshi, aged
about 20 years
2) Ghanshyam Oharilal Joshi, aged
about 27 years
3) Bindra Oharilal Joshi, aged
about 23 years,
4) Gopal Oharilal Joshi, aged
about 36 years,
5) Gokul Oharilal Joshi, aged about
30 years
6) Girjashankar Ramgopal Sharma, aged
about 40 years,
All residents of Mehandibag,
Jaybhole Nagar, P.S. Panchpaoli,
Nagpur (All in Jail)
versus
Respondent : The State of Maharashtra, through
Police Station Officer, Panchpaoli,
Nagpur
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Mr A.V. Gupta, Advocate for appellants.
Ms B.P. Maldhure, Addl. Public Prosecutor for State.
Coram : A.H. Joshi and A.R. Joshi, JJ
Date of reserving judgment : 20.10.2010
Date of pronouncing judgment : 28.10.2010
Judgment (Per A.R. Joshi, J)
1.
Present criminal appeal is preferred by all the
six accused against the judgment and order of conviction
passed by 3rd Adhoc Additional Sessions Judge, Nagpur. The
impugned judgment and order was passed in Sessions Trial
No. 422 of 2002 on 6th December 2004. By the said judgment
and order, all the six accused were convicted for the
offences punishable under Sections 302, 149, 147 and 148
of the Indian Penal Code. The major punishment awarded
against the appellants/accused is that of life
imprisonment and fine of Rs. 3000/-, in default, to suffer
further rigorous imprisonment for six months for the
offence punishable under Section 302 read with Section 149
of the Indian Penal Code and six months and fine of Rs.
500/- for offences each under Sections 147 and 148 of the
Indian Penal Code. Accused were, however, acquitted of
the offences punishable under Section 4 read with Section
25 of the Arms Act and Section 37 (1) read with Section
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135 of the Bombay Police Act.
The State of Maharashtra did not prefer appeal
against the said acquittal.
2. Heard rival arguments at length. Perused record
& proceedings of the matter and also perused the reasoning
given by learned 3rd Adhoc Additional Sessions Judge while
holding all the accused guilty of the offence punishable
under Section 302 read with Section 149 of the Penal Code
and other allied offences.
3. The case of prosecution, in nutshell, is as
under.
4. All the accused are residents of Mehandibagh,
Joshipura within the limits of Panchpaoli Police Station,
Nagpur. Accused nos. 1 to 5 are sons of real sister-in-
law whereas accused no. 6 is the real brother-in-law of
complainant Jaiwantibai. Complainant Jaiwantibai was
residing at Yerkheda, Gondpura, Kamptee, District Nagpur
with her two sons i.e. deceased Rakesh and Rajesh and a
daughter by name Rekha.
5. The incident of deadly assault on deceased
Rakesh occurred in a broad day-light in the afternoon on
13th May 2002. On that afternoon, at about 12.00 noon,
Rakesh went with his mother Jaiwanti (P.W.1) to the house
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of one Amrutlal Joshi (P.W. 6). There was mundan
ceremony at the house of Amrutlal Joshi. Deceased Rakesh
came back on his motor-cycle after leaving his mother for
the said ceremony. When he was coming back, he was
assaulted by all accused persons near grocery shop. After
the initial assault, Rakesh ran towards the court-yard of
Kasubai (P.W. 9), all the accused chased him with weapons
in hand and in the court-yard of Kasubai, he was
assaulted by hitting him with slab of grinding stone and
grinding boulder which are Article Nos. 5,6 and 7.
said assault, deceased Rakesh died on the spot.
Due to
6. Rakesh had sustained almost 24 injuries amongst
which major injuries are two lacerated wounds, eight
contusions and contused abrasions, eight stab wounds and
six incise wounds on all parts of the body, commuted
fracture to skull of vault involving all bones and
radiating downward, forward to involve the middle caranial
fossa, transversing horizontally involving the greater
wind of sphonord laterally and body of sphenoid in the
median area and were injuries to the brain.
7. As per the case of prosecution, said assault was
witnessed by almost five eye witnesses i.e. P.W. 1
Jaiwantibai, P.W. 2 Kavita (cousin sister of deceased
Rakesh), P.W. 3 Tarak, P.W. 4 Roshan and P.W. 11 Rekha,
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real sister of deceased Rakesh.
