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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 647 OF 2002
WITH
CRIMINAL APPEAL NO. 678 OF 2002
AND
CRIMINAL APPEAL NO. 684 OF 2002
CRIMINAL APPEAL NO. 647 OF 2002
1. Waman s/o Bhimrao Mendhe
aged about 26 years,
occupation - Labourer.
2. Bhimrao s/o Laxmanrao Mendhe,
aged about 60 years,
occupation - Labourer.
3. Vinod s/o Sudhakar Harne,
aged about 25 years,
occupation - Labourer.
4. Kalu @ Sudhakar s/o Shankarrao Yadav
aged about 25 years,
occupation - Labourer.
5. Pankaj Govindrao Karpari,
aged about 20 years,
occupation - Student.
6. Pramod s/o Ratan Gujar,
aged about 25 years,
occupation - Labourer.
7. Balya @ Narendra s/o Bhimrao
Mendhe, aged about 32 years,
occupation - Labourer.
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Nos. 1 to 5 and 7 residents of
Nandanwan, Nagpur.
No. 6 resident of Rambagh, Nagpur
(All in Jail) ... APPELLANTS
Versus
State of Maharashtra,
through P.S.O. Kotwali Police Station,
Nagpur. ... RESPONDENT
Shri R.M. Patwardhan, Advocate for the appellants.
Shri S.S. Doifode, APP for the respondent.
.....
CRIMINAL APPEAL NO. 678 OF 2002
1. Prashant @ Balya s/o Panjabrao Shende,
aged about 22 years,
occupation - Labourer,
resident of Nandanwan Layout, Nagpur.
(Now in Central Jail, Nagpur) ... APPELLANT
Versus
State of Maharashtra,
through P.S.O. Kotwali Police Station,
Nagpur. ... RESPONDENT
Shri R.M. Daga, Advocate for the appellant.
Shri S.S. Doifode, APP for the respondent.
.....
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CRIMINAL APPEAL NO. 684 OF 2002
1. Ajay s/o Wamanrao Waghmare,
aged about 20 years,
occupation - Labourer.
2. Amar s/o Kalluji Varma,
aged about 21 years,
occupation - Labourer.
3. Vishwapal s/o Vasantrao Manwatkar,
aged about 24 years,
occupation - Labourer.
4. Sanjay s/o Chandrabhan Ingole,
aged about 26 years,
occupation - Labourer.
5. Gajya Gajanan s/o Motiram Belekar,
aged about 33 years,
occupation - Labourer.
6. Sharad s/o Vasantrao Manwatkar,
aged about 20 years,
occupation - Labourer.
7. Manoj s/o Vasantrao Manwatkar,
aged about 28 years,
occupation - Labourer
all residents of Nandanwan, Nagpur. ... APPELLANTS
Versus
State of Maharashtra,
through P.S.O. Kotwali Police Station,
Nagpur. ... RESPONDENT
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Shri R.M. Daga, Advocate for the appellants.
Shri S.S. Doifode, APP for the respondent.
.....
CORAM :K.J. ROHEE AND
B.P. DHARMADHIKARI, JJ.
DATE OF RESERVING THE JUDGMENT : JUNE 20, 2008.
DATE OF PRONOUNCING THE JUDGMENT: JUNE , 2008.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Fifteen accused convicted by the Second Additional
Sessions Judge, Nagpur, in Sessions Trial No.233 of 2001 on
03.10.2002 of an offence under Section 302 read with Section 149 of
Indian Penal Code with life imprisonment and fine of Rs.500/- each
and in default thereof to undergo simple imprisonment for three
months, further convicting them of an offence under Section 147 of
Indian Penal Code and sentencing them to pay fine of Rs.500/- each
and in default to undergo simple imprisonment for three months, as
also holding them guilty of an offence under Section 148 of Indian
Penal Code and sentencing them to pay fine of Rs.500/- each or in
default to undergo simple imprisonment for three months, have filed
these three appeals under Section 374 of Criminal Procedure Code.
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2. The case of the prosecution in brief is that all these
accused attacked house of victims Jyoti and her husband Jaffer in the
night of 17.6.2000. The deceased i.e. Jyoti and Jaffer were at their
residence in Nandanwan locality of Nagpur at about 9.30 PM with
mother of Jyoti PW-1 – Sulochana & Jyoti’s three children from first
husband Sanjay. The relations between the deceased and accused
No.1 – Waman were strained on account of the rivalry in business as
Jaffer and Waman were having their pan stalls in the same area. Both
sides had lodged reports against each other prior to this incident. On
17.06.2000, these accused persons armed with weapons like swords,
knives, dagger, lathis barged in the house of Jyoti and Jaffer, attacked
them and killed them on the spot. PW-1 – Sulochana lodged First
Information Report (Exh. 57) with City Police Station Kotwali and PW-
12 – Police Inspector Khadse conducted the investigation. After
completing the same, he filed charge sheet before the Judicial
Magistrate First Class, Nagpur, and in turn the said Court committed
the case for trial to Sessions Court. The charges were framed vide
Exh. 31 and explained to accused (present appellants) who pleaded
not guilty and claimed to be tried. The Sessions court recorded the
evidence of 12 witnesses tendered by the prosecution and recorded
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statements of accused under Section 313 of Criminal Procedure Code.
The defence of each accused was that of total denial. After hearing
oral arguments, the Sessions Court found that the deceased Jyoti and
the deceased Jaffer meet with homicidal death and that the
prosecution succeeded in proving the guilt of all 15 accused. It
accordingly imposed the punishments as mentioned above.
3.
In this background, we have heard Shri R.M. Patwardhan,
learned counsel for the appellants in Criminal Appeal No. 647 of 2002,
Shri R.M. Daga, learned counsel for the appellants in Criminal Appeal
Nos. 678 of 2002 and 684 of 2002 and Shri Doifode, learned
Additional Public Prosecutor for the respondents.
4. Shri Patwardhan, learned counsel as also Shri Daga,
learned counsel have argued that the prosecution has relied upon the
evidence of the eye witnesses i.e. PW-1 – Sulochana, PW-4 – Ashwini
@ Rani PW-5 – Vikram and PW-6 – Rajesh. These persons have not
witnessed the incident at all and cross examination conducted by the
accused has proved their absence at the spot. It is argued by both the
counsel that these witnesses are got-up ones to suit the design of
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investigating agency, and the learned Sessions Court erred in relying
upon their evidence. It is contended by them that their evidence not
only suffers from improvements and omissions but is mutually
contradictory and deserves no credence. It is urged by them that
names of accused Nos. 3, 5, 6, 7, 8, 9 and 12 did not figure in FIR at
all and it has come on record that these accused persons as also
accused Nos.2, 4 & 13 had allegedly covered their faces. They argued
that there is no direct evidence against any accused and even if the
statements of alleged eye witnesses are to be given any importance,
there is no direct evidence against accused Nos. 2, 3, 4, 5, 8, 11 & 14.
