{"id":218977,"date":"2010-02-18T00:00:00","date_gmt":"2010-02-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/central-prison-and-undergoing-the-vs-the-state-of-maharashtra-on-18-february-2010"},"modified":"2018-02-26T18:10:32","modified_gmt":"2018-02-26T12:40:32","slug":"central-prison-and-undergoing-the-vs-the-state-of-maharashtra-on-18-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/central-prison-and-undergoing-the-vs-the-state-of-maharashtra-on-18-february-2010","title":{"rendered":"Central Prison And Undergoing The vs The State Of Maharashtra on 18 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Central Prison And Undergoing The vs The State Of Maharashtra on 18 February, 2010<\/div>\n
Bench: P. B. Majmudar, Rajesh G. Ketkar<\/div>\n
                                             1\n\n                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                             CRIMINAL APPELLATE  JURISDICTION\n\n\n\n\n                                                                                     \n                               CRIMINAL APPEAL NO.1034  OF 2008 \n\n\n\n\n                                                             \n    1]         Arunkumar @ Kallu Rajendraprasad Pande,\n               Aged : 34 years,\n\n\n\n\n                                                            \n    2]         Ashok @ Guddu Rajendraprasad Pande,\n               Aged : 32 years,\n\n\n\n\n                                              \n    3]         Santosh @ Lallu Rajendraprasad Pande,\n               Aged : 27 years,     \n               All r\/o.Bangali Chawl, Yadav Nagar,\n                                   \n               Pande Bakery Stores, Near Shivam,\n               Vidya Mandir, Khairani Road,\n               Sakinaka, Mumbai\n               (At present lodged in Mumbai\n           \n\n\n               Central Prison and undergoing the\n        \n\n\n\n               sentence imposed upon them                             ....Appellants\n\n     \n                              Vs.\n\n\n\n\n\n               The State of Maharashtra\n               (At the instance of Sakinaka Police Station\n\n\n\n\n\n               vide their C.R.No.85 of 2003)                          ....Respondents \n                                                     \n\n                                     .........\n    Mr.Sudeep Pasbola, for appellants.\n    Mrs.V.R.Bhosale, APP for respondent-State. \n                                     .........\n\n\n\n    cri.appeal.1034-08.sxw\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 15:37:50 :::\n                                                         2\n\n                                        CORAM                     :   P.B.MAJMUDAR &\n                                                                      R.G.KETKAR, JJ.\n<\/pre>\n
                                        RESERVED ON         :  20  JANUARY, 2010\n                                                                    th\n\n\n                                        PRONOUNCED ON   :  18  FEBRUARY, 2010\n                                                                    th\n\n\n\n\n                                                                 \n                              \n    JUDGMENT : (Per R.G.KETKAR, J.)\n\n\n\n\n                                                                \n<\/pre>\n
                             This appeal is preferred by the original accused Nos.1 to 3 <\/p>\n
    challenging the judgment and order dated September 17, 2008 passed by <\/p>\n
    the learned Additional Sessions Judge, Greater Bombay in Sessions Case <\/p>\n
    No.449   of   2003.     By   the   impugned   judgment   and   order,   the   learned <\/p>\n
    Sessions Judge found all the accused guilty under Section 235 (2) of the <\/p>\n
    Code   of   Criminal   Procedure,   1973   (for   short   “Cr.P.C.”)   of   the   offence <\/p>\n
    punishable under Sections 302 r\/w.34 Indian Penal Code (for short  “IPC”).\n<\/p>\n
    The accused were sentenced to suffer imprisonment for life and to pay <\/p>\n
    fine of Rs.5,000\/- each, in default to suffer R.I. for three months  each.\n<\/p>\n
    The accused No.2 was convicted under Section 235(2) of the Cr.P.C. for <\/p>\n
    the offence punishable under Section 324 IPC and sentenced to suffer R.I.\n<\/p>\n
    for 3 years with fine of Rs.2,000\/-, in default, to further suffer R.I. for  one <\/p>\n
    month.   The sentences of the accused no.2 were to run concurrently. The <\/p>\n
    case of the prosecution is as under.\n<\/p>\n
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    2]                       Jahid Khan – informant in the present case (P.W.2) along with <\/p>\n
    brother Laik Khan (hereinafter referred as “the victim”), his brother-in-law <\/p>\n
    Zulfikar Khan PW 3 along with others were residing in New Iqbal Bakery, <\/p>\n
    situate   at   Munna   Estate,   in   front   of   Cafe   Naaz   Hotel,   Khairani   Road, <\/p>\n
    Sakinaka, Mumbai – 400 072.  They were buying bakery products from the <\/p>\n
    said bakery and also were buying milk, eggs and breads and used to sell <\/p>\n
    those articles in Hiranandani Complex, Powai and Jalwayu Vihar Society <\/p>\n
    as hawkers between 5:00 am. and 9:00 am. in the morning and 5:30 pm. <\/p>\n
    and  10.30 pm. in the evening.\n<\/p>\n
    3]                       The accused were resident of Bengali Chawl, Yadav Nagar, <\/p>\n
    Khairani Road, which was situate at a distance about 1 k.m. from the said <\/p>\n
    bakery.   The accused were also dealing in the said bakery products by <\/p>\n
    purchasing them from the said bakery and also used to sell milk, eggs and <\/p>\n
