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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 1229 OF 2002
Rajesh Umanath Shetty ...Appellant
Vs.
The State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO.1162 OF 2002
Pravin Tanayya Surarna
ig ...Appellant
Vs.
The State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO.36 OF 2003
Ganesh Jairappa Kotiyan ...Appellant
Vs.
The State of Maharashtra ...Respondent
Mr.U.S. Vanjara, Advocate with
Mr. M.A. Shaikh, Advocate for the Appellant
in Appeal Nos. 1162/2002 and 36/2003
Mr. Amin Solkar, Advocate for the Appellant
in Appeal No.1229/2002
Mrs. M.M.Deshmukh, A.P.P for the State
CORAM : B.H. MARLAPALLE &
SMT.ROSHAN DALVI, JJ.
Dated : 12TH OCTOBER, 2009
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ORAL JUDGMENT : (Per B.H. MARLAPALLE, J.)
1. All these three Appeals arise from the order of
conviction and sentence passed on 8th October
2002 by the learned Ad-hoc Additional Sessions
Judge at Thane in Sessions Case No.330/2000 in
which five accused were put on trial and
accused No.4 Prakash Baswant Gangu was declared
as an absconder after the charge was framed
and, therefore, trial proceeded against accused
Nos.1 to 3 and 5. These Appeals have been
filed by accused Nos.2,3 and 5, respectively
and accused No.1 came to be acquitted, whereas
the Appellants have been convicted for the
offence punishable under Section 302 read with
Section 34 of the Indian Penal Code and
sentenced to suffer R.I for life. Accused Nos.
3 and 5 are in jail and accused No.2 Rajesh
Shetty has been absconding after he was
released on furlough as per the order passed on
16th March 2004.
2. The prosecution case as seen from the record is
that on 24th December 1999 the deceased Sunil
Chaugule along with 5 6 others was standing
opposite the telephone booth by name Amit
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Communications in Chinchpada area, New Bombay
(Airoli) at about 10 a.m and was waiting for
his brother to go to Thane. At about 10.15 a.m
i.e. within about 15 minutes, 5 6 assailants
armed with deadly weapons like knives, sura and
chopper etc., arrived there and without any
provocation from the deceased or any of his
friends, the deceased was attacked. The first
blow was given below his chest and he
immediately started bleeding, to save himself
from further attack he ran inside the telephone
booth and as some of the accused were
following, he exited from the rear door of the
telephone booth, but at a distance of about 25
ft. he collapsed in the drain. One of the
accused who had inflicted the first blow
brandished his weapon and threatened the
companions of Sunil not to move or interfere
and therefore, they had receded backwards.
After Sunil collapsed in the drain, all the
accused again attacked him and within about 5
minutes time they left the place. Sunil was
lifted from the drain by his companions and he
was profusely bleeding and his clothes were
stained with blood as well as mud. He was,
shifted to Modi Hospital in a rikshaw by 4 of
his companions and was declared dead by the
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Doctor. Dattatraya Pawar (P.W.1) who was one of
the companions lodged complaint with the Rabale
Police Station and the same was recorded by
Shri Narayan Bankar, P.S.I (P.W.8) as F.I.R,
Exhibit-49 for the offences punishable under
Sections 302, 143, 147, 148 and 149 of the
Indian Penal Code at about 10.35 a.m the dead
body of Sunil was forwarded to the Government
Hospital for Post Mortem and the same was
undertaken between 3.30 to 4.50p.m on the same
day by Dr. S.G.Bakshi. Post Mortem Report at
Exhibit-67 was prepared. P.W.15 Shri Pralhad
Laxman Chandanshive took over the investigation
from P.W.8 and recorded the statements of eye
witnesses. He arrested accused Nos.3,4 and 5 at
about 15.15 hours on the date of incident
itself and accused No.2 at 22.35 hours, whereas
accused No.1 came to be arrested on 5th
January, 2000. On arrest the clothes of the
accused were seized and while they were in
custody recoveries of weapons i.e. Article Nos.
18,19 and 20 were made at the instance of
accused Nos.2,3 and 5. P.W.15 carried out the
spot panchanama on 24th December 1999
(Exhibit-42) and recovered one knife stained
with blood from the spot (Article-1). These
weapons as well as the clothes of the accused
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and the deceased were sent for Chemical
Analysis by P.W.15. C.A. Report was received
by the I.O.
3. On completion of investigation charge-sheet was
filed on 23rd March 2000 in the Court of the
learned Judicial Magistrate, First Class at
Vashi and the case being exclusively triable by
the Sessions Court, it was committed on 9th
August 2000.
Charge was framed on 29th June 2002 against all
the accused, but accused No.4 absconded after
the charge was framed and therefore, trial
continued only against 4 accused. As per the
prosecution the deceased was attacked and
killed by the accused on 24th April 1999 in a
mistaken identity and the attack was actually
planned on Shri Vijay Chaughule, a known local
Politician and the accused had hatched a
conspiracy to eliminate Shri Vijay Chaugule.
