The State Of Maharashtra vs Sk Ayyub Sk. Abdul on 10 December, 1993

JUDGMENT

M.B. Ghodeswar, J.

1. In Sessions Trial No. 2 of 1991, out of 25 accused who were tried for committing murders of two policemen, the learned Additional Sessions Judge, Yavatmal (Shri S.S. Sawargaonkar), vide his Judgment and Order dated 15th & 16th December, 1992, convicted 9 accused, out of whom, accused No. 1 Sk. Ayyub Sk. Abdul was sentenced to death, subject to the confirmation of the sentence by this Court and accused Nos. 2 to 4, 6, 12 to 14 and 23 were sentenced to suffer life imprisonment.

2. The State of Maharashtra has filed Reference under section 366 of the Code of Criminal Procedure for confirmation of death sentence imposed upon accused No. 1 Sk. Ayyub Sk. Abdul and has also filed Criminal Appeal No. 89 of 1993 for enhancement of sentence imposed upon accused Nos. 2, 3, 14 and 23 to capital punishment by modifying the impugned judgment and order suitably.

The convicted accused have also filed Criminal Appeal No. 2 of 1993 praying for acquittal.

3. Since all these cases arise out of the same incident, they are disposed of by this common judgment and order.

4. The prosecution case is as under :-

Most of the accused in this case are residents of village Naigaon, Taluka Babhulgaon, District : Yavatmal, while some of them are from the neighbouring villages. The date of incident is dated 6-6-1990 at about 12 Noon. Chandabai Kambale (PW 4) lodged report against accused Ayyub (A-1) in Police Station Babhulgaon at about 2.00 p.m., alleging that accused Ayyub tried to molest her, abused her in filthy language and gave threats. Tarachand Rane (PW 18), the Head Constable of Babhulgaon Police Station, reduced the report of Chandabai into writing (Exhibit 148) and took station diary Entry No. 26 of 1990 which is at Exhibit 252. Shri Deshmukh, the Police Sub-Inspector of Babhulgaon Police Station, was not present at that time in the Police Station. PW 4 Chandabai met P.S.I. Deshmukh and informed him about the incident. P.S.I. Deshmukh alongwith two head constables Ramprasad Shrivas (PW 3) and Babarao Pawasekar (PW 7) and one Police Constable Ramchandra Ingole left the police station for Naigaon. At about 2.30 p.m., they reached the Babhulgaon bus stand and since no bus was available, they went to Naigaon in an auto-rikshaw No. MTV 6706 driven by Ravi Markand (PW 5). P.S.I. Deshmukh and policemen got down from the auto near the school of Naigaon. On seeing accused Ayyub (A-1), P.S.I. Deshmukh told him to accompany with him as he was charged under section 151, Cr. P.C. on the report of PW 4 Chandabai. Accused Ayyub was reluctant to accompany the policemen. However, policemen caught accused Ayyub and made him sit on the passenger seat in the auto. At that time, A-22 Afsanabi, the wife of accused Ayyub, came in front of the auto-rickshaw and asked P.S.I. Deshmukh as to why her husband was being taken. There was marriage in the house of accused Chhotushaha (A-17) and number of persons had gathered in the said marriage. There was a marriage pendal. Afasanabi told the persons gathered in the marriage pendal that her husband was being taken by policemen without any reason. Accused Kayyum (A-2), accused Mohabbatkhan (A-23) and accused Chhotushaha (A-17) and other persons started running behind the auto. The auto-rikshaw came in a square and from there proceeded towards Naigaon S.T. stand. It was chased by the persons who were running behind the auto pelting stones and shouting. On seeing the mob behind the auto-rikshaw, accused Babarao Bobade (A-11), who was driving his harrow, all of a sudden, put the harrow on the road as an obstacle and thereby the auto-rikshaw was stopped near the tamarind tree which was towards West of the approach road of Naigaon. P.S.I. Deshmukh and police constable Ingole got down from the auto. Accused Ayyub was taken away from the auto by two accused persons. Two head constables were caught by four accused. At that time, accused Kayyum (A-2) went near P.S.I. Deshmukh and asked him not to take his brother Ayyub (A-1). P.S.I. Deshmukh told him that he has arrested the accused Ayyub under section 151, Cr. P.C. and he will be released on bail from Tahsil Office, Babhulgaon. Sk. Noor (A-3), all of a sudden, caught the waist of P.S.I. Deshmukh from back side and Mohabbatkhan (A-23) caught the right hand of P.S.I. Deshmukh. As soon as accused Ayyub was taken away from the auto-rickshaw, he immediately rushed towards P.S.I. Deshmukh and asked him why he was being taken on the report of prostitute. He snatched the revolver from the holster which was tucked to the leather belt worned by P.S.I. Deshmukh. At that time, police constable Ingole came near P.S.I. Deshmukh in order to rescue him. Accused Ayyub (A-1) fired one bullet of revolver which hit police constable Ingole and he fell down. Accused Ayyub fired second bullet towards P.S.I. Deshmukh. He missed it so it was hit to accused Mohabbatkhan (A-23). Mohabbhatkhan sustained injury and he sat down. As soon as the right hand of P.S.I. Deshmukh was released, he tried to release his left hand. In the meanwhile, accused Ayyub fired third bullet on the right side head portion of P.S.I. Deshmukh, as a result of which he immediately fell down. After firing third bullet, the two head constables Ramprasad Shrivas (PW 3) and Babarao Pawasekar (PW 7) were released by the accused persons and accused ran away towards village Naigaon.

5. Babarao Pawasekar (PW 7) asked Ramprasad Shrivas (PW 3) to go to police station, Babhulgaon to lodge report. One Mini bus came there from Kalamb side which was stopped by PW 7 Babarao and he asked the driver of that Mini bus, namely, one Gawande, to take the injured. At that time, injured Mohabbatkhan (A-23) alongwith him relatives boarded the Minihus and asked the driver not to take the policemen. However, PW 3 Ramprasad Shrivas managed to go in that Mini bus to Babhulgaon. He went to Police Station and lodged the First Information Report (Exhibit 145) at about 4.00 p.m. to Shri Vithal Mandaokar (PW 16), A.S.I. On this report, Crime No. 96 of 1990 under sections 307, 147, 148, 353 and 333 of Indian Penal Code was registered. Vithal Mandaokar (PW 16) communicated the information to his superior officers, Yavatmal by wireless message. He gave requisition letter (Exhibit 225) to the photographer Shri Kale requesting him to go to Naigaon immediately with his camera and to take photographs. The Tahsildar and Naib Tahsildar of Babhulgaon, on receiving information about the so-called firing, came on the spot with the Medical Officer Dr. Kadukar. Dr. Kadukar examined P.S.I. Deshmukh and police constable Ingole and declared them dead.

6. Shri Ashok Thorat (PW 19), who was Circle Police Inspector, received the wireless massage at Yavatmal at about 4.00 p.m. He immediately went to Police Station, Yavatmal with four police constables with guns and came to Naigaon at about 4.50 p.m. Babarao Pawasekar (PW 7) was present on the spot. Ashok Thorat (PW 19) took investigation in his hands and drew inquest panchanama (Exhibit 169) over the dead body of P.S.I. Deshmukh and seized the articles which were lying near the dead body of P.S.I. Deshmukh under seizure memo (Exhibit 178). He also effected inquest panchanama (Exhibit 170) over the dead body of police constable Ingole and seized the articles which were lying near the dead body of P.C. Ingole vide seizure panchanama (Exhibit 179). Circle Police Inspector Shri Thorat (PW 19) sent the dead bodies for post-mortem examination to the Medical Officer, Yavatmal. He drew spot panchanama (Exhibit 168) where the dead bodies were lying and also took measurements. Some cash was found near the dead bodies which was attached under the panchanama (Exhibit 180). C.P.I. Thorat then went to village Naigaon and drew the panchanama (Exhibit 168) of the place where the accused Ayyub (A-1) was caught by policemen. He took search of the house of accused Ayyub and seized blood-stained Paijama and Bangali Shirt under the panchanama (Exhibit 172). He recorded the statements of some villagers, arrested some accused persons in the night itself and on 7-6-1990 he recorded the statements of witnesses Ramrao Khandare (PW 6), Babarao Pawasekar (PW 7), Ramesh Bawane, Ramprasad Shrivas (PW 3) and others. Ravi Markand (PW 5) had brought the auto-rickshaw which was damaged condition and C.P.I. Thorat (PW 19) effected the panchanama (Exhibit 263). Accused Kayyum (A-2), Sk. Noor (A-3) and Sk. Rustam (A-4) were also arrested on that very day. The Medical Officer Dr. Ashok Chaudhari (PW 14) conducted the autopsy over the dead bodies of P.S.I. Deshmukh and police constable Ingole. The post-mortem reports are at Exhibits 232 and 231. Mohabbatkhan (A-23) was admitted in Yavatmal Hospital. Dr. Sunil Sargar (PW 15) examined him and gave the injury report (Exhibit 234). The dying declaration (Exhibit 235) was recorded. On 8-6-1990, C.P.I. Thorat (PW 19) arrested the accused Ayyub (A-1) at about 9.55 a.m. The seized articles were sent to Chemical Analyser for analysis. Similarly, the revolver, 3 live cartridges, 3 empty cartridges, blackened skin of Shri Deshmukh and Ingole, empty bullet taken out from the body of accused Mohabbatkhan (A-23) were sent to Ballastic expert for examination. After completion of necessary investigation, C.P.I. Thorat filed charge-sheet.

7. The prosecution has examined in all 19 witnesses The accused have examined three witnesses in their defence. PW 3, 5, 6 and 7 are the eye-witnesses. PW 1 Abhiman is examined as an eye-witness when Ayyub was caught by policemen near the school of Naigaon. The reports of the Chemical Analyser and Ballistic expert are admitted documents. Village Naigaon is about five kilometres away from Babhulgaon and the S.T. stand of Naigaon is on the Babhulgaon-Kalamb tar road. The incident of firing has taken place near the S.T. stand of Naigaon. From this S.T. stand, there is a small Kachha road going to village Naigaon. The distance from Naigaon S.T. stand to the school of village Naigaon is about 500 feet. The learned trial Judge has visited the spot of incident and his spot inspection note is on record. The defence of the accused is firstly of total denial. Secondly, in order to control the unruly mob, P.S.I. Deshmukh fired bullets-one hit to Mohabbatkhan (A-23), another to police constable Ingole and, therefore, he committed suicide by firing third bullet on his head.

8. The learned trial Court framed the charges as under :

(i) Accused Nos. 1 to 25 – under section 147, I.P.C.

(ii) Accused Nos. 2, 4, 5, 6 – under section 148, I.P.C. 11, 14, 16, 17, & 21.

(iii) Accused Nos. 2 to 25 – under section 342/149, I.P.C.

(iv) Accused No. 1 Sk. Ayyub Sk. Abdul – under section 325/149, I.P.C.

(v) ” – under section 224, I.P.C.

(vi) ” – under section 302, I.P.C.

(vii) ” – under section 149/302, I.P.C.

(viii) Accused Nos. 2, 3, 5, 12, 13, 14, 18, & 23. – under section 302/34 or 302/109, I.P.C.

The learned trial Court believed the prosecution evidence of eye-witnesses, medical evidence and recorded a finding of conviction against nine accused.

9. Shri M.R. Daga, the learned Advocate appearing for accused, has contended that the finding recorded by the learned trial Court is grossly erroneous. Though the defence of grave and sudden provocation was not taken by the accused before the trial Court, the learned Counsel on behalf of accused No. 1 has submitted that from the evidence and circumstances this defence is available to accused No. 1 and therefore, it should be considered by this Court. The accused No. 3 Sk. Noor has taken the defence of alibi. Though the learned Counsel appearing on behalf of State has objected to the consideration of this defence, in our view, the accused are entitled to take this defence in the present case. On behalf of accused, the learned Counsel raised the following points:

(i) There is no evidence of communal riot;

(ii) The evidence of Chandabai Kamble (PW 4) about the cause of incident is not reliable;

(iii) The eye-witnesses examined by prosecution are not trustworthy;

(iv) The identification parade is merely a farse;

(v) The medical evidence about the distance from which the bullets are fired is not proved;

(vi) There was no unlawful assembly. Common object to kill is not proved by prosecution;

(vii) The accused have not committed any offence and at the most the case of accused Ayyub (A-1) falls under Exception 1 to section 300 of Indian Penal Code.

