{"id":147344,"date":"2009-10-12T00:00:00","date_gmt":"2009-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajesh-umanath-shetty-vs-the-state-of-maharashtra-on-12-october-2009"},"modified":"2016-01-15T01:59:06","modified_gmt":"2016-01-14T20:29:06","slug":"rajesh-umanath-shetty-vs-the-state-of-maharashtra-on-12-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajesh-umanath-shetty-vs-the-state-of-maharashtra-on-12-october-2009","title":{"rendered":"Rajesh Umanath Shetty vs The State Of Maharashtra on 12 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Rajesh Umanath Shetty vs The State Of Maharashtra on 12 October, 2009<\/div>\n
Bench: B.H. Marlapalle, R. S. Dalvi<\/div>\n
                               1\n\n\n         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                               \n                      APPELLATE SIDE\n\n\n\n\n                                       \n             CRIMINAL APPEAL NO. 1229 OF 2002\n\n\n    Rajesh Umanath Shetty             ...Appellant\n\n\n\n\n                                      \n        Vs.\n    The State of Maharashtra          ...Respondent\n\n                            WITH\n              CRIMINAL APPEAL NO.1162 OF 2002\n\n\n\n\n                                  \n    Pravin Tanayya Surarna\n                       ig             ...Appellant\n        Vs.\n    The State of Maharashtra          ...Respondent\n                     \n                           WITH\n              CRIMINAL APPEAL NO.36 OF 2003\n\n    Ganesh Jairappa Kotiyan           ...Appellant\n         \n\n        Vs.\n    The State of Maharashtra          ...Respondent\n      \n\n\n\n    Mr.U.S. Vanjara, Advocate with\n    Mr. M.A. Shaikh, Advocate for the Appellant\n    in Appeal Nos. 1162\/2002 and 36\/2003\n\n\n\n\n\n    Mr. Amin Solkar, Advocate for the Appellant\n    in Appeal No.1229\/2002\n\n    Mrs. M.M.Deshmukh, A.P.P for the State\n\n\n\n\n\n                         CORAM : B.H. MARLAPALLE &\n                                 SMT.ROSHAN DALVI, JJ.\n<\/pre>\n
                         Dated : 12TH OCTOBER, 2009<\/p>\n
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\n                                       2<\/span><\/p>\n
    ORAL JUDGMENT : (Per B.H. MARLAPALLE, J.)<\/p>\n
      1. All these three Appeals arise from the order of
\n        conviction and sentence passed on 8th October<\/p>\n
        2002 by the learned Ad-hoc Additional Sessions
\n        Judge at Thane in Sessions Case No.330\/2000 in
\n        which     five    accused         were   put      on      trial          and<\/p>\n
        accused No.4 Prakash Baswant Gangu was declared
\n        as an absconder after the charge was framed<\/p>\n
        and, therefore, trial proceeded against accused
\n        Nos.1 to 3 and 5.                 These Appeals have been<\/p>\n
        filed by accused Nos.2,3 and 5, respectively
\n        and accused No.1 came to be acquitted, whereas<\/p>\n
        the   Appellants       have       been   convicted             for       the
\n        offence punishable under Section 302 read with<\/p>\n
        Section     34    of   the        Indian     Penal          Code         and
\n        sentenced to suffer R.I for life.                      Accused Nos.\n<\/p>\n
        3 and 5 are in jail and accused No.2 Rajesh
\n        Shetty     has    been      absconding           after          he       was
\n        released on furlough as per the order passed on
\n        16th March 2004.\n<\/p>\n
      2. The prosecution case as seen from the record is
\n        that on 24th December 1999 the deceased Sunil
\n        Chaugule along with 5 6 others was standing
\n        opposite    the    telephone         booth       by      name          Amit<\/p>\n
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\n                                    3<\/span><\/p>\n
    Communications          in Chinchpada area, New Bombay<\/p>\n
    (Airoli) at about 10 a.m and was waiting for
\n    his brother to go to Thane.                At about 10.15 a.m<\/p>\n
    i.e. within about 15 minutes, 5 6 assailants
\n    armed with deadly weapons like knives, sura and
\n    chopper    etc.,       arrived     there        and     without           any<\/p>\n
    provocation from the deceased or any of his
\n    friends, the deceased was attacked.                          The first
\n    blow     was    given      below         his     chest           and        he<\/p>\n
    immediately started bleeding, to save himself<\/p>\n
    from further attack he ran inside the telephone
\n    booth     and     as     some      of     the        accused            were<\/p>\n
    following, he exited from the rear door of the
\n    telephone booth, but at a distance of about 25
\n    ft. he collapsed in the drain.                           One of the<\/p>\n
    accused     who    had     inflicted           the       first          blow<\/p>\n
    brandished        his    weapon          and    threatened                the
\n    companions of Sunil not to move or interfere
\n    and     therefore,      they       had    receded           backwards.\n<\/p>\n
    After Sunil collapsed in the drain, all the
\n    accused again attacked him and within about 5
\n    minutes     time they left the place.                        Sunil was<\/p>\n
    lifted from the drain by his companions and he
\n    was    profusely       bleeding     and        his    clothes           were
\n    stained with blood as well as mud.                               He was,
\n    shifted to Modi Hospital in a rikshaw by 4 of
\n    his companions and was declared dead by the<\/p>\n
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\n                                  4<\/span><\/p>\n
    Doctor. Dattatraya Pawar (P.W.1) who was one of<\/p>\n
    the companions lodged complaint with the Rabale
\n    Police Station and the same was recorded by<\/p>\n
    Shri Narayan Bankar, P.S.I (P.W.8) as F.I.R,
\n    Exhibit-49 for the offences punishable under
\n    Sections 302, 143, 147, 148 and 149 of the<\/p>\n
    Indian Penal Code at about 10.35 a.m the dead
\n    body of Sunil was forwarded to the Government
\n    Hospital      for    Post    Mortem         and    the       same        was<\/p>\n
    undertaken between 3.30 to 4.50p.m on the same<\/p>\n
    day by Dr. S.G.Bakshi.                 Post Mortem Report at
\n    Exhibit-67 was prepared.                 P.W.15 Shri Pralhad<\/p>\n
    Laxman Chandanshive took over the investigation
\n    from P.W.8 and recorded the statements of eye
\n    witnesses. He arrested accused Nos.3,4 and 5 at<\/p>\n
    about   15.15       hours    on       the     date     of      incident<\/p>\n
    itself and accused No.2 at 22.35 hours, whereas
\n    accused     No.1     came        to    be      arrested           on       5th
\n    January, 2000.         On arrest the clothes of the<\/p>\n
    accused    were     seized       and    while        they      were        in
\n    custody recoveries of weapons i.e. Article Nos.