4.The prosecution examined in all 15 witnesses
and P.W.1 Shri. Dattaram R. Pawar, P.W.5 Shri.
Sudhir Pandurang Satam, P.W.10 Shri Ravi
Shetty, P.W.11 Shri Raju Pawar and P.W.14 Shri
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Balu Dhotre, P.W.3 Shri Sudhir Satam were
claimed to be the eye witnesses. P.W.2
Shri.Bhimrao T. Pawar was examined as a panch
witness in support of the recovery of the
weapons from accused Nos.3 and 5(Memorandum at
Exhibit-51 and panchanama at Exhibit-52)
whereas P.W.6 Shri. Kundan Trilok Singh was the
panch witness for the recovery of weapon
Article-20 at the behest of accused No.2. P.W.
7 and P.W.8 were also the panch witnesses for
the recovery of clothes of accused Nos.3,4 and
5 whereas P.W.9 Shri. Mohan Sonvane was the
panch witness of clothes seized from the person
of accused No.2. P.W.13 Shri.Kundan Anna Pawar
was a panch witness for the purported,
statement made by accused No.1 regarding the
conspiracy hatched by accused No.2 in Shinde
Niwas, Samtanagar, Airoli Naka prior to the
incident and the panchanama was drawn at
Exhibit-71. P.W.3 was the panch for the inquest
panchanama at Exhibit-41 and P.W.4 was the
panch for the recovery of the knife (Article
No.1) from the spot (near the drain)and the
panchanama was drawn at Exhibit-55.
5. P.W.12 Shri Ramesh Anant Paranjape was the
Special Executive Magistrate, who conducted the
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Test Identity Parade on 4th February 2004 in
the jail premises at Thane and had drawn the
Test Identification Parade panchanama at
Exhibit-69. Vide the application at Exhibit-40
filed under section 294 of the Code of Criminal
Procedure, the prosecution had placed on record
in all 12 documents before the trial Court and
out of the same the defence specifically
admitted the inquest panchanama dated 24th
December 1999 Exhibit-41, the Post Mortem
Report dated 24th December 1999 (Exhibit-67),
and the panchanama of attachment of clothes of
the deceased Exhibit-61 and 64. As the Post
Mortem Report was admitted, the prosecution did
not examine the Medical Officer, who had
conducted the autopsy on the body of the
deceased.
6. As per the Post Mortem Report Sunil died due to
hemorrhage due to tear of spleen, liver and
lung as recorded in coloumn No.17 of the Post
Mortem Report. There were in all 12 injuries
noted on the body of the deceased. Ribs 7,6,and
5 were cut, right side lung had a clear incised
injury on anterior aspect at the spleen region,
a clear incised injury horizontally 8 cm., was
noted. Clear incised injury on the liver was
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also noted and clear incised injury at the
superior and lateral aspect of the spleen
region measuring 3×1 cm., deep was also noted.
As per the Post Mortem Report the death had
occurred within 3 hours of taking last meal.
The trial Court on the basis of the Post Mortem
Report and the injuries noted therein recorded
that Sunil died a homicidal death on 24th
December 1999.
7.In their statements recorded under Section 313
of Criminal Procedure Code the
accused/Appellants had denied their involvement
in the homicidal death of Sunil and they had
stated their total ignorance to the incident
and claimed that they were falsely implicated.
8. The learned Counsel for the Appellants
submitted before us that the T.I. Parade was
inordinately delayed and therefore, unreliable,
the same was conducted in breach of the
guidelines laid down by this Court (On its
Administrative side) and accused No.1 was not
subjected to T.I.Parade. It was also pointed
out that P.W.10 though claimed to be an eye
witness had not participated in the T.I. Parade
so as to identify the accused he had seen while
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attacking Sunil in the incident. During the
course of arguments it was sought to be pointed
out that the T.I Parade Report at Exhibit-69
was required to be discarded as the Parade
suffered from innumerable infirmities. Mr.