    breads at other places.  About 3 to 4 days prior to the incident in question, <\/p>\n
    a quarrel took place between Zulfikar PW 3 and uncle of the accused No.1, <\/p>\n
    as   the   accused   were   selling   the   bakery   products,   milk,   eggs   in <\/p>\n
    Hiranandani   Complex,   being   the   area   where   PW   2   Jahid   and   PW   3 <\/p>\n
    Zulfikar used to sell the said products.  On April 3, 2003,  accused Nos.1 <\/p>\n
    and   2   came   to   the   bakery   at   about   4   pm.   and   started   abusing   PW   3 <\/p>\n
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    Zulfikar.  After the exchange of hot words. The accused told that they will <\/p>\n
    come on the next date and will see what to do.  They left the bakery.\n<\/p>\n
    4]                       On April 4, 2003, at about 4 p.m. all the accused came to the <\/p>\n
    said   bakery   and   started   abusing   PW   3   Zulfikar.         Munshi   of   the   said <\/p>\n
    bakery and PW 2 Jahid tried to pacify the accused persons.  Since there <\/p>\n
    was no response, PW 2 Jahid and the victim told them that they will lodge <\/p>\n
    complaint to the police.       When PW 2 Jahid started for Sakinaka police <\/p>\n
    station from rear side Galli from the rare side door, he saw some persons <\/p>\n
    standing in the galli.   He felt that they were from the side of accused.  He <\/p>\n
    got frightened and came back to the bakery.    PW 2 Jahid started for the <\/p>\n
    police station from the main road through Saibaba Galli.  At that time, the <\/p>\n
    victim   and   PW   3   Zulfikar   were   with   him.         When   they   reached   near <\/p>\n
    Siddivinayak  General  Stores,   suddenly  accused  came  to the  spot and <\/p>\n
    intercepted them.  Accused No.2  was holding belt.  All the three accused <\/p>\n
    started assaulting victim and PW 2 Jahid.  In order to defend himself, the <\/p>\n
    victim picked up a wooden  plank. The accused no.3 picked up stone and <\/p>\n
    gave blow on the head of the victim.   The victim fell down.     The Victim <\/p>\n
    tried to get up and at that time, the accused no.2 caught hold of the legs of <\/p>\n
    the victim and accused no.1 gave blows of the stone on the head of the <\/p>\n
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    victim.  PW 2 Jahid tried to save the victim.    While the accused no.1 was <\/p>\n
    trying to get up, he fell down on the wooden plank.     The accused no.2 <\/p>\n
    gave blow of belt to PW 2 Jahid and, consequently, he sustained injury on <\/p>\n
    the   head   from   the   backside.     He   ran   towards   bakery.     PW   2   and   the <\/p>\n
    Munshi of the bakery along with one Mujjabin and Badkun came to the <\/p>\n
    spot   where   they   saw   the   victim   lying   in   the   injured   condition   and   the <\/p>\n
    accused had run away.\n<\/p>\n
    5]<\/p>\n
                             It is a case of the prosecution that Mujjabin and Badkun and <\/p>\n
    PW 2 Jahid Khan brought the Victim to Rajawadi Hospital, Ghatkopar.  On <\/p>\n
    examination, the Doctor declared him   dead. PW 2 Jahid was treated by <\/p>\n
    the Doctor.  PW 4 Rizwan reported this fact to the bakery.  At that time, the <\/p>\n
    accused no.1 also reached the hospital as he sustained injury on account <\/p>\n
    of fall on the wooden plank.  The police also reached to the hospital and <\/p>\n
    PW 2 Jahid told the police that the accused had killed the victim.   The <\/p>\n
    cloths of the victim namely one Khaki brown pant, one off white full shirt <\/p>\n
    having   blood   stains,   one   Sandow   green   baniyan   and   one   nicker   were <\/p>\n
    seized  by the police.  The accused no.1 was arrested by the police.  He <\/p>\n
    was   provided   medical   treatment.   PSI   Nandkishor   Taksalkar   [PW   9] <\/p>\n
    registered crime No.85 of 2003 under Sections 302, 324 r\/w.34 IPC.  The <\/p>\n
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    inquest panchnama of dead body was prepared (exhibit 37), likewise, he <\/p>\n
    prepared panchnama of scene of offence  (exhibit 16) in the presence of <\/p>\n
    two panchas.  PW 9 also seized two blood stained stones,  one wooden <\/p>\n
    plank, blood mixed earth from the spot under the same panchnama.    He <\/p>\n
    collected the post mortem notes.  The further investigation was thereafter <\/p>\n
    conducted by Police Inspector Ramsiddha Somanna Narote PW 10.   He <\/p>\n
    arrested   the   accused,   seized   their   cloths,   recorded   the   statements   of <\/p>\n
    witnesses, seized the cloths of the deceased.   He sent the cloths of the <\/p>\n
    deceased   and   accused   and   the   property   seized   from   the   spot   to   the <\/p>\n
    Chemical Analyzer, Mumbai.  He collected the C.A. Reports which are at <\/p>\n
    exhibits 40 to 45.   He also collected the injury report of the PW 2 Jahid <\/p>\n
    and accused no.1 which are at exhibits 27 and 28.   After completing the <\/p>\n
                                                                                                       nd
\n    investigation, the charge sheet was filed in the Court of the learned 22<\/p>\n
    Metropolitan Magistrate, Andheri, Mumbai.\n<\/p>\n
    6]                       By   order   dated   July   14,   2003,   the   learned   Metropolitan <\/p>\n
    Magistrate committed the case to the Sessions Court, Greater Bombay, for <\/p>\n
    trial according to law.\n<\/p>\n
    7]                       The charge was framed against the accused under Section <\/p>\n