\n    18,19   and    20    were    made       at     the     instance            of<\/p>\n
    accused Nos.2,3 and 5.                P.W.15 carried out the
\n    spot      panchanama        on         24th       December             1999
\n    (Exhibit-42) and recovered one knife stained
\n    with blood from the spot (Article-1).                                These
\n    weapons as well as the clothes of the accused<\/p>\n
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\n                                    5<\/span><\/p>\n
      and   the     deceased       were      sent         for       Chemical<\/p>\n
      Analysis by P.W.15.              C.A. Report was received
\n      by the I.O.\n<\/p>\n
    3. On completion of investigation charge-sheet was
\n      filed on 23rd March 2000 in the Court of the<\/p>\n
      learned     Judicial     Magistrate,          First         Class         at
\n      Vashi and the case being exclusively triable by
\n      the   Sessions    Court,         it   was    committed            on      9th<\/p>\n
      August 2000.\n<\/p>\n
      Charge was framed on 29th June 2002 against all<\/p>\n
      the accused, but accused No.4 absconded after
\n      the   charge     was    framed        and    therefore,             trial
\n      continued only against 4 accused.                       As per the<\/p>\n
      prosecution      the    deceased            was     attacked            and<\/p>\n
      killed by the accused on 24th April 1999 in a
\n      mistaken identity and the attack was actually
\n      planned on Shri Vijay Chaughule, a known local<\/p>\n
      Politician     and     the       accused          had     hatched           a
\n      conspiracy to eliminate Shri Vijay Chaugule.\n<\/p>\n
    4.The prosecution examined in all 15 witnesses
\n      and P.W.1 Shri. Dattaram R. Pawar, P.W.5 Shri.
\n      Sudhir      Pandurang     Satam,        P.W.10           Shri         Ravi
\n      Shetty, P.W.11 Shri Raju Pawar and P.W.14 Shri<\/p>\n
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\n                                          6<\/span><\/p>\n
      Balu      Dhotre,        P.W.3         Shri     Sudhir         Satam          were<\/p>\n
      claimed       to        be     the        eye       witnesses.              P.W.2
\n      Shri.Bhimrao T. Pawar was examined as a panch<\/p>\n
      witness      in    support           of    the      recovery            of      the
\n      weapons from accused Nos.3 and 5(Memorandum at
\n      Exhibit-51         and         panchanama             at       Exhibit-52)<\/p>\n
      whereas P.W.6 Shri. Kundan Trilok Singh was the
\n      panch       witness          for    the       recovery           of       weapon
\n      Article-20 at the behest of accused No.2.                                     P.W.\n<\/p>\n
      7 and P.W.8 were also the panch witnesses for<\/p>\n
      the recovery of clothes of accused Nos.3,4 and
\n      5 whereas P.W.9 Shri. Mohan Sonvane was the<\/p>\n
      panch witness of clothes seized from the person
\n      of accused No.2. P.W.13 Shri.Kundan Anna Pawar
\n      was     a    panch           witness          for     the        purported,<\/p>\n
      statement made by accused No.1 regarding the<\/p>\n
      conspiracy hatched by accused No.2 in Shinde
\n      Niwas,      Samtanagar,            Airoli       Naka       prior        to      the
\n      incident       and       the       panchanama           was        drawn          at<\/p>\n
      Exhibit-71. P.W.3 was the panch for the inquest
\n      panchanama         at    Exhibit-41             and     P.W.4         was       the
\n      panch for the recovery of the knife (Article<\/p>\n
      No.1) from the spot (near the drain)and the
\n      panchanama was drawn at Exhibit-55.\n<\/p>\n
    5. P.W.12     Shri     Ramesh         Anant       Paranjape             was       the
\n      Special Executive Magistrate, who conducted the<\/p>\n
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\n                                   7<\/span><\/p>\n
      Test Identity Parade on 4th February 2004 in<\/p>\n
      the jail premises at Thane and had drawn the
\n      Test     Identification         Parade       panchanama               at<\/p>\n
      Exhibit-69. Vide the application at Exhibit-40
\n      filed under section 294 of the Code of Criminal
\n      Procedure, the prosecution had placed on record<\/p>\n
      in all 12 documents before the trial Court and
\n      out    of   the     same    the    defence       specifically
\n      admitted     the     inquest      panchanama         dated          24th<\/p>\n
      December     1999     Exhibit-41,        the     Post         Mortem<\/p>\n
      Report dated 24th December 1999 (Exhibit-67),
\n      and the panchanama of attachment of clothes of<\/p>\n
      the deceased Exhibit-61 and 64. As the Post
\n      Mortem Report was admitted, the prosecution did
\n      not    examine      the    Medical     Officer,          who        had<\/p>\n
      conducted     the    autopsy      on   the     body         of      the<\/p>\n
      deceased.\n<\/p>\n
    6. As per the Post Mortem Report Sunil died due to<\/p>\n
      hemorrhage due to tear of spleen, liver and
\n      lung as recorded in coloumn No.17 of the Post
\n      Mortem Report. There were in all 12 injuries<\/p>\n
      noted on the body of the deceased. Ribs 7,6,and
\n      5 were cut, right side lung had a clear incised
\n      injury on anterior aspect at the spleen region,
\n      a clear incised injury horizontally 8 cm., was
\n      noted.      Clear incised injury on the liver was<\/p>\n
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\n                                    8<\/span><\/p>\n
      also   noted    and     clear     incised        injury          at      the<\/p>\n
      superior      and    lateral       aspect       of      the        spleen
\n      region measuring 3×1 cm., deep was also noted.\n<\/p>\n
      As per the Post Mortem Report the death had
\n      occurred within 3 hours of taking last meal.
\n      The trial Court on the basis of the Post Mortem<\/p>\n
      Report and the injuries noted therein recorded
\n      that   Sunil     died    a       homicidal        death         on       24th
\n      December 1999.\n<\/p>\n
    7.In their statements recorded under Section 313
\n      of       Criminal            Procedure                Code               the<\/p>\n
      accused\/Appellants had denied their involvement
\n      in the homicidal death of Sunil and they had
\n      stated their total ignorance to the incident<\/p>\n
      and claimed that they were falsely implicated.\n<\/p>\n
    8. The   learned        Counsel          for     the        Appellants
\n      submitted before us that the T.I. Parade was<\/p>\n
      inordinately delayed and therefore, unreliable,
\n      the    same    was    conducted          in    breach           of       the
\n      guidelines     laid     down      by    this     Court         (On       its<\/p>\n
      Administrative side) and accused No.1 was not
\n      subjected to T.I.Parade.                It was also pointed
\n      out that P.W.10 though claimed to be an eye
\n      witness had not participated in the T.I. Parade
\n      so as to identify the accused he had seen while<\/p>\n
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\n                                        9<\/span><\/p>\n
    attacking Sunil in the incident.                              During the<\/p>\n
    course of arguments it was sought to be pointed
\n    out that the T.I Parade Report at Exhibit-69<\/p>\n
    was   required          to    be       discarded     as      the       Parade
\n    suffered      from          innumerable       infirmities.                   Mr.