Solkar, learned Counsel for the accused No.2
submitted that though the accused were arrested
on the day of the incident itself, in the
evidence of the P.W.15-the Investigating
Officer, the prosecution did not bring about
any lead so as to the involvement of accused,
for their arrest and therefore, further
recovery of weapons at their instance could not
be relied upon. It was also submitted that the
testimony of P.W.1, P.W.5, P.W.10, P.w.11 and
P.W.14 did not prove beyond reasonable doubt
that the accused or any one of them assaulted
Sunil and therefore the charge of causing
murder of Sunil by the accused was not proved
by the prosecution. It was also pointed out
that P.W.1, P.W.5, P.W.11 and P.W.14 were the
relations of the deceased as well as Shri Vijay
Chaugule and/or were in the employment of Shri
Vijay Chaugule or P.W. 5 (Raj Constructions)
and therefore, their testimony was required to
be read with care and caution. It was further
submitted that the recovery of weapons at the
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behest of the accused was not proved and the
Chemical Analysis Report was not exhibited
though it was sought to be placed on record
along with the application at Exhibit-40. As
per the defence the documents filed along with
the application at Exhibit-40 and not
specifically admitted by the defence were
required to be proved through the evidence of
P.W.15. In addition P.W.15 did not furnish any
explanation as to why there was a delay of 43
days in holding the T.I Parade and more so when
at least 4 accused were arrested on the date of
the incident itself and all the eye witnesses
were from the same locality. In support of
these contentions, reliance has been placed on
the following decisions of this Court:-
1. Bandu Shankar Kale Vs. State of
Maharashtra 2002 All M.R. (Cr.) 311
2. Vilas Vasantrao Patil Vs. The State of
Maharashtra 1996 Cr.L.J. 1854
3. Ramchandra Bhudiram Gupta Vs. State of
Maharashtra 1995 Cr.L.J. 4048
4. Pravinkumar Kailashchandra Shukla & Ors.
Vs. State of Maharashtra 1997 All. MR.
(Cri.) 93.
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5. Balu Shravan Ahire Vs. State of
Maharashtra 2001 All MR. (Cri.) 364.
They also relied upon the following decisions
of the Supreme Court.
1. State of Rajasthan Vs. Teja Singh &
Ors. 2001 All MR. (Cri.) 994
2.Rajesh Govind Jagesh Vs. State of
Maharashtra 2000 Cr.L.J. 380.
12. Mr.Solkar, the learned Counsel for the accused
No.2 has also relied upon an unreported
decision of this Court (D.B.) in Criminal
Appeal No.202/2003 in the case of Dungar @ Ravi
Mohan Sapharia Vs. The State of Maharashtra
rendered on 28th April 2009 in support of his
contentions that unless the prosecution had
brought, through the evidence of P.W.12
Investigating Officer, the material before him
to arrest the accused persons on 4th May 2002
or on 5th January 2002, the benefit of doubt
would go in favour of the accused persons and
more so because the subsequent recoveries of
weapons connecting their complicity to the
incident could not be relied upon. He also
relied upon a subsequent decision in the case
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of Vijay Dadasaheb Bhosle & Ors. Vs. State of
Maharashtra 2007(1) Bom. C.R.(Cri.) 717.
The following observations made by this Court
in the case of Dungar @ Ravi Mohan Sapharia
(Supra) have been more particularly relied upon
by Mr. Solkar.
On 4th May 2002 disclosures were made
allegedly by accused persons after they
were arrested. The only evidence which is
sought to be pressed into the service
against the accused persons is the
evidence collected after arrest of the
accused and on the basis of their
disclosure. But what was the material
before the Investigating Officer to arrest
these persons on 4th May 2002 or 5th May
2002 has not at all been disclosed. What
was the evidence before the Investigating
Officer, supporting as to why he prima
facie thought or why even prima facie he
had suspicion that these accused persons
might be involved in the crime….
13. Mrs. Deshmukh, the learned A.P.P on the other
hand has supported the order of conviction and
sentence. As per her, the 5 eye witnesses,
though some of them related to the deceased,
are trust worthy and they are natural witnesses
and there is no reason worth considering to
discard their evidence. The T.I parade did not
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suffer from any material irregularities and in
addition, in the substantial evidence before
the trial Court, the eye witnesses pointed out
and identified accused Nos.2,3 and 5. In
support of her plea that all the documentary
evidence placed before the trial Court along
with the application at Exhibit-40 are required
to be read in evidence, Mrs. Deshmukh has
placed reliance on the decision of the full
Bench of this Court in the case of Shaikh Farid
Hussainsab
Vs. State of Maharashtra, 1981
Bom.C.R.520.
14. P.W.12 Shri Ramesh Paranjpe stated before the
trial Court that he was working as the Special
Executive Magistrate up to 31st March 2000 and
as per the intimation received from the police
station concerned, he conducted the T.I parade
on 4th February 2000 in the jail premises at
Thane and the T.I parade commenced around 12
O clock in the noon. There were 4 accused and
24 dummies. He also stated that there were 2
independent panch witnesses i.e. Dattatraya &
Suresh. He had formed 2 rows of 12 dummies in
each and 2 of the accused were made to stand in
each row. Thus there were 2 rows of 14 persons
from which the identifying witnesses viz: P.W.
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1, P.W.5, P.W.11 and P.W.14 were called upon to
identify the 4 accused i.e. Accused Nos.2 to 5.