    302   r\/w.34   IPC.     In   so   far   as   the   accused   no.2   is   concerned,   he   was <\/p>\n
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    charged   for   offence     punishable   under   Section   324   IPC   for   causing <\/p>\n
    voluntarily hurt to PW 2 Jahid Khan by means of belt.    The Charge was <\/p>\n
    read over and explained to the accused in vernacular.  They pleaded not <\/p>\n
    guilty and claimed to be tried.  The defence of accused is total denial and <\/p>\n
    about false implication in the case.  It is the defence of the accused no.1 <\/p>\n
    that   at   the   time   of   incident   in   question,   the   victim   had   assaulted   him, <\/p>\n
    hence, the crowd gathered on the spot and somebody from the crowd had <\/p>\n
    pelted stones which hit the victim and he sustained injuries and finally lost <\/p>\n
    the life.  It is the further defence of the accused that the victim assaulted <\/p>\n
    accused no.1 by a wooden plank and the blood appeared on the wooden <\/p>\n
    plank as would be evident from the perusal of the CA report (Exhibit 41).\n<\/p>\n
    Further,   the   prosecution   suppressed   the   said   fact   throughout   and <\/p>\n
    consequently, the genesis of the prosecution’s case as also evidence of <\/p>\n
    the PW 2 to PW 4, is not trustworthy.\n<\/p>\n
    8]                       It is the defence of the accused, that PW 3 Zulfikar Khan and <\/p>\n
    PW 4 Rizwan had no occasion to witness the incident, however, since they <\/p>\n
    are the relatives of PW 2 Jahid and victim, they came to be planted as the <\/p>\n
    witnesses   to   the   incident   and   their   evidence   is   full   of   omissions   and <\/p>\n
    contradiction and deserves to be discarded in toto.\n<\/p>\n
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    9]                       The accused also raised defence that PW 3 Zulfikar and PW 4 <\/p>\n
    Rizwan   were   not   present   when   the   victim   was   shifted   to   the   Rajawadi <\/p>\n
    hospital by PW 2 Jahid  with the help of others.  This fact establishes that <\/p>\n
    at the time of incident  PW 3 and PW 4 were not present on the spot.\n<\/p>\n
    10]                      In   order   to   prove   the   charges   against   the   accused,   the <\/p>\n
    prosecution had examined 10 witnesses who can be broadly classified into <\/p>\n
    the following categories:\n<\/p>\n
                                           ig    EYE WITNESSES\n                                         \n                1]           PW 2 :        Jahid Khan, at exhibit 17, who is also injured \n\n                                           witness.  He had filed the F.I.R. on April 4, 2003 \n\n                                           which is at exhibit 18. \n           \n\n\n               2]            PW 3 :        Mr.Mohd. Zulfikar, at exhibit 19.\n        \n\n\n\n               3]            PW 4 :        Mohd. Rizwan, at exhibit 20.\n\n\n\n\n\n                                                 PANCH WITNESSES   \n\n               1]            PW 1:         Mr.Rajesh Fulchand Gupta, at exhibit 15, who is \n\n\n\n\n\n                                           witness to the scene of offence panchnama at \n\n                                           exhibit 16.\n\n               2]            PW 7:         Tanaji Sakharam Shinde at exhibit 32 who is\n\n<\/pre>\n
                                           witness to the seizer panchnama of belt at exhibit <\/p>\n
                                           33.<\/span><\/p>\n
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               3]            PW 8:       Jagannath Baburao Udugare, at exhibit 34, panch <\/p>\n
                                         witness. He is the witness to seizer of panchnama<\/p>\n
                                         at exhibit 35 under which cloths of the accused <\/p>\n
                                         were seized.\n<\/p>\n
                                          MEDICAL EVIDENCE<\/p>\n
               1]            PW 5:       Dr.Rajaram Narayan Marathe, at the relevant time<\/p>\n
                                         Medical Officer attached to Rajawadi Hospital, <\/p>\n
                                         whose evidence is at exhibit 23.  He conducted <\/p>\n
                                         autopsy on  the dead body of the victim and <\/p>\n
                                         issued P.M. Notes which are at exhibit 24.\n<\/p>\n
               2]            PW 6:       Dr.Sunil Wamanrao Bhoir, attached to Rajawadi<\/p>\n
                                         Hospital, as a Casualty Medical Officer.  His <\/p>\n
                                         evidence is at exhibit 26.  He examined PW 2 <\/p>\n
                                         Jahid Khan  as  as also accused no.1 Arunkumar <\/p>\n
                                         @ Kallu Rajendraprasad Pande and submitted <\/p>\n
                                         injury report at exhibit 27 and 28.\n<\/p>\n
                                               INVESTIGATING OFFICER<\/p>\n
               1]            PW 9 :      Mr.Nandkishor Digambar Taksalkar, at exhibit 36.\n<\/p>\n
                                         He recorded the F.I.R. lodged by PW 2 Jahid <\/p>\n
                                         Khan at exhibit 18.  He prepared inquest <\/p>\n
                                         panchnama at Exhibit 37 as also spot panchnama <\/p>\n
                                         at exhibit 16.  He also seized two stones and one <\/p>\n
                                         wooden plank which are marked as Articles “C-1”, <\/p>\n