\n    Solkar, learned Counsel for the accused No.2<\/p>\n
    submitted that though the accused were arrested
\n    on    the    day       of    the       incident    itself,           in      the
\n    evidence          of        the    P.W.15-the           Investigating<\/p>\n
    Officer, the prosecution did not bring about<\/p>\n
    any lead so as to the involvement of accused,
\n    for     their          arrest          and    therefore,             further<\/p>\n
    recovery of weapons at their instance could not
\n    be relied upon.              It was also submitted that the
\n    testimony of P.W.1, P.W.5, P.W.10, P.w.11 and<\/p>\n
    P.W.14 did not prove beyond reasonable doubt<\/p>\n
    that the accused or any one of them assaulted
\n    Sunil       and    therefore            the   charge        of       causing
\n    murder of Sunil by the accused was not proved<\/p>\n
    by the prosecution. It was also pointed out
\n    that P.W.1, P.W.5, P.W.11 and P.W.14 were the
\n    relations of the deceased as well as Shri Vijay<\/p>\n
    Chaugule and\/or were in the employment of Shri
\n    Vijay Chaugule or P.W. 5 (Raj Constructions)
\n    and therefore, their testimony was required to
\n    be read with care and caution. It was further
\n    submitted that the recovery of weapons at the<\/p>\n
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\n                              10<\/span><\/p>\n
    behest of the accused was not proved and the<\/p>\n
    Chemical   Analysis   Report         was      not        exhibited
\n    though it was sought to be placed on record<\/p>\n
    along with the application at Exhibit-40.                              As
\n    per the defence the documents filed along with
\n    the   application     at       Exhibit-40                and         not<\/p>\n
    specifically    admitted      by     the        defence            were
\n    required to be proved through the evidence of
\n    P.W.15.    In addition P.W.15 did not furnish any<\/p>\n
    explanation as to why there was a delay of 43<\/p>\n
    days in holding the T.I Parade and more so when
\n    at least 4 accused were arrested on the date of<\/p>\n
    the incident itself and all the eye witnesses
\n    were from the same locality.                  In support of
\n    these contentions, reliance has been placed on<\/p>\n
    the following decisions of this Court:-\n<\/p>\n
      1. Bandu     Shankar        Kale     Vs.            State            of
\n          Maharashtra 2002 All M.R. (Cr.) 311<\/p>\n
      2. Vilas Vasantrao Patil Vs. The State of
\n          Maharashtra 1996 Cr.L.J. 1854\n<\/p>\n
      3. Ramchandra     Bhudiram       Gupta       Vs.       State         of<\/p>\n
          Maharashtra 1995 Cr.L.J. 4048\n<\/p>\n
      4. Pravinkumar Kailashchandra Shukla & Ors.
\n          Vs. State of Maharashtra 1997 All. MR.
\n          (Cri.) 93.\n<\/p>\n
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\n                                    11<\/span><\/p>\n
        5. Balu          Shravan        Ahire      Vs.        State            of<\/p>\n
              Maharashtra 2001 All MR. (Cri.) 364.\n<\/p>\n
      They also relied upon the following decisions
\n      of the Supreme Court.\n<\/p>\n
              1. State of Rajasthan Vs. Teja Singh &
\n              Ors. 2001 All MR. (Cri.) 994\n<\/p>\n
              2.Rajesh      Govind        Jagesh     Vs.        State          of<\/p>\n
              Maharashtra 2000 Cr.L.J. 380.\n<\/p>\n
    12. Mr.Solkar, the learned Counsel for the accused<\/p>\n
      No.2    has    also        relied     upon     an        unreported
\n      decision      of    this     Court    (D.B.)        in       Criminal
\n      Appeal No.202\/2003 in the case of Dungar @ Ravi<\/p>\n
      Mohan    Sapharia     Vs.     The    State     of     Maharashtra<\/p>\n
      rendered on 28th April 2009 in support of his
\n      contentions        that    unless     the    prosecution               had
\n      brought,      through        the     evidence          of        P.W.12<\/p>\n
      Investigating Officer, the material before him
\n      to arrest the accused persons on 4th May 2002
\n      or on 5th January 2002, the benefit of doubt<\/p>\n
      would go in favour of the accused persons and
\n      more so because the subsequent recoveries of
\n      weapons    connecting        their        complicity           to      the
\n      incident could not be relied upon.                            He also
\n      relied upon a subsequent decision in the case<\/p>\n
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\n                           12<\/span><\/p>\n
      of Vijay Dadasaheb Bhosle & Ors. Vs. State of<\/p>\n
      Maharashtra 2007(1) Bom. C.R.(Cri.) 717.\n<\/p>\n
      The following observations made by this Court
\n      in the case of Dungar @ Ravi Mohan Sapharia
\n      (Supra) have been more particularly relied upon<\/p>\n
      by Mr. Solkar.\n<\/p>\n
           On 4th May 2002 disclosures were made<\/p>\n
          allegedly by accused persons after they
\n          were arrested. The only evidence which is<\/p>\n
          sought to be pressed into the service
\n          against   the  accused   persons   is   the
\n          evidence collected after arrest of the<\/p>\n
          accused   and  on   the  basis   of   their
\n          disclosure. But what was the material
\n          before the Investigating Officer to arrest
\n          these persons on 4th May 2002 or 5th May<\/p>\n
          2002 has not at all been disclosed. What
\n          was the evidence before the Investigating<\/p>\n
          Officer, supporting as to why he prima
\n          facie thought or why even prima facie he
\n          had suspicion that these accused persons
\n          might be involved in the crime….\n<\/p>\n
    13. Mrs. Deshmukh, the learned A.P.P on the other
\n      hand has supported the order of conviction and<\/p>\n
      sentence.   As per her, the 5 eye witnesses,
\n      though some of them related to the deceased,
\n      are trust worthy and they are natural witnesses
\n      and there is no reason worth considering to
\n      discard their evidence. The T.I parade did not<\/p>\n
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\n                                  13<\/span><\/p>\n
      suffer from any material irregularities and in<\/p>\n
      addition, in the substantial evidence before
\n      the trial Court, the eye witnesses pointed out<\/p>\n
      and    identified       accused     Nos.2,3       and       5.       In
\n      support of her plea that all the documentary
\n      evidence placed before the trial Court along<\/p>\n
      with the application at Exhibit-40 are required
\n      to    be   read    in   evidence,      Mrs.    Deshmukh            has
\n      placed reliance on the decision of the full<\/p>\n
      Bench of this Court in the case of Shaikh Farid
\n      Hussainsab<\/p>\n
                        Vs.   State     of   Maharashtra,              1981
\n      Bom.C.R.520.\n<\/p>\n
    14. P.W.12 Shri Ramesh Paranjpe stated before the
\n      trial Court that he was working as the Special<\/p>\n
      Executive Magistrate up to 31st March 2000 and<\/p>\n
      as per the intimation received from the police
\n      station concerned, he conducted the T.I parade
\n      on 4th February 2000 in the jail premises at<\/p>\n
      Thane and the T.I parade commenced around 12
\n       O    clock in the noon. There were 4 accused and
\n      24 dummies.        He also stated that there were 2<\/p>\n
      independent panch witnesses i.e. Dattatraya &
\n      Suresh.     He had formed 2 rows of 12 dummies in
\n      each and 2 of the accused were made to stand in
\n      each row.     Thus there were 2 rows of 14 persons
\n      from which the identifying witnesses viz: P.W.\n<\/p>\n
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\n                                  14<\/span><\/p>\n
    1, P.W.5, P.W.11 and P.W.14 were called upon to<\/p>\n
    identify the 4 accused i.e. Accused Nos.2 to 5.