He described the procedure he had followed to
undertake T.I parade and proved his T.I parade
panchanama at Exhibit-69. In the panchanama the
names of the dummies have been set out and the
names of the persons identified by each of the
identifying witnesses. The learned Counsel for
accused Nos.3 and 5 referred to paragraph 6 of
the decision in the case of Vilas Patil (Supra)
and submitted that the T.I parade suffered from
irregularities. Undoubtedly this Court on its
administration side has issued instructions for
conducting T.I parade and these are contained
in the Criminal Mannual issued for the guidance
of the Criminal Courts and subordinate
officers. We have gone through the same
procedure elaborately as set out and as
referred by the learned Counsel and we have
noted that P.W.12 did not comply the following
requirements.
a) not more than 2 accused should be
placed in any single parade and it appears
that all the 4 accused were placed in a
single parade.
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b) Dummies were required to be selected by
the Magistrate himself. However, in the
instant case the dummies were produced by
the jail authorities and the Magistrate
appears to be satisfied with the said
selection.
c) 2 independent witnesses from amongst
respectable persons were present with the
Executive Magistrate who were brought by
the jail authorities and he appeared to be
satisfied by the said selection.
d) When the identifying witnesses are
called, the Executive Magistrate should
have questioned them individually so as to
ascertain from each of them whether they
had opportunity to see the culprit
subsequent to the offence or after the
arrest.
15. Though there are merits in the arguments
advanced by the Advocate for the accused, we
have noted that in the instant case the accused
persons have been identified by most of the eye
witnesses in their substantial evidence before
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the trial Court. It is well settled that the
T.I parade does not constitute substantive
evidence and it can only be used as a
corroborative evidence to the statements in the
Court. In the case of State of A.P Vs. K.
Venkata Reddy A.I.R 1976 SC 2207. The Supreme
Court held that the identification tests do not
constitute substantive evidence and they are
precisely made for the purpose of proceeding on
the right lines. The identification can only
be used as a corroboration of the statement in
the Court. The necessity for holding the T.I
parade can only whether accused were
previously known to the witnesses and the whole
idea of the T.I parade is that the witnesses
who claim to have seen the culprits at the time
of the offence identify from the midst of other
persons without any aid or any other source.
The identification proceedings are in the
nature of tests significantly, therefore, there
is no provision for it in the Cr.P.C and the
Indian Evidence Act. However, it is desirable
that the T.I parade should be conducted as soon
as the arrest of the accused and this becomes
necessary to eliminate the possibility of the
accused being seen or shown prior to the T.I
parade.
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16.So long as the eye witnesses have identified
the accused persons in their substantial
evidence, the discrepancies or irregularities
pointed out by the learned Counsel and referred
to herein above would not, in our opinion,
effect the case of the prosecution.
17. At this stage it is also relevant to note the
issue of delay caused in conducting the T.I
parade. As noted earlier the incident has taken
place on 24th December 1999 and 4 other accused
persons were taken into custody on the same
day. Whereas accused NO.1 was taken in custody
on or about 5th January 2000. However, the T.I
parade was conducted on 4th February 2000 i.e
after about 43 days of the arrest of the most
of the accused. In the depositions of P.W. 15,
no explanation, leave alone satisfactory
explanation, has come and he has been cross
examined on this issue. In the case of Dr.
M.V. Ramanna Reddy Vs. State of A.P A.I.R 1991
S.C. 1938 it has been held,
Where there is unexplained delay in
holding the T.I parade the evidence of
the prosecution, regarding the identity
of an accused cannot be held to be
absolutely reliable and in such a case
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the accused is entitled to the benefit
of doubt.
In the case of Acharaparambath Pradeepan and
another Vs. State of Kerala (2006) S.C.C) 643
the date of the incident was 1st December 1999
and T.I parade was held on 8th February 2000.
The delay caused in conducting the T.I parade
remained unexplained. Accused No.1 was
identified in T.I parade by P.W.5 and he was
identified by P.W.3 and 4 during the trial. The
Supreme Court held that he was entitled for the
benefit of doubt.
On the background of this well settled position
in law we have to examine whether the T.I
parade held belatedly in the instant case has
affected in any way, the case of the accused
and has to give any benefit of doubt to any of
the accused. As noted earlier the eye witnesses
being inter-related or related to the deceased
through business, it would be necessary for us
to consider their evidence with care and
caution and the delay caused in conducting the
T.I parade becomes an additional reason for the
same purpose and only on the ground of delay in
conducting T.I parade, the prosecution case
cannot be thrown out.
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18. The prosecution has claimed P.W.1, P.W.5, P.W.
10, P.W.11 and P.W.14 as the eye witnesses.
P.W. 10 Ravi Shetty did not participate in the
T.I parade held on 4th February 2000 and he has
identified some of the accused for the first
time during his substantial evidence before the
Court that too only in respect of accused Nos.3
and 10. It would be therefore, appropriate for
us to examine the prosecution case on the basis
of the evidence of P.W.1, P.W.5, P.W.11 and
P.W.14.