They have taken the Court through relevant evidence in support of
their contentions. They state that one Prabhakar Patrikar was present
in the house of Jyoti and Jaffer on the night of 17.6.2000 and he
claimed to have been injured in said attack. Though his two
statements were recorded by PW-12 – P.I. Khadse, he was not
examined as prosecution witness at all. It is further stated that the
sister of Jyoti viz., Archana @ Aruna was also present in the house at
the time of attack but she was also deliberately kept away by the
prosecution and children like PW-4 and PW-6 were ushered in witness
box to hide the truth. By pointing out spot panchnama and also the
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map drawn along with said spot panchnama, both the learned counsel
contend that the rooms in occupation of the deceased and their family
were very small and could not have even accommodated the number
of assailants as claimed by the eye witnesses. According to them, if
attack of magnitude as alleged is presumed in such a small space,
practically everybody present then would have been seriously injured
or killed. They further pointed out that the eye witnesses have stated
that the source of light in the house viz., tube lights were broken by
the assailants and hence eye witnesses have not seen the faces of
accused persons at all. According to them as per the version of so
called eye witnesses, they fled from house fearing attack on them also
and hence, did not witness the attack at all. In any case, attack in bed
room could not have been seen from the chhapri portion i.e. varandah
where these witnesses claimed to be present and hence all three
appeals need to be allowed.
5. It is further their contention that report at Exh. 57 lodged
by Sulochana is not FIR and real FIR has not been produced before the
Sessions Court. According to them, Prabhakar Patrikar was the first
person to reach Police Station and PW-12 – P.I. Khadse has accepted
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that he recorded the statement of Prabhakar and obtained signature of
Prabhakar on it. It is argued that obviously said statement was not to
be used as statement under Section 161 of Criminal Procedure Code
and according to the learned counsel, the police reached the spot
because of said report and hence said report constituted FIR. They
have argued that PW-12 has not correctly deposed about recording of
FIR and his evidence is in direct conflict with the evidence of PW-1 –
Sulochana, who claims to have lodged first report with the Police
Station Kotwali. According to them, a vital document and a vital
witness Shri Prabhakar Patrikar is suppressed by the prosecution and
true story has not allowed to be brought on record.
6. It is further argued that the eye witnesses have not
explained as to how they could name all assailants though their faces
were covered and as to how investigating agency could ascertain
identity of other accused persons whose names did not figure in Exh.
57. By pointing out cross examination of PW-6 – Rajesh, the learned
counsel vehemently argued that investigating agency as also family
members of deceased falsely involved the other accused persons
though there was no case or evidence against them. It is contended
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that prosecution has not brought on record any material to point out
how it reached the accused persons whose names were not appearing
in FIR. It is further contended that all eye witnesses have used very
vague words like “all accused persons before the Court” and this was
not sufficient to hold that the identity of the accused is established by
these witnesses. According to them, test identification parade was
must in such circumstances and ought to have been conducted by the
prosecution. As it has not been so conducted, the learned Sessions
Court should have proceeded to straight way acquit the accused
persons whose names did not figure in FIR or whose faces were
admittedly covered.
7. It is their case that the seizure of weapons and of clothes
from some of the accused is also not conclusively established. They
contend that the Sessions Court has recorded a finding of guilt on the
strength of ocular evidence and not on account of circumstantial
evidence. They point out that the prosecution did not get blood group
of either Jyoti or Jaffer ascertained and blood group of accused Nos. 2
to 6, 8 to 10 and 12 to 15 could not be determined as tests were found
inconclusive. The blood group of accused No.1 – Waman was found to
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be “B” while blood group of accused No.7 – Kalu was found to be “O”
and accused No. 11 – Vishwapal was also found to be of “O” group.
According to them, when no blood was found on weapons seized
allegedly under Section 27 of the Evidence Act or when seizure of
clothes from accused persons is itself not conclusively established,
these circumstances are not sufficient to record finding of complicity of
accused persons in the commission of offence. They state that even if
seizure is accepted, seizure by itself is not a clinching circumstance
indicating conclusively only towards the guilt of accused persons.
They contend that seizure also is not from all accused persons and
therefore insufficient to sustain the conviction of all. According to
them, therefore, the prosecution has failed to establish the charge and
the judgment of conviction delivered by the Sessions Court needs to be
quashed and set aside and all accused persons need to be acquitted.
They have relied upon various cases in support of their contentions
and we find it convenient to refer to the same while considering the
relevant contentions.
8. Shri Daga, learned counsel has pointed out that accused
No.2 – Ajay was a juvenile as on the date of commission of offence as
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his age was less than 18 years and his trial, therefore, ought to have
been separated by the Sessions Court and as that has not been done, in
any case his trial stands vitiated and he is entitled to be acquitted. It is
further argued that in any case in view of the judgment of the Division
Bench of this Court in the case of Vinod Gulabrao Kinake vs. State of
Maharashtra, reported at 2008 ALL MR (Cri) 192 (paras 9 & 10), the
conviction of such minor can only be maintained and he cannot be
sentenced at all. He, therefore, prays for acquittal of said accused. He
points out that accused No.2 – Ajay was already under observation of
District Probationary Officer and all reports have been regularly
received from said officer and accordingly said accused needs to be
given benefit of provisions of Juvenile Justice (Care & Protection of
Children) Act, 2000. Both the learned counsel have further contended
that the motive has not been proved at all in the matter and the
neighbours who would have been important witnesses have also not
been examined. It is their stand that spot panchnama as recorded or
map with it is also faulty because the same does not mention the spot
at which eye witnesses were standing when they witnessed the entire
episode as alleged. They further contend that shirt of accused No.5 –
Bhimrao has been seized from the house of accuse No.1 – Waman and
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the seizure is fabricated. They further state that the seizure of
weapons is also similarly fabricated by the prosecution with the
assistance of relatives of the deceased. They contend that witnesses on
spot panchnama – Vinod Shrirame is close relative of the deceased
Jyoti and with his assistance the police have fabricated false records
and seizure.
9.
As against this, Shri Doifode, learned Additional Public
Prosecutor has contended that the facts mentioned in FIR (Exh. 57)
are not only supported by the eye witnesses but also find support in
the spot panchnama (Exh. 70). He invites attention to said
panchnama and map along with it to state that back door of kitchen
was found broken as stated by the eye witnesses and the accused
persons stormed into the house of the deceased with deadly weapons
in the night hours with an intention to finish them off and accordingly
succeeded in their design. He states that the eye witnesses have
consistently deposed about the gruesome murders. He contends that
there is no consistency in the evidence of the eye witnesses and also
invites attention to the statements under Section 161 of Criminal
Procedure Code of PW-5 – Vikram and PW-6 – Rajesh in order to show
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that there are no improvements and omissions and the Sessions Court
has expressly found that effort on these lines undertaken by the
accused persons was misconceived and ought to have been objected by
the learned prosecutor appearing before the Sessions Court. Shri
Doifode argues that the perusal of the panchnama itself reveals that it
was prepared in the light of the tube light in the house of the deceased
and the map on record clearly shows that the eye witnesses could have
easily seen the appellants (accused persons) assaulting the deceased.