\n    He described the procedure he had followed to<\/p>\n
    undertake T.I parade and proved his T.I parade
\n    panchanama at Exhibit-69. In the panchanama the
\n    names of the dummies have been set out and the<\/p>\n
    names of the persons identified by each of the
\n    identifying witnesses.            The learned Counsel for
\n    accused Nos.3 and 5 referred to paragraph 6 of<\/p>\n
    the decision in the case of Vilas Patil (Supra)<\/p>\n
    and submitted that the T.I parade suffered from
\n    irregularities. Undoubtedly this Court on its<\/p>\n
    administration side has issued instructions for
\n    conducting T.I parade and these are contained
\n    in the Criminal Mannual issued for the guidance<\/p>\n
    of   the     Criminal         Courts     and       subordinate<\/p>\n
    officers.        We   have    gone     through         the        same
\n    procedure        elaborately      as   set      out        and        as
\n    referred by the learned Counsel and we have<\/p>\n
    noted that P.W.12 did not comply the following
\n    requirements.\n<\/p>\n
         a)    not    more   than      2   accused       should           be
\n         placed in any single parade and it appears
\n         that all the 4 accused were placed in a
\n         single parade.\n<\/p>\n
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\n                                         15<\/span><\/p>\n
           b) Dummies were required to be selected by<\/p>\n
           the Magistrate himself.                      However, in the<\/p>\n
           instant case the dummies were produced by
\n           the       jail    authorities          and     the      Magistrate
\n           appears          to    be    satisfied        with         the       said<\/p>\n
           selection.\n<\/p>\n
           c)    2    independent            witnesses        from        amongst<\/p>\n
           respectable persons were present with the<\/p>\n
           Executive Magistrate who were brought by
\n           the jail authorities and he appeared to be<\/p>\n
           satisfied by the said selection.\n<\/p>\n
           d)    When        the       identifying         witnesses              are
\n           called,          the       Executive    Magistrate               should<\/p>\n
           have questioned them individually so as to
\n           ascertain from each of them whether they<\/p>\n
           had        opportunity            to    see        the         culprit
\n           subsequent            to    the    offence       or      after         the
\n           arrest.\n<\/p>\n
    15. Though   there           are    merits     in      the        arguments
\n      advanced by the Advocate for the accused, we
\n      have noted that in the instant case the accused
\n      persons have been identified by most of the eye
\n      witnesses in their substantial evidence before<\/p>\n
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\n                               16<\/span><\/p>\n
    the trial Court.        It is well settled that the<\/p>\n
    T.I   parade     does   not     constitute        substantive
\n    evidence    and    it     can    only    be      used         as       a<\/p>\n
    corroborative evidence to the statements in the
\n    Court.     In the case of State of A.P                      Vs. K.
\n    Venkata Reddy A.I.R 1976 SC 2207. The Supreme<\/p>\n
    Court held that the identification tests do not
\n    constitute substantive evidence and they are
\n    precisely made for the purpose of proceeding on<\/p>\n
    the right lines.        The identification can only<\/p>\n
    be used as a corroboration of the statement in
\n    the Court. The necessity for holding the T.I<\/p>\n
    parade     can     only        whether      accused              were
\n    previously known to the witnesses and the whole
\n    idea of the T.I parade is that the witnesses<\/p>\n
    who claim to have seen the culprits at the time<\/p>\n
    of the offence identify from the midst of other
\n    persons without any aid or any other source.
\n    The   identification       proceedings         are        in       the<\/p>\n
    nature of tests significantly, therefore, there
\n    is no provision for it in the Cr.P.C and the
\n    Indian Evidence Act.           However, it is desirable<\/p>\n
    that the T.I parade should be conducted as soon
\n    as the arrest of the accused and this becomes
\n    necessary to eliminate the possibility of the
\n    accused being seen or shown prior to the T.I
\n    parade.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                 17<\/span><\/p>\n
    16.So long as the eye witnesses have identified
\n      the    accused    persons       in    their      substantial<\/p>\n
      evidence, the discrepancies or irregularities
\n      pointed out by the learned Counsel and referred
\n      to    herein   above    would    not,   in    our       opinion,<\/p>\n
      effect the case of the prosecution.\n<\/p>\n
    17. At this stage it is also relevant to note the<\/p>\n
      issue of delay caused in conducting the T.I<\/p>\n
      parade. As noted earlier the incident has taken
\n      place on 24th December 1999 and 4 other accused<\/p>\n
      persons were taken into custody on the same
\n      day.    Whereas accused NO.1 was taken in custody
\n      on or about 5th January 2000.           However, the T.I<\/p>\n
      parade was conducted on 4th February 2000 i.e<\/p>\n
      after about 43 days of the arrest of the most
\n      of the accused.        In the depositions of P.W. 15,
\n      no     explanation,      leave       alone     satisfactory<\/p>\n
      explanation, has come and he has been cross
\n      examined on this issue.              In the case of Dr.
\n      M.V. Ramanna Reddy Vs. State of A.P A.I.R 1991<\/p>\n
      S.C. 1938 it has been held,<\/p>\n
               Where there is unexplained delay in
\n              holding the T.I parade the evidence of
\n              the prosecution, regarding the identity
\n              of an accused cannot be held to be
\n              absolutely reliable and in such a case<\/p>\n
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\n                                   18<\/span><\/p>\n
           the accused is entitled to the benefit
\n           of doubt.\n<\/p>\n
    In the case of Acharaparambath Pradeepan and<\/p>\n
    another Vs. State of Kerala (2006) S.C.C) 643
\n    the date of the incident was 1st December 1999<\/p>\n
    and T.I parade was held on 8th February 2000.
\n    The delay caused in conducting the T.I parade
\n    remained        unexplained.        Accused           No.1           was<\/p>\n
    identified in T.I parade by P.W.5 and he was
\n    identified by P.W.3 and 4 during the trial. The<\/p>\n
    Supreme Court held that he was entitled for the
\n    benefit of doubt.\n<\/p>\n
    On the background of this well settled position
\n    in   law   we    have    to    examine    whether          the       T.I<\/p>\n
    parade held belatedly in the instant case has<\/p>\n
    affected in any way, the case of the accused
\n    and has to give any benefit of doubt to any of<\/p>\n
    the accused. As noted earlier the eye witnesses
\n    being inter-related or related to the deceased
\n    through business, it would be necessary for us
\n    to   consider      their       evidence    with         care         and<\/p>\n
    caution and the delay caused in conducting the
\n    T.I parade becomes an additional reason for the
\n    same purpose and only on the ground of delay in
\n    conducting      T.I     parade,    the    prosecution              case
\n    cannot be thrown out.\n<\/p>\n
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\n                               19<\/span><\/p>\n