19.We have also noted that the depositions before
the trial Court were recorded in Marathi as
well as in English. It is evident that almost
all the witnesses were Marathi speaking and the
depositions recorded in Marathi were translated
by the learned Judge in English. We have come
across material mistakes while translating the
Marathi depositions into English and therefore,
we have preferred to refer to the Marathi
depositions as recorded in the trial Court.
20. P.W.1 Datta Pawar is the brother of the mother
of the deceased as well as the mother of Vijay
Chaughule. It also appears that the father of
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the deceased as well as the father of Vijay
Chaughule are full blood brothers. He was also
looking after the business of the deceased. He
stated before the trial Court in his
examination-in-chief that around 10 a.m on 24th
December 1999 he was standing in front of the
STD booth along with Balu Dhotre (P.W.14),
Datta, Sudhir Satam(P.W.5), Ravi Shetty (P.W.
10) and Raju Pawar (P.W.11) and the deceased
was also in the same group. The deceased had
informed him about 10 minutes before that he
was waiting for his brother to go to Vashi.
Suddenly 5,6 persons arrived with deadly
weapons and those who were before the trial
Court arrived at the scene and attacked the
deceased on his chest. The deceased shouted
and tried to run away behind the STD booth, but
he was followed by 2,3 accused persons. He fell
down in the drain located behind the STD booth
and all the accused continued to assault him.
Some of the accused were brandishing their
weapons and asking the people around not to
intervene, within 5,6 minutes all the 6 accused
persons went towards the Belapur road side.
Sunil was lifted from the drain and his clothes
were stained with blood and mud as he had
received number of injuries on his person. He
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was shifted to Modi hospital in an autorikshaw,
and he was declared dead by the Doctor. He
went to the Rabale police station and lodged
the complaint at Exhibit-49, which was reduced
in writing by P.W.8. He stated that the
assailants were not known to him, but he could
identify them, if shown. He also stated that he
came to know the name of accused No.2 later on
and he had made the first assault on the
deceased. He identified accused Nos.3 and 5
before the Court
ig and stated that accused No.3
had a chopper in his hand and accused No.5 had
a sura in his hand. He further stated that
after the incident he was in his village for 2
months and after receiving summons for
identification he identified some of them in
the jail premises. He stated that he identified
all the accused persons in the T.I parade.
Article Nos.1,18,19 & 20 which were the
weapons, were shown to him before the Court and
he identified the same to have been used while
assaulting the deceased. Though he did not
assign a specific role to accused Nos.3 and 5
in his examination-in-chief, he stated in his
cross-examination that after the deceased fell
in the drain he was assaulted by all the
accused with the weapons in their hands. He
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also admitted in his cross-examination that he
had never seen accused Nos.3 and 5 before the
incident and the same applied to all the
accused. He specifically denied the suggestion,
in his cross-examination, that any of the
accused persons or their photographs were shown
to him by the police before the T.I parade. He
also admitted that after the deceased was
assaulted and was taken in autorikshaw along
with him there were P.W.14, P.W.10 and P.W.5
and his clothes were stained with blood while
taking the deceased to the hospital, but his
clothes were not seized by the police.
21. P.W.5 Sudhir Satam stated before the trial
Court in his examination-in-chief that between
10.15 a.m on 24th December 1999 he was standing
in front of the STD booth at Chinchpada along
with Sunil (the deceased), Datta Pawar (P.W.1),
Balu Dhotre (P.W.14) and Ravi Shetty (P.W.10)
and 5 to 6 persons from the opposite direction
arrived at the scene and one of them gave first
blow with a knife in his hand below the chest
of the deceased. As per him it was Ravi Shetty
who gave the first blow. He identified accused
No.2 Rajesh Shetty before the Court. He stated
that after the assault on him Sunil ran from
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the rear exit of the STD booth and was chased
by accused Nos.3 and 5. While running away
Sunil fell in the drain and at that time 3 of
the accused were brandishing their weapons and
threatening others not to intervene. All these
accused started assaulting Sunil while he was
in the drain and within few minutes they left.
Sunil was lifted from the drain and was taken
to Modi hospital in rikshaw. He was declared
dead. After about a month and quarter he was
called for the T.I parade and accused Nos.2 and
3 before the Court were identified by him in
the said parade. He also identified the 4
weapons i.e. Article Nos.1,18,19 and 20 when
showed to him before the Court as the weapons
used for assaulting Sunil. In his cross-
examination he admitted that he is a Civil
Contractor and runs the Firm by name Raj
Constructions along with another person by name
Arun. He described the personal appearance of
the accused, who had given the first blow to
Sunil in the incident. He also stated that
though he had lifted Sunil from the drain, his
clothes were not stained with blood, but they
were stained with mud. He also admitted that
he did not go to the Civil hospital where
Sunil s dead body was sent for P.M and he saw
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the dead body only during the cremation. He
also denied the suggestion that he did not
attend the T.I parade and that these accused
persons had not assaulted the Sunil. He also
denied the suggestion that the accused No.2 did
not assault Sunil and he was not brandishing
the weapons threatening due to panic of Sunil
including himself. His statement was recorded
by the police on 25th December 1999. During his
cross-examination he admitted that he was
working as a Manager in the Firm run by Vijay
Chaughule for some time and he knew all the
persons in the family of Sunil Chaughule. He
also stated that at the spot all of them were
standing for about 10 to 12 minutes. He also
stated that out of the assailants he had seen 4
accused at the first instance and he had not
seen them at any time earlier. He also stated
that all the assailants started assaulting
Sunil without any provocation and there was no
hue and cry raised by the people around.