He states that blood of the deceased Jyoti was of “B” group while blood
of the deceased Jaffer was of “A” group and human blood has been
found on the clothes of most of the accused. He states that in some
cases blood of both groups have been found on their clothes and hence
complicity of these accused persons in the commission of crime is
conclusively established. He also points out that eye witnesses have
identified all accused persons before the Sessions Court and have also
stated role played by them in the assault. According to him, seizure of
weapons and blood stained clothes from these persons conclusively
connects them with the crime and hence their conviction by the
Sessions Court deserves to be maintained. The accused persons
(present appellants) have before the Sessions Court admitted contents
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of Post Mortem reports i.e. Exhs. 90 and 91. Exh. 90 is the post
mortem report of Jyoti and Exh. 91 is post mortem report of Jaffer.
The accused also did not dispute report (Exh. 130) which revealed the
possibilities of injuries being inflicted by the weapons used by
connecting each weapon with corresponding injury and did not
challenge evidence of Medical Officer (PW-11) – Dr. Vyawahare on the
point of homicidal death of Jyoti and Jaffer. Here it is to be noted that
even before us, homicidal death of Jyoti and Jaffer is not in dispute. It
is, therefore, admitted fact that both Jyoti and Jaffer were murdered
on 17.6.2000 in the night at their residence.
10. The prosecution has examined total 12 witnesses. PW-1 –
Sulochana, PW-4 – Ashwini @ Rani, PW-5 – Vikram and PW-6 – Rajesh
claimed to be eye witnesses. PW-2 – Rajendar (Exh. 58) and PW-3 –
Rajdeosingh (Exh. 59) are both Police Constables who have pointed
out that they were given the work of tracing out the fugitives. PW-7 –
Vinod Shrirame (Exh. 69) is son of Jyoti’s sister and was staying with
Jyoti. He is a panch on spot panchnama, spot seizure, seizure of shirt
of accused PW-5 – Bhimrao and seizure of weapons from some
accused. PW-8 – Shaikh Farooqu (Exh. 78) is panch for the purposes
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of disclosure and seizure of weapon from accused No.8 – Pankaj
Karpari and accused No.6 – Vinod Harne. PW-9 – Dr. Pramod Rewale
(Exh. 87) has proved injury certificate at Exh. 88 of PW-1 – Sulochana,
PW-10 Musa Khan (Exh. 104) is witness to discovery & recovery of
sickle from accused No.9 – Pramod. PW-11 – Dr. Makrand Vyawahare
has been examined at Exh. 129 to prove post mortem reports Exh. 90
and 91 as also certificate Exh. 130 whereby he after examining the
weapons Articles 23 to 28 opined as to which of the injuries sustained
by the deceased could have been inflicted by such weapons. PW-12 –
Eknath Khadse (Exh. 131) is the Police Inspector, who has investigated
the offence.
11. PW-1 – Sulochana has stated that she went to Kotwali
Police Station and informed about accused No.1 – Waman and others
killing her daughter Jyoti and son-in-law Jaffer. Her report was
reduced into writing by the Police and she put her thumb impression
on it. She stated that Exh. 57 was that report. The perusal of Exh. 57
shows that PW-12 – Eknath Khadse has recorded it on 17.6.2000 at
Medical College and Hospital & not at Kotwali Police Station. In cross
examination, Sulochana has stated that it was incorrect to suggest that
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she first went to Medical College & Hospital, Nagpur. She further
stated in para 18 of her cross examination that before she was taken to
hospital, panchnama of spot of occurrence was drawn by the police.
Exh. 57 itself, does not mention any time at which it was recorded.
However, spot panchnama (Exh. 70) shows that its recording
commenced at 2310 hrs. on 17.6.2000 and was over at 2400 hrs.
Thus, if the evidence of Sulochana is accepted to be correct, she was
taken to Medical College & Hospital after completion of work of
drawing of this panchnama.
12. PW-12 – P.I. Khadse has stated that he received the
information about commission of offence at Medical College Square
after his return from Chandrapur. He immediately proceeded to
Medical College and recorded FIR as lodged by the injured – Sulochana
– PW-1 and obtained her thumb impression on it. He identified said
FIR to be Exh. 57. He has further stated that thereafter he went to
Police Station and registered offence against the accused persons. He
prepared printed FIR under his signature at Exh. 132. He stated that
then he proceeded to spot of incident. The police staff had already
reached there and panchnama of the spot was already drawn. He
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arrested accused persons and got them medically examined. Thus PW-
1 – Sulochana states that her statement (Exh. 57) was recorded in
Kotwali Police Station and her thumb impression was obtained there.
She further categorically maintains that panchnama was first recorded
and thereafter she was taken to Medical College & Hospital. From the
evidence of PW-12, it appears that FIR was recorded after panchnama
was drawn. In these circumstances, the perusal of spot panchnama
(Exh. 70) shows that it mentions FIR number in it. If the spot
panchnama and time mentioned is correct, the recording of spot
panchnama was over at 2400 hrs. on 17.6.2000 and thereafter PW-1
was taken to Medical College & Hospital. It is obvious that in that
event even her statement recorded at Medical College & Hospital
would be on 18.6.2000 because after 2400 hrs. on 17.6.2000, next day
commenced. It is, therefore, not clear as to whether FIR was already
recorded or whether Exh. 57 is FIR. If Sulochana’s statement is
accepted to be correct, Exh. 57 which is recorded at Medical College &
Hospital cannot be legally treated as FIR at all. PW-12 investigating
officer P.I. Khadse could not have recorded her report or statement at
Exh. 57 at Medical College on 17.6.2000 at all. Report of PW-1
Sulochana recorded at Kotwali Police Station is, therefore, not
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produced on record.
13. PW- 1 – Sulochana has stated in para 16 of her evidence
that she did not know any Prabhakar Patrikar and she has further
stated that she was not knowing whether he sustained any injury in
the attack or whether he had come to their house for taking food on
that night. She stated that Prabhakar Patrikar did not give any
information to police about the incident. Her statement (Exh. 57)
states Prabhakar Patrikar had come to their house on his own by Luna
and was sitting in the house and he saw the assailants. She stated
therein that they assaulted him also. PW- 12 – P.I. Khadse in his cross
examination in para 15 has stated that the statement of Prabhakar was
recorded by him on the date of incident i.e. 17.6.2000 & Prabhakar’s
signature was also obtained on the statement. He, however, denied
that the statement of Prabhakar Patrikar was recorded before
recording the report of PW-1 – Sulochana. He further stated that he
had also recorded statement of Prabhakar Patrikar in Medical College
& Hospital. The evidence, therefore, shows that if the statement of
Prabhakar Patrikar was recorded under Section 161 of Criminal
Procedure Code, there was no occasion for PW-12 – P.I. Khadse to
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obtain signature of Prabhakar on it. It further appears that two
statements of Prabhakar have been recorded and he was injured also.
In spite of this, Prabhakar has not been tendered by the prosecution as
its witness for the reasons best known to it. Whether the police first
got information from Prabhakar and therefore obtained his signature
on his statement or then first information report was given by
Sulochana at Police Station Kotwali and not at Medical College &
Hospital are the questions which beg answer in this situation. It is
more than clear that the prosecution has not brought on record
anything to satisfactorily answer these questions and accused,
therefore, are entitled to receive benefit of this material lacuna.