On behalf of State, it is submitted that firstly the assembly was ‘unlawful assembly’ and two policemen are killed in furtherance of the common object of assembly to kill P.S.I. Deshmukh. It is further urged that the defence of accused is patently false and absurd. It is also urged that the defence of grave and sudden provocation was not taken before the trial Court and it was also not suggested to prosecution witnesses and hence is not proved.

10. The learned Counsel have taken us through the entire record of the case. To appreciate the contentions, it is necessary to look into the cause of incident. PW 4 Chandabai was residing at village Naigaon with her husband Subhash Kambale in a hut near the house of accused Ayyub. Her husband Subhash Kambale and accused Ayyub were dealing in illicit distillation of liquor. She has stated that at about 12 Noon on the date of incident 6-6-1990, accused Ayyub came to her hut in a drunken condition and demanded liquor from her. She was alone in the house. Seeing her alone, accused Ayyub abused her in filthy language and caught her right hand. She gave a jerk, rescued herself and came in open Court-yard of her house. Accused Ayyub went back to his house still abusing her. When her husband came, she narrated the incident to him and her husband asked her to go to police station, Babhulgaon to lodge report alongwith Sanjay Khobragade. She lodged the report (Exhibit 148). Meanwhile, P.S.I. Deshmukh came there. P.S.I. Deshmukh told her that he would send Police Jamadar, but she requested him to go to Naigaon. She has also seen the policemen going in an auto-rickshaw towards Naigaon. When bus was available at S.T. Bus stand, Babhulgaon, she boarded the bus, got down at Naigaon S.T. stand and noticed policemen lying near Neem tree which was near the panthela of one Khandare. She has further stated that when she went to her house, her husband told her not to reside with him at Naigaon. She has further stated that she went to the house of the maternal uncle of her husband, but he also told her not to live at his house. Then she went to Weni and from there to Kalamb and ultimately to village Taroda where her brother resides.

This witness is cross-examined at length by the accused. She has admitted that though she was not married with Subhash Kambale, she was living with him because of love. Subhash was not married. She further admitted that she was residing with one Bhimrao Lohekar previously as his wife, but she was not married with him. She has further admitted that on the say of Madhu, the father of Bhimrao, she had filed false report that she remained preganant from Bhimrao. She has further stated that she lodged report (Exhibit 148) in police station, Babhulgaon at the instance of her husband Subhash Kamble and further that she had stated falsely on the say of her husband in the report (Exhibit 148) that her husband had gone to Yavatmal in connection with the case. She further stated that she was knowing very well while submitting the report that accused Ayyub abused her in filthy language, entered in the house and caught her right hand. She, however, did not tell this to the police to save her reputation. It is suggested to this witness that accused Ayyub had not gone to her house at the relevant time which she denied.

It is true that on her own saying she was not married to Subhash Kambale or to Bhimrao or with one Madhu. It appears that she is a woman of easy virtue. Her statement under section 161, Code of Criminal Procedure, was recorded on 15-9-1990. Her version that at the relevant time accused Ayyub had gone to her house, abused her and threatened her is supported by her report (Exhibit 148). It has also come in her evidence that she insisted that P.S.I. Deshmukh should himself go to Naigaon to make enquiry in this case. It is mentioned in the report (Exhibit 148) that by consuming liquor, accused No. 1 Ayyub hurled abuses at the neighbours and at the relevant time accused Ayyub, on consuming liquor, hurled filthy abuses and gave threats to her. She got frightened and therefore, lodged oral report. This report was treated for non-cognizable offence and PW 4 was advised to lodge complaint directly in the Court. There is an endorsement dated 6-6-1990 on this report to the effect that “Beat Head Constable to take preventive action against the Non-applicant ” i.e. Accused No. 1. The evidence of PW 4 is criticised on the ground that she lodged false report against accused No. 1 and moreover there is absolutely no mention of communal riot or any apprehension about communal riot. Evidence of PW 4 Chandabai that accused No. 1 Ayyub was distilling liquor is not challenged in the cross-examination. It appears that there was business rivalry between Subhash Kambale and accused Ayyub (A-1). On the basis of this report and the information given by PW 4 Chandabai, P.S.I. Deshmukh and his staff went to Naigaon. She has not stated in the report that Accused No. 1 abused her in filthy language, entered in her house and caught her right hand, as she is deposing in Court at the instance of Subhash Kambale and her explanation is also not acceptable about omission of the aforesaid facts in her report (Exhibit 148). But from her evidence, it is proved that accused Ayyub by consuming liquor abused her in filthy language and threatened her.

11. PW 1 Abhiman resides near the school of Naigaon. He has stated that on the date of marriage of the sister of Chootushaha (A-17), there was marriage pendal in front of the house of Chhotushaha. At about 2.00 p.m., he saw that two police constables (Shipayee) forcibly made accused Ayyub sit in the auto-rikshaw. He also noticed that two policemen sat near the driver of the auto and two policemen sat on the passengers seat near the accused Ayyub. When the driver was about to start the auto, Afasanabi the wife of accused No. 1 Ayyub came near the auto and asked policemen not to beat her husband. The driver of the auto went ahead and it went towards S.T. stand. He further stated that some of the accused persons who had gathered for the marriage started running behind the auto and he saw accused Kayyum (A-2), Mohabbatkhan (A-23) and Chhotushaha (A-17) and other persons running behind the auto. In cross-examination, he was contradicted with portions marked ‘A’ to ‘F’ in respect of his police statement. As regards portion marked ‘E’ he denied that “accused Ayyub (A-1) was saying that Chandabai was a loafer and I will not come on her report then police Jamadar and police were forcibly making him sit in the auto-rikshaw”. From the evidence of this witness, it is established that near the school police have arrested A-1 and they made him sit in the auto and the persons who had gathered in the marriage pendal, including Kayyum (A-2) Mohabbatkhan (A-23) and Chhotushaha (A-17), ran after the auto.

12. There is evidence of four eye-witnesses on the actual incident of firing near S.T. Bus-stand of Naigaon. Ramprasad Shrivas (PW 3) and Babarao Pawasekar (PW 7) are the two head constables, PW 5 Ravi Markand – the auto driver and PW 6 Ramrao Khandare who was running a hotel and panthela near the S.T. Bus-stand are these eye-witnesses. PW 3 Ramprasad was attached to Babhulgaon Police Station since 2-7-1989. He has stated that P.S.I. Deshmukh joined police station Babhulgaon on 15-1-1990. He further stated that he returned to police station on 6-6-1990 from Pahur at about 11.00 a.m. P.S.I. Deshmukh told him to come again in the police station for a duty of station diary from 14 hours to 20 hours. Therefore, he came in the police station at about 2.00 p.m. At about 2.00 p.m. the Police Jamadar Shri Rane took the station diary charge from the police head constable Shri Pawasekar (PW 7). At that time, PW 4 Chandabai came in the police station and lodged her report against accused Ayyub (A-1). He has further stated that PW 4 Chandabai told P.S.I. Shri Deshmukh that accused Ayyub was abusing her and P.S.I. Deshmukh said that there was a possibility of riot (communal) in the village Naigaon and hence he asked him, PW 7 Babarao and police constable Ingole to accompany him for going to Naigaon. Then he has narrated that in the auto-rickshaw of PW 5, they went to Naigaon. P.S.I. Deshmukh caught hold the accused Ayyub near the school, but Ayyub rescued himself from his hand. He has further stated that, therefore, all four policemen caught hold accused Ayyub (A-1). Accused Ayyub questioned the policemen for what offence he was being arrested. Thereon, P.S.I. Deshmukh told him that he received a report against him from PW 4 Chandabai and, therefore, he wanted to arrest him to start proceedings against him under section 151, Cr. P.C. Then they made him sit in the auto-rikshaw. When the auto was about to start, the wife of accused Ayyub asked the policemen as to why her husband was arrested and she was saying to the persons who were present there that why they were only seeing when her husband is being taken by police. The wife of accused Ayyub came in front of it. P.S.I. Deshmukh asked the auto-driver to start the auto immediately, so the rikshaw proceeded ahead. He has given the sitting position of policemen and accused Ayyub in the auto-rikshaw. P.S.I. Deshmukh was sitting on the right side of the driver and police constable Ingole was sitting on the left side while others were sitting on the passengers’ seats. He has further narrated that when rikshaw was proceeding ahead, the persons gathered near the rikshaw were saying to beat policemen and they were running behind the auto. They were pelting stones. When the auto arrived just near the S.T. stand, where there was one tamarined tree, the persons who were running after the auto were shouting and asking the person, who was ahead of the auto driving the harrow yoked with bullocks and going towards S.T. stand, to stop the rikshaw. Because of the obstacle, the auto-rikshaw was stopped. P.S.I. Deshmukh got down from right side and police constable Ingole from the left side of the rikshaw. The police constable Ingole went near P.S.I. Deshmukh. The persons, who were chasing the auto, came near the auto and started beating with the help of sticks to the top of the auto. He has further stated that from the mob Kayyum (A-2) went near the P.S.I. Deshmukh and asked him not to take his brother. P.S.I. Deshmukh told him that he has arrested accused Ayyub under section 151, Cr. P.C. and he would be released on bail in Tahsil Office. The accused Sk. Noor (A-3), all of a sudden, caught the waist of P.S.I. Deshmukh from the back side and Mohabbatkhan (A-23) caught the right hand of Shri Deshmukh. Mohabbatkhan turned the hand of P.S.I. Deshmukh back side and twisted it. He has further stated that by this time, the accused Daudshaha (A-12) and Hakimshaha (A-13) pulled him from the rikshaw. Then two other persons from the mob caught Babarao Pawasekar (PW 7) and dragged him out of the auto. The accused Kadarkha and Yusufkha dragged accused Ayyub from the auto-rikshaw. The accused Daudshaha and Hakinshaha took this witness near the tamarined tree which was at a distance of 5 to 6 feet from the rikshaw and firmly held him by the hands. Similarly, Babarao (PW 7) was taken by two accused persons near the board or “Shetkari Sanghatana” and caught hold him there.

He has further stated that accused Ayyub became angry and rushed upon P.S.I. Deshmukh and asked the P.S.I. as to why he was taking him on the report of prostitute. Accused Ayyub took out the revolver from the holster. By that time, the police constable Ingole was trying to rescue P.S.I. Deshmukh, accused Ayyub fired one bullet of revolver from a distance of 3 to 4 inches. Police constable Ingole fell down immediately. Then accused Ayyub tried to fire a bullet to the right side chest of P.S.I. Deshmukh, but he missed it and the bullet struck to accused Mohabbatkhan (A-23). Accused Mohabbatkhan sat down and the right hand of P.S.I. Deshmukh was freed. P.S.I. Deshmukh then tried to give a fist blow by turning to left to the persons who had caught his left hand. Accused Ayyub put the revolver on the right side of the head portion of P.S.I. Deshmukh and fired the bullet. P.S.I. Deshmukh fell down. Similarly, the revolver also fell down from the hands of accused Ayyub. The accused then started running towards the village Naigaon. He has stated that he then went near P.S.I. Deshmukh and police constable Ingole, who had fallen down on the ground near each other. In the meanwhile, the auot-rikshaw driver PW 5 Ravi immediately started the auto and left the place. He has given the distance of the tamarined tree and the place of incident which is 7 to 8 feet away from where he was caught hold. The board of Shetkari Sanghatana was also at a distance of 7-8 feet on the eastern side from the place of incident.