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                                         “C-2” and “A”.\n<\/p>\n
               2]            PW 10:      Mr.Ramsiddha Somanna Narote, exhibit 39, at the <\/p>\n
                                         relevant time attached to Sakinaka Police Station.\n<\/p>\n
                                         He prepared spot panchnama exhibit 16 and <\/p>\n
                                         seized the cloths of the accused.  He recorded <\/p>\n
                                         statements of the witnesses and also collected <\/p>\n
                                         blood samples of the accused from the Medical <\/p>\n
                                         Officer.  The blood samples of the victim as also <\/p>\n
                                         complainant PW 2 were collected and sent to the <\/p>\n
                                         Chemical Analyser.  He placed on record the <\/p>\n
                                         reports of the Chemical Analyser at exhibit <\/p>\n
                                         40 to 45.\n<\/p>\n
    11]                      On the basis of the material on record, as stated earlier, the <\/p>\n
    learned Sessions Judge convicted the accused under Section 302 r\/w.34 <\/p>\n
    IPC and sentenced to suffer R.I. For life and to pay fine of Rs.5,000\/-, in <\/p>\n
    default, to suffer R.I. for 3 months each.  The accused no.2 who was <\/p>\n
    convicted for the offence punishable under Section 324 IPC and <\/p>\n
    sentenced to suffer R.I. for the 3 years with fine of Rs.2,000\/-, in default, <\/p>\n
    further R.I. for one month.  The sentences of the accused no.2 were to run <\/p>\n
    concurrently.\n<\/p>\n
    12]                      In support of this appeal, we have heard Mr.Sudeep Pasbola, <\/p>\n
    learned counsel for the appellants and Mrs.V.R.Bhosale,  Learned APP for <\/p>\n
    respondent – State.   The learned Counsel for the parties have taken us <\/p>\n
    through the evidence on record.\n<\/p>\n
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\n                                                     11<\/span><\/p>\n
    13]                      Mr.Pasbola, learned counsel for the appellants submitted that <\/p>\n
    it is the case of the prosecution that the incident took place at about 4 pm. <\/p>\n
    on   April   4,   2003   in   a   busy   locality.     However,   the   prosecution   has   not <\/p>\n
    examined   any   independent   witness   to   substantiate   its   case.     The   eye <\/p>\n
    witnesses PWs 2, 3 and 4 are the interested witnesses and the Court has <\/p>\n
    to consider their evidence with due care and caution.  He further submitted <\/p>\n
    that admittedly in the instant case,  the accused no.1 sustained injury and <\/p>\n
    the prosecution has not offered any explanation on this aspect.  He relied <\/p>\n
    upon  several  judgments   in  support   of  this  contention.     Mr.Pasbola   also <\/p>\n
    submitted that PW 3 Mohd. Zulfikhar  and PW 4 Mohd. Rizwan were not <\/p>\n
    present on the spot and their presence is extremely doubtful.  They cannot <\/p>\n
    be termed as an eye witness.  This is substantiated from the evidence of <\/p>\n
    PW 2 Jahid exhibit 17 as also FIR exhibit 18.  He further submitted that, at <\/p>\n
    any rate, in the facts and circumstances of the case, Section 34 IPC has <\/p>\n
    no application.     As also, Section 302 IPC has no application.  The case <\/p>\n
    squarely falls under the exception 4 of Section 300 IPC.   He submitted <\/p>\n
    that the accused were not carrying any weapon and it shows that there <\/p>\n
    was no intention on the part of the accused to commit offence punishable <\/p>\n
    under Section 302 IPC.  On the contrary, from the evidence of PW 2 Jahid, <\/p>\n
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    it would be evident that, it was the victim who picked up the wooden plank, <\/p>\n
    and thereafter, the accused picked up the stone.   He submitted that the <\/p>\n
    accused were not agressors.  Mr.Pasbola further submitted that the case <\/p>\n
    of the prosecution is that the accused no.3 picked up the stone and gave <\/p>\n
    blow on the head of the victim.     The accused no.3 did not   know that <\/p>\n
    thereafter the accused no.2 will catch hold of the legs of the victim.  The <\/p>\n
    accused   no.2,   in   turn,   did   not   know\/was   not   aware   that   thereafter   the <\/p>\n
    accused no.1 will give blows on the head of the victim.  Thus, in the instant <\/p>\n
    case, Section 34 IPC   has no application whatsoever.   In support of this <\/p>\n
    submission   Mr.Pasbola   relied   upon   several   judgments   which   will   be <\/p>\n
    referred in the due course.\n<\/p>\n
    14]                      On the other hand, Mrs.V.R.Bhosle, learned APP supported <\/p>\n
    the impugned judgment.  She submitted that in the present case, there are <\/p>\n
    three eye witnesses and one of them namely PW 2 is an injured witness.\n<\/p>\n
    The cloths of the accused were recovered and there were blood stains on <\/p>\n
    it.   The injuries were caused by stones i.e. Articles C-1, C-2 on   which <\/p>\n
    blood group “O” was     found.   PW 5 Dr.Marathe opined that injury no.4 <\/p>\n
    caused   to   the   victim   was   sufficient   in   the   ordinary   course   of   nature   to <\/p>\n
    cause death.  She submitted that in the FIR names of the three accused <\/p>\n
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\n                                                      13<\/span><\/p>\n