14. The actual incidence of attack is sought to be established
by the prosecution through the evidence of four eye witnesses. The
other witnesses, as mentioned above, are in relation to peripheral
matters like seizure of clothes and weapons and medical evidence.
Even before us the prosecution has relied upon the evidence of these
four eye witnesses. PW-1 – Sulochana is the mother of deceased Jyoti
& herself sustained some injuries in the attack. PW-4 – Ashwini @
Rani, PW-5 – Vikram and PW-6 – Rajesh are the children of Jyoti born
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from her earlier husband – Sanjay Raut. These children and Sulochana
were staying in the same house with Jyoti and Jaffer.
15A. PW-1 – Sulochana has deposed that at about 10.30 PM on
17.6.2000 when all of them were to sit for taking food, the accused
persons before the Court came near gate of their house and started
hurling abuses. Some of them entered the house from the front door
while some came by removing the roof tiles. All of them were carrying
weapons like sickle, sword, dagger, knives and spears. She attempted
to obstruct them but they pushed her aside and attacked her daughter
Jyoti and Jyoti’s husband Jaffer and killed them in her presence. She
was also assaulted and she sustained injuries on her head and thigh.
All accused damaged household articles. She states that therefore all
occupants of the house ran out and accused were pointing out
weapons at them saying that they would kill them also. When she left
for police station, the accused persons were still in the house
continuing with their act of damaging the household articles. She has
then deposed about going to Kotwali Police Station where her report
(Exh. 57) came to be recorded and she states that she was sent for
medical examination to Medical College & Hospital where she was
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admitted for one night. She further stated that she identified weapons
carried by the accused at that time and the learned Sessions Court has
recorded that those weapons were at articles No. 1 to 24. This is
obviously wrong recording as weapons are only six in number. She
stated that accused No. 9 – Pramod was carrying sword, accused No.6 –
Vinod was carrying sickle, accused No.1 – Waman was carrying sword,
accused No.15 – Manoj was carrying sickle, accused No.13 – Gajanan
was carrying knife and accused No.12 – Sanjay was carrying a dagger.
In her cross examination, she stated that it did not happen that
accused broke and damaged TV and tube light and almirah in the
house. She stated that statement appearing at portion marked “A” in
her statement read over to her was not correct and she could not
assign any reason as to why it was so mentioned in Exh. 57.
B. PW-12 – P.I. Khadse in cross examination has stated that
portion marked “A” and “B” in said FIR were noted as per say of PW-1 –
Sulochana. The portion marked “B” in her FIR reveals a statement to
police that her daughter Archana, Jyoti’s children and she herself ran
away from there. However, in cross examination she denied that as
there were so many assailants in the house, she ran out of the house to
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save herself. She denied running away of herself with Archana and
children of Jyoti. She also stated that said portion marked “B” was
incorrect and she could not assign any reason as to why said fact came
to be recorded by the police. She further stated that she had disclosed
to the police that accused No.1 – Waman, accused No.9 – Pramod and
accused No.6 – Vinod were carrying swords and she could not assign
any reason as to why said facts were not recorded in Exh. 57. She
accepted that at the time of attack Jyoti and Jaffer were in the bed
room and she along with other family members were in chhapri. She
stated that she did not enter the bed room but she could see the
incident from chhapri. and there was only one door frame between
chhapri. and that room. She further stated that she also disclosed to
police that some of the accused entered the house by removing roof
tiles but could not assign any reason as to why said fact was not
appearing in her report. She further stated that she had told the police
that accused No.12 – Sanjay and accused No.13 – Gajanan were
carrying dagger and knife but could not assign any reason as to why
these facts were not appearing in her report. She further stated that 5
– 6 accused entered the bed room while remaining stood outside that
room and none of the family members could go into the bed room.
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She gave the size of chhapri as 13′ in length and 6′ in width and
further stated that two rooms behind this chhapri were of half the size
of chhapri. She denied that she did not see who assaulted whom and
therefore those facts were not mentioned in the FIR. She further
denied that first tube lights were damaged and then assault was done.
C. The reading of her evidence in para 15 from the paper
book shows that she stated that portion marked “C” in FIR read over to
her was incorrect and she could not assign any reason for its
appearances in FIR. However, there is no portion marked “C” in Exh.
57 or Exh. 132. The perusal of original recording shows that the letter
“C” appearing in para 15 has been corrected as “A”. Portion marked
“A” in Exh. 57 which states that accused entered the house and broke
TV, Almirah, tube light; appears to be relevant for the question which
was put to her in cross examination above. In para 18, she has stated
that except accused No.1 – Waman, accused No.10 – Balya, accused
No.14 – Sharad, accused No.15 – Manoj and accused No.11 –
Vishwapal, the other accused persons had covered their faces. Name
of accused No.11 is Vishwapal and it has been wrongly mentioned as
Shishupal. However, the words “the three Manwatkar brothers”
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recorded after his name clearly show that witness wanted to state that
he i.e. said Shishupal was brother of Sharad Manwatkar and Manoj
Manwatkar.
16. PW – 4 – Ashwini @ Rani, at the time of incident was 11 –
12 years old and when her deposition was being recorded, she was 13
years old. She has stated that the accused persons before the Court
and sitting in the dock came to her house. The learned Presiding
Officer has recorded in one sentence that witness identified all the
“witnesses” sitting in the dock, The word “witnesses” appears to have
been wrongly used for the word accused. She stated that the accused
were asking as to where Jyoti was and they entered the house by
breaking the back door. The accused asked them not to raise voice
and brandished knives at them. The accused then charged and
assaulted her father Jaffer, who was in the bed room and they were
carrying swords, knives and spears. Accused No.1 – Waman and
accused No.10 – Balya assaulted Jaffer by sword and knife. She stated
that all these accused attacked her father with weapons and killed
him. Her mother had hidden herself under the bed but all the accused
dragged her out and assaulted her on chest and head. Her brain came
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out. Spear blow was also given on her back and she was killed. The
accused then started assaulting her grand mother and she was inflicted
blow on her head and limb. On seeing parents being killed, she
(Ashwini) out of fear concealed herself behind her mother. Accused
No.1 – Waman, accused No.7 – Sudhakar, accused No.10 – Balya stood
on her stomach and gave her kick blows. The accused also assaulted
her brother Raja (PW-6 – Rajesh). She stated that she could identify
said accused by face and said accused was accused No.10 – Balya. Her
maternal aunt – Aruna (Archana ?) was assaulted by one of the
accused known as Gajbhiye and she stated that she could identify said
person in the dock. He was accused No.13 – Gajanan Belekar. She
stated that he was known by name Gajbhiye. She stated that accused
then went after her elder brother Vikram but he fled away from there.