He stated that he was frightened. PW 7 Bababrao asked him to go to Police Station for giving information. He started going to police station, Babhulgaon and crossed about 1 km. distance. One mini-bus was coming from Kalamb side going towards Babhulgaon. He gave a signal. The bus stopped. The driver of the mini-bus one Gawande was knowing him. He requested him to take him to Babhulgaon, but accused Kayyum (A-2) told the driver Gawande not to take him in the bus. However, the driver allowed him to sit near him and he went to police station, Babhulgaon. He then narrated the incident to A.S.I. Mandaokar (PW 16) and lodged his report (Exhibit 145). A.S.I. Mandaokar informed this incident to higher authorities by wireless. Then he alongwith police staff 4-5 in number, went to Naigaon by auto-rikshaw. At that time, P.S.I. Deshmukh and Police Constable Ingole had already died. The superior officers came there. C.P.I. Thorat took the investigation in his hand. After post-mortem examination, the Medical Officer gave the bundle of clothes of deceased in sealed condition and he deposited the bundle in police station, Babhulgaon. He has further stated that on 30-8-1990, he was called in Tahsil office, Babhulgaon for identifying the accused persons in identification parade. He has stated that he identified 16 to 18 persons. He also identified the clothes of deceased and other articles. He has stated in cross-examination that he had gone to Naigaon 2 to 4 times for prohibition raids. He was knowing accused Ayyub prior to this incident and had seen the faces of other accused persons but he was not knowing them by names. He had seen 7 to 8 persons prior to this incident in the bazar as they were coming with other persons who were prosecuted in criminal cases. He has further clarified that he was knowing the name of accused Ayyub, but was not knowing the names of other accused persons while lodging the report (Exh. 145). His statement under section 161, Cr. P.C. was recorded on the next day of the incident and he disclosed the names of other accused persons. He denied the suggestion that the names of other accused persons, were disclosed by him at the instance of C.P.I. Thorat. It has further come in his cross-examination that when PW 4 Chandabai was sitting in front of the room near the door of P.S.O. P.S.I. Deshmukh told him that PW 4 Chandabai had submitted her report against accused Ayyub and there was a possibility of communal riot between Muslim and Boudha and, therefore, P.S.I. Deshmukh asked him to accompany him. He has admitted that they had not received information about the so-called communal riot from others, but he clarified that P.S.I. Deshmukh took him and other staff for controlling the situation. He is further corss-examined in respect of the procedure to be adopted by police in respect of station diary register entries regarding revolver and handcuff. He has further admitted that when they reached Naigaon, nobody informed them about the possibility of communal riot. He has stated that the handcuff was with him and accused Ayyub was giving jerk and therefore, he could not put handcuff to his hand. He and PW 7 Babarao Pawasekar tried to put the handcuff but accused Ayyub was resisting and they were trying to put the handcuff as per the order of P.S.I. Deshmukh. It has further come in his evidence that accused Ayyub resisted about 15 to 20 minutes and thereafter they succeeded in controlling him. Even though accused Ayyub was made to sit by these policemen, still he was trying to run away. Accused Ayyub was made to sit in an auto-rikshaw in between the driver’s seat and passenger seat. This witness and PW 7 Babarao had caught hold the hands of accused Ayyub in the auto-rikshaw. He was having a bag in his left hand. He denied the suggestion that accused Ayyub was handcuffed immediately on the spot. From the auto-rikshaw, he saw some 20 to 25 persons came behind the auto. He is definite that police constable Ingole was not caught by any person. He has stated that he learnt later on that Mahabbatkhan (A-23) was admitted in Yavatmal hospital. He has further stated that when C.P.I. Thorat came there on the spot, the photographer had taken the photos of the dead bodies. He denied the suggestion that Police Constable Ingole died because of firing the bullet of the revolver by P.S.I. Deshmukh. He also denied the suggestion that Mohabbatkhan (A-23) had received the bullet injury as a result of the bullet fired by P.S.I. Deshmukh. He said that on 30th August, 1990, he identified the accused Sk. Noor and Daudshaha. The persons in the mob were pelting stones when the auto was in motion and not only this when the auto was stopped, they pelted stones and also beat by sticks on the top of the auto. But the persons were not pelting the stones towards the auto-rikshaw and were not piercing the sticks inside the auto. When P.S.I. Deshmukh and Police Constable Ingole were standing in front of it, they were not moving their sticks but they were convincing the persons of the mob. Some persons in the mob were raising hue and cry and were also abusing. He has stated that after the police custody remand, the accused were remanded in magisterial custody and they were sent in Jail and he did not know whether the accused persons were brought in the Police Station for identification parade. Similarly, he had no idea whether the permission of Judicial Magistrate was obtained for producing the accused for identification parade. He admitted that at the time of writing report, he did not mention that accused Ayyub was arrested near the school. They were taking him in auto-rikshaw. Similarly, the wife of accused Ayyub Afasanabi raised a cry when policemen caught Ayyub and the persons who pelted stones, hit the sticks on the top of the auto. Similarly, the names of persons who caught him and dragged him are not mentioned in his report. He has admitted that when he went to police station he was not remembering the sequence of firing of the bullets and he did not recollect the name of injured Mohabbatkhan (A-23) and, therefore, did not tell the same while submitting the report. He has further admitted that he did not disclose the colour, height and age and the clothes of the accused persons while recording his statement. But he is definite that he had seen some of the accused prior to the incident in a bazar. The only thing is that he cannot tell the exact dates. He states that he did not see accused Yusufkhan, Hasankha, Noorkha and Mohabbatkha in the bazar, but he saw them in police station. He has given the sequence how the persons from the auto were dragged. Babarao Pawasekar (PW 7) was dragged first from the auto, then this witness was dragged and, thereafter, accused Ayyub was dragged. He has admitted that it is not in his police statement that accused Mohabbatkhan took the right hand of P.S.I. Deshmukh towards back side and twisted it. Similarly, he did not state specifically before the police that accused Noorkha and Kayyum caught the left hand of P.S.I. Deshmukh. He also did not state in his police statement that after firing three cartridges by accused Ayyub, the revolver fell down from his hand. He denied the suggestion that the revolver was not in the hand of accused Ayyub. He has further stated that he had gone to Naigaon number of times prior to the incident.

13. The report lodged by this witness in police station is reproduced below :

“I have presented myself to the Police Station and on being questioned, I lodged the report in writing as follow:-

I am attached to Police Station, Babhulgaon, as Head Constable. This day, 6-6-90, Shri Deshmukh, Police Station Officer, Babhulgaon, accompanied by myself Head Constable B. No. 319, 1035 Paosekar and Police Constable Ramchandra Ingole, B. No. 1055 had gone to village Naigaon in order to make an enquiry into the N.C. application concerning Boudha versus Mohammedan registered at Sanha Entry No. 26, dated 6-6-90. Shri Deshmukh, Police Station Officer arrested the non-applicant Ayyubkha, Mohammedan from village Naigaon under section 151 of Criminal Procedure Code, and we came to the Naigaon S.T. Stand. This day, 6-6-90, at 14.40 hours many persons had gathered at the stand. The accused Ayyubkha avoided his arrest by the Police Station Officer Deshmukh and committed an attack. He was accompanied by 10-12 persons. Ayyubkhan snatched away the loaded revolver from the possession of police station officer, Deshmukh with which he opened fire at Deshmukh Saheb and Police Constable Ramchandra Ingole. B. No. 1055. The bullet hit the head of Deshmukh Saheb and the face of Ramchandra and thereby both of them got injured grievously. Their condition is critical and many people from the village gathered there. They know the incident. I have presented myself to lodge the report of the incident. My oral report has been read over to me. It has been recorded correctly as per my version.

(Sd.) Ramprasad Shrivas,

H.C. B. No. 319

Dated 6th June, 1990.”

On the basis of this report, an offence under sections 307, 147, 148, 353 and 333 of the Indian Penal Code was registered in Police Station. Babhulgaon by A.S.I. Shri Mandaokar (PW 16). Perusal of the report shows that P.S.I. Deshmukh and police staff had gone to village Naigaon. P.S.I. Deshmukh then arrested Ayyubkha (A-1). It is to be noted here that PW Ramprasad Shrivas left the scene of offence immediately after the incident. He was under the impression that after receipt of the bullet injuries, P.S.I. Deshmukh and Police Constable Ingole were alive and to get immediate help from the police station, he rushed to Babhulgaon Police Station. Therefore, the offence under section 307 of Indian Penal Code was registered at the first instance.

14. Babarao Pawasekar (PW 7) is another Head Constable of Babhulgaon Police Station examined in this case. He has narrated the incident in the similar fashion as narrated by PW 3 Ramprasad Shrivas. This witness has given all the details about the incident and moreover, he was knowing the accused by their names. He has stated that he had gone to village Naigaon about 25 to 30 times prior to the incident. In Court, he has stated the names of accused who had caught hold the P.S.I. Deshmukh, the names of accused who had caught hold of police Head Constable Ramprasad and this witness and also the names of accused who had taken away accused Ayyub from the auto-rickshaw. After the incident, he remained on the spot. Since PW 3 Ramprasad was frightened, he was sent to Babhulgaon Police Station. He has further stated that on receiving information, the Tahsildar, the Naib Tahsildar with Dr. Kadukar arrived on the spot. In his presence, Dr. Kadukar has examined P.S.I. Deshmukh and Police Constable Ingole. Dr. Kadukar has, after examination, certified that P.S.I. Deshmukh and Police Constable Ingole were dead. C.P.I. Shri Thorat alongwith his staff also reached the spot. In presence of this witness, C.P.I. Thorat has taken measurements and drawn spot panchanamas (Exhibits 167 and 168). Similarly, he has drawn the inquest panchanamas (Exhibits 169 and 170) over the dead bodies. He had also accompanied C.P.I. Thorat to the place where accused Ayyub was arrested. The panchanama of that place was also drawn in his presence. His statement under section 161, Cr. P.C. was recorded by C.P.I. Thorat on the next day. He has also given the distance from the place from which he has seen the actual incident of firing. He has also identified the accused in the identification parade held by Naib Tahsildar. In the trial, he was very definite that he was knowing the names of accused persons and, therefore, there was no necessity to tell that he was knowing the accused persons by names in his police statement. The accused have suggested the defence which he has denied. It is, however, necessary to state the suggestions given by the accused. In para 32, he has stated that P.S.I. Deshmukh had tried to pacify the mob. He denied the suggestion that instead of pacifying the matter, Shri Deshmukh started abusing and some sort of beating with the help of cane. He also denied the suggestion that on seeing the anger of Shri Deshmukh, the persons of that mob were perturbed and rushed on Shri Deshmukh. He further denied that P.S.I. Deshmukh fired one bullet of revolver towards accused Mohabbatkhan (A-23) and further after firing one bullet the persons of that mob came near Shri Deshmukh and one of it fired the bullets. This suggestion definitely shows that one of the accused fired bullets.

15. The driver of the auto-rikshaw PW 5 Ravi Markand was not knowing accused No. 1 Ayyub prior to the incident. The auto-rikshaw belonged to his brother Sanjay Markand. He was unemployed and, therefore, he was driving the auto-rickshaw of his brother. On the date of incident, he carried the policemen in his rickshaw to village Naigaon. He has deposed that when his auto-rikshaw stopped near the school of Naigaon, accused Ayyub was sitting near the school. P.S.I. Deshmukh asked accused Ayyub to accompany with him because he was charged under section 151, Cri. P.C. Accused Ayyub was reluctant to come with P.S.I. Deshmukh. Therefore, P.S.I. and other policemen made him sit forcibly in the auto-rickshaw. He has narrated the sitting position of the policemen and accused Ayyub in his auto-rickshaw. When he started the rickshaw for going to Babhulgaon, wife of accused Ayyub came there and asked policemen as to why her husband was being taken by them. He has stated that he started the auto by giving dodge to her and proceeded ahead. Some persons were pelting stones behind the back of auto and when the auto arrived just near S.T. stand of Naigaon, because of the obstacle of the harrow, his auto-rickshaw came to an halt. P.S.I. Deshmukh was sitting near him on his right side and Police Constable Ingole was sitting on his left side. He has stated that other accused at first dragged Babarao (PW 7). Similarly, some have dragged accused Ayyub from the rickshaw. He also heard shouts of the mob to release accused Ayyub. He further stated that P.S.I. Deshmukh was caught hold by three persons by their hands and Mohabbatkhan (A-23) had caught the right hand of P.S.I. Deshmukh. The person, who had caught the left hand of P.S.I. Deshmukh, was saying to release accused Ayyub. P.S.I. Deshmukh told them that accused Ayyub was being arrested under section 151, Cr. P.C. and that he would be released from the Tahsil Office on bail. But the persons in the mob insisted to set free accused Ayyub there only. Police Constable Ingole was trying to rescue P.S.I. Deshmukh from the hands of those persons who had caught hold of him, but he could not succeed. Then accused Ayyub rushed towards P.S.I. Deshmukh and took out the revolver from the holster which was with P.S.I. Deshmukh. Accused Ayyub fired one bullet towards Police Constable Ingole. It was hit to right side of his face and thereby Ingole fell down. Accused Ayyub fired second bullet of the revolver towards P.S.I. Deshmukh, but it missed and hit to Mohabbatkhan (A-23). Mohabbatkhan sat down. Then accused Ayyub fired third bullet towards right side head portion of P.S.I. Deshmukh and due to it P.S.I. Deshmukh fell down. He has stated that the cord of the revolver was not taken from the shoulder of P.S.I. Deshmukh. As P.S.I. Deshmukh fell down, so the revolver had also fallen down from the hand of accused Ayyub. After the incident, the accused persons ran away. PW 3 Ramprasad and PW 7 Babarao ramained there. This witness then saw the mini-bus coming from Kalamb side and Mohabbatkhan (A-23) was put in that mini-bus. PW 7 Babarao Pawasekar had requested the driver of that mini-bus to take P.S.I. Deshmukh and Police Constable Ingole in that mini-bus, but the persons who accompanied Mohabbatkhan (A-23) told the driver not to take the injured policemen into his bus and one of them was saying “let the policemen die”. He has stated that since 2-3 persons standing near the spot were saying to set the fire to the auto, hence he started the auto and went to his village Kopra-Jankar as it was at a distance of about 31/2 kms. from Babhulgaon S.T. Stand. He halted in his village for the night and next day he went to Police Station, Babhulgaon with the articles i.e. one cap, stick and one bag of policemen which were lying in his auto-rickshaw and deposited the said articles in the Police Station. His auto-rickshaw was damaged. The top of the auto-rickshaw was torn due to hitting by sticks and by stones. The side mirror was broken. The panchanama of the auto-rickshaw was drawn in the police station. He had also identified the accusd in identification parade. He has also stated that accused Sk. Noor caught P.S.I. from back side, Mohabbatkhan, Kayyum and Noorkha caught his hands and the name of the person who was saying to release Ayyub was Kayyum (A-2).