Immediately on the first assault, Sunil started
bleeding and running away from the scene. He
was followed by the assailants. The whole
incident was over within 5 to 7 minutes. When
Sunil was lifted from the drain, his clothes
were stained with mud. In the T.I parade all
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25
the persons shown to him were unknown to him.
He also denied the suggestion that the accused
persons were shown to him in Vashi Court at the
time of their remand or that they were shown
before he participated in T.I parade. He also
denied the suggestion that he did not identify
the accused Nos.3 and 5 in the T.I parade.
22. P.W.11 Raju Pawar in his examination-in-chief
described the incident in the same manner as
was done by P.W.1 and P.W.5.
accused No.2 as the first assailant on Sunil
He identified
and the assailants were 6 in number and they
were assaulting Sunil with Sura and Chopper.
The incident was over within 5 to 6 months.
Sunil was lifted from drain and was taken to
Modi hospital in rikshaw. He was one of the
persons accompanied Sunil to Modi hospital
where Sunil was declared dead. 1½ months later
he received the summons for T.I parade and he
participated in the same. He had identified
accused Nos.2 and 5 in the T.I parade. During
his cross examination he admitted that Vijay
Chaughule is the cousin from the paternal side
and same was the relationship with the
deceased. He also stated that he had given the
description of the accused persons in his
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26
statement to the police. The assailants, after
the incident had gone towards Belapur side, but
he could not state by which vehicle they had
arrived and subsequently left. He did not go
to the police to file a complaint though his
statement was recorded by the police on 24th
September 1999. He denied the suggestion that
his statement was recorded after 4,5 days. He
also denied the suggestion that it was not the
accused No.5 who had inflicted first blow to
Sunil. He
also admitted in his cross-
examination that the whole incident was
spontaneous and the accused who gave first blow
on Sunil did not run after him immediately. He
also denied the suggestion that only one person
had assaulted Sunil. He also admitted that he
had not seen any of the accused prior to the
incident, but had identified them in the T.I
parade. In the T.I parade there were 27 to 28
persons standing in 3 lines. He did not
recollect the number at which the accused
persons were standing in the 3 lines. The size
of the room in which the T.I parade was
conducted was 10 x 30 ft. He also admitted
that out of 27 to 28 people standing in the T.I
parade he knew some of them. He denied the
suggestion that he was not standing near the
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27
STD booth and he had not seen the incident. He
also described the clothes on the persons of
the accused at the time of the incident.
23.Now coming to the deposition of P.W.14 Shri
Balu Dhotre, he stated before the trial Court
about the incident on the same lines as the eye
witness referred to herein above. He stated
that accused No.2 threatened Sunil and gave
first blow with Sura like weapon on his chest.
Sunil ran behind the STD booth and accused No.2
threatened others. Immediately thereafter
accused Nos.5 and 2 followed Sunil and Sunil
fell in the drain. The accused continued to
assault Sunil. There were in all 5 to 6
assailants and within few minutes they ran
away. He identified article No.20 as the weapon
which was used by accused No.2 while attacking
Sunil. He identified accused Nos.1, and 3
before the Court as the assailants. He also
admitted that he had participated in the T.I
parade and had identified accused Nos.2 and 5.
In his cross-examination he admitted that he
was running the fair-price shop licenced in the
name of Sunil s wife Vandana. He denied that
Dattatraya Dhotre was his cousin. He also
admitted that his statement was recorded by
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28
police. He also denied the suggestions that on
the date of the incident the rationshop was
half opened. He did not realise that the
assailants had come to attack Sunil. On the
first assault he started bleeding and he
started running. The time gap between the first
and the second assault was about 3 to 4
minutes. He had seen the assailants assaulting
Sunil even while he had fallen in the drain and
he had seen the second assault from a distance
of about 10 to 12 ft.
ig He denied the suggestion
that he was not the eye witness. In his cross
examination he stated that the assailants came
and suddenly took out the weapons. The day of
incident was Friday, but it was not a festival
day. He described the clothes of the assailants
and their personal appearance etc. He also
stated that the deceased was not in his
relation. This witness also identified accused
Nos.2,3 and 5 before the Court.