She stated that accused took away cash, silver, gold from her house
and damaged household articles. After the accused ran away, her
grand mother went to police station. She stated that she could
identify the weapons carried by the accused if shown to her. Eight
weapons were shown to her and she identified sword – Article No.26
and stated that it was in the hands of accused No.1 – Waman. In cross
examination, she stated that she disclosed to the police that accused
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entered the house by breaking open the back door and the Sessions
Court found that omission was only about the location of the door on
the back side. The further omission noticed was about the brain of
Jyoti coming out but then she has stated in her police statement that
brain of her mother was broken into pieces. She did not tell police
about her concealing behind the body of her mother. She stated that
she disclosed to police that accused No.1 – Waman, accused No.7 –
Sudhakar, accused No.10 – Balya stood on her stomach and beat her
and her maternal aunt was also assaulted by the accused and accused
ran away with cash, silver and gold ornaments. She could not point
out as to why these facts were not appearing in her police statement.
In cross examination, she stated that she was knowing the accused
persons who were living in the vicinity of her house and was not
knowing some of them. She saw them for the first time on the day of
incident and after the incident she had no occasion to talk with them.
She stated that neither herself nor her aunt or her brother Rajesh were
given treatment by the doctor after assault. She stated that when the
accused assaulted her parents, she along with her maternal aunt ran
out of the house and was followed by her grand mother. They went to
Nandanwan Police Chowky and stood in front of it. The assailants did
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not follow them and many of them had covered their faces with
clothes. She denied that Prabhakar Patrikar had come to their house
for taking food and she stated that she was not acquainted with him.
She stated that she never heard about the assailants being residents of
Chuna Bhatti area and Reshambagh area. She stated that she heard
that they were residents of Rambagh and Nandanwan Colony and she
further stated that she got the information about them from the family
members and she learnt about their names from their discussion only.
She further stated that there was wall between the kitchen and bed
room and one cannot directly go to the bed room from the kitchen but
has to enter the chhapri. and thereafter proceed to bed room.
17. PW-5 – Vikram, on the date on which his deposition was
recorded i.e. on 6.5.2002, was about 17 years old. He stated that all
accused persons before the Court entered the house by breaking open
the door and charged upon his parents with swords, spears, knives and
slipper. They also assaulted her grand mother and aunt. The accused
did not permit them to raise shout and brandished the weapons and
threatened them with killing. He stated that accused drove them out
of the house and damaged household articles. He then went to house
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of his maternal aunt. He stated that he could identify the weapons by
which accused assaulted them and his parents and stated that articles
1 to 7 were the said weapons. In cross examination, he stated that he
had disclosed everything to the police. The accused before the Sessions
Court tried to show that all this was improvement made by him. The
perusal of his police statement, however, reveals that he did not tell
police that inmates of the house attempted to shout and the accused
threatened them with life or accused drove them out of the house or
after incident he went to house of his maternal aunt. He stated that
on next day along with others he had gone to the police station where
police recorded their statement in succession one after the other and
statement of his grand mother was also recorded at that time. He
denied that the persons who had come to their house i.e. accused had
covered their faces with muffler. He also denied that after entering
the house, the accused broke tube light. In further cross examination,
he stated that household articles were damaged in their presence and
also after they were driven out. He stated that the tube lights in the
house were broken and after causing damage to the household
articles, they were beaten. He stated that the police had taken them to
doctor and he had not sustained any bleeding injury and his sister
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sustained bleeding injury on her eye brow. He could not state whether
she was treated by the doctor or not.
18. PW-6 – Rajesh is the last eye witness. On the date of
deposition i.e. 7.5.2002, he was 12 years old. He stated that Waman
Mendhe, Balya Mendhe i.e. accused Nos. 1 & 10 with 14 – 15 persons
entered the house by breaking open the door and they went to room of
his parents, assaulted his father and mother and murdered them.
Thereafter they broke the tube lights, damaged the household articles
and grand mother was also assaulted. He stated that he could identify
the persons who entered the house and assaulted his parents and
grand mother. He stated that they were all accused persons before the
Court. The Sessions Court has recorded that witnesses identified all
the accused in the dock. In cross examination, he stated that there
was quarrel between his father and accused No.1 – Waman over
customers and therefore he named accused No.1 – Waman and
accused No. 10 – Balya as accused in assault. He could not assign any
reason as to why the fact of breaking open the door by accused was
not appearing in his police statement. He stated that he knew about 5
– 6 accused persons by face. He stated that the police recorded his
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statement as per the say of his grand mother and aunt and he denied
that he was not present in the house at the relevant time. He stated
that at the time of incident, he was studying in fourth standard and he
had no concern with any of the accused. He stated that on previous
date before Court as also on 7.5.2002, his family members and about
10 persons accompanied him to the Court and they had shown him the
accused persons and asked him to remember their names. He denied
that Prabhakar Patrikar had come to his house for taking food. He
also denied that on the directions of police, for the purposes of
identification, he stated that accused persons were not wearing any
mask. He stated that the police enquired with his grand mother about
the persons suspected of involvement in crime and his grand mother
as also his aunt Aruna gave names of 7 to 8 suspects to the police.
19. The evidence above, therefore, shows that none of the eye
witnesses have pointed out any participation by accused Nos. 2, 3, 4,
5, 8, 11 and 14 in the crime. No role whatsoever has been ascribed to
them in the alleged attack. It is to be remembered that names of
accused Nos. 3, 5, 6, 7, 8, 9 and 12 did not figure in FIR (Exh. 57) at
all and according to PW-1 – Sulochana, accused Nos. 3, 5, 6, 7, 8, 9, 12
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as also accused Nos.2, 4 & 13 had covered their faces. When the
names of these seven accused persons did not figure in FIR, on what
basis investigating agency involved them in the commission of crime is
not explained. PW-6 has stated in cross examination that police asked
his grand mother to disclose the names of suspects and she disclosed 7
– 8 names. What independent investigation police authorities have
undertaken to ascertain participation of these 7 – 8 suspects is not
apparent from the entire evidence. It appears that PW-1 implicated
accused Nos. 2, 4 & 13 though their faces were covered. Whether
these 7 or 8 names communicated to the Police by PW-1 Sulochana or
Aruna were mentioned in alleged FIR by Police or then these 7–8
names were of persons other than those against whom FIR was
prepared is not clear. The presence of Prabhakar in the house at the
time of incident has come on record through Exh. 57 and through
evidence of PW-12 – Police Inspector – Khadse. Two statements of
Prabhakar Patrikar recorded by PW-12 are not brought on record and
also Prabhakar Patrikar, who appears to have been injured in the
assault has not been examined by the prosecution. The same can be
said about Aruna, sister of the deceased Jyoti. When the faces of as
many as 10 accused persons are admitted to be covered by PW-1 –
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Sulochana, the other two eye witnesses have refused to accept the
same except PW-4 – Ashwini. She has stated that many of the accused
persons had covered their faces with clothes. In such circumstances,
the very identity of accused persons becomes a debatable issue.