8. At or about 01.00 pm, after witnessing that the
Rakesh was being assaulted, P.W. 2 Kavita rushed to the
house of Amrutlal and informed P.W. 1 Jaiwantabai
regarding assault on Rakesh. P.W. 1 Jaiwantabai then
rushed to the spot. Complainant saw all the accused
persons assaulting her son Rakesh by use of weapons like
knife and grinding stones i.e. articles 5,6 and 7. She
tried
accdused.
to intervene,
After
the
however,
assault, all
was warded
the accused
away by
left
the
the
spot.
9. According to the complainant, present incident
was also seen by Vijay Joshi (P.W.8) who is also a pancha
witness and also eye witness Tarak (P.W. 3) and Roshan
(P.W. 4), an eye witness. Rukhmibai (P. W. 7) was alleged
eye witness.
10. P.W. 1 Jaiwantabai lodged complaint to police
which was treated as First Information Report (exhibit
35). Offence was registered at Crime No. 249/02.
11. During investigation, spot panchanama was
prepared. Articles 5,6 and 7 which are the grinding
stones, one dupatta and foot-wear were taken charge of.
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Inquest panchanama (exhibit 21) was drawn. Dead body of
Rakesh was sent for post-mortem at Mayo Hospital, Nagpur.
12. Accused nos. 1,3 and 4 were arrested in the
same afternoon. One knife was seized from the possession
of accused no. 1 Deepak under the panchanama (exhibit 44.
P.W. 3 Tarak who is also an eye witness, acted as a
pancha. P.W. 3 Tarak also acted as a pancha witness for
recovery of knife respectively from accused nos. 2, and 3
on 15th May 2002.
the Evidence Act.
ig Said recovery was under Section 27 of
13. Other accused were arrested on the next day i.e.
on 14th May 2002. Clothes of the deceased and clothes of
the accused persons were taken charge of under
panchanamas. One saree of Smt Rukhmibai was also taken
charge of under the panchanama.
14. During investigation, statements of P.W. 11
Rekha, elder sister of deceased Rakesh was recorded by
taking the help of one interpretor Madhurika (P.W. 10) as
Rekha is dumb and deaf. During investigation, clothes and
weapons were sent for opinion of the medical officer. So
also, articles were sent for chemical analysis. On
completion of investigation, charge-sheet was filed
against all the accused for the offence of murder, rioting
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and unlawful assembly. Matter was committed to the Court
of Sessions being Sessions Trial No. 422/02 and after
recording evidence of 14 witnesses for prosecution and 3
witnesses for defence, impugned judgment and order was
passed.
15. P.W. 3 did not support the case of prosecution
so far as seizure of knife from accused no.1 is concerned.
Rukhminibai (P.W. 7) turned hostile to the case of
prosecution.
16. Provisional post-mortem report (exhibit 25) and
final post-mortem report (exhibit 27) are admitted by the
accused during trial.
17. During arguments, learned Advocate for the
appellants/accused raised following points :
(i) Exhibit 35 is not the First Information.
Police had arrived on the spot and had madeenquiry with P.W. 1 Jaiwantabai and other persons
and it was ascertained as to the names of
assailants and commission of the cognizable
offence i.e. murder. What was reported on the
spot is FIR whether recorded or not. However,
FIR was not recorded on the spot. As such, the
alleged FIR exhibit 35 being in the nature of
statement recorded by police, cannot be treated::: Downloaded on – 09/06/2013 16:35:17 :::
8as a document which can be used by the
prosecution for corroboration and it can only beused for contradiction or omission as
contemplated under Section 162 of the CriminalProcedure Code.
(ii) Independent witnesses are not examined
though according to all the prosecution witnesses
who had allegedly witnessed the incident and
large crowd had gathered on the spot during the
incident.
(iii)
There are inter-se contradictions in the
evidence of eye witnesses i.e. P.Ws. 1,2,3,4 and
11.
(iv) Eye witnesses are falsified by medical
evidence on record. More-so, when allegedly thegrinding stones (Articles 5,6 and 7) were used by
the assailants and were dropped on the head of
the deceased when he was lying on the ground with
his face downward.
(v) Defence witnesses examined on behalf of
the accused ought to have been accepted as
trustworthy and plea of alibi raised by accusednos. 3 and 4 should have been accepted.