In cross-examination, he has admitted that there was a marriage at the house of accused Chhotushaha (A-17). There is one omission that when his auto-rickshaw started towards Naigaon S.T. Stand, so many persons were running behind the auto. They were pelting stones and hitting at the top of the auto with the help of sticks. He has admitted that after obstruction to his auto when 10-12 persons came there they encircled the auto but they were not possessing sticks and they were not possessing stones also. It is confirmed in cross-examination that he was knowing the accused Mohabbatkhan (A-23) prior to the incident and he was also knowing accused Ayyub (A-1) and other three persons scuffling with P.S.I. Deshmukh. He has admitted that the scuffle ended within 2-3 minutes and within that period no bullets were fired and that thereafter the bullets were fired.

16. Further there is evidence of Ramrao Khandare (PW 6). This witness was residing at Naigaon 14 years prior to the incident. He has stated that there were about 150 houses in village Naigaon and at the time of incident he was running one hotel and panthela near S.T. bus stand of Naigaon. His hotel was made of dry stems. It was temporary structure and he was running that hotel there for about 3-4 years prior to the incident. He also stated that there was one hotel of Ramesh Bawane. This witness was shown the photographs of the spot showing his hotel and the hotel of Ramesh Bawane and he identified the same. The incident took place towards west-south corner of his hotel and at that time he was sitting in his hotel. At that time, there was no customer. He saw one auto-rickshaw coming and heard shouts of many persons. He stood near the kud wall corner of his hotel and through the gap in wall, he saw one harrow driver stopped there and stood on the road with a stick. Some persons were running behind the auto and they reached near the same. He has stated that accused Kayyum (A-2) came in front of the auto and started talking with P.S.I. Deshmukh and asked P.S.I. to release accused Ayyub (A-1). He has stated that accused Kayyum (A-2) is the brother of accused Ayyub (A-1). P.S.I. Deshmukh told the accused Kayyum (A-2) that he has arrested accused Ayyub under section 151, Cr. P.C. and he would be released from the Tahsil Office, Babhulgaon. In the meanwhile, accused Sk. Noor (A-3) came there from the mob and stood in front of the auto and gave the call to release accused Ayyub (A-1). Immediately thereafter, he caught the waist of P.S.I. Deshmukh. Then accused Mohabbatkhan (A-23) came in front of the auto from the mob and caught one of the hands of P.S.I. Deshmukh. Kayyum (A-2) and Sk. Noor (A-3) came there and they caught the other hand of P.S.I.. He has further stated that accused Rustamkha (A-4) and Hasankha (A-6) came near the auto and dragged Police Head Constable Pawasekar (PW 7) from eastern side. They took him at a distance of 5-6 feet from the auto near the board of “Shetkari Sanghatana”. Then accused Yusufkhan (A-5) and Kadarkhan (A-18) help the accused Ayyub (A-1) for coming out from the auto-rickshaw. Accused Ayyub came out and he immediately rushed towards P.S.I.. He asked P.S.I. why he was taking him on the report of prostitute “Randi ke report par mereko leke jate kya” and by uttering these words, accused Ayyub (A-1) snatched the revolver from the holster of P.S.I. Deshmukh. At that time, one police constable (sipoy) went behind P.S.I. and tried to rescue him and on seeing this accused Ayyub (A-1) fired first bullet and it hit on the face of police constable and he fell down. Accused Ayyub fired second bullet of revolver towards P.S.I., but it missed and hit to accused Mohabbatkhan (A-23). Due to this, the hands of accused Mohbbatkhan were freed and he raised a cry “Are bap-re” and then he sat down. In the meanwhile, P.S.I. tried to rescue his left hand. Accused Ayyub fired third bullet on the right side head portion of P.S.I.. P.S.I. Deshmukh immediately fell down. Other persons then started running.

17. Police Head Constable Babarao (PW 7) asked another policeman to go to Police Station. Babarao (PW 7) came near P.S.I. Deshmukh and saw that P.S.I. was dead. After some time, one mini-bus came there and accused Kayyum (A-2) and Kadarkhan (A-18) put accused Mohabbatkhan (A-23) in that bus. This witness further states that he then closed his shop and went to his house. Next day, his statement was recorded by police. After 8-9 days, police took the photographs as he has shown the place where he was standing at the time of incident. The panchanama (Exhibit 151) was also prepared in his presence.

This witness is cross-examined at length. The cross-examination is directed to show that his hotel was not in existence near the bus stand of Naigaon at the time of incident and that he is a got-up witness. It is confirmed in the cross-examination that he was present at the time when photographs of his hotel were taken. He denied that he was doing the business of illicit distillation of liquor. He has given the distance of the hotel of Ramesh Bawane which is at 40 feet from his hotel. He has also stated that some persons Ramesh, Haribhau and Vithal were present in the hotel of Bawane at that time. He has further stated that after departure of mini-bus, the Police Patil of village Naigaon and one Pashamiya (DW 2) had come. He heard the sound of vehicles coming when he started going to his house. It is confirmed in his cross-examination that there was no crowd of accused persons. He stated that he closed his hotel one or two minutes after the incident. He has stated that though the revolver’s cord was tied to the belt, after snatching the cord as well as the belt were not broken. He further stated that P.S.I. Deshmukh did not raise cry when his revolver was snatched. The other persons did not free the waist of P.S.I. Deshmukh even though the revolver was snatched. He has given the number of persons of the mob to be 25 to 30. He has denied the suggestions given by the defence. He has also denied that accused Sk. Noor (A-3) was on duty at the time of incident. He has denied the suggestion that accused Ayyub was handcuffed. He has stated that he has narrated the incident to his wife. He has denied the suggestion that for running his hotel business, he demanded some money to Mohabbatkhan (A-23), Noorkha (A-14) and Hasankha (A-6). From the evidence of this witness, it is clear that he was running the hotel on the bus stand of Naigaon. He is not at all shattered in cross-examination. He was running a hotel there is also corroborated by the photographs and the spot panchanama (Exhibit 151). This witness has given the entire picture of the incident in detail with names of the accused persons, the acts they had done as also the acts of policemen.

18. Vithalrao Mandaokar (PW 16) was Assistant Sub-Inspector in Police Station, Babhulgaon on the day of incident. PW 3 Head Constable Ramprasad came in the police station at about 4.00 p.m. in a frightened condition. On enquiry, PW 3 told him about the incident. He recorded his First Information Report (Exhibit 145) and communicated the information to his superior officers at Yavatmal. He also gave a requisition letter (Exhibit 225) to Shri Kale for immediately going to Naigaon and taking photographs. Thereafter, he went to the spot at about 5.00 or 5.15 p.m. Deputy Superintendent of Police and Circle Police Inspector had already come there. He handed over the copy of F.I.R. to C.P.I. Shri Thorat.

19. Tarachand Rane (PW 18) was working as Head Constable in police station, Babhulgaon on the relevant date of incident. He has proved the station diary entries which were taken in the Station Diary Register. On the report of PW 4 Chandabai, he took the station diary Entry No. 26 of 1990. The copy of the said station diary entry is at Exhibit 252 showing the departure of the policemen with handcuff and there is endorsement of taking preventive action and it is also mentioned that there was possibility of commission of communal riot. He has also taken Entry No. 28 of 1990 of the return of Police Head Constable Ramprasad (PW 3) which is at Exhibit 253.

20. Dr. Ashok Chaudhari (PW 14) has performed post-mortem examination over the dead body of Police Constable Ingole. He found the external injuries as under :

“1. Circular wound of size 3/4 cms. in diameter, site 5 cms. away from rt. angle of mouth, and 4 cms. away from rt. tragus. Edges of the injury were inverted, with blackening of 2 cms. around the injury. No obvious tattooing.

2. Irregular wound of the size 3/4 cms. diameter situated 6 cms. away from mastoid tip. 8 cms. away from mandible, edges of the injury were everted. No blackening seen but oozing of blood was seen. I have marked these injuries by A and B.

3. Fracture was palpable at the site of wounds A and B. At site ‘A’ fracture was seen irregular of mandible middle 1/3 verticle ramus. At site ‘B’ the fracture was seen at occipital region of skull.”

He has also shown the diagram on page No. 4 of his P.M. report which shows that ‘A’ injury is entrance injury on right side and ‘B’ injury is exit injury on left side.

On internal examination, he found the following injuries :

“1. Haematoma formation with muscle laceration at site of injury ‘A’ mandible fracture of verticle ramus in middle 1/3rd was seen.

2. Haematoma with muscle laceration at the site of injury ‘B’ occipital region left side. Skull examination shows a regular circular 1/2 cm. diameter aparture on rt. occipital region. An irregular fracture of skull on left occipital region of size 2cms X 11/2 cms. multiple chips of bones was seen. Meninges at wound ‘X’ irregular inverted margines and at ‘Y’ – irregular everted margines. On internal examination of brain-shows, Medulla and pons were lacerated 50 cc. clotted blood was seen under meninges. The ‘X’ and ‘Y’ are the counter parts of injuries ‘A’ and ‘B’.”

He has also taken out the skin from the injuries ‘A’ and ‘B’ for examination of Expert. He has opined that the cause of death was shock due to injury to vital organ brain. He has proved his P.M. Report (Exhibit 231). He stated that the injuries were fire arm injuries and they were caused by one bullet and the bullet was fired at a distance of 2 ft. The blood stained clothes of the dead body were taken out and were handed over in a sealed condition to Police.

On the same day, he performed autopsy over the dead body of P.S.I. Deshmukh. He found the following external injuries :

“A. Wound circular shaped diameter 3/4 cm. site situated on temporal region of skull, 4 cms. away from outer canthus of right eye 5 cms. away from tragus right ear. Edges of the wound charred and inverted. Surrounding blackening of 1/2 cm. diameter, tattooing present 1 cm. away from centre of the wound. Collar of wound was abraded.

B. Irregular wound diameter approximately 3/4 cm. site-fronto pariatal region of skull 41/2 cms. away from midline. 6 cms. above left eyebrow, edges were everted. No blackening seen. Oozing of blood present.

C. Lacerated wound fronto pariatal region verticle, 2 cms. X 11/2 X 1/4 cms. situated at 4 cms. away from mid-line.”

On internal examination, he noticed the following injuries :

Internal examination of head :-

“(i) Haematoma formation with muscle laceration at the site of wound ‘A’.

(ii) Bursting fracture with multiple bone chips with haematoma corresponding to wound ‘B’.”

Internal examination of the skull :-

“(i) A circular hole of half cm. diamater on skull corresponding to injury ‘A’

(ii) Bursting fracture, irregular (multiple chips) of size 21/3 X 2 cms. at the site of wound ‘B’. Brain matter was coming out.”