Witness No.4 – Ashwini in one breathe stated that she knew accused
persons living in the vicinity and was not knowing some of them and
she saw them on the day of incident only and after said incident she
had no occasion to talk to them. However, a little thereafter in cross
examination, she has stated that she heard that assailants were
residents of Rambagh and Nandanwan Colony and she gathered this
information from the discussion amongst the family members. She
also stated that she learnt their names only from the discussion. She
along with two brothers have tried to show that Prabhakar Patrikar
was not present on the spot on 17.6.2000. Thus, the evidence as to
identification of accused as brought on record by the prosecution is
not at all satisfactory. The persons whose faces were covered have
been mentioned in the FIR and children have identified them before
the Court in one stroke by stating “all accused in the court or in the
dock”. The circumstances definitely warranted holding of identification
parade.
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20. In Kanan vs. State of Kerala, reported at AIR 1979 SC
1127, the Hon’ble Apex Court has found that where a witness
identifies an accused who is not known to him in the Court for the first
time, his evidence is without any worth unless there has been a
previous T.I. parade to test his power of observation. There witness
PW-25 had identified two appellants as persons who were running
away near the place of occurrence. He admitted that he did not know
those persons by name and yet he named them while identifying them
in the Court. In this background, the Hon’ble Apex Court has observed
that idea of holding T.I. Parade under Section 9 in the Evidence Act is
to test the veracity of the witness on the question of his capability to
identify the unknown person whom the witness may have seen him
once. If no T.I. Parade is held then it will be wholly unsafe to rely on
his bear testimony regarding the identification of an accused for the
first time in the Court. In the present facts, there is no identification of
above mentioned accused persons whose names were not mentioned
by PW-1 – Sulochana in the FIR. The evidence of other alleged eye
witnesses clearly shows that they were trying to lie about the incident.
When PW-1 and PW-4 state that faces were covered, the other two eye
witnesses were trying to state that faces were not covered. We have
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already mentioned above the evidence of PW-4 Ashwini which clearly
shows that she was not aware which accused persons were living in
the vicinity and which one of them was not living in the vicinity. The
evidence of PW-6 – Rajesh also shows same state of affairs. His
relatives had shown him accused persons and asked him to remember
their names. The learned Presiding Officer of the Court below has not
made each accused to rise and has not asked the witness to identify
him. Though the spot panchnama mentions that it was written in tube
light of house in question, all eye witnesses accept that tube lights
were broken. If there was darkness and faces of accused were
covered, on what basis their names were included as accused either in
FIR or thereafter by the police during the investigation, is not at all
clear. If the names are included only because they were named by
subsequent witnesses in their police statement, holding of test
identification parade was all the more necessary. If these persons
were named as suspect by PW-1 and her daughter Aruna (as stated by
PW-6 Rajesh), independent verification by the police authorities ought
to have been pointed out. The point of time at which eye witnesses left
the house of deceased is also not clear. PW-1 Sulochana states that
when she left for police station, accused were still inside the house.
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PW-5 – Vikram stated that accused drove them out of the house and
damaged household articles. PW-4 Ashwini stated that when the
accused assaulted her parents, she along with her maternal aunt Aruna
ran out of the house and was followed by her grand mother i.e. PW-1
Sulochana. They went to Nandanwan Police Chowky and stood in
front of it. The way in which accused forced or took entry in house is
also not proved by consistent and cogent evidence. All these facts
create serious doubt about presence of all accused in the house or then
about their description of entire incident. Mere mention of broken
back door in spot panchanama, is therefore not an incriminating
circumstance here. In view of reasons given by the Hon’ble Apex
Court above, we find failure to hold identification parade by police or
want of proper identification before learned Sessions Court is fatal to
the prosecution.
21. As already observed above, there is no direct evidence
against accused Nos. 2, 3, 4, 5, 8, 11 & 14. It will now be appropriate
to find out whether there is any other evidence available against
accused on record. It is not the case of the prosecution that the
conviction of these accused persons is based upon circumstantial
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evidence. The seizure of weapons and seizure of clothes is the only
other evidence available on record. These weapons are discovered
under Section 27 of the Evidence Act and some clothes are also
discovered under Section 27 of the Evidence Act. In the present facts,
this at the most can only be the evidence in corroboration. It cannot
be the substantive evidence to conclude that guilt of these persons is
proved beyond reasonable doubt. The weapons seized under Section
27 are sword from accused No.1 – Waman, sword from accused No.6 –
Vinod, dagger from accused No.7 – Yadav, sword from accused No.8 –
Pankaj and sickle from accused No.9 – Pramod. In her deposition, PW-
1 has stated that accused No.1 – Waman and accused No. 9 – Pramod
were armed with swords. Similarly, PW-4 – Ashwini has stated that
accused No.1 – Waman and accused No. 10 – Balya @ Narendra
armed with sword. In addition to this, PW-1 has stated that accused
No. 6 – Vinod was armed with sickle, accused No. 12 – Sanjay was
armed with dagger and accused No. 13 – Gajanan was armed with
knife and accused No. 15 Manoj was armed with sickle. There is no
recovery under Section 27 from accused Nos. 10, 12, 13 & 15. The
weapons seized are articles No. 23 to 29 and 31. All these were
forwarded to Chemical Analyser and perusal of report Exh. 135 sent by
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Chemical Analyser shows that no blood stains were found on any of
these weapons.
22. The prosecution has also pointed out seizure of a shirt
from accused No.5 – Bhimrao, shirt and pant from accused No.7 – Kalu
@ Sudhakar, shirt and pant from accused No. 8 – Pankaj and shirt and
pant from accused No. 9 – Pramod. These clothes are stated to be
blood stained. Here, it is important to note that investigating agency
has not made any effort to even point out blood group of the deceased
Jyoti or deceased Jaffer. However, clothes on the person of Jyoti are
found to contain blood of group “B” while clothes of Jaffer were found
to contain blood of group “A”. The bed sheet on cot on which bodies
of deceased were lying was found to contain blood of group “A”.
Blood of all 15 accused was collected and blood of accused No.1 –
Waman was found to be of “B” group and blood of accused No.7 – Kalu
@ Sudhakar and accused No. 11 – Vishwapal is found to be of “O”
group. The blood group of remaining accused persons i.e. accused
Nos. 2, 3, 4, 5, 6, 8, 9, 10, 12, 13, 14 & 15 could not be determined as
the tests were inconclusive. The shirt only seized from Kalu @
Sudhakar was found to be blood stained with human blood of groups
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“A” and “B” both. The dagger seized from Kalu @ Sudhakar was found
to contain human blood but its grouping results were inconclusive.
The shirt and pant seized from accused No.8 – Pankaj were found to
contain human blood stains and his shirt was found to have blood
stains of group “A” and group “B” both. Shirt and full pant of accused
No. 9 – Pramod Gujar were also sent to Chemical Analyser and no
blood was detected on his shirt, however, his full pant was found to
contain stains of blood group “A” as also blood group “B”. The blood
group of both deceased is itself not available on record. In these
circumstances, this evidence which is basically corroborative in nature
cannot be used to connect the accused with the commission of crime
itself.
23. The shirt seized from accused No.5 – Bhimrao is found to
contain stains of blood group “A” as also blood group “B”. However,
the record reveals that shirt is not seized from him but as per
deposition of PW- 7 – Vinod Shrirame at Exh. 69 it has been seized
from the house of accused No.1 – Waman. The police called him to the
house of Waman and showed him one shirt which police informed him
as of Bhimrao. The witness has stated that Bhimrao was present on
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the spot and he told the police that the shirt was owned by him. Exh.