    were mentioned.   The prosecution has explained the injuries on accused <\/p>\n
    no.1.  Doctor examined accused no.1 and PW 2.  The history was narrated <\/p>\n
    to the effect  that the assault was  made by  many  persons  with multiple <\/p>\n
    objects.  She submitted that there are no fatal contradictions\/omissions in <\/p>\n
    the evidence of the eye witnesses.\n<\/p>\n
    15]                      In order to appreciate the rival contentions raised on behalf of <\/p>\n
    the parties, let us examine the evidence laid by the prosecution.  In order <\/p>\n
    to prove the guilt of the accused, the prosecution has examined three eye <\/p>\n
    witnesses   apart   from   the   panch   witnesses,   the   Doctors   and   the <\/p>\n
    investigating officers.  PW 2 Zahid Khan is the complainant.   He deposed <\/p>\n
    that on April 3, 2003, the accused nos.1 and 2 came to the bakery and <\/p>\n
    started abusing PW 3 Zulfikar.  After the exchange of hot words, they told <\/p>\n
    that they will come on the next day and will see what to do, and thereafter, <\/p>\n
    they left.   On April 4, 2003 at 4 pm. All the three accused came to the <\/p>\n
    bakery and started abusing PW 3 Zulfikar.   The Munshi of bakery namely <\/p>\n
    Khujir and Jahid tried to pacify the accused persons.  Since there were no <\/p>\n
    response, Jahid and PW 3 Zulfikar told them that they will lodge complaint <\/p>\n
    to the police.  When Jahid started for Sakinaka police station from the rear <\/p>\n
    side galli from the rear door, he saw some suspicious persons.  He felt that <\/p>\n
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    they are from the side of accused.     He came back  to the bakery and <\/p>\n
    started to the police station from the main door through Saibaba galli.  At <\/p>\n
    that   time,   the   victim   and   PW   3   Zulfikar   were   with   Jahid.     When   they <\/p>\n
    reached   near   the   Sidhivinayak   General   Stores,   suddenly   the   accused <\/p>\n
    came and intercepted them.   Accused no.2 was holding a belt.   All the <\/p>\n
    three   accused   started   assaulting   the   victim   and   Jahid.     Therefore,   the <\/p>\n
    victim picked up a wooden plank to defend himself.     The accused no.3 <\/p>\n
    picked up a stone and gave blow on the head of the victim.  The victim fell <\/p>\n
    down.  Then he tried to get up, at that moment the accused no.2 caught <\/p>\n
    hold his legs and accused no.1 gave repeated blows of stone on the head <\/p>\n
    of victim.   PW 2 Jahid tried to save the victim.   While the accused no.1 <\/p>\n
    was getting up, he fell on the wooden plank.  Accused no.1 gave blow of <\/p>\n
    the belt to Jahid and he sustained injury on the head from backside.  He <\/p>\n
    ran towards the bakery to tell the incident to the Munshi of the bakery.\n<\/p>\n
    Then Jahid and Munshi of bakery namely Khujir along with Mujjabin and <\/p>\n
    Badkun came to the spot where then saw that the victim was lying in the <\/p>\n
    injured  condition   and   accused   had   run   away.     He  further   deposed   that <\/p>\n
    Mujjabin and Badkun and Jahid brought the victim to Rajawadi Hospital, <\/p>\n
    Ghatkopar and on examination the Doctor declared him dead.   Jahid was <\/p>\n
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\n                                                   15<\/span><\/p>\n
    also treated by the Doctor.   By that time, the accused no.1 reached the <\/p>\n
    hospital as he also sustained injuries due to the wooden plank. The police <\/p>\n
    also reached to the hospital and then Jahid told the police that the accused <\/p>\n
    have killed the victim.\n<\/p>\n
    16]                      In the cross-examination PW 2 Jahid deposed that 4-5 days <\/p>\n
    prior to the date of incident, quarrel took place between PW 3 Zulfikar and <\/p>\n
    uncle of accused no.1 at Hiranandani Complex.   There was minor verbal <\/p>\n
    abuse   on   account   of   customers   of   each   other.     Mr.Pasbola,   learned <\/p>\n
    counsel   for   the   appellants,   submitted   that   there   is   omission   in   the <\/p>\n
    deposition of PW 2 Jahid to the effect that though he stated to the police <\/p>\n
    that 4-6 persons standing in the galli were found suspicious to him, it was <\/p>\n
    not specifically mentioned in the FIR to that effect.   Again he could not <\/p>\n
    explain why it was not stated in the FIR that PW 3 Zulfikar was also with <\/p>\n
    them while going to the police station.   Again he could not explain the <\/p>\n
    omission in the FIR to the effect that the victim did not try to run away.\n<\/p>\n
    PW 2 Jahid also could not explain why it was not recorded in the FIR  that <\/p>\n
    accused no.2 started weaving belt.   Mr.Pasbola submitted that the victim <\/p>\n
    picked up the wooden plank, and thereafter, stone was picked up by the <\/p>\n
    accused.   Thus, the accused were not aggressors.   He further submitted <\/p>\n
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\n                                                     16<\/span><\/p>\n
    that PW 2  Jahid deposed that it is not true that when he started running <\/p>\n
    towards the bakery, PW 3 Zulfikar was also running towards the bakery.\n<\/p>\n
    He also invited our attention to the omission in the evidence of PW 2 to the <\/p>\n
    effect that though he claims to have informed the police that along with the <\/p>\n
    Munshi of bakery and himself, Mujjabin, Badkun and Rizwan had came on <\/p>\n