18. In order to narrow down the discussion on the
points raised by the defence, certain admitted position
can be referred as under :
(i) Four witnesses have turned hostile to
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the case of prosecution viz. P.W. 5 Shivprasad,
P.W. 7 Rukhmibai, P.W.8 Vijay and P.W. 9 Kasobai.
(ii) P.W. 5 Shivprasad allegedly took part
as pancha during seizure of grinding stones vide
exhibit 47, clothes of deceased Rakesh vide
exhibit 48, clothes of accused no. 6 vide exhibit
49, clothes of accused no. 3 vide exhibit 50,
clothes of accused no. 5 vide exhibit 51, clothes
of accused no. 4 vide exhibit 52, clothes of
accused no. 1 vide exhibit 53 and clothes of
accused no. 2 vide exhibit 54. As such, P.W. 5
Shivprasad
did not support
prosecution so far as seizure of clothes of all
the case of
the six accused is concerned and also did not
support the case of prosecution as to recovery of
grinding stones and clothes of the victim.
(iii) Rukhminibai (P.W. 7) did not support
the case of prosecution inasmuch as she denied
having seen the accused persons running away with
weapons after the incident of assault and also
denied that due to physical confrontation with
accused no.1, her saree was blood-stained and
that it was seized by the police.
(iv) P. W. 8 Vijay is alleged eye witness
and also acted as a pancha, but did not support
the case of prosecution. He denied having seen
accused persons running behind deceased Rakesh
and at that time they were holding weapons. He
also denied as to accused persons assaulted
deceased Rakesh by means of said weapons.
However, he has admitted that he saw deceased
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Rakesh running by the lane adjoining to his house
and mother of Rakesh was running behind him and
Rakesh fell on the ground in the court-yard of
Kasubai and had sustained bleeding injuries.
(v) Kasubai (P.W. 9) is alleged eye
witness, but did not support the case of
prosecution. She denied witnessing the incident
of assault on deceased Rakesh by the accused
persons. However, she deposed that Jaywantibai
(P.W. 1), mother of deceased Rakesh came to her
house and she was crying and that time, she saw
Rakesh lying ig in the court-yard
subsequently when police came to her house, she
and that
gave her statement.
19. Considering the hostility of the pancha
witnesses and specifically pancha witness Shivprasad (P.W.
5), what is relevant for the purpose of present appeal is
the appreciation of evidence of alleged eye witnesses
(P.Ws. 1,2,3,4 and 11). It is also to be mentioned that
P.W. 14 Vithal Mohakar had also seen three accused persons
running away from the spot. He has visited the spot on
receiving intimation as to commotion taken place at
Joshipura area. According to P.W. 14 Vithal, telephonic
information was received at about 01.35 pm and he made
station diary entry and went to the spot along with police
staff and saw the accused running away with weapons in
hand. He also saw Jaywantibai (P.W. 1) on the spot.
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20. This Court has to see whether the evidence of
said eye witnesses is properly appreciated by the learned
Additional Sessions Judge while convicting the
appellants/accused for the relevant offences. In doing
so, the arguments advanced on behalf of the appellant/
accused are dealt with in detail hereunder.
21. 1993 Cri.L. J. 3684 State of Andhra Pradesh v.
Punati Ramulu was relied upon to urge that exhibit 35 not
that the
to be treated as First Information Report. It is argued
Investigating Officer has not deliberately
recorded FIR even after receiving information about the
cognizable offence on the spot and as such, concoction and
deliberation cannot be ruled out. It is further argued
relying on this judgment that the evidence of interested
witnesses is required to be scrutinised with care and
caution and in doing so, eye witnesses in the present
matter cannot be taken as trustworthy.
On this aspect, substantive evidence of P.W. 1
Jaywantibai and P.W. 14 Vithal is of much importance.
Needless to mention that cryptic information as to the
cognizable offence cannot be treated as a first
information report in the strict sense. Moreover, there
can be a possibility that actual recording of the FIR is
postponed for some time though on the spot certain
revelation is made by the first-informant regarding
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commission of cognizable offence. In the present case,
though it appears that on the spot, Investigating Officer
(P.W. 14) enquired with P.W. 1 regarding incident and
apprised himself of the factual position, still he did not
record it down then and there. However, immediately on
reaching the Police Station, P.W. 1 Jaywantibai lodged her
complaint and it was recorded as exhibit 35. The
immediate proximate recording of such exhibit 35 ruled
out the possibility of concoction and the alleged time gap
of an hour or so could not be ig treated as mitigating
circumstance to the case of prosecution so as to raise any
doubt of false implication of all the six accused, though
alleged by the appellants.