    18. The prosecution has claimed P.W.1, P.W.5, P.W.
\n      10, P.W.11 and P.W.14 as the eye witnesses.\n<\/p>\n
      P.W. 10 Ravi Shetty did not participate in the
\n      T.I parade held on 4th February 2000 and he has
\n      identified some of the accused for the first<\/p>\n
      time during his substantial evidence before the
\n      Court that too only in respect of accused Nos.3
\n      and 10.     It would be therefore, appropriate for<\/p>\n
      us to examine the prosecution case on the basis<\/p>\n
      of the evidence of P.W.1, P.W.5, P.W.11 and
\n      P.W.14.\n<\/p>\n
    19.We have also noted that the depositions before
\n      the trial Court were recorded in Marathi as<\/p>\n
      well as in English.      It is evident that almost<\/p>\n
      all the witnesses were Marathi speaking and the
\n      depositions recorded in Marathi were translated
\n      by the learned Judge in English.            We have come<\/p>\n
      across material mistakes while translating the
\n      Marathi depositions into English and therefore,
\n      we   have   preferred   to   refer   to      the       Marathi<\/p>\n
      depositions as recorded in the trial Court.\n<\/p>\n
    20. P.W.1 Datta Pawar is the brother of the mother
\n      of the deceased as well as the mother of Vijay
\n      Chaughule.     It also appears that the father of<\/p>\n
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\n                                   20<\/span><\/p>\n
    the deceased as well as the father of Vijay<\/p>\n
    Chaughule are full blood brothers.                       He was also
\n    looking after the business of the deceased.                                 He<\/p>\n
    stated       before     the        trial        Court           in        his
\n    examination-in-chief that around 10 a.m on 24th
\n    December 1999 he was standing in front of the<\/p>\n
    STD    booth    along       with    Balu       Dhotre         (P.W.14),
\n    Datta, Sudhir Satam(P.W.5), Ravi Shetty (P.W.\n<\/p>\n
    10) and Raju Pawar (P.W.11) and the deceased<\/p>\n
    was also in the same group.                    The deceased had<\/p>\n
    informed him about 10 minutes before that he
\n    was waiting for his brother to go to Vashi.\n<\/p>\n
    Suddenly       5,6    persons        arrived          with          deadly
\n    weapons and those who were before the trial
\n    Court arrived at the scene and attacked the<\/p>\n
    deceased on his chest.                   The deceased shouted<\/p>\n
    and tried to run away behind the STD booth, but
\n    he was followed by 2,3 accused persons. He fell
\n    down in the drain located behind the STD booth<\/p>\n
    and all the accused continued to assault him.
\n    Some    of    the    accused       were    brandishing                their
\n    weapons and asking the people around not to<\/p>\n
    intervene, within 5,6 minutes all the 6 accused
\n    persons      went    towards       the    Belapur         road        side.
\n    Sunil was lifted from the drain and his clothes
\n    were   stained       with    blood       and     mud      as      he      had
\n    received number of injuries on his person.                                  He<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                    21<\/span><\/p>\n
    was shifted to Modi hospital in an autorikshaw,<\/p>\n
    and he was declared dead by the Doctor.                                      He
\n    went to the Rabale police station and lodged<\/p>\n
    the complaint at Exhibit-49, which was reduced
\n    in    writing      by    P.W.8.          He     stated        that         the
\n    assailants were not known to him, but he could<\/p>\n
    identify them, if shown. He also stated that he
\n    came to know the name of accused No.2 later on
\n    and    he   had    made       the       first    assault           on      the<\/p>\n
    deceased.    He     identified            accused       Nos.3        and       5<\/span>
\n    before the Court
\n                        ig       and stated that accused No.3
\n    had a chopper in his hand and accused No.5 had<\/p>\n
    a sura in his hand.                     He further stated that
\n    after the incident he was in his village for 2
\n    months      and     after           receiving          summons             for<\/p>\n
    identification he identified some of them in<\/p>\n
    the jail premises. He stated that he identified
\n    all   the   accused          persons      in    the      T.I       parade.
\n    Article     Nos.1,18,19             &     20    which         were         the<\/p>\n
    weapons, were shown to him before the Court and
\n    he identified the same to have been used while
\n    assaulting        the    deceased.         Though        he      did       not<\/p>\n
    assign a specific role to accused Nos.3 and 5<\/span>
\n    in his examination-in-chief, he stated in his
\n    cross-examination that after the deceased fell
\n    in    the   drain       he    was       assaulted        by      all       the
\n    accused with the weapons in their hands. He<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                    22<\/span><\/p>\n
      also admitted in his cross-examination that he<\/p>\n
      had never seen accused Nos.3 and 5 before the
\n      incident      and    the     same   applied     to       all       the<\/p>\n
      accused. He specifically denied the suggestion,
\n      in     his   cross-examination,        that     any        of      the
\n      accused persons or their photographs were shown<\/p>\n
      to him by the police before the T.I parade.                          He
\n      also      admitted    that     after   the    deceased             was
\n      assaulted and was taken in autorikshaw along<\/p>\n
      with him there were P.W.14, P.W.10 and P.W.5<\/p>\n
      and his clothes were stained with blood while
\n      taking the deceased to the hospital, but his<\/p>\n
      clothes were not seized by the police.\n<\/p>\n
    21. P.W.5   Sudhir     Satam    stated   before        the        trial<\/p>\n
      Court in his examination-in-chief that between<\/p>\n
      10.15 a.m on 24th December 1999 he was standing
\n      in front of the STD booth at Chinchpada along
\n      with Sunil (the deceased), Datta Pawar (P.W.1),<\/p>\n
      Balu Dhotre (P.W.14) and Ravi Shetty (P.W.10)
\n      and 5 to 6 persons from the opposite direction
\n      arrived at the scene and one of them gave first<\/p>\n
      blow with a knife in his hand below the chest
\n      of the deceased.           As per him it was Ravi Shetty
\n      who gave the first blow.            He identified accused
\n      No.2 Rajesh Shetty before the Court.                   He stated
\n      that after the assault on him Sunil ran from<\/p>\n
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\n                                    23<\/span><\/p>\n
    the rear exit of the STD booth and was chased<\/p>\n
    by   accused      Nos.3       and    5.    While       running           away
\n    Sunil fell in the drain and at that time 3 of<\/p>\n
    the accused were brandishing their weapons and
\n    threatening others not to intervene.                          All these
\n    accused started assaulting Sunil while he was<\/p>\n
    in the drain and within few minutes they left.
\n    Sunil was lifted from the drain and was taken
\n    to Modi hospital in rikshaw. He was declared<\/p>\n
    dead.      After about a month and quarter he was<\/p>\n
    called for the T.I parade and accused Nos.2 and
\n    3 before the Court were identified by him in<\/p>\n
    the said parade.               He also identified the 4
\n    weapons i.e. Article Nos.1,18,19 and 20 when
\n    showed to him before the Court as the weapons<\/p>\n
    used    for    assaulting           Sunil.       In       his        cross-\n<\/p>\n
    examination       he     admitted         that    he     is      a     Civil
\n    Contractor        and    runs       the     Firm       by     name         Raj
\n    Constructions along with another person by name<\/p>\n
    Arun. He described the personal appearance of
\n    the accused, who had given the first blow to
\n    Sunil   in    the       incident.      He    also        stated          that<\/p>\n
    though he had lifted Sunil from the drain, his
\n    clothes were not stained with blood, but they
\n    were stained with mud.                He also admitted that
\n    he   did    not    go    to    the    Civil        hospital            where
\n    Sunil s dead body was sent for P.M and he saw<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                 24<\/span><\/p>\n
    the dead body only during the cremation. He<\/p>\n
    also   denied       the   suggestion      that       he      did       not
\n    attend the T.I parade and that these accused<\/p>\n
    persons had not assaulted the Sunil. He also
\n    denied the suggestion that the accused No.2 did
\n    not assault Sunil and he was not brandishing<\/p>\n
    the weapons threatening due to panic of Sunil
\n    including himself. His statement was recorded
\n    by the police on 25th December 1999. During his<\/p>\n
    cross-examination          he    admitted        that         he       was<\/p>\n
    working as a Manager in the Firm run by Vijay
\n    Chaughule for some time and he knew all the<\/p>\n
    persons in the family of Sunil Chaughule. He
\n    also stated that at the spot all of them were
\n    standing for about 10 to 12 minutes.                          He also<\/p>\n
    stated that out of the assailants he had seen 4<\/p>\n
    accused at the first instance and he had not
\n    seen them at any time earlier.                  He also stated
\n    that    all    the    assailants        started          assaulting<\/p>\n
    Sunil without any provocation and there was no
\n    hue    and    cry    raised      by    the    people           around.