71 is the seizure memo dated 18.6.2000 prepared by the police in this
respect and it does not mention house of accused No.1 as place of
seizure or it does not mention name of accused – Bhimrao as person
from whom it is seized. It only mentions that a shirt found to be worn
by the accused, who participated in the commission of crime, was
seized by the police. This seizure memo does not mention that
Bhimrao was present on the spot though at the end it carries right
hand thumb impression of Bhimrao. There is no memorandum or
disclosure statement made by Bhimrao or Waman in relation to said
shirt on record. When this recovery was put to him while recording
his statement under Section 313 of Criminal Procedure Code, Bhimrao
has denied any knowledge of such recovery. It is difficult, therefore,
to connect this shirt to Bhimrao and connect Bhimrao with commission
of crime. In view of this material on record, we have tried to verify the
position of this seizure of shirt from Bhimrao and entry taken at sana
No. 28 in relation to his arrest on 18.6.2000 filed by the prosecution
shows that Bhimrao Mendhe at the time of his arrest was found
wearing a shirt with blood stains. He was arrested as he was involved
in the crime and in his body search, the shirt was seized. This also
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creates doubt about the seizure of shirt by the prosecuting agency.
24. The seizure of weapons is also not free from doubt. The
memorandum of admission recorded on 20.6.2000 vide Exh. 72 in this
respect from Kalu @ Sudhakar i.e. accused No. 7 shows that he has in
the said statement mentioned names of some of the accused and also
various weapons used and then stated that all those weapons were
kept by all of them behind the house of Sandip Gujar. Then vide Exh.
73 in presence of two panchas, the police have recovered a dagger
from him from the spot described i.e. a bamboo matting near gutter
behind house of Sandip Gujar. Exh. 76 is the memorandum under
Section 27 recorded on 21.6.2000 from accused No.1 – Waman. The
narration is on same lines and he has mentioned the same spot where
all of them had hidden the weapons used. Exh. 77 is the recovery
panchnama witnessed by Vinod Shrirame and another panch in which
iron sword was recovered from the said spot described i.e. a bamboo
matting near gutter behind house of Sandip Gujar. Exh. 79 is
memorandum dated 24.6.2000 from accused No. 8 – Pankaj and Exh.
105 is memorandum under Section 27 of accused No. 9 – Pramod
recorded on 22.6.2000. Again same spot has been mentioned and
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recovery of one weapon each from the said accused is shown by the
police from the same spot i.e. a bamboo matting near gutter behind
house of Sandip Gujar. Thus when the police knew on 20.6.2000 itself
that all accused have concealed all weapons at particular spot, the
seizure has not been effected or recovery has not been done on said
date immediately but it has been shown on different dates. The
memorandums have been shown from different accused persons on
different dates and then a weapon from each has been shown as
recovered. When all weapons could have been recovered by police on
20.6.2000 need of showing such a discovery and recovery itself casts
serious doubt on entire process. When spot and fact of all weapons
being concealed there was within knowledge of PW-12 P.I. Khadse on
20.6.2000, subsequent discoveries from said spot are meaningless. In
these circumstances, we find that recovery of weapons also has not
been established by legal evidence on record and cannot be used
against the accused persons.
25. One of the contentions of the accused is that motive has
not been established on record. It has been attempted to demonstrate
that the deceased had enmity with other persons in the locality. PW-1
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– Sulochana in para 9 accepted that her daughter Jyoti and her former
husband as also Jaffer were doing liquor business. She stated that
after marriage with Jaffer also for some time ran said liquor business.
She accepted that the deceased Jyoti and her earlier husband Sanjay
were involved in pick-pocketing. She accepted that because of Jaffer,
residents of locality were harassed and disgusted and there were
inimical relations between Jyoti and other residents of locality from
the time of her marriage with Jaffer. She stated that Jaffer used to run
Pan stall adjacent to pan stall of accused Waman. However, she
denied knowledge of any business rivalry and also denied knowledge
of frequent quarrel of Jyoti and Jaffer with the accused Waman. PW-4
– Ashwini also accepted that her mother and father Jaffer used to sell
liquor and persons used to visit their house for purchasing it. She
accepted that relations between them and neighbours were strained.
She denied that there was any quarrel of deceased with accused No.1 –
Waman over customers of pan stall. PW-6 – Rajesh stated that
previously his parents used to run liquor business but later on opened
pan stall. He stated that there used to be quarrels between his parents
and accused No.1 over customer and accused No.1 – Waman lodged
report to the police station against his father. He accepted that
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relations between his parents and Waman were strained. He also
accepted that it was correct to state that therefore he named accused
No.1 – Waman Mendhe and accused No. 10 – Balya @ Narendra
Mendhe as involved in present incident.
26. A person, who has lodged report with the police against
the deceased, may not in normal circumstances take such a drastic
step of attacking the house of his rival and eliminate him with his wife.
Had there been some dispute between deceased & Waman in recent
past, it could have furnished some ground for such attack. The motive
for accused No.1 or accused No. 10 for that purpose, therefore, has not
been established on record at all. The prosecution could not produce
any witness from the neighbourhood and reason thereof has also come
on record in cross examination of above mentioned eye witnesses.
Taking overall view of the matter, it is very difficult to accept as
conclusively established that the persons whose names did not figure
in FIR or whose faces the eye witnesses had no opportunity to see
were involved in the commission of crime. Even if statement in spot
panchnama that it was written in the night hours in the tube light of
house in question is accepted to be true, still it is difficult to accept the
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contention of eye witnesses that these accused persons were involved
in the commission of crime. There is absolutely no evidence to prove
their participation in the crime beyond reasonable doubt. Even if some
motive is presumed, still that by itself can not establish complicity of
accused persons in crime.
27. As per PW-1, accused No.1 – Waman accused No. 10 –
Balya @ Narendra, accused No. 11 – Vishwapal, accused No.14 –
Sharad and accused No. 15 – Manoj were having their faces open at
the time of alleged attack. Thus, according to her, she could have seen
faces only of these five persons and not of remaining persons. Accused
No.1 is stated to possess sword both by PW-1 Sulochana and PW-4 –
Ashwini. According to PW-4 – Ashwini, he assaulted Jaffer. The
version of PW-4 that he stood on her stomach or kicked her is an
omission. Though sword is seized from him, the discovery and
recovery is doubtful. His blood group is found to be “B” and no blood
stained clothes are recovered from him. In view of the totality of
circumstances, when PW- 6 – Rajesh stated that he added name of
accused No.1 because of business rivalry, we find it difficult to convict
him only on the basis of this evidence. Accused No. 10 – Balya @
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Narendra Mendhe is having identical evidence against him but then
there is no recovery of any weapon from him and his blood group also
has not been established. There is no recovery of blood stained clothes
from him. We are, therefore, not in a position to convict him on the
basis of such evidence. Insofar as accused No.11 – Vishwapal is
concerned, nobody has ascribed any role to him and there is no
recovery of any weapon or blood stained clothes from him. There is
no evidence against accused No. 14 – Sharad also. PW-1 – Sulochana
has stated that accused No. 15 – Manoj was armed with sickle.