22. On the second argument as to failure to
independent witnesses raises doubt, it may be mentioned
that it is a question of appreciation of evidence of the
witnesses examined and always it may not be possible that
the person from the mob would come forward for giving
statement to the police. Otherwise also, in order to take
advantage of circumstance of failure to examine
independent witnesses, reasonable opportunity must always
be given to the Investigating Officer as to why such
witnesses were not questioned. It may not be lost sight of
the situation that presence of witnesses on the spot is
one thing and anybody coming forward to give statement to
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the police is another thing. Whenever a circumstance
arises, as in the present case, as to brutal attack on the
deceased by six persons armed with different weapons is
witnessed by persons in the mob, all or any of them, may
not come forward for many reasons including reason of the
terror created by the assailants and the impact of the
situation. Always in such type of cases, it can be seen
that apart from close relatives of the victim, nobody
comes forward to approach the police. If otherwise, the
repose confidence,
substantive evidence of other witnesses who are examined
then non-examination of other
independent witnesses cannot be treated as fatal to the
prosecution. In our considered opinion, it is so in the
present matter.
23. Next argument advanced on behalf of the
appellants is that inter-se contradictions in the
substantive evidence of alleged eye witnesses negate the
case of prosecution and in that event, benefit of doubt
must go in favour of the accused. On this aspect, we have
gone through the substantive evidence of P.Ws. 1,2,3,4 and
11. It must be said that P.W. 1 Jaywantibai had reached
the spot after getting the information from P.W. 2 Kavita.
So also, P.W. 11 Rekha, real sister of the deceased also
witnessed the incident and in fact, described the said
event by giving a vivid description. Her evidence was
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recorded with the help of the interpretor Madhurika (P.W.
10). Certain portion from her substantive evidence is
reproduced below :
1. Deceased was my brother. I know the accused
persons sitting before the court. Accused
Girjashankar is my uncle. The other accused arenot related to me. I cannot tell as to when the
incident took place. Incident took place during
summer days and it was about 1.00 p.m. Some six
persons were running behind my brother. I
personally saw this. My brother entered in thebathroom and tried to close the door from inside.
However, accused Bindra knocked the door andopened it and dragged him out of the bath room by
pulling his hairs. The accused then assaulted him
by pata. The accused Gopal and accused Bindra
assaulted him by means of pata. I requested theaccused Ghanshyam by folding hands not to beat my
brother……
2. The accused persons assaulted the deceased by
two weapons. They have assaulted the deceased onthe stomach and lower portion of the stomach. Due
to which the deceased fell on the ground.
Thereafter all the accused persons put Tilak of
blood of the deceased on their forehead and they
laughed in a victorious manner. Thereafter the
accused persons left that place. The accusedpersons present before the court are the same. I
had stated these facts while recording my
statement.
24. Certain contradictions are brought on record
during cross-examination of the said witness to the effect
that four persons were running behind her brother and when
she requested the accused not to beat her brother, they
left her aside and only one person dragged him out of the
bath-room. Though said P.W. 11 Rekha mentioned as not
stating this fact to the police while recording her
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statement during investigation and could not give any
reason why such portion appeared in her statement, still
the oral evidence of said P.W. 11 is convincing and
rightly so held by learned Additional Sessions Judge and
the core of her evidence is to the effect as to witnessing
the assault and chase given by the accused to the deceased
on the relevant time.
25. On this aspect of inter-se contradictions in the
there is always
evidence of these eye witnesses, it must be mentioned that
possibility that the same incident is
described by different witnesses from the point of their
perspective. In other words, part of the incident may be
witnessed by a witness and unless specifically asked,
witness may not depose as to the presence of other eye
witnesses. In that view of the matter, arguments advanced
on behalf of the appellants that each and every eye
witnesses had not stated regarding presence of other eye
witnesses on the spot, cannot hold good. On this aspect
of contradictions and inconsistencies, shelter of
following authority was cited on behalf of the State for
canvassing the proposition that minor inconsistencies and
contradictions are not material when substantially the
case of prosecution is proved by overwhelming testimony of
eye witnesses. The said authority is :
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(2009) 10 SCC 636
Gamini Bala and ors v. State of A.P.