24.Coming to the recovery of the weapons, as per
the prosecution, the recovery of the weapon
from accused No.2 has been proved through the
evidence of P.W.6 Kundan vide Exhibits-58 and
59. Article No.20 was the weapon and the
Article No.21 was the photograph and both of
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29
them were recovered from the terrace of the
building i.e. The house of accused No.2 at
Dombivli(Taibai Niwas). P.W.6 admitted in his
cross examination that the terrace was open.
Nothing further was brought on record in the
cross-examination and the witness was shown
Article 20 before the Court and he identified
the same as having been recovered at the
instance of accused No.2. We are satisfied that
the trial Court rightly accepted this recovery.
25. For the recovery of weapons at the behest of
accused Nos.3 and 5 the prosecution examined
P.W.2 and during his depositions before the
Court he was shown Articles 19 and 20. Article
18 was not shown to him though its description
finds place in panchanamas Exhibits-51 and 52.
Though Article-19 is claimed to have been
recovered at the instance of accused accused
No.3, we have noted that his memorandum was not
drawn and therefore, this recovery within the
meaning of Section 27 of the Evidence Act
cannot be believed. In short both the weapons
allegedly recovered at the instance of accused
Nos.3 and 5 i.e. Article No.18 and 19 could not
be identified and their recovery cannot be
relied upon so as to connect accused Nos.3 and
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30
5 with the said weapons allegedly used in the
attack dated i.e on 24th December 1999. It is
also important to note that none of these
weapons were subjected to the examination by
the Finger Print Expert, which could have been
an additional circumstance in connection with
the weapons. Mrs. Deshmukh, the learned A.P.P
sought to rely upon the C.A report which was
sought to be brought on record along with
application Exhibit-40. At the first instance
the said report was not put to P.W.15 during
his depositions and therefore, it could not be
exhibited. Even otherwise the weapons were
recovered from the open place on the 3rd day of
the incident and almost about 10 ft. away from
the road (near Mhapa bridge). The C.A report
did not detect the blood group and it only
stated that human blood was noted on its blade.
The blood group of the deceased was B .
26. Each of the four eye witnesses stated without
any ambiguity that accused No.2, used the said
weapon Article No.20 while giving the very
first blow to Sunil below his chest, they also
stated that it was accused No.2 after giving
the first blow to Sunil, brandished the said
weapon to threaten them so as to keep them at
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31
bay. He was identified by each of the witnesses
before the Court as being the main assailant.
Though Article-20 was not sent for examination
to the Finger Print Expert, on the face of the
evidence of as many as 4 eye witnesses,
regarding the complicity of the accused No.2 in
assaulting Sunil. We are satisfied that this
deficiency by itself would not effect the
prosecution case. We must also note that the
presence of accused Nos.3 and 5 along with
accused No.2
ig at the spot of incident and in
the attack on Sunil has been established. What
is not established is the blows attributed to
accused Nos.3 and 5 with the weapons, while
attacking the deceased during the incident. At
the same time the P.M.Report at Exhibit-67
indicates that the deceased has received
injuries in addition to incised injuries and
they appear to be grievous injuries. We have
seen all the muddemal articles i.e articles
1,18,19 and 20 and article 20 is a sharp knife
which relates to the injuries caused by accused
No.2. The oral evidence of the eye witness does
prove the participation of accused Nos.3 and 5
in the assault on Sunil but the prosecution
case that they assaulted Sunil with articles 18
and 19 weapons is not proved. We therefore, do
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32
not agree with the finding recorded by the
trial Court that accused Nos.3 and 5 had
committed any overt act by means of any weapon,
resulting into the death of Sunil. It is the
prosecution case that all the accused had given
blows of weapons while attacking Sunil and it
would be, therefore, unsafe to accept the
prosecution case that accused 3 and 5 also
caused deadly injuries or the incised wounds.
At the same time the findings recorded by the
trial Court against accused No.2 are required
to be confirmed, on the face of the evidence of
the eye witness viz: A-1,A-5,A-11 and A-14 read
with the P.M report. The evidence of all the
four eye witnesses is found to be cogent and
inspiring confidence. Though there is some
scope to believe that the F.I.R filed by the
P.W.1 at Exhibit-49 was not free from some
exaggerations, in his substantial evidence
before the trial Court, his testimony on the
material aspects of the incident is reliable.
All the 4 eye witnesses consistently stated
before the trial Court that none of the
accused were known to them and they had not
seen any of them prior to the incident. There
is no scope to attribute any motive on the part
of these witnesses to implicate any of the
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33
accused on any false ground or on the behest of
some persons. In the F.I.R at Exhibit-49 the
names of the other eye witnesses i.e. P.W.5,
P.W.11 and P.W.14 clearly appear as being the
persons who were at the spot along with P.W.1
as well as the deceased at the time the
deceased was attacked by the accused. The
recovery of clothes from the person of the
accused while they were under arrest has been
proved by the evidence of P.W.7 and 8 and the
same description tallies with the clothes which
were sent for C.A as per the evidence of P.W.