Examination of brain :-

“(i) Irregular rent with inverted margine on menninges corresponding to wound ‘A’.

(ii) Irregular rent of size 2 X 1 cms. approximately in menninges correspondings to wound ‘B’ Multiple clots with oozing of blood from corresponding to the injuries A and B huge haematoma collected in brain matter. Brain was congested and lacerated.”

He has opined that the cause of death was shock due to extensive intra-cranial haemorrhage and injury to vital organ brain. He proved the post-mortem report (Exhibit 232). He further stated that injuries ‘A’ and ‘B’ were caused by one bullet. In his opinion, the bullet was fired at a distance of 2 to 5 inches and after firing the bullet the death was caused immediately. Similar was the opinion given in respect of Police Constable Ingole. The clothes of the dead bodies were seized and handed over to Police. He has stated that according to Modi’s Medical Jurisprudence, the charring is visible if the bullet is fired within 18 inches ranges from a revolver.

In cross-examination, he has admitted that he is not a Ballistic Expert, but he was firm that blackening is deposition of carbon particles on that particular skin and he had seen the black deposits at the time of his post-mortem examination. Alongwith charring, there was blackening also. He admitted that he did not find charring and scorching while conducting post-mortem examination over the dead body of Police Constable Ingole.

21. Dr. Sunil Sargar (PW 15) was the Casualty Medical Officer on the date of incident at General Hospital, Yavatmal. At about 4.30 p.m., Mohabbatkhan (A-23) was admitted in the hospital for bullet injury to his left arm axilla back. After examination, he found the following injuries :

“(i) Bullet injury over left-auxiliary fold over anterio lateral aspect of size 1/2 X 1/2 cm. margins are charred, fresh bleeding oozing out depth could not confirmed.

(ii) Bullet injury over medial aspect of left upper arm of size 1/2 X 1/3 cm., negotiate with the injury No. 1. Margins are charred, fresh bleeding present.

(iii) Bullet injury over left upper arm posterio lateral aspect, 5 cms. away from injury No. 1 of the size 1/2 X 1/2 cms., margines are charred, fresh bleeding present.”

He had done pobing through injury Nos. 2 and 3 and it passed easily through and through. He stated that all the injuries were fresh and they could be caused by bullet. As per his advise. X-rays were taken. According to him, the injuries were caused by one bullet. He proved his report at Exhibit 234. He also opined that in revolver firing cases, the charring is to be found when it was used at a distance of 11/2 to 2 ft. He read the X-ray plates and gave his report (Exh. 221). He had also seen the X-ray report. The clothes of accused Mohabbatkhan (A-23) were seized in General Hospital, Yavatmal.

22. The Chemical Analyser’s report (Exh. 284) shows blood stains on the clothes of deceased P.S.I., Police Constable, accused Mohabbatkhan (A-23) and accused Ayyub (A-1). On the Kurta of accused Ayyub, the stains of blood group ‘O’ are detected. On the clothes of accused Mohabbatkhan (A-23), blood stains of ‘O’ Group are detected. Similarly, the blood group ‘O’ is detected on the clothes of P.S.I. Deshmukh as well as Police Constable Ingole. The blood group of accused Ayyub (A-1) is ‘B’ positive.

23. At Exhibit 283, there is report of Ballistic Expert which is an admitted document. This report shows that Exhibit 1 revolver was a six chambered .38″ caliber revolver in working order. Residue of fired ammunition-nitrite was detected in the barrel washings of Exhibit 1, showing that revolver Exhibit 1 was used for firing prior to its receipt in the laboratory. Two of the randomly selected .38″ revolver cartridges from Exhibit 2 were successfully test fired from revolver Exhibit 1.The empties in Exhibits 3-A to 3-C are fired .38″ caliber revolver cartridge cases. The characteristic features of the firing pin impression on Exhibits 3-A to 3-C tally among themselves and with those on cartridges cases resulting from test firing of .38″ revolver cartridges from Exhibit showing that the empties in Exhibits 3-A to 3-C have been fired from .38″ revolver Exhibit 1. The bullet in Exhibit 4, which was taken out from the body of accused Mohabbatkhan (A-23), is a fired .38″ caliber copper jacketed revolver bullet. The bullet in Exhibit 4 tallies with the bullets test fired from revolver (Exh. 1) in respect of number of lands and grooves and their corresponding widths, the direction and extent of twist of rifling and its characteristic striations on the land and groove impressions, showing that the bullet (Exhibit 4) has been fired from revolver Exhibit 1. Detection of metallic lead and copper around the periphery of encircled shot holes on skin pieces in Exhibit 3-A. Exhibit 5-B, Exhibit 6-A and Exhibit 6-B are consistent with the passage wipe of fired jacketed bullets. This report clearly shows that three bullets were fired from the revolver seized in this case.

24. There is evidence of Shri Govind Badhiye (PW 11), the Naib Tahsildar, Babhulgaon on test identification parade. He has conducted the identification parade of accused on 30-8-1990 and 31-8-1990. Ramprasad Shrivas (PW 3), Ravi Markand (PW 5) and Babarao Pawasekar (PW 7) were the identifying witnesses. On 30-8-1990, the identification parade was held in respect of ten accused and on the next day the identification parade was held in respect of rest of the accused. He says that the identifying witnesses have identified the accused in his presence. He proved documents (Exhibits 187 to 196). On 30-8-1990, he has mixed ten persons with ten accused. Similarly, on 31-8-1990, he mixed 12 other persons with 12 accused and made them stand in a row. This witness has stated that even if the ratio of the persons mixed with the accused is not according to law, still he says that these identification parades are correct. At the instance of accused, Ravi Markand (PW 5) was asked to identify the accused again after changing their standing order in the row. Ravi Markand (PW 5) has identified the accused persons even after this change.

25. Then there is evidence of the Investigating Officer i.e Circle Police Inspector Shri Thorat (PW 19). In the month of June 1990, he was working as Circle Police Inspector at Yavatmal. Babhulgaon, Wadgaon, Kalamb and Yavatmal (rural) police stations were under his jurisdiction. His duty as C.P.I. was to supervise on the working of the aforesaid four police stations. On 6-6-1990, he had an additional charge as a Police Inspector, City Police Station, Yavatmal. At about 4.00 p.m., when he was patrolling in a police vehicle in Yavatmal town, he received a wireless message that P.S.I. Deshmukh and Police Constable Ingole were injured due to revolver firing by accused Ayyub (A-1) and they were lying at Naigaon. Therefore, he immediately went to City Police Station, Yavatmal, took staff of four constables with guns and went to Naigaon. He reached Naigaon at about 4.50 p.m. and saw the bodies of P.S.I. Deshmukh and Police Constable Ingole lying on the approach road of Naigaon near S.T. bus stop, just near the hotel of Ramrao Khandare (PW 6). He saw that Police Head Constable Babarao Pawasekar (PW 7) was standing near those bodies. He made enquiry with PW 7 Babarao and started the work of inquest panchanama at first over the dead body of P.S.I. Deshmukh (Exhibit 169). Immediately after this witness reached the spot, A.S.I. Shri Mandaokar (PW 16) brought the FIR. This witness seized the articles which were found on the person of P.S.I. Deshmukh vide seizure panchanama (Exhibit 178). He gave requisition letter for conducting post-mortem examination (Exhibit 258).

Similarly, he has drawn the inquest panchanama (Exhibit 170) over the dead body of Police Constable Ingole and seized the articles vide seizure panchanama (Exhibit 179) and gave requisition letter (Exhibit 259) for post-mortem examination. He has drawn these panchanamas in the presence of panchas.

He has then drawn the panchanama of the spot where the dead bodies were lying which is at Exhibit 167. Then he found notes of Rs. 77/- near the dead body of P.S.I. Deshmukh. He seized them under seizure panchanama (Exhibit 180). Then he went to village Naigaon and drew panchanama (Exhibit 168) of the place near the school where accused Ayyub (A-1) was arrested. Then he took house search of accused Ayyub (A-1) in presence of his wife and seized the Kurta and pyjama from his house vide panchnama (Exh. 172). He thereafter sent the dead bodies for post-mortem examination with Police Constable Shamrao and Head Constable Ramprasad Shrivas (PW 3). In the same night, he recorded the statements of witnesses including Abhiman (PW 1) and arrested some of the accused. He left Naigaon at about 5.00 a.m. and came to Babhulgaon Rest House at about 5.30 a.m. On 7-6-1990, in between 7.00 a.m. and 4.00 p.m., he recorded the statements of witnesses – Ramrao Khandare (PW 6), Babarao Pawasekar (PW 7), Ramprasad Shrivas (PW 3) and some other persons. He has effected panchanama of auto in police station on that day which is at Exhibit 263. On the same day, he arrested accused Kayyum (A-2), accused Sk. Noor (A-3) and Sk. Rustam (A-4). On 8-6-1990 he arrested accused Ayyub (A-1) at about 9.55 a.m., recorded the statements of the witnesses Ravi Markand (PW 5) and five others and then made interrogation to accused persons. On 9-6-1990, he arrested some of the accused. On 10-6-1990, he seized the mirror box i.e. holder and top of auto-rikshaw. Then he interrogated the accused. On interrogation, the accused were willing to show the sticks. On their memorandum, the sticks were recovered. Number of panchanamas were prepared. He sent the seized property to Chemical Analyser and on 21.6.1990 he sent the revolver, three live cartiridges, three empty cartridges, blackened skin of Shri Deshmukh and Ingole, the bullet taken out from the body of Mohabbatkhan (A-23), through the Constable Vithal, to the Forensic Science Laboratory, Bombay. On 22-6-1990, he arrested accused Mohabbatkhan (A-23). On 23-6-1990, he sent a letter to Taluka Executive Magistrate, Babhulgaon for holding the identification parade. He received the viscera reports from the Chemical Analyser, Nagpur (Exhibit 280) and (Exhibit 281) in pursuance to his letter dated 16-6-1990 by which he had sent the viscera, in sealed bottles, taken out from the dead bodies of P.S.I. Deshmukh and Police Constable Ingole. He also recorded the statements of police photographer Shri Surve and A.S.I. Devidas Chaudhari on 2-9-1990. On 3-9-1990, he recorded the statement of A.S.I. Vithalrao Mandaokar (PW 16) and on that very day, he prepared the charge-sheet of accused Ayyub (A-1) and 22 others. He is definite that as soon as he came to Naigaon, he came to know that the accused Ayyub (A-1) had fired bullets. He denied the suggestion that he was knowing the accused Ayyub who had fired bullets till the drawing of spot panchanama (Exhibit 167). He has stated that the auto-rickshaw was in a damaged condition. On the very day, he came to know that accused Mohabbatkhan (A-23) received bullet injuries. He admitted that in spot panchanama (Exhibit 167) it is not specifically mentioned the place where Mohabbatkhan (A-23) received injury. Finger print expert had also inspected the revolver in his presence, but as the finger-print expert orally told him that no finger prints were found on the revolver he did not feel necessary to obtain a written report from him. He has denied that the finger print expert has taken photographs of revolver and the holster and noticed the finger prints of P.S.I. Deshmukh and not of accused Ayyub. There is lengthy cross-examination in respect of giving revolver to Police Station Officer by Police department and taking revolver by P.S.I. when he is on duty. In further cross-examination, he has stated that he conducted the identification parade for ascertaining the full names of the accused though the witnesses had given the first name only of the accused. He has also stated that the articles which were lying in the auto-rickshaw and the handcuff were deposited in Police Station, Babhulgaon.

26. The defence has examined three witnesses first D.W. 1 Dr. Rangrao Ade. On 6-6-1990, he was attached to Civil Hospital, Yavatmal. On the date of incident, he went to the spot of incident at Naigaon in ambulance and reached there at about 5 p.m. He noticed dead bodies of policemen and Deputy Superintedent of Police has asked him to examine the bodies. He knew Circle Police Inspector Shri Thorat. He examined the dead bodies and issued Certificates (Exhibits 290 and 291). He also deposed that in his presence one photographer was taking the photographs. He was shown the certificate on the document (Exhibit 235). He had examined Mohabbatkhan (A-23) before his statement in the form of dying declaration which was being recorded by Shri A.T. Samarth in Civil Hospital, Yavatmal at about 7.55 p.m. and after the dying declaration was recorded, he again certified at about 8.10 p.m. He has stated that some other persons who were on plain clothes had also come with Mohabbatkhan (A-23) in hospital. He also stated that there was one hotel made of dry stems on the spot where dead bodies were lying.