This judgment is relied by the State to canvass
another proposition that medical evidence, when not
strictly contradicting the ocular evidence, reliance can
be placed on the ocular evidence.
26. Next argument advanced on behalf of the
appellants/accused which is in fact emphasised much, is
that the eye
witnesses are falsified by the medical
evidence on record. In order to appreciate this argument,
certain factual position as to contents of post-mortem
report as to the injuries on the deceased and ocular
evidence of the eye witnesses, is required to be
summarised.
27. From the cross-examination of eye witnesses, it
is an accepted position that there was an assault on the
deceased by means of heavy stone i.e. grinding stone
weighing from 5-7 kg upto even 22 kg. These are the
articles at 5,6 and 7 and apparently having human blood on
them and they were seized from the scene of offence.
However, significantly enough the blood grouping was
inconclusive. Though result of the chemical analysis as
to the inclusive blood grouping is favouring the
appellants, still finding of human blood on these stones
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and use of such stones by accused for assaulting the
deceased on his head, is a relevant aspect and which is
required to be taken into consideration while considering
the case of prosecution whether it has reasonably
explained the involvement of the accused/appellants beyond
reasonable doubt. During cross-examination, eye witnesses
have accepted that the deceased was assaulted on his head
on many occasions by these grinding stones and every time
it hit the target. It is also brought on record that
during such assault,ig deceased was
either his face towards the sky or towards the ground.
lying on the ground
By
pointing out these admissions, it is strongly submitted on
behalf of the appellants that the natural consequence of
such assault would lead to almost crushing the skull
portion and also lacerated wounds on the face.
28. It is seen that there were severe injuries on
the skull and whether there were any fractures. Again,
it cannot be expected that such assault shall always
result in totally crushing injury of the head. In order
to appreciate the above-referred arguments, the injuries
narrated in the post-mortem report are worth mentioning
which are as under :
17. Surface wounds and injuries, their nature,
position, dimensions (measured) and directions to
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be accurately stated, their probable age and
causes to be noted. If bruises be present what is
the condition of the subcutaneous tissues ? (N.B.
When injuries are numerous and cannot be
mentioned within the space available they should
be mentioned on a separate paper which should be
signed) :
1) Lacerated wound, Right Parieto temporal
region, oblique 5 cm x 1 cm x bone deep, fresh.
2)
Contusion, left forehead 8 cm x 6 cm fresh.
3) Stab wound, Left eyebrow, lateral 1/3rd
oblique, 1 cm x 0.5 cm x bone deep, Margins
clean, angles, sharp Margins clean, angles, sharp
directed medially & posteriorly, fresh.
4) Contusion, Left mazillary area, 5 cm x 4 cm,
fresh.
5) Stab wound, Right Anterox axillary fold, 1
cm x 0.5 cm x muscle deep margins clean, angler
sharp directed posteriorly, upwards & medially,
fresh.
6) Stab wound, below the left medial end of
clavicle by 2.5 cm, 1 cm x 0.5 cm x cavity deep,
directed posterosly downward and medially,
margins clean, angle sharp, fresh.
7) Stab wound, right Hypochordrium, in the
midaxillary line, 1 cm x 5 cm x muscle deep,
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directed downwards and medially margins clean,
angle sharp, fresh.
8) Stab wound, below the Inj (7) by cm in the
midaxillary line 0.5 cm x 0.5 cm x muscle deep
directed medially & posteriorly, margines clean,
angle sharp fresh.
9) Stab wound below the inj. no. 8 by 1.5 cm in
the midexillary line 1 cm x 0. 5 cm x muscle deep
directed forward and medially, margins, clean,
angle sharp, fresh.
10.
Stab wound, right arm, antero medial aspect
upper 1/3rd oblique, 1.5 cm x 0.5 cm x muscle deep
directed posteriorly and laterally, margines
clean, angle sharp, fresh.
11) Incised wound, right forearm, flexor aspect
Lower 1/3rd radial side, oblique, 2 cm x 0.5 cm x
Tendors deep, margines clearn, fresh.
12) Incised wound, right wrist & Hypothenar
muscle region, anteriorly, vertical, 2.5 cm x 0.5
cm x 0.5 cm x muscle deep, margins clear, fresh.