    the spot of offence, the said fact is not found in the FIR. It is also not found <\/p>\n
    in the FIR that PW 4 Rizwan telephoned from the hospital to  bakery and <\/p>\n
    reported the incident to the Munshi of Bakery.   Mr.Pasbola also submitted <\/p>\n
    that when the Doctor attached to the hospital asked him about the history <\/p>\n
    of injuries, the PW 2 did not tell the Doctor that they assault was  by   many <\/p>\n
    people by multiple objects.   As against this, PW 6 Dr.Bhoir, the Casualty <\/p>\n
    Medical Officer attached to Rajawadi hospital deposed that the injured PW <\/p>\n
    2 Jahid gave the history of assault by many people by multiple objects.  He <\/p>\n
    invited   our   attention   to  the  injury   report   exhibit  27  which  supported   the <\/p>\n
    statement of PW 6 that many people assaulted Jahid with multiple objects.\n<\/p>\n
    On   the   basis   of   this   material,   Mr.Pasbola   submitted   that   the   mob   was <\/p>\n
    gathered on the spot and assaulted PW 2 Jahid and none of the accused <\/p>\n
    have assaulted him.\n<\/p>\n
    17]                      PW 3 Zulfikar deposed that one of the accused tried to do the <\/p>\n
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\n                                                  17<\/span><\/p>\n
    business in their area i.e.Hiranandani Complex.  He told him  not to go to <\/p>\n
    the said area for doing the business.     On that count, there was quarrel <\/p>\n
    between him and one of the accused.   On April 3, 2003 at about 4 pm. <\/p>\n
    Accused no.1 and 2 abused him in filthy language.   At that time, PW 2 <\/p>\n
    Jahid     and   victim   were   present   in   the   bakery.     Accused   nos.1   and   2 <\/p>\n
    threatened   him   and   informed   that   they   will   carry   on   the   business   in <\/p>\n
    Hiranandani Complex area.   They also threatened  that they will see him <\/p>\n
    tomorrow.  On the next day i.e. April 4, 2003, between 3:45 pm and 4 pm. <\/p>\n
    all the three accused come to Iqbal bakery and started abusing.   They <\/p>\n
    started   quarreling   with   him.       Munshi   of   the   bakery   tried   to   pacify   the <\/p>\n
    accused persons.   Accused continued the quarrel, and therefore, he told <\/p>\n
    them that he is going to lodge the complaint in the police station.   The <\/p>\n
    victim and PW 2 Jahid started to proceed from the rear side galli of the <\/p>\n
    bakery.   They saw  the crowd in the said galli and therefore they came <\/p>\n
    back.   Thereafter, he started from the main door of the bakery.  The victim <\/p>\n
    was   followed   by     PW   2   Jahid   and   Zulfikar.     When   they   reached   upto <\/p>\n
    Siddhivinayak   store,   all   of   a   sudden,   the   accused   came   on   the   spot.\n<\/p>\n
    Accused no.2 started weaving the belt and assaulted the victim.       The <\/p>\n
    victim   picked   up   a   wooden   plank   which   was   lying   in   the   galli   for   his <\/p>\n
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\n                                                    18<\/span><\/p>\n
    defence. At that time, accused no.3 picked up a stone and gave blow to <\/p>\n
    the victim on his head.  The victim fell down and again tried to get up.  At <\/p>\n
    that   time,   the   accused   no   2   caught   hold   of   the   legs   of   the   victim   and <\/p>\n
    accused no.1  gave him 4-5 blows successively on is head.   PW 2 Jahid <\/p>\n
    rushed there to save the victim. At that time, accused no.2 gave blow to <\/p>\n
    PW 2 Jahid.  He got assault on his head from backside.  In order to save <\/p>\n
    himself, he ran towards the bakery.  Accused no.1 chased, but, fell down.\n<\/p>\n
    Zulfikar also ran towards the bakery and accused no.1 followed him.  PW 2 <\/p>\n
    Jahid   shouted   “mar   dala,   mar   dala”   while   running   to   the   bakery.\n<\/p>\n
    Thereafter, the Munshi of bakery namely Khujir, Mujjabin, Padaku and PW <\/p>\n
    4 Rizwan came out of bakery and they went to the scene of offence.  They <\/p>\n
    saw that the victim was lying down and he was injured with the pool of <\/p>\n
    blood. All the accused had already run away from the scene of offence.\n<\/p>\n
    The   Munshi   of   bakery   advised   them   to   take   the   victim   to   the   hospital.\n<\/p>\n
    Badkun and Mujjabin took the victim to  Rajawadi hospital, Ghatkopar,  in a <\/p>\n
    taxi.   PW 3 Zulfikar reached the hospital within half an hours time.  Then <\/p>\n
    he came to know that the victim was already  dead.   He identified   the <\/p>\n
    wooden plank and stones.  He, however, could not identify the belt.\n<\/p>\n
    18]                      Mr.Pasbola, learned counsel   for the accused submitted that <\/p>\n
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    there is contradiction in the deposition of the PW 3 in respect of the hot <\/p>\n
    exchange   and     abuses.     He   invited   our   attention   to   the   portion   of   the <\/p>\n
    evidence of PW 3.  It is submitted that when the attention of the PW 3 was <\/p>\n
    invited to the portion marked “A” in his statement dated April 5, 2003, he <\/p>\n
    deposed that he, along with PW 2 Jahid, ran towards the bakery together, <\/p>\n
    however,   PW   2   Jahid   deposed   that   he   alone   went   to   the   bakery.     He <\/p>\n
    submitted that in the statement recorded by the police, it is not recorded <\/p>\n
    that   PW   3   told   the   accused   that   he   is   going   to   lodge   a   complaint   in <\/p>\n
    Sakinaka police station.  PW 3 could not explain why the following details <\/p>\n