Nobody else has given any evidence against him. There is no
discovery of weapon or clothes from accused Nos. 14 & 15. It is,
therefore, difficult to maintain their conviction in present matter.
Though face of accused Nos. 13 – Gajanan Belekar is stated to be
covered by PW-1 – Sulochana, he has been identified as person who
attacked her brother Rajesh (PW-6) by PW-4 Ashwini. He has been
mentioned as Gajbhiye while identifying him by PW-4. The evidence
is, therefore, not sufficient to convict him.
28. The prosecution, for the reasons best known to it, did not
lead evidence of injured Prabhakar Patrikar or of maternal aunt of
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child witnesses and sister of the deceased i.e. Aruna Rangari. Why
said witness, who could have thrown light on the actual incident, have
been withheld and why child witnesses were made to enter witness
box is not clear. The evidence on record raises serious doubt about
the claim of PW-1, PW-4, PW-5 and PW-6 as eye witnesses. In Bijoy
Singh vs. State of Bihar, reported at (2002) 9 SCC 147, the Hon’ble
Apex Court has stated that in such circumstances, an onerous duty is
cast upon the criminal courts to ensure that no innocent is convicted
and deprived of his fundamental liberties in cases involved. In cases
involving a number of accused persons, the court has to adopt
balanced approach and no innocent person should be convicted and a
guilty acquitted under the cloak and cover of the loose and liberal
interpretations of the statutory provisions and the technicalities of
procedural wrangles. The Hon’ble Apex Court has noticed that many a
times there may be a designed effort to harass the relations and
friends of the real culprits. Here, as we have found that there is no
legal and sufficient evidence to implicate the accused persons, there is
no question of any liberal interpretation. Here we find that entire
investigation has been very defective and even on merits the alleged
eye witnesses have failed to prove involvement of any of the
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appellants before us.
29. The reliance by the accused persons on the judgment of
the Hon’ble Apex Court in the case of Mallanna vs. State of Karnataka,
reported at (2007) 8 SCC 523, to contend that when names of accused
persons are not appearing in FIR, they are entitled to acquittal is
misconceived. The judgment does not lay down any such proposition.
The perusal of paras 25 and 26 of said judgment shows that in FIR no
details of participation by the accused persons in commission of crime
were given and those details were being given for the first time in the
Court after five years. The judgment, therefore, has no application in
the facts before us. In the case of State of Rajasthan vs. Mahaveer,
reported at AIR 1988 SC 1752, the Hon’ble Apex Court has in view of
pre-existing enmity between the parties refused to disbelieve the
evidence of eye witnesses who tried to contend that they were hiding
in the same room where the incident occurred, after noticing that their
story of hiding in that room or of accused persons not noticing them
was highly improbable in the facts of the case. The Hon’ble Apex
Court noticed that because of improbabilities and infirmities seen in
the evidence of eye witnesses, it was doubtful whether the incident
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happened in the manner in which eye witnesses were trying to present
it. The view taken is, therefore, in the facts of the case before the
Hon’ble Apex Court. The case of State of Maharashtra vs. Ramsai
Sukhlal Yadao, reported at 2007 ALL MR (Cri) 2186, is the judgment
of this Court. The Division Bench in para 25 has found that not
holding of Test identification parade was a serious lapse which gave a
fatal blow to the prosecution case. We have already considered this
aspect above.
The judgment in the case of Pratap Singh vs. State of
M.P., reported at (2006) 2 SCC (Cri) 284, is relied upon by the
accused persons to point out that site plan drawn cannot be relied
upon because it does not show the position of eye witnesses on the
spot so as to enable anybody to know from where they could have
noticed what happened in the bed room. The name of eye witnesses
mentioned in the spot map before the Hon’ble Apex Court did not
figure in FIR and the Hon’ble Apex Court noticed that the learned
Sessions Judge was not correct in drawing adverse inference for their
non examination. The High Court had accepted said comment of
Sessions Judge and also criticized the mode and manner in which the
investigation was conducted. The Hon’ble Apex Court observed that it
was not in dispute that one Mangal Singh was only eye witness and he
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was a minor. His evidence in the facts required closure scrutiny and
said minor contradicted himself on material particulars. The Hon’ble
Apex Court also noticed those contradictions and found them to be
material. The Hon’ble Apex Court noticed that after criticizing the
investigation conducted, on that finding alone High Court came to the
conclusion that view taken by the Sessions Judge was not reasonable
and was contrary to evidence on record. In view of the various
contradictions noticed by it, the Hon’ble Apex Court found that the
view taken by the learned Sessions Judge that Mangal Singh was
tutored witness was not illegal. The Hon’ble Apex Court, therefore,
restored the judgment of the Sessions Court. In present case, we have
already found the inconsistencies in the evidence of all eye witnesses.
Their mutual contradictions are also noted above. In Vinod Gulabrao
Kinake vs. State of Maharashtra (supra), the Division Bench of this
Court has considered the provisions of Juvenile Justice (Care and
Protection of Children) Act, 2000, and in the facts, though the
conviction of juvenile was maintained, the sentence awarded by the
trial Court including imposition of fine was set aside. In present case,
the minor accused No.2 has been tried along with others in regular
trial. We have already concluded above that there is no legal evidence
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establishing beyond reasonable doubt guilt of any of the accused.
During the pendency of trial, accused No.2 – Ajay was subjected to
supervision of District Probationary Officer. His reports are already on
record. In the circumstances, it is apparent that his conviction also
cannot be sustained and deserves to be quashed and set aside.
30. In view of this discussion, impugned judgment delivered
on 03.10.2002 by the second Additional Sessions Judge, Nagpur, in
Sessions Trial No.233 of 2001 is quashed and set aside. All accused i.e
accused No. 1 Waman, accused No. 2 Ajay, accused No. 3 Prashant,
accused No. 4 Amar, accused No.5 Bhimrao, accused No.6 Vinod,
accused No. 7 Kalu @ Sudhakar, accused No. 8 Pankaj, accused No. 9
Pramod, accused No. 10 Balya @ Narendra, accused No. 11
Vishwapal, accused. No. 12 Sanjay, accused No. 13 Gajay @ Gajanan,
accused No.14 – Sharad and accused No. 15 Manoj who are appellants
in all three Appeals are, therefore, acquitted and their respective
appeals i.e. Criminal Appeal Nos. 648 of 2002, 678 of 2002 & 684 of
2002 hereby stand allowed. Accused No. 5 Bhimrao is already on bail
as per orders dated 28/11/2002 on Criminal Application No. 2834 of
2002 and Accused No. 2 Ajay, being juvenile is also on bail as per
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orders dated 2/12/2005, suspending his sentence and subjecting him
to constant supervision of District Probationary Officer. Their bail
bonds are, therefore, cancelled. Rest of the Accused, be set at liberty,
if their custody is not required by the State in any other matter.
Property involved be disposed of as per rules after expiry of appeal
period.
JUDGE JUDGE
*******
*GS.
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