13) Incised wound, right wrist, posteriorly
unlar border, oblique, 1.5 cm x 0.5 cm x Tender
deep, margins clean, fresh.
14) Contused abrasion, left arm, antero medial
aspect, upper 1/3rd 6 cm x 0.5 cm, fresh.
15) Contused abrasion, left arm, postero-lateral
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aspect, middle 1/3rd, 3 cm x 2 cm, fresh.
16) Incised wound left forearm, lateral aspect,
lower 1p 3rd, ulhar border, oblique, 2 cm x 0.5
cm x muscle deep, margins clear, fresh.
17) Multiple contused abrasion, left forearm
lateral and posterior aspect size varies from 0.5
cm x muscle deep, margins clear, fresh.
18. Incised would left hand enterior aspect,
index & middle finger, proximal 1/3rd, 1 cm x 0.5
cm
fresh.
x muscle ig deep horizontal, margins clear,
19) Stab wound, right, back of 10.7 cm from the
midline, size 2 cm x 0.5 cm x muscle deep,
directed forward and anteriorly and laterally
margins clear, angle sharp, fresh tailing at
lower angle directed medially of size 4 cm x 0.5
cm fresh.
20) Contused abrasion, right trunk, posteriorly
above the posterior superior Ihac spine by 2 cm
size 1 cm x 1 cm, fresh.
21) Incised wound, left trunk posteriorly at the
level of L-1, in posterior axillary line,
oblique, 3.5 cm x 1 cm x muscle deep margins
clean, fresh.
22) Multiple abrasion, left thigh, anterior
aspect, middle 1/3rd size varies from 0.5 cm x 0.5
cm to 1 cm x 1 cm, fresh.
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23) Contused abrasion, left leg, medial aspect
upper 1/3rd, 1.5 cm x 1 cm fresh.
24) Multiple contused lacerated wound, 5 in
numbers, left leg posterior, middle 1/3rd of size
1 cm x 0.5 cm, each fresh.
29. Noticing the above described injuries which are
reportedly ante-mortem as per P.W. 12 Dr Rajesh Bardale,
it can hardly be accepted that the eye witnesses
testimony is falsified by the medical evidence. This is
more so while considering the injuries to the head. On
this aspect of medical evidence falsifying the eye
witnesses.
30. Authorities are cited on behalf of the
appellants as to appreciation of evidence are :
(1) 1994 Cri.L.J. 3848
Mani Ram v. State of U.P.
(2) AIR 1987 SC 826
Amar Singh v. State of Punjab
31. We have seen that in Mani Ram v. State of UP
(supra), there was a solitary eye witness and his evidence
was found to be totally inconsistent with the medical
evidence on record in that matter. Similar was the case
in Amar Singh v. State of Punjab (supra). Therefore,
considering the specific facts of the present matter as to
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almost five eye witnesses speaking about involvement of
the appellants/accused and their testimony not
contradictory to the medical evidence on record, the
argument on this count also cannot be accepted in support
of the appellants.
32. Again, on this aspect of medical evidence and
ocular evidence, whether contradictory or corroborative,
following authorities are cited before us on behalf of the
State :
(1) AIR 2008 SC 515
Mahmood & anr v. State of U.P.
(2) (2008) 4 SCC 434
Prajeet Kumar Singh v. State of Bihar
(3) (2008) SCC 587
Ponnusamy v. State of Tamil Nadu
By pointing out the ratio propounded by the
above authorities, it is strongly submitted by learned
Additional Public Prosecutor that the presence of
witnesses cannot be disbelieved only on the basis of
medical evidence even if there is some inconsistency
between the two. It is further argued that the ocular
evidence in the present case is fully corroborated by the
medical evidence on material particulars and there are no
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inconsistencies going to the root of the matter. Relying
on these rulings, it is argued on behalf of the State that
specific overtact of a particular accused need not be
established when forming of the unlawful assembly is
already established by the evidence of the eye witnesses.
It is further brought to our notice that the involvement
of all the appellants is spelt out by the eye witnesses
and as such, by applying the rigor of Section 149 of the
Indian Penal Code, all the appellants are rightly held
guilty for the murder of deceased Rakesh.