    are not reflected in the statement recorded by the police viz (1) that  Jahid, <\/p>\n
    victim and himself started to go from the rear side galli of the bakery and <\/p>\n
    after   observing   the   mob   of   people   in   the   galli   they   came   back   to   the <\/p>\n
    bakery; (2) that near the Siddhivinayak Stores all of a sudden the accused <\/p>\n
    came; (3) that accused no.2 started weaving his belt and assaulted the <\/p>\n
    victim; (4)   that accused no.3 picked up a stone and give   blow to the <\/p>\n
    victim on his head; (5) that   he told the police that accused no.1 gave 4-5 <\/p>\n
    blows of stone to the victim on his head.   Mr.Pasbola, therefore, submitted <\/p>\n
    that in view of this fatal omissions and contradictions the very presence of <\/p>\n
    PW 3 at the time of incident, creates grave doubt.\n<\/p>\n
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\n                                                    20<\/span><\/p>\n
    19]                      PW 4 Rizwan deposed that on April 4, 2004 at 4 pm., he was <\/p>\n
    sleeping in the bakery.  He heard commotion outside the bakery.  He saw <\/p>\n
    the   three   accused   quarreling   with   Jahid,   Zulfikar   and   the   victim.     They <\/p>\n
    were abusing each others.   The Munshi of bakery came out and settled <\/p>\n
    the dispute between them.  Thereafter,    PW 2, victim and PW 3 Zulfikar <\/p>\n
    told the accused that they are going to lodge the complaint with the police, <\/p>\n
    and     accordingly,   they   left   the   place.     He   noticed   that   the   accused <\/p>\n
    followed them.  After sometime, he followed them as he thought that they <\/p>\n
    might again quarrel among themselves.  When the accused reached near <\/p>\n
    Siddhivinayak galli, they started assaulting the victim and PW 3.  He saw <\/p>\n
    the belt in the hand of accused no.2.  At that time, the victim picked up a <\/p>\n
    wooden plank which was lying  at the place of offence.  In the meantime, <\/p>\n
    accused no.3, picked up a stone and gave blow of stone on the head of <\/p>\n
    the victim.  The victim fell down.  The victim tried to get up, however, then <\/p>\n
    the accused no.2 caught hold of the legs of victim and accused no.1 gave <\/p>\n
    two or three blows of the stone on the head of victim. PW 2 tried to save <\/p>\n
    the victim.  Thereafter, PW 2  ran towards the bakery.  When PW 2 tried to <\/p>\n
    save the victim, accused no.2 gave blow of belt on the head of PW 2.\n<\/p>\n
    Therefore, he frightened on account of said incident, and thereafter, all the <\/p>\n
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\n                                                        21<\/span><\/p>\n
    accused fled away from the scene of offence.  After sometime, the Munshi <\/p>\n
    of bakery, PW 2 Jahid, Mujjabin, and Badkun came there.   Mujjabin and <\/p>\n
    Badkun took the victim to the Rajawadi Hospital, Ghatkopar along with PW <\/p>\n
    2 in a taxi.  Thereafter, he went to the Rajawadi Hospital where he met PW <\/p>\n
    2 Jahid.  PW 2 informed him that he should go to bakery and inform that <\/p>\n
    the victim is dead.  Accordingly, PW 4 Rizwan gave a telephone call to the <\/p>\n
    Munshi of bakery and informed that the victim is dead. He identified the <\/p>\n
    belt used by accused no.2 as also the two stones.  He, however, was not <\/p>\n
    in a position to say which stone namely Article “C-1” and “C-2” were in the <\/p>\n
    hands of which accused.  He also identified the wooden plank.\n<\/p>\n
    20]                      In   the   cross-examination,   PW   4   Rizwan   deposed   that   he <\/p>\n
    rushed to the Rajawadi hospital at around 6:30 pm.   At that time, he did <\/p>\n
    not notice the police at the hospital.    He also did not see accused no.1 at <\/p>\n
    Rajawadi Hospital.  He did not notice any injury on the person of accused <\/p>\n
    no.1 at the time of incident.   On the day of incident, accused no.1 fell on a <\/p>\n
    wooden   plank   while   running   away.     Though   he   saw   him   falling   on   the <\/p>\n
    wooden   plank,   he   could   not   tell   as   to   on   which   part   of   the   body   the <\/p>\n
    accused no.1 sustained injury.  He did not notice any injury on the head of <\/p>\n
    the accused as also on his shoulder or on his back.  When he went to the <\/p>\n
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\n                                                22<\/span><\/p>\n
    bakery, the Munshi of bakery was not present.       At that time, the police <\/p>\n
    had not arrived at the bakery.  His statement was recorded by the police on <\/p>\n
    the next day.  After the incident, till he visited to Sakinaka police station on <\/p>\n
    the next day, he did not disclose the incident to anyone.   He did not come <\/p>\n
    across the police after the incident till his statement was recorded on the <\/p>\n
    next   day.     He   further   deposed   that     there   were   number   of   planks   and <\/p>\n
    stones lying on the scene of offence and he had no specific reason to <\/p>\n
    identify Articles “A” “C-1” and “C-2” in the hands of accused.  He identified <\/p>\n
    the belt because at the time of incident he had seen the belt in the hands <\/p>\n
    of the accused.  He further deposed that it did not happen that Jahid came <\/p>\n
    to the bakery premises and intimated him, Munshi, Zlfikar and Badkun that <\/p>\n
    the victim has been killed, therefore, he along with others visited the scene <\/p>\n