27. Pashamiya Razak (DW 2) has stated that after the incident. Police Patil Mohanrao Kapse asked him to accompany to S.T. Stand, Naigaon. Therefore, they proceeded to go to S.T. stand. On the way, he saw, some persons were coming from the bus stand side. He has stated that he saw accused Ayyub who was also running and coming towards Naigaon village. The handcuffs were in his both hands and rope was attached to it. When this witness and Police Patil had tried to talk with him, he ran away as he was frightened. He saw the dead bodies of P.S.I. Deshmukh and P.C. Ingole lying near the Neem-tree and he also saw accused Mohabbatkhan (A-23) who was sitting near the hotel of one Ramesh. He has stated that Babarao Pawasekar (PW 7) was present near the dead bodies and he told him that P.S.I. Deshmukh fired first bullet to accused Mohabbatkhan, second bullet to P.C. Ingole and third bullet he at himself fired. Then he narrates about the coming of the mini-bus from Kalamb side and accused Kayyum (A-2), accused Hasankha (A-6) and accused Yusufkha (A-5) put accused Mohabbatkhan (A-23) in that mini-bus and that bus went towards Babhulgaon. In cross-examination, he has admitted that he has not informed about the important things i.e about the handcuffs of accused Ayyub who was running away and about the talks between PW 7 Babarao and himself in writing, though he is matriculate. Though the C.P.I. Shri Thorat (PW 19) has pasted notice in Gram Panchayat Office in connection with this incident, this witness did not see C.P.I. Thorat nor did he send any complaint to higher authorities. He further admitted that there was one hotel which was constructed of dry stems (Kud walls), but he states that that hotel was belonging to one Deshmukh and dead body of P.S.I. Deshmukh was lying near the western corner of that hotel. He has also admitted that the hotel is shown in the photographs (Exhibits 161 and 139) and the article F in that photograph is that same hotel. He knows Ramrao Khandare because he was residing at Naigaon since last 5 to 6 years. He further stated that there was only one hotel belonging to one Ramesh Bawane and the other hotel was closed in the month of June, 1990.

In cross-examination, he has stated about the relationship of the accused with each other. This witness knows that accused Mohabbatkhan (A-23) is related with accused Ayyub (A-1).

28. Accused Nos. 3, 12 and 13 have examined Manikrao Yende (D.W. No. 1 (v.o.)) as a witness in their defence. Manikrao Yende was working as Gram Sevak at Naigaon Gram Panchayat from 15-8-1983. The Nursery adjoining to village Naigaon belonging to the Forest Department was under his jurisdiction since 9-8-1986. He has maintained the Muster Roll Register. On 6th June, 1990, he was not in Naigaon because he had gone at Sawargaon for training. In his absence, he gave the register to the peon Baba Doma Kamble. He has given the working hours of employees from 7.30 a.m. to 6.00 p.m. He was not in a position to tell whether on 6-6-1990 accused Sk. Noor (A-3) did the work in the Nursery and morever he could not tell its timings. In the attendance register, a cross (x) is shown for showing the presence of Sk. Noor in the nursery on 6-6-1990.

29. Having stated the entire prosecution and defence evidence, we now proceed to deal with several contentions raised by the learned Counsel for both sides – one by one.

The learned Counsel for the accused has urged that there is absolutely no evidence about the commission of communal riot or possibility of a communal riot at village Naigaon when the policemen had proceeded to village Naigaon on the date of incident. In this regard, there is report of PW 4 Chandabai Kambale (Exhibit 148) and two Station Diary Entries Nos. 26 and 28 of 1990 of Police Station, Babhulgaon. P.S.I. Deshmukh was present in the police station when PW 4 Chandabai had lodged her report with Police Head Constable. It has also come in the evidence of PW 3 Ramprasad Shrivas and PW 7 Babarao Pawasekar as well as in the evidence of PW 4 Chandabai Kambale that PW 4 Chandabai has talked with P.S.I. Deshmukh and she has insisted that P.S.I. Deshmukh himself should go to Naigaon. PWs 3 and 7 have stated that P.S.I. Deshmukh has asked them to accompany him and told them that there is a possibility of communal riot. On the report of PW 4 Chandabai, there is an endorsement “Beat Head Constable to take preventive action against the Non-applicant i.e. accused Ayyub” and in Station Diary No. 28 of 1990, it is clearly mentioned that police staff is despatched alongwith P.S.I. to village Naigaon in view of the possibility of communal riot. It is also mentioned in the evidence that P.S.I. Deshmukh, after his joining Police Station, Babhulgaon, had visited village Naigaon 3-4 times prior to the incident. The report of PW 4 Chandabai shows that she belongs to Bouddha caste. Accused Ayyub is Muslim. There was business rivalry between accused Ayyub and the husband of PW 4 Chandabai and, therefore, P.S.I. Deshmukh must have thought that there was some possibility of communal riot. P.S.I. Deshmukh was the Police Station Officer of Babhulgaon and it can be said that he was knowing the situation of village Naigaon very well and, therefore, P.S.I. Deshmukh had taken this decision and armed with revolver and police staff he proceeded to village Naigaon. On behalf of accused, it is contended that the evidence of PW 4 Chandabai about the cause of incident is totally unreliable. Though her statement in Court that accused Ayyub (A-1) had tried to molest her cannot be accepted because of the important omissions in her police statement, still her report (Exhibit 148) clearly shows the abuses and threatening given by accused Ayyub to her. She has also deposed about the business rivalry between her husband and accused Ayyub. In this regard, the learned Counsel has stated that the evidence of PW 4 Chandabai is totally unreliable and her report (Exhibit 148) is false. The learned Counsel for accused has urged that in the report (Exhibit 148) there is no mention of communal riot or any apprehension about communal riot. According to him, there was no basis for taking station Diary Entry on this report and mentioning therein about possibility of communal riot when PW 4 Chandabai has not stated so before the police. In this regard, it is also submitted that police have concocted the station diary entries in the Police Station Register. The fact remains that PW 4 Chandabai has lodged report (Exhibit 148) in Police Station against accused Ayyub. The Station Diary Entries No. 26 of 1990 and 28 of 1990 are proved by bringing the original Diary Register in Court. Therefore, there is no substance in this contention that police have concocted the entries in Station Diary Register. Considering this evidence, it is proved that there was some possibility of communal riot when P.S.I. Deshmukh and police staff left the Police Station, Babhulgaon.

30. In respect of eye-witness account, it is contended on behalf of accused that two Police Head Constables namely PW 3 Ramprasad and PW 7 Babarao have not identified any accused in Court. The learned Counsel for the accused has urged that the substantial evidence of identification of accused is the identification in Court and as the witnesses have not identified the accused in Court, the evidence of the eye-witnesses about accused is not trustworthy and is unreliable. In this regard, it is to be noted here that PWs 3 and 7, the two Head Constables, were attached to Babhulgaon Police Station prior to the date of incident. It has come in evidence that they had number of occasions to see the accused persons of village Naigaon and Mendhala in the bazar of Babhulgaon and some times in Police Station. It has further come in their evidence that they were knowing most of the accused persons by their faces and accused Ayyub by his name. PW 7 Babarao is very specific that he was knowing the names of all the accused persons and the evidence which is given in trial about the accused by their names and the defence has also cross-examined these witnesses not challenging their evidence and, therefore, it cannot be said that the evidence of PWs 3 and 7 about identification of accused in Court is not a substantive evidence.

31. PW 5 Ravi Markand was driving auto-rickshaw. He has categorically stated that he was not knowing accused Ayyub prior to the incident. But when his auto-rickshaw was taken to Naigaon near the school and accused Ayyub was arrested by police, he knew him by name and face. He has also identified all the accused persons. Ravi is an independent person and at the time of incident he had an opportunity to see the accused persons because the incident had taken place in broad day light and it must have lasted about ten minutes at the S.T. Bus stand and, therefore, he has identified the accused persons by naming them.

PW 6 Ramrao Khandare was the resident of village Naigaon. He was knowing all the accused persons by their names and faces. Similarly, he was knowing the accused Daudashaha (A-12) from Mendhala because that is a neighbouring village and he has deposed accordingly in Court.

32. In respect of identification, it is further urged that the identification parade held by Naib Tahsildar of Babhulgaon, namely, Govind Badhiye (PW 11) on 30-8-1990 and 31-8-1990 is a mere farce. If has come in the evidence of C.P.I. Thorat that on 23-8-1990, he has requested the Tahsildar of Babhulgaon to hold identification parade in respect of the accused and hence the identification parade was held on 30-8-1990. PWs. 3,5 and 7 were the identifying witnesses and they had identified ten accused on 30-8-1990 and twelve accused on 31-8-1990. Govind Badhiye (PW 11) has not arranged the identification parade maintaining the ratio of 1:5 but arranged the same in the ratio of 1:1. Moreover, PWs 3 and 7 have admitted that they had seen the accused persons in Police Station when they were is police custody. Therefore, the evidence of identification parade is defective. But C.P.I. Shri Thorat has stated that he wanted to arrange the identification parade only with a view to know the father’s name in respect of each of the accused since only the first name of each of the accused persons was given to him. Further, these eye-witnesses were knowing the accused persons by their faces. Morever, these eye witnesses have seen the accused persons from a very close distance. Therefore, the evidence about the identification parade, though defective, is not fatal to the prosecution case.

33. As regards the evidence of PW 3 Ramprasad the learned Counsel for accused has criticised his evidence by staing that either Ramprasad was not present on the spot of incident or he is deliberately suppressing the true facts. After the incident, he has lodged his report (Exhibit 145) in Police Station, Babhulgaon. It is urged that in this report only the name of accused Ayyub is mentioned that he fired the bullets and that there is no allegation against the other accused persons. It is mentioned in the report that accused Ayyub (A-1) and 10-12 other accused have committed the crime. It is also urged that the report (Exhibit 145) is silent about the injury caused to Mohabbatkhan (A-23). PW 3 Ramprasad has not stated anything about the fire injury caused to Mohabbatkhan at the time of incident. It is well settled that F.I.R. is not a be-all and end-all of the prosecution case. There is reliable evidence of PW 3 Ramprasad Shrivas and PW 7 Babarao Pawasekar that Ramprasad, after the incident, got frightened as P.S.I. Deshmukh and Police Constable Ingole were lying in injured condition after firing and in order to seek immediate help and also with a desire to give some assistance, he narrated the incident in short in his report (Exhibit 145). Mere absence of the name of injured Mohabbatkhan (A-23) in this report (Exhibit 145), in the circumstances of the case, does not amount to any suppression.

34. It is also contended that the evidence given by all the eye-witnesses is stereo-type and, therefore, they have deposed at the behest of C.P.I. Thorat. The facts of the incident, as narrated by the eye-witness account given by the eye-witnesses, cannot be said to be stereo-type. There is independent evidence of PW 1 Abhiman on the first phase of incident when accused Ayyub was arrested near the school of Naigaon. Now the incident of arrest had taken place in a short time that P.S.I. Deshmukh asked accused Ayyub to accompany him in Police Station as he was charged under section 151, Cr. P.C. The accused Ayyub at first tried to run away, but the police were successful in catching him and, therefore, he was arrested under section 151, Cr. P.C. On this point, there is evidence of PWs 3, 5 and 7 and they have deposed in similar fashion, as deposed by PW 1 Abhiman. Similarly, at the time of second phase of the incident at S.T. Bus stand when the auto was stopped by obstruction, policemen got down from the auto and accused Ayyub was taken out of the rickshaw, there was some talk between P.S.I. Deshmukh and other accused and P.S.I. Deshmukh told the accused persons that accused Ayyub would be released in Tahsil Office on bail and thereafter some accused persons caught hold the two Police Head Constables PWs 3 and 7 and the incident of firing occurred. Now in such a case the evidence of eye-witnesses would be similar excepting the difference in some minor details. The evidence of eye-witnesses is different in some details and, therefore, it cannot be said that the evidence of all eye-witnesses is stereo-type.

C.P.I. Shri Thorat was residing at Yavatmal. Though Babhulgaon Police Station was under his jurisdiction, hardly he can be expected to know PWs 5 and 6. He had no interest. Therefore, there is no merit in the contention that these eye-witnesses have deposed at the behest of C.P.I. Thorat.