33. Now, coming to the last argument on behalf of
the appellants as to the alibi, so far as accused nos. 2
and 4 are concerned, an attempt has been made to establish
that the said accused were at some other place and not at
the place of incident at the relevant time. Defence
witnesses Sudhir Shrikhedkar (D.W. 1) and Dr Indrapalsingh
(D.W. 2) were examined to prove alibi of accused no. 4
Gopal whereas D.W. 3 Raju Shende is examined to prove
alibi of accused no. 2 Ghanshyam. It is brought on record
that accused no. 4 Gopal was serving in the National
Research Centre for Citrus, Amravati Road, Nagpur and at
the relevant time, he was in his office. D.W. 1 Sudhir,
working as Technical Assistant, was colleague of accused
Gopal whereas D.W. 2 Dr Indrapalsingh was holding the post
of Senior Scientist in whose office accused no. 4 Gopal
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was working. According to these witnesses, a roll-call
was maintained twice a day, firstly at 08.00 am and
secondly at 01.00 pm and on the day of incident, accused
Gopal attended the office for his duty in a shift from
09.30 am to 05.00 pm and according to them, said Gopal was
present when roll call was taken at 01.00 pm. However, he
had received telephonic message that his mother was
serious and he obtained permission from D.W. 2 for going
to his house. It is significant to note that though
immediately he
allegedly at 01.00 p.m., accused Gopal answered roll-call,
left the office on receiving alleged
telephone call. It is an admitted position brought on
record that office of accused no. 4 is at a distance of 8
kms from Nagpur city. It is also brought on record that
the Office of National Research Centre for Citrus is such
an establishment having more than 250 acres of land,
having office building, laboratory, farm and nursery and
there was nothing on record through defence witnesses that
all the time, accused no. 4 Gopal was in the office
premises itself. On this aspect, the reasoning given by
learned Additional Sessions Judge is perused by us. In
our opinion, learned Additional Sessions Judge had doubted
the authenticity of the register produced on record for
want of official seal on the relevant page showing the
entry as to the attendance of accused no. 4 at 01.00 p.m.
Moreover, it must be mentioned that on that afternoon,
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accused no. 4 was permitted to leave and he was not there
till the end of office hours. Definitely, it is a
mitigating circumstance to the defence when a specific
plea of alibi is raised. It is an accepted position that
when a plea of alibi is raised on behalf of the accused,
burden of proof of such alibi is more than that is usually
on the accused for establishing any particular fact on
preponderance of probability.
34. On the
appreciation of evidence
following authority is cited on behalf of the appellants :
of alibi,
AIR 1985 SC 911
Dudhnath Pandey v. State of U.P.
Section 11 of the Evidence Act postulates the
concept of alibi and in fact, puts more burden on the
accused if such a case is put up to negate the case of
prosecution. Again, on this plea of alibi raised by
accused no. 4, it is relevant that such defence is
belatedly taken and not when accused no. 4 was put under
arrest by the police. Learned Additional Sessions Judge
had doubted the conduct of accused no. 4 not immediately
representing to the police or to the Magistrate after his
arrest as to his presence in his office and not on the
scene of offence. Even subsequently also, there were no
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steps taken by accused no. 4 through his office to
establish his alibi.
35. So far as plea of alibi taken by accused no.2
Ghanshyam is concerned, substantive evidence of D.W. 3
Raju is taken shelter of. According to him, on the day of
incident, accused no. 2 came to his house at 10.30 a.m.
for Abhishek Pooja of Lord Shiva and both of them went
to purchase Pooja articles and subsequently at 12.00 noon
Pooja was started which continued till 03.00 p.m. This
evidence of D.W. 3 Raju is also not accepted by learned
Additional Sessions Judge for the reason that there was
nothing on record to suggest that accused no. 2 was
continuously present all along with D.W. 3 Raju till 05.00
p.m.
36. In our considered opinion, the reasoning given
by learned Additional Sessions Judge not accepting the
plea of accused nos. 2 and 4 cannot be doubted and hence,
on this count also, the arguments advanced on behalf of
the appellants/accused cannot sustain.
37. In view of the above discussion on the points
raised by both the parties, nothing is emerging which
would warrant interference in the impugned order by
setting aside the impugned judgment and order.
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38. Hence, there are no merits in the appeal and the
same is accordingly dismissed.
JUDGE JUDGE
joshi
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