\n    Immediately on the first assault, Sunil started<\/p>\n
    bleeding and running away from the scene. He
\n    was    followed      by   the     assailants.           The        whole
\n    incident was over within 5 to 7 minutes.                             When
\n    Sunil was lifted from the drain, his clothes
\n    were stained with mud.                In the T.I parade all<\/p>\n
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\n                                  25<\/span><\/p>\n
      the persons shown to him were unknown to him.\n<\/p>\n
      He also denied the suggestion that the accused
\n      persons were shown to him in Vashi Court at the<\/p>\n
      time of their remand or that they were shown
\n      before he participated in T.I parade.                       He also
\n      denied the suggestion that he did not identify<\/p>\n
      the accused Nos.3 and 5 in the T.I parade.\n<\/p>\n
    22. P.W.11   Raju Pawar in his examination-in-chief<\/p>\n
      described the incident in the same manner as<\/p>\n
      was done by P.W.1 and P.W.5.\n<\/p>\n
      accused No.2 as the first assailant on Sunil
\n                                                     He identified<\/p>\n
      and the assailants were 6 in number and they
\n      were assaulting Sunil with Sura and Chopper.
\n      The incident was over within 5 to 6 months.\n<\/p>\n
      Sunil was lifted from drain and was taken to<\/p>\n
      Modi hospital in rikshaw.            He was one of the
\n      persons     accompanied     Sunil     to      Modi         hospital
\n      where Sunil was declared dead.              1\u00bd months later<\/p>\n
      he received the summons for T.I parade and he
\n      participated    in   the    same.    He      had      identified
\n      accused Nos.2 and 5 in the T.I parade.                         During<\/p>\n
      his cross examination he admitted that Vijay
\n      Chaughule is the cousin from the paternal side
\n      and    same    was   the        relationship           with          the
\n      deceased. He also stated that he had given the
\n      description     of   the    accused       persons            in      his<\/p>\n
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\n                                 26<\/span><\/p>\n
    statement to the police.                  The assailants, after<\/p>\n
    the incident had gone towards Belapur side, but
\n    he could not state by which vehicle they                                  had<\/p>\n
    arrived and subsequently left.                       He did not go
\n    to the police to file a complaint though his
\n    statement was recorded by the police on 24th<\/p>\n
    September 1999. He denied the suggestion that
\n    his statement was recorded after 4,5 days. He
\n    also denied the suggestion that it was not the<\/p>\n
    accused No.5 who had inflicted first blow to
\n    Sunil.     He<\/p>\n
                       also     admitted            in      his         cross-\n<\/p>\n
    examination        that     the       whole          incident             was<\/p>\n
    spontaneous and the accused who gave first blow
\n    on Sunil did not run after him immediately. He
\n    also denied the suggestion that only one person<\/p>\n
    had assaulted Sunil.             He also admitted that he<\/p>\n
    had not seen any of the accused prior to the
\n    incident, but had identified them in the T.I
\n    parade.     In the T.I parade there were 27 to 28<\/p>\n
    persons    standing        in    3    lines.            He      did       not
\n    recollect       the   number         at     which      the        accused
\n    persons were standing in the 3 lines.                           The size<\/p>\n
    of   the    room      in   which          the   T.I      parade           was
\n    conducted was 10 x 30 ft. He also admitted
\n    that out of 27 to 28 people standing in the T.I
\n    parade he knew some of them.                         He denied the
\n    suggestion that he was not standing near the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                       27<\/span><\/p>\n
     STD booth and he had not seen the incident. He<\/p>\n
     also described the clothes on the persons of
\n     the accused at the time of the incident.\n<\/p>\n
    23.Now coming to the deposition of P.W.14 Shri
\n     Balu Dhotre, he stated before the trial Court<\/p>\n
     about the incident on the same lines as the eye
\n     witness    referred         to    herein     above.         He       stated
\n     that   accused     No.2      threatened         Sunil         and       gave<\/p>\n
     first blow with Sura like weapon on his chest.\n<\/p>\n
     Sunil ran behind the STD booth and accused No.2
\n     threatened       others.              Immediately          thereafter<\/p>\n
     accused Nos.5 and 2 followed Sunil and Sunil
\n     fell in the drain. The accused continued to
\n     assault     Sunil.     There          were   in      all        5     to      6<\/p>\n
     assailants      and    within          few   minutes          they         ran<\/p>\n
     away. He identified article No.20 as the weapon
\n     which was used by accused No.2 while attacking
\n     Sunil.     He   identified            accused      Nos.1,           and       3<\/span><\/p>\n
     before the Court as the assailants.                              He also
\n     admitted that he had participated in the T.I
\n     parade and had identified accused Nos.2 and 5.\n<\/p>\n
     In his cross-examination he admitted that he
\n     was running the fair-price shop licenced in the
\n     name of Sunil s wife Vandana.                     He denied that
\n     Dattatraya      Dhotre       was       his   cousin.            He      also
\n     admitted    that      his    statement        was       recorded            by<\/p>\n
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\n                                      28<\/span><\/p>\n
      police.       He also denied the suggestions that on<\/p>\n
      the date of the incident the rationshop was
\n      half     opened.      He     did     not     realise          that       the<\/p>\n
      assailants had come to attack Sunil. On the
\n      first     assault       he     started       bleeding           and        he
\n      started running. The time gap between the first<\/p>\n
      and     the    second      assault      was     about          3     to      4
\n      minutes.       He had seen the assailants assaulting
\n      Sunil even while he had fallen in the drain and<\/p>\n
      he had seen the second assault from a distance
\n      of about 10 to 12 ft.\n<\/p>\n
                            ig            He denied the suggestion\n      that he was not the eye witness.                        In his cross\n                          \n<\/pre>\n
      examination he stated that the assailants came
\n      and suddenly took out the weapons.                        The day of
\n      incident was Friday, but it was not a festival<\/p>\n
      day. He described the clothes of the assailants<\/p>\n
      and    their     personal          appearance      etc.        He      also
\n      stated        that   the      deceased       was        not     in        his
\n      relation. This witness also identified accused<\/p>\n
      Nos.2,3 and 5 before the Court.\n<\/p>\n
    24.Coming to the recovery of the weapons, as per<\/p>\n
      the    prosecution,          the    recovery       of    the       weapon
\n      from accused No.2 has been proved through the
\n      evidence of P.W.6 Kundan vide Exhibits-58 and\n<\/p>\n
      59.     Article      No.20     was     the     weapon          and       the
\n      Article No.21 was the photograph and both of<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                    29<\/span><\/p>\n
      them were recovered from the terrace of the<\/p>\n
      building       i.e.   The    house        of    accused          No.2        at
\n      Dombivli(Taibai Niwas).              P.W.6 admitted in his<\/p>\n
      cross examination that the terrace was open.