35. The presence of PWs 3, 5 and 7 on the spot is not disputed even by the accused persons. The presence of PW 6 Ramrao Khandare on the spot is disputed. But as discussed earlier, even the existence of the hotel of PW 6 Ramrao Khandare near the S.T. Bus stand, Naigaon is admitted by the accused. It is suggested to this witness that he demanded the amount for running a hotel from some of the accused and as they had not given the said amount, he is deposing falsely against them. It is also suggested to witness i.e. PW 7 Babarao that PW 6 Ramrao Khandare was doing the business of running the hotel at Naigaon S.T. bus stand at his behest. There is reliable evidence of photograph, spot panchanama and even the evidence of DW 2 Pashamiya that at the time of incident there was one hotel which was constructed of kud walls near the S.T. stand. He has shown the place from where he witnessed the incident and panchanama of the same is drawn by C.P.I. Thorat. Therefore, there is voluminous evidence to show that the hotel of PW 6 Ramrao Khandare was in existence near Naigaon S.T. stand and as he was running the hotel, his presence in the said hotel is natural. He has stated that he has seen the incident from the big hole of the kud wall and the incident has taken place just near his hotel as can be seen from the spot panchanama, inquest panchanamas and the panchanama of the place where dead bodies were lying. Therefore, the presence of all these eye-witnesses on the spot is established by the prosecution.

36. It is further submitted that PW 6 Ramrao has stated that there was a mob of 20-25 persons and his evidence is inconsistent with other direct evidence and that he is a got-up witness. The place from where he has witnessed the incident is shown in panchanama (Exhibit 151). His mere statement that the mob consisted of 20 to 25 persons when others have stated 10 to 12 persons, cannot be said to be inconsistent with evidence of other eye-witnesses. At the time of such incident, the witnesses given approximate number of accused persons by their guess work.

37. Considering the evidence of these eye-witnesses, the prosecution is successful in establishing its case against accused Ayyub (A-1), accused Kayyum (A-2), accused Sk. Noor (A-3), accused Sk. Rustam (A-4), accused Hasankha (A-6), accused Daudashaha (A-12), accused Hakimshah (A-13), accused Noorkha (A-14) and accused Mohabbatkhan (A-23), as each of them has taken part in the commission of the crime.

38. It is also urged on behalf of accused that the prosecution has not proved the distance from which the bullets were fired. The defence has suggested that to control the unruly mob, P.S.I. Deshmukh has fired a bullet from his revolver and it hit Mohabbatkhan (A-23) who was at a distance of about 15′ from P.S.I. Deshmukh. PW 14 Dr. Ashok Chaudhari, in his evidence, has given the distance from which the bullets were fired. He has stated that the distance from which the bullet is fired on P.S.I. Deshmukh is about 2″ to 5″ i.e. from a very close range. Similarly, he has stated that there was charring and blackening which shows the close range of the distance. The evidence of Dr. Ashok Chaudhari (PW 14) is not challenged by the defence. He has also given his opinion by referring to Modi’s Medical Jurisprudence and Toxicology. Therefore, the prosecution is successful in proving that all the three bullets were fired from a close range. Moreover, the circumstantial evidence as regards the cord attached to the revolver is such that it cannot go beyond the distance of 2 to 21/2 feet. It is not the case of defence that the cord of the revolver was removed at the time of firing.

39. The next contention is that the police ought to have registered an offence on the dying declaration of Mohabbatkhan (A-23) which is at Exh. 235. Dr. Ade has given the time, when the statement of Mohabbatkhan (A-23) was recorded, as between 7.55 p.m. and 8.10 p.m. on 6-6-1990. In this regard, the learned Counsel for accused has urged that even though the statement of Mohabbatkhan (A-23) cannot amount to dying declaration since Mohabbatkhan (A-23) has survived, the police ought to have registered an offence against the P.S.I. Deshmukh on the basis of this statement (Exhibit 235). On the report of PW 3 Ramprasad Shrivas, the offence under section 307 and other sections was registered in Babhulgaon Police Station at 4.00 p.m. Mohabbatkhan (A-23) has received injury in the same incident and the investigation of this crime had already started. Further, accused Mohabbatkhan had not lodged any complaint either in Police Station, Babhulgaon or Police Station, Yavatmal. C.P.I. Thorat had received this Exhibit 235 from Civil Hospital, Yavatmal as he himself was conducting the investigation. As the investigation in this crime has already started, it was not obligatory on the part of Police to register an offence against P.S.I. Deshmukh on the basis of Exhibit 235.

40. Now turning to the defence of accused, it is seen that firstly the defence is that P.S.I. Deshmukh had fired one bullet to disperse the unruly mob. The first bullet hit to Mohabbatkhan (A-23), second to Police Constable Ingole and seeing this P.S.I. Deshmukh fired the third bullet at himself and committed suicide. As regards accused Ayyub (A-1), the alternative defence of grave and sudden provocation is urged before us and accused Sk. Noor (A-3) has taken a defence of alibi.

41. Once we hold that the bullets are fired from a close range, the defence that Mohabbatkhan (A-23) received the injury when he was about 15 feet away from P.S.I. Deshmukh is unbelievable and the defence collapses. There is reliable prosecution evidence that Mohabbatkhan (A-23) had caught hold the hand of P.S.I. Deshmukh when he received a bullet injury fired by accused Ayyub.

P.S.I. Deshmukh was armed with revolver and this fact was known to all the accused. At the time of arrest of accused Ayyub near the school, accused Ayyub tried to run away after some talk but he was caught hold by the policemen. Some persons including some accused have gathered there. Accused Ayyub has also resisted his arrest. But, from the evidence, it is clear that P.S.I. Deshmukh had not even shown the revolver at that juncture. Even after the accused persons were chasing the auto-rickshaw shouting to release accused Ayyub and pelting stones, at that moment also P.S.I. Deshmukh had not used the revolver. He has not even taken out the same from the holster. The mob was only of 20-25 persons and there is evidence that P.S.I. Deshmukh was trying to pacify the mob saying that accused Ayyub would be released from the Tahsil Office on bail as he has been arrested under section 151, Cr.P.C. The accused persons were raising shouts to release accused Ayyub at that moment only. At that time also, P.S.I. Deshmukh has not taken out his revolver. Therefore, the defence that to control the unruly mob, P.S.I. Deshmukh has fired is not at all believable and acceptable. There is sufficient and reliable evidence of prosecution that P.S.I. Deshmukh was caught hold by accused Kayyum (A-2), accused Sk. Noor (A-3), accused Noorkha (A-14) and accused Mohabbatkhan (A-23). Sk. Noor (A-3) had caught hold the waist of P.S.I. Deshmukh from back side. Mohabbatkhan (A-23) was holding the right hand of P.S.I. Deshmukh and accused Kayyum (A-2) and Noorkha (A-14) caught hold the left hand of P.S.I. Deshmukh. When P.S.I. Deshmukh was caught hold in this fashion, his movements were restricted. Since both of his hands were caught, he could not take out his revolver from the holster. There is nothing to show that P.S.I. Deshmukh had any history of committing suicide, that he was dissatisfied with life and, therefore, the theory put forth by the defence that after firing two bullets-one hitting accused Mohabbatkhan (A-23) and another Police Constable Ingole, he committed suicide by firing third bullet at himself, cannot be accepted. There is also evidence that P.S.I. Deshmukh was trying to free himself from the clutches of accused Kayyum (A-2), accused Sk. Noor (A-3), accused Noorkha (A-14) and accused Mohabbatkhan (A-23) but he could not succeed and seeing this, Police Constable Ingole came to the rescue of P.S.I. Deshmukh.

42. The defence has further tried to urge that accused Ayyub (A-1) was handcuffed by policemen and, therefore, he could not snatch away the revolver and fire the bullets. The prosecution evidence in this regard is of PWs 3, 5, 6 and 7 that accused Ayyub (A-1) was not handcuffed by police. The suggestions were given to witnesses 3, 5 and 7 that when accused Ayyub was arrested by police near the school, he was handcuffed which they have denied. Their evidence is that inside the auto-rickshaw the policemen were trying to handcuff accused Ayyub (A-1) but he was resisting and therefore, they could not handcuff him. PW 5 Ravi Markand has stated that handcuffs were deposited in Police Station. Accused Ayyub (A-1) has taken defence as under :

“Two Policemen caught me and put handcuff in my both the hands. They dragged me and made me sleep in the auto-rickshaw near the passenger seat. Two Policemen who were sitting in the passenger seat, put their legs on my person. Two policemen sat near the Auto-rickshaw driver. The Auto Driver started the Auto. The Auto reached at the S.T. stand and it was stopped by P.S.I. for light refreshment. The P.S.I. got down. The P.S.I. told the other persons who had collected there that Ayyub is vagabond. The accused Mohabbatkhan asked P.S.I. as to why for he is taking Ayyub. In the meanwhile so many persons collected there so P.S.I. Deshmukh fired one bullet and it was hit to accused Mohabbatkhan. Then he took aim towards Mohabbatkhan for firing second bullet but it was wrongly hit to Police Constable. The other people started running when the aforesaid firing was going on. Two policemen who were sitting near me in the Auto-rickshaw they come out. Then I ran away towards the village Nayagaon. Then I went to the house of one Panchal (Blacksmith). Then I asked him to break the handcuff. The handcuff was broken and then I went to the jungle i.e. field, and I stayed in the jungle for whole night. Then I threw the handcuff in the bushes of that jungle.”

Accused Ayyub has not examined the Panchal (Blacksmith). He has also not given the name of the Blacksmith or the place of his residence. In view of the satisfactory prosecution evidence, the defence story that accused Ayyub was handcuffed is also not acceptable.

43. It is further tried to urge that accused Mohabbatkhan (A-23) has given the defence story at the earliest opportunity in Civil Hospital, Yavatmal when his statement (in the form of dying declaration) was recorded (Exhibit 235). It has come in the evidence of the prosecution witnesses and also the evidence of DW 2 Pashamiya that accused Mohabbatkhan (A-23) was taken in a mini-bus in an injured condition and accused Kayyum (A-2) and other accused accompanied him upto Civil Hospital, Yavatmal. When they were together in the bus and also in Civil Hospital, Yavatmal, there is every possibility of their consultation about the incident and in order to save themselves and their relatives, accused Mohabbatkhan has invented a novel story of his defence. It is nothing but a figment of his imagination and after-thought which cannot be believed. Accused Mohabbatkhan (A-23) has taken a defence that when he was taken in a mini-bus to Babhulgaon, he went to Babhulgaon Police Station and lodged his oral complaint about the incident to A.S.I. Mandaokar (PW 16). PW 16 is examined by prosecution and this story that accused Mohabbatkhan (A-23) went in Police Station, Babhulgaon and lodged the oral report to him is not at all suggested to him.

44. Accused Sk. Noor (A-3) has taken a defence of alibi and he has examined Manikrao Yende, D.W. 1 (V.O.) in his defence. On 6-6-1990, this witness was not present in the Nursery. It may be noted that this Nursery is just adjacent to village Naigaon. Though this witness has given the duty hours from 7.30 a.m. to 6.00 p.m., it can be heardly believed that any worker working in the Nursery would remain in the Nursery from 7.30 a.m. to 6.00 p.m. continuously. So, even if his presence marked in the Register of Nursery on the date of incident i.e. 6-6-1990 is accepted, there is no evidence to show that at the relevant time of the incident, accused Sk. Noor (A-3) was present in the Nursery and this witness has stated that he could not say when accused Sk. Noor did the work in the Nursery and moreover about its timings. Moreover, this defence of alibi is not suggested to PW 7 Babarao Pawasekar. Therefore, his defence is not acceptable.

45. The learned Counsel for accused has urged to consider the alternative defence of accused Ayyub (A-1) of grave and sudden provocation. It is urged that at the time of arrest of accused Ayyub, he was beaten by policemen. Even in auto-rickshaw, he was made to sleep and policemen put their legs on his body. He was incapacitated to such an extent that he could not even stand. He further urged that from the beginning, accused Ayyub was saying that policemen were arresting him on a false report of PW 4 Chandabai Kambale. He was thus enraged and because of grave and sudden provocation, the moment he was taken out from the auto-rickshaw he lost his balance. It is true that PW 6 Ramrao Khandare has stated that accused Ayyub (A-1) was made to sleep in the auto-rickshaw and it has also come in the evidence that he was unable to stand.