15. The prosecution case is not based on
circumstantial evidence and therefore, absences
of any lead when the accused were arrested may
not be a material circumstance so as to weaken
the prosecution case. The incident has taken
place during the broad day light and on a
public street. It ought to have been noticed by
number of other persons in the market, but as
is known, when it comes to becoming a witness,
the normal tendency is to shy away from helping
the prosecution. The presence of the eye
witnesses at the spot is also connected with
the business activities and therefore, there
were no material improvements on the part of
any of theses witnesses so far as their
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34
presence at the spot as well as their
description on the material particulars of the
assault on Sunil in 2 stages i.e first
inflicted at the STD booth and subsequently
while he fell in the drain in the process of
saving himself. The evidence of these 4 eye
witnesses also unquestionably shows that
accused No.2 inflicted multiple assaults on
Sunil and he gave blows at both the places.
Article-20 which has been seen by us in the
muddemal
property is capable of causing
injuries which are found to be the cause of
death in the P.M.report. It is also to be noted
that as per the case of the prosecution through
the evidence of P.W.15 some of the accused have
been known criminals and accused No.2 was
accused in 3 or 4 cases for the offences
punishable under Section 302 of the Indian
Penal Code. In these obtaining circumstances,
the following observations made in the case of
Dungar Sapharia (supra)and relied upon by Mr.
Solkar; are not applicable-
Learned Counsel for the appellants have
drawn our attention to the another fact
that PW 12, who was the first
Investigating Officer, stated that he
arrested the accused persons on 4th May,
2002, whereas there is nothing stated by
the Investigating Officer as to on what
basis these accused persons were arrested.
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On 4th May, 2008 disclosures were made
allegedly by accused persons after theywere arrested. The only evidence which is
sought to be pressed into service againstthe accused persons is the evidence
collected after arrest of the accused and
on the basis of their disclosure. But what
was the material before the InvestigatingOfficer to arrest these persons on 4th May,
2002 or 5th May 2002 has not at all been
disclosed. What was the evidence before
the Investigating Officer, supporting as
to why he prima facie thought or why evenprima facie he had suspicion that these
accused persons might be involved in thecrime.
27.For the reasons stated above we are satisfied
that the order of conviction and sentence
passed against accused No.2 deserves to be
confirmed. However, the said order against
accused Nos.3 and 5 is unsustainable. As noted
earlier their presence at the spot is proved
but their participation in the assault by the
weapons was not proved by the evidence of the
eye witnesses, as the prosecution failed to
bring on record the connection between the acts
attributed to the accused and the weapons
recovered, therefore, at the best what could be
attributed to these accused is only thrashing
of the deceased thereby causing grievous hurts
to him. We, therefore, find sufficient material
to hold that the offence punishable under
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36
Section 325 read with Section 34 of the Indian
Penal Code has been proved against accused Nos.
3 and 5 and the offence punishable under
Section 302 read with Section 34 of the Indian
Penal Code has not been proved against them.
It is not the prosecution case that either
accused No.3 or 5 or both of them had held the
deceased thereby facilitating the accused No.2
inflicting any injury on the deceased. In the
absence of any specific overt act attributing
to any of these accused so as to result in his
death, it would not be safe that they are
convicted under Section 302 read with Section
34 of the Indian Penal Code and to that extent
we do not agree that the findings recorded by
the trial Court as well as the reasoning in
support thereof.
28. In the premises, Criminal Appeal No.1229/2002
fails and the same is hereby dismissed. The
order of conviction and sentence passed by the
trial Court under Section 302 of the Indian
Penal Code is hereby confirmed against accused
No.2. Criminal Appeal No.1162/2002 and Criminal
Appeal No.36/2003 partly succeed. The order of
conviction and sentence passed against accused
Nos.3 and 5 for the offence punishable under
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37
Section 302 read with Section 34 of the Indian
Penal Code is hereby set aside and instead they
are convicted for the offence punishable under
Section 325 read with Section 34 of the Indian
Penal Code. We sentence them to undergo R.I
for 7 years. Undoubtedly they shall be entitled
to set off under Section 428 of the Code of
Criminal Procedure, if any.
29.The Appellant in Criminal Appeal No.1229/2002
(Accused No.2)
ig is reported to be absconding
from 2004 onwards. We direct the Commissioner
of Police, New Bombay to take appropriate steps
and produce the said accused before us within 4
weeks.
30.The Registrar (Judicial) is directed to issue
non-bailable warrant against accused No.2 Shri
Rajesh Umakant Shetty.
31. The warrant shall be collected by the Senior
Police Inspector, Rabale Police Station, New
Bombay before 16th October 2009 from the
Registry.
[SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]
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