\n      Nothing further was brought on record in the
\n      cross-examination           and     the    witness           was        shown<\/p>\n
      Article 20 before the Court and he identified
\n      the     same    as    having      been         recovered           at      the
\n      instance of accused No.2. We are satisfied that<\/p>\n
      the trial Court rightly accepted this recovery.\n<\/p>\n
    25. For the recovery of weapons at the behest of<\/p>\n
      accused Nos.3 and 5 the prosecution examined
\n      P.W.2    and    during      his     depositions            before          the
\n      Court he was shown Articles 19 and 20.                             Article<\/p>\n
      18 was not shown to him though its description<\/p>\n
      finds place in panchanamas Exhibits-51 and 52.
\n      Though     Article-19        is     claimed          to     have         been
\n      recovered at the instance of accused accused<\/p>\n
      No.3, we have noted that his memorandum was not
\n      drawn and therefore, this recovery within the
\n      meaning    of     Section      27    of        the     Evidence            Act<\/p>\n
      cannot be believed.            In short both the weapons
\n      allegedly recovered at the instance of accused
\n      Nos.3 and 5 i.e. Article No.18 and 19 could not
\n      be    identified      and    their        recovery           cannot          be
\n      relied upon so as to connect accused Nos.3 and<\/p>\n
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\n                                 30<\/span><\/p>\n
      5 with the said weapons allegedly used in the<\/p>\n
      attack dated i.e on 24th December 1999.                         It is
\n      also   important     to   note      that     none        of      these<\/p>\n
      weapons were subjected to the examination by
\n      the Finger Print Expert, which could have been
\n      an additional circumstance in connection with<\/p>\n
      the weapons.       Mrs. Deshmukh, the learned A.P.P
\n      sought to rely upon the C.A report which was
\n      sought   to   be    brought    on    record          along         with<\/p>\n
      application Exhibit-40.          At the first instance<\/p>\n
      the said report was not put to P.W.15 during
\n      his depositions and therefore, it could not be<\/p>\n
      exhibited.    Even    otherwise        the      weapons            were
\n      recovered from the open place on the 3rd day of
\n      the incident and almost about 10 ft. away from<\/p>\n
      the road (near Mhapa bridge).                The C.A report<\/p>\n
      did not detect the blood group and it only
\n      stated that human blood was noted on its blade.
\n      The blood group of the deceased was                   B .\n<\/p>\n
    26. Each of the four eye witnesses stated without
\n      any ambiguity that accused No.2, used the said<\/p>\n
      weapon   Article     No.20     while    giving           the       very
\n      first blow to Sunil below his chest, they also
\n      stated that it was accused No.2 after giving
\n      the first blow to Sunil, brandished                       the said
\n      weapon to threaten them so as to keep them at<\/p>\n
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\n                                        31<\/span><\/p>\n
    bay. He was identified by each of the witnesses<\/p>\n
    before the Court as being the main assailant.
\n    Though Article-20 was not sent for examination<\/p>\n
    to the Finger Print Expert, on the face of the
\n    evidence      of        as    many        as    4     eye      witnesses,
\n    regarding the complicity of the accused No.2 in<\/p>\n
    assaulting Sunil.                  We are satisfied that this
\n    deficiency         by    itself          would      not      effect           the
\n    prosecution case.                  We must also note that the<\/p>\n
    presence      of    accused             Nos.3   and     5     along         with
\n    accused No.2
\n                         ig at the spot of incident and in
\n    the attack on Sunil has been established.                                   What<\/p>\n
    is not established is the blows attributed to
\n    accused Nos.3 and 5 with the weapons, while
\n    attacking the deceased during the incident. At<\/p>\n
    the    same   time           the    P.M.Report          at     Exhibit-67<\/p>\n
    indicates      that           the        deceased       has         received
\n    injuries in addition to incised injuries and
\n    they appear to be grievous injuries. We have<\/p>\n
    seen   all    the       muddemal          articles        i.e       articles
\n    1,18,19 and 20 and article 20 is a sharp knife
\n    which relates to the injuries caused by accused<\/p>\n
    No.2. The oral evidence of the eye witness does
\n    prove the participation of accused Nos.3 and 5<\/span>
\n    in the assault on Sunil but the prosecution
\n    case that they assaulted Sunil with articles 18
\n    and 19 weapons is not proved.                       We therefore, do<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                      32<\/span><\/p>\n
    not    agree       with    the    finding          recorded          by      the<\/p>\n
    trial    Court       that       accused        Nos.3        and        5     had
\n    committed any overt act by means of any weapon,<\/p>\n
    resulting into the death of Sunil. It is the
\n    prosecution case that all the accused had given
\n    blows of weapons while attacking Sunil and it<\/p>\n
    would    be,       therefore,          unsafe       to      accept           the
\n    prosecution         case       that     accused       3    and       5     also
\n    caused deadly injuries or the incised wounds.\n<\/p>\n
    At the same time the findings recorded by the<\/p>\n
    trial Court against accused No.2 are required
\n    to be confirmed, on the face of the evidence of<\/p>\n
    the eye witness viz: A-1,A-5,A-11 and A-14 read
\n    with the P.M report. The evidence of all the
\n    four eye witnesses is found to be cogent and<\/p>\n
    inspiring         confidence.           Though       there         is       some<\/p>\n
    scope to believe that the F.I.R filed by the
\n    P.W.1    at       Exhibit-49          was    not    free       from        some
\n    exaggerations,            in     his        substantial            evidence<\/p>\n
    before the trial Court, his testimony on the
\n    material aspects of the incident is reliable.