As already observed, accused Ayyub (A-1) first resisted his arrest and therefore, police had given him 5-6 cane blows. Police had to apply force because of resistence of accused Ayyub. Mere giving of 5-6 cane blows cannot amount to merciless beating. PW 6 Ramrao Khandare has admitted that accused Ayyub was made to sleep in the auto-rickshaw meaning thereby that accused Ayyub (A-1) was lying in between the driver and passenger seat in the auto-rickshaw. It is the prosecution evidence that as soon as accused Ayyub was taken out from the auto-rickshaw he rushed towards P.S.I. Deshmukh. It may be seen that this alternative defence of grave and sudden provocation was not taken in the trial. Moreover, no foundation was laid during trial for this defence. In one sense, we can say that this defence is an after-thought. The evidence shows that accused Ayyub (A-1) was not incapacitated and there was no grave and sudden provocation.

46. The next important question to be considered in this case is what offences the accused have committed. The trial Court has acquitted the accused for the offence punishable under section 148 of Indian Penal Code. It is submitted on behalf of accused that there was no “unlawful assembly” in the beginning as well as at the time when firing was done. P.S.I. Deshmukh has told accused Ayyub (A-1) as also the other accused persons gathered near the school of Naigaon that accused Ayyub (A-1) was arrested under section 151, Cr.P.C. When policemen were taking accused Ayyub in the auto-rickshaw, the other accused followed the auto-rickshaw by chasing the same, pelting stones and shouting that policemen should release accused Ayyub (A-1) and the said mob consisted of 25 to 30 persons. This behaviour of the mob shows that they wanted anyhow to release accused Ayyub (A-1) from the custody of police. Therefore, initially the common object of the assembly was to get the accused Ayyub released and this shows the element of unlawfulness and, therefore, the assembly is “unlawful assembly” in the beginning.

47. The next question to be considered is what offence accused Ayyub (A-1) has committed. It is satisfactorily established by prosecution that accused Ayyub has snatched the revolver from the holster of P.S.I. Deshmukh and fired three bullets at policemen. When Police Constable Ingole had gone to the rescue of P.S.I. Deshmukh, accidentally one bullet hit to accused Mohabbatkhan (A-23). Main target of accused Ayyub (A-1) was P.S.I. Deshmukh. At the time of first and second firing, the bullet missed P.S.I. and, therefore, the third bullet from this revolver was fired by accused Ayyub at P.S.I. Deshmukh from a very close range, almost revolver touching the right temporal region of P.S.I. Deshmukh. When accused Ayyub (A-1) had fired three bullets, his intention was clear to kill P.S.I. Deshmukh so the act of accused Ayyub (A-1) falls under clauses thirdly and fourthly of section 300 of Indian Penal Code. Therefore, accused Ayyub (A-1) is guilty of committing murders of P.S.I. Deshmukh and Police Constable Ingole.

48. The next important question for our consideration is what was the common object of the other members of the unlawful assembly. In this respect, the incident at Naigaon bus stand, when the auto-rickshaw was stopped, is to be considered. After stopping the auto-rickshaw, P.S.I. Deshmukh and Police Constable Ingole got down from the auto rickshaw and P.S.I. Deshmukh was pacifying the mob. PWs 3 and 7, the two Head Constables, were dragged away by two accused each both at a distance of 5 to 7 feet from P.S.I. Deshmukh. Both Head Constables (PWs 3 and 7) could not make any movement. At that time, P.S.I. Deshmukh was caught by three accused. Police Constable Ingole came to the help of P.S.I. Deshmukh. Even though the first bullet was fired, the accused persons who were holding PWs 3 and 7 and the P.S.I. Deshmukh did not set free them and they persisted in their attempt to keep the policemen unmoved. Though the other accused were knowing that accused Ayyub (A-1) had fired the first bullet, they did not set free P.S.I. Deshmukh as well as the two Head Constables (PWs 3 and 7) and by their actions they helped accused Ayyub (A-1) to achieve his target. They even did not do anything to prevent accused Ayyub (A-1) from doing such a dastardly act. This shows that the accused persons had shared the common object with accused Ayyub (A-1) to kill.

49. The learned Counsel for the accused has urged that there is prosecution evidence only as regards accused Ayyub (A-1), accused Kayyum (A-2), accused Sk. Noor (A-3) and accused Mohabbatkhan (A-23) and there is no evidence that the other five accused who are convicted were guilty of murder. He, therefore, urged that if the number of accused persons remains four i.e. accused Ayyub, Kayyum, Sk. Noor and Mohabbtkhan, then the offence under section 149, Indian Penal Code is not proved.

Secondly, it was urged that there was no premeditation, any prior meeting of minds and the incident had taken place at the spur of moment and, therefore, the other accused cannot be convicted with the help of section 149 of Indian Penal Code.

It is well settled that even if there is no premeditation or prior meeting of minds, the common object can be developed at the spur of moment. We have already discussed above how the other accused persons have taken active part by their overt acts and common object was developed. The learned Counsel for the accused, in support of his contention, has relied on the decision reported in 1991 (Vol. 1) Crimes 812 K. Nagamalleswara Rao and others v. State of A.P., wherein it was held as under :

“The accused who were convicted were only four in number – Prosecution has not proved the involvement of other persons – The courts below have acquitted all the other 11 accused of all the offences – It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. – Provisions of section 149 cannot be invoked for convicting the four appellants herein.”

The facts of the present case are different. In the present case, there is sound evidence of prosecution that nine accused were involved. Therefore, the case (supra) is not applicable.

50. Now remains the last question to be considered as regards the death sentence.

Both the learned Counsel have, in support of his contentions, placed reliance on the decision , Allaudin Mian and others v. State of Bihar, wherein Their Lordships have observed in Placitum (B) as under :

“Common object – Conviction of members of unlawful assembly on basis of such object – Act done must be shown to have been committed to accomplish common object.”

The principle laid down in this case is that there must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of section 149. It has been further observed that in order to invoke section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under section 149.

Their Lordships have further observed in Placitum (E) : Death sentence – Should be reserved for rarest of rare type of cases. The guideline is given that the death sentence is the maximum sentence prescribed by law and it should be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.

51. On behalf of accused, further reliance is placed, on the decision , Rambilas Singh and others v. State of Bihar. It has been observed in the placitum:

“It is true in order to convict persons vicariously under section 34 or section 149, it is not necessary to prove that each and everyone of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.”

Reliance is placed on this decision in order to show that the other accused were not knowing that the accused giving blows was carrying a knife. On this basis, it is sought to be urged that in the present case at the time of catching hold of P.S.I., the other accused persons had no knowledge that accused Ayyub (A-1) would fire the bullets at policemen. Though there is similarity in one respect of catching hold of the victims, the fact remains that other accused persons had knowledge that accused Ayyub (A-1) had snatched the revolver from P.S.I. Deshmukh. Therefore, the case (supra) is not of any assistance to accused.

52. In support of his contentions, the learned Counsel for the accused has further relied on the decision of this Court in Criminal Appeal No. 137 of 1991, Vijay s/o Manohar Gajghate v. State of Maharashtra, decided on September 18, 1992, in which one of us (Sambre, J.), was a party. The learned Counsel for accused has also cited a decision , Jairam and others v. State of Madhya Pradesh. This is also a gun-shot injury case, occurrence of which has taken place in two phases, firstly near the house of deceased in which deceased and his brother received gun-shots and secondly when accused attacked cart in which deceased was carried to hospital. In this case, the accused was armed with gun and was held liable for murder. All injuries on deceased except gun shot injuries found to be post mortem injuries. There was no case that during the first phase other accused did anything by words or deeds and, therefore, it has been held that other accused cannot be said to be members of unlawful assembly for causing murder.

In the present case, there is evidence to show that other accused had taken part in the crime. They had done the acts and they uttered the words. Therefore, the facts of the case (supra) are not applicable to the instant case.

53. In support of his contentions, the learned Counsel for the accused has further relied on the decision , Sunder Singh v. State of Rajasthan. Their Lordships of the Supreme Court have observed in para 4 of the judgment :

“It is not in dispute that there was a dispute as to the turn by which the water pump should be operated between the parties. It was not a premeditated or preplanned fight. The prosecution has not established by evidence that it was the turn to draw water by the complainant. Nor is there clear evidence that it was the turn of the appellant. Each was asserting that it was his turn and not of the other. In this circumstance, it would not be wrong to assume that the appellant in the exercise of his right got enraged and tried to prevent the mischief by the deceased. It seems to us that the action of the accused could reasonably be brought under section 304, Part I, I.P.C.”

In the aforesaid case, the accused is an old man of 76 years. The facts of this case are not applicable to the case under consideration and therefore, it is of no assistance to accused.

54. Both the learned Counsel, in support of their contentions, have relied on the decision , Bachan Singh v. State of Punjab. In para 200, “aggravating circumstances” are quoted in detail which are as under :

“(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under section 37 and section 129 of the said Code.”

In paragraph 204, “Mitigating circumstances” are detailed. It may be seen that the aggravating circumstances detailed in para 200 (supra) are present in the instant case. Every killing is brutal. Therefore, the present case fits into the category of `rarest of rare’ cases.

55. The learned Counsel for the accused has further placed reliance on the decision , Anguswamy and another v. State of Tamil Nadu. In this case, the murder of Police Constable was committed and it was held that murder does not fall within rarest of rare category. In para 4, it has been observed :

“……. No report was made against the appellants for their provocative behaviour and no case was registered against them for the commission of any cognizable offence. The deceased acted over-zealously and attempted to apprehend the appellants. As the earlier incident had passed off, the appellants were perhaps unable to fathom the reasons for their attempted arrest and therefore, tried to wriggle out from the clutches of the deceased by the use of force. Since the appellants felt that they were being unjustly treated by the deceased, they in order to free themselves attacked the deceased and caused the injuries. It cannot be said that the attack was a pre-planned one. It was rather sudden and actuated by a desire to free themselves.”

56. The learned Counsel for the State in this respect has relied on the decision , A.K. Gopalan v. State of Kerala and others. It has been held : (Placitum (b)):

“Section 151, Cr.P.C. authorises a police officer who gets knowledge of a design to commit any cognizable offence to arrest without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. It is the subjective satisfaction of the officer concerned that is envisaged in the section and it is not for the High Court in proceedings under section 491 to go into the question whether the officer was indeed justified in coming to his conclusions.”

It has been further observed :

“In exercising power of arrest under section 151, Cri.P.C. the discretion is mainly with the police officer and unless there is clear evidence that it is a fraudulent exercise of the power vested in the officer, his discretion cannot be questioned in proceedings under section 491 of the Criminal Procedure Code.”

He has, therefore, urged that in the present case there is no clear evidence of fraudulent exercise of the power at the hands of P.S.I. Deshmukh. He has further urged that the acts of accused Ayyub (A-1) deserve to be condemned. The terrorist and disruptive activities are already increasing in this area of State. The murder committed by accused Ayyub (A-1) is shocking to the conscience of society. It is necessary to see the impact of this case on the law enforcing machinery of the State, especially the police personnel and its general effect on the public mind. Accused Ayyub (A-1), therefore, deserves no leniency.

57. We have gone through the detailed judgment of the learned trial Court. It has given sound reasons for its findings. We agree with the observations, reasonings and findings arrived at by the learned trial Court in general. We have also perused the special reasons given by the learned trial Court which are speaking and detailing that heinous crime is committed by accused Ayyub (A-1). We accept the special reasons in toto.

58. In the result, Confirmation Case No. 1 of 1993 is allowed and Criminal Appeals No. 2 of 1993 and 89 of 1993 are dismissed.

Reference under section 366, Criminal Procedure Code for confirmation of death sentence awarded to Sk. Ayyub, Sk Abdul (original accused No. 1) by the learned Additional Sessions Judge, Yavatmal, vide his judgment dated 16-12-1992 in Sessions Trial No. 2 of 1991, is accepted and confirmed.

The learned Counsel appearing on behalf of Sk. Ayyub Sk. Abdul (original accused No. 1) has requested to stay the execution of the order of death sentence passed by the learned trial Court and confirmed by this Court for a period of eight weeks from today, to enable him to approach the Supreme Court which is hereby granted.