\n    All   the     4    eye     witnesses         consistently              stated<\/p>\n
    before      the     trial       Court         that        none       of      the
\n    accused were known to them and they had not
\n    seen any of them prior to the incident.                                    There
\n    is no scope to attribute any motive on the part
\n    of    these       witnesses      to     implicate          any       of      the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                   33<\/span><\/p>\n
    accused on any false ground or on the behest of<\/p>\n
    some persons. In the F.I.R at Exhibit-49 the
\n    names of the other eye witnesses i.e. P.W.5,<\/p>\n
    P.W.11 and P.W.14 clearly appear                        as being the
\n    persons who were at the spot along with P.W.1
\n    as    well    as    the    deceased         at      the        time        the<\/p>\n
    deceased      was    attacked        by     the       accused.             The
\n    recovery      of    clothes        from   the      person          of      the
\n    accused while they were under arrest has been<\/p>\n
    proved by the evidence of P.W.7 and 8 and the<\/p>\n
    same description tallies with the clothes which
\n    were sent for C.A as per the evidence of P.W.\n<\/p>\n
    15.     The   prosecution          case    is       not       based          on
\n    circumstantial evidence and therefore, absences
\n    of any lead when the accused were arrested may<\/p>\n
    not be a material circumstance so as to weaken<\/p>\n
    the prosecution case.                The incident has taken
\n    place    during      the   broad      day      light         and        on     a
\n    public street. It ought to have been noticed by<\/p>\n
    number of other persons in the market, but as
\n    is known, when it comes to becoming a witness,
\n    the normal tendency is to shy away from helping<\/p>\n
    the     prosecution.       The       presence           of      the        eye
\n    witnesses at the spot is also connected with
\n    the business activities and therefore, there
\n    were no material improvements on the part of
\n    any     of    theses      witnesses       so        far       as       their<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                     34<\/span><\/p>\n
    presence     at       the    spot          as      well         as       their<\/p>\n
    description on the material particulars of the
\n    assault     on    Sunil         in     2     stages           i.e        first<\/p>\n
    inflicted    at       the   STD       booth      and       subsequently
\n    while he fell in the drain in the process of
\n    saving himself. The evidence of these 4 eye<\/p>\n
    witnesses        also       unquestionably                 shows           that
\n    accused    No.2       inflicted         multiple           assaults            on
\n    Sunil and he gave blows at both the places.\n<\/p>\n
    Article-20 which has been seen by us in the
\n    muddemal<\/p>\n
                 property           is      capable            of        causing
\n    injuries which are found to be the cause of<\/p>\n
    death in the P.M.report. It is also to be noted
\n    that as per the case of the prosecution through
\n    the evidence of P.W.15 some of the accused have<\/p>\n
    been    known     criminals           and       accused          No.2        was<\/p>\n
    accused    in     3    or   4        cases      for     the        offences
\n    punishable       under      Section          302      of     the       Indian
\n    Penal Code. In these obtaining circumstances,<\/p>\n
    the following observations made in the case of
\n    Dungar Sapharia (supra)and relied upon by Mr.
\n    Solkar; are not applicable-\n<\/p>\n
             Learned Counsel for the appellants have
\n           drawn our attention to the another fact
\n           that   PW    12,   who   was   the   first
\n           Investigating Officer, stated that he
\n           arrested the accused persons on 4th May,
\n           2002, whereas there is nothing stated by
\n           the Investigating Officer as to on what
\n           basis these accused persons were arrested.\n<\/p><\/blockquote>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                      35<\/span><\/p>\n
             On 4th May, 2008 disclosures were made
\n             allegedly by accused persons after they<\/p>\n
             were arrested. The only evidence which is
\n             sought to be pressed into service against<\/p>\n
             the   accused   persons  is  the  evidence
\n             collected after arrest of the accused and
\n             on the basis of their disclosure. But what
\n             was the material before the Investigating<\/p>\n
             Officer to arrest these persons on 4th May,
\n             2002 or 5th May 2002 has not at all been
\n             disclosed.    What was the evidence before
\n             the Investigating Officer, supporting as
\n             to why he prima facie thought or why even<\/p>\n
             prima facie he had suspicion that these
\n             accused persons might be involved in the<\/p>\n
             crime.\n<\/p><\/blockquote>\n
    27.For the reasons stated above we are satisfied
\n      that     the    order     of     conviction         and       sentence
\n      passed    against       accused       No.2    deserves            to      be<\/p>\n
      confirmed.      However,        the    said        order        against<\/p>\n
      accused Nos.3 and 5 is unsustainable.                         As noted
\n      earlier their presence at the spot is proved
\n      but their participation in the assault by the<\/p>\n
      weapons was not proved by the evidence of the
\n      eye    witnesses,       as     the   prosecution          failed          to
\n      bring on record the connection between the acts<\/p>\n
      attributed      to    the      accused       and     the        weapons
\n      recovered, therefore, at the best what could be
\n      attributed to these accused is only thrashing
\n      of the deceased thereby causing grievous hurts
\n      to him. We, therefore, find sufficient material
\n      to     hold    that     the     offence      punishable             under<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                       36<\/span><\/p>\n
       Section 325 read with Section 34 of the Indian<\/p>\n
       Penal Code has been proved against accused Nos.
\n       3     and   5     and    the   offence      punishable                under<\/p>\n
       Section 302 read with Section 34 of the Indian
\n       Penal Code has not been proved against them.
\n       It    is    not    the    prosecution      case         that        either<\/p>\n
       accused No.3 or 5 or both of them had held the
\n       deceased thereby facilitating the accused No.2
\n       inflicting any injury on the deceased.                             In the<\/p>\n
       absence of any specific overt act attributing<\/p>\n
       to any of these accused so as to result in his
\n       death,      it    would    not      be   safe     that        they        are<\/p>\n
       convicted under Section 302                read with Section
\n       34 of the Indian Penal Code and to that extent
\n       we do not agree that the findings recorded by<\/p>\n
       the trial Court as well as the reasoning in<\/p>\n
       support thereof.\n<\/p>\n
    28. In   the premises, Criminal Appeal No.1229\/2002<\/p>\n
       fails and the same is hereby dismissed.                                   The
\n       order of conviction and sentence passed by the
\n       trial Court under Section 302 of the Indian<\/p>\n
       Penal Code is hereby confirmed against accused
\n       No.2. Criminal Appeal No.1162\/2002 and Criminal
\n       Appeal No.36\/2003 partly succeed.                      The order of
\n       conviction and sentence passed against accused
\n       Nos.3 and 5 for the offence punishable under<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>
\n                                  37<\/span><\/p>\n
      Section 302     read with Section 34 of the Indian<\/p>\n
      Penal Code is hereby set aside and instead they
\n      are convicted for the offence punishable under<\/p>\n
      Section 325 read with Section 34 of the Indian
\n      Penal Code.      We sentence them to undergo R.I
\n      for 7 years. Undoubtedly they shall be entitled<\/p>\n
      to set off under Section 428 of the Code of
\n      Criminal Procedure, if any.\n<\/p>\n
    29.The Appellant in Criminal Appeal No.1229\/2002
\n      (Accused    No.2)
\n                       ig is     reported       to   be     absconding
\n      from 2004 onwards. We direct the Commissioner<\/p>\n
      of Police, New Bombay to take appropriate steps
\n      and produce the said accused before us within 4
\n      weeks.\n<\/p>\n
    30.The Registrar (Judicial) is directed to issue
\n      non-bailable warrant against accused No.2 Shri
\n      Rajesh Umakant Shetty.\n<\/p>\n
    31. The   warrant shall be collected by the Senior
\n      Police Inspector, Rabale Police Station, New<\/p>\n
      Bombay     before   16th        October    2009         from         the
\n      Registry.\n<\/p>\n
      [SMT.ROSHAN DALVI, J.]             [B.H. MARLAPALLE, J.]<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:12:56 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Rajesh Umanath Shetty vs The State Of Maharashtra on 12 October, 2009 Bench: B.H. Marlapalle, R. S. Dalvi 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1229 OF 2002 Rajesh Umanath Shetty …Appellant Vs. The State of Maharashtra …Respondent WITH CRIMINAL APPEAL NO.1162 OF 2002 Pravin […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-147344","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRajesh Umanath Shetty vs The State Of Maharashtra on 12 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajesh-umanath-shetty-vs-the-state-of-maharashtra-on-12-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajesh Umanath Shetty vs The State Of Maharashtra on 12 October, 2009 - 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