    of offence.  He further deposed that he had not seen PW 3 Rizwan at the <\/p>\n
    place of offence.  Mr.Pasbola submmitted that PW 4 Rizwan is not an eye <\/p>\n
    witness.   He was not present at the time of incident.     He submitted that <\/p>\n
    PW 2 deposed that when he went to the bakery  to report to Munshi that <\/p>\n
    the victim is killed, at that time, Mujjabin, Badkun and PW 4 Rizwan were <\/p>\n
    present in the bakery.    It therefore follows that PW 4 was not present at <\/p>\n
    the time when the incident occurred.   Even, PW 2 did not disclose the <\/p>\n
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\n                                                   23<\/span><\/p>\n
    presence of PW 4 at the time of occurrence of incident.  It is only after the <\/p>\n
    incident, PW 2 went to report the incident to the Munshi of bakery.  At that <\/p>\n
    time PW 4 Rizwan was present in the bakery.  This, therefore, rules out the <\/p>\n
    presence   of   PW   4   Rizwan   when   the   incident   occurred.     He   further <\/p>\n
    submitted that even the perusal of deposition of PW 3 indicates that PW 4 <\/p>\n
    was not present when the incident in question occurred.    In fact, PW 4 in <\/p>\n
    cross-examination   deposed   that   he   had   not   seen   PW   3   Zulfikar   at   the <\/p>\n
    scene of the offence at the time of incident.  Mr.Pasbola further submitted <\/p>\n
    that PW 3 Zulfikar, on the other hand, deposed that he along with PW 2 <\/p>\n
    Jahid ran towards the bakery together.  However, PW 2 Jahid specifically <\/p>\n
    deposed that it is not true that when he started running towards the bakery, <\/p>\n
    PW 3 Zulfikar was also running towards the bakery.   PW 2 Jahid further <\/p>\n
    admitted that the presence of PW 3 Zulfikar is not spelt out in the police <\/p>\n
    station while recording the FIR.   On   that basis, he submitted that PW 3 <\/p>\n
    Zulfikar and PW 4 Rizwan are not the eye witnesses.\n<\/p>\n
    21]                      We are unable to accept the submission of Mr.Pasbola that <\/p>\n
    PW 3 Zulfikar is not an eye witness to the offence.   It is relevant to note <\/p>\n
    that the incident in question is not disputed by the appellants.  The case of <\/p>\n
    the prosecution is that  as the accused were carrying on  the business in <\/p>\n
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\n                                                 24<\/span><\/p>\n
    Hiranandani Complex where PW 2 and 3 and the victim were also carrying <\/p>\n
    on the same business in the same area.   Therefore, there was dispute <\/p>\n
    between them on the point of the area of business and on that count the <\/p>\n
    quarrel took place between PW 3 Zulfikar and one of the accused.     On <\/p>\n
    April 3, 2003, the accused nos.1 and 2 came to the bakery and abused <\/p>\n
    PW 3 Zulfikar  in the presence of PW 2 Jahid and victim. On the next day <\/p>\n
    i.e.  April  4,  2003,  the  accused  came  to the bakery  at about  4 pm  and <\/p>\n
    started quarreling with PW 3 Zulfikar.  The Munshi of bakery tried to pacify <\/p>\n
    the accused persons and since there was no response,   PW 2 Jahid, PW <\/p>\n
    3 Zulfikar and victim decided to lodge the complaint to  police.  The origin <\/p>\n
    of the incident in question is basically the business rivalry between PW 3 <\/p>\n
    on one hand and the accused on the other.  Merely because the presence <\/p>\n
    of PW 3 is not mentioned in the FIR, one cannot reach to the conclusion <\/p>\n
    that   PW   3   was   not   present.     The   evidence   of   PW   2   Jahid   and   PW   3 <\/p>\n
    Zulfikar on the point as to how the the incident in question took place is <\/p>\n
    coherent and consistent.   Merely because in the deposition PW 2 Jahid <\/p>\n
    stated   that “it is not true that after the assault on the victim he started <\/p>\n
    running   towards   the   bakery   PW   3   Zulfikar   was   also   running   towards <\/p>\n
    bakery” on one hand and  in the deposition PW 3 stated  that he and PW 2 <\/p>\n
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\n                                                          25<\/span><\/p>\n
    Jahid were running together, there is contradiction in that regard, it cannot <\/p>\n
    be said that PW 3 Zulfikar was not present.  The presence of PW 3 Zulfikar <\/p>\n
    at the time of incident is quite natural in the background of the facts and <\/p>\n
    circumstances of the case.  We are also not impressed by the submission <\/p>\n
    advanced by Mr.Pasbola to the effect that PW 3 Zulfikar deposed that PW <\/p>\n
    2   Jahid,   after   the   assault   on   victim,   while   running   towards   the   bakery <\/p>\n
    shouted “mar dala, mar dala” and this fact is not recorded in the statement <\/p>\n
    of PW 3 Zulfikar recorded by the police. In our opinion, the accused cannot <\/p>\n
    take advantage of this omission.   The omission is insignificant.   We are <\/p>\n
    therefore   not   impressed   by   the   submission   that   PW   3   Zulfikar   was   not <\/p>\n
    present at the time of incident and consequently he is not an eye witness.\n<\/p>\n
    22]                      In so far as PW 4 Rizwan is concerned, we find that PW 2 <\/p>\n
    Jahid deposed that after the assault on the victim, he went to the bakery <\/p>\n
    for reporting   and at that time PW 4 Rizwan was present.  PW 3 Zulfikar <\/p>\n
    also had not deposed the presence of Rizwan at the time of incident.  We <\/p>\n
    are,   therefore,   of   the   opinion   that   PW   4   cannot   be   said   to   be   an   eye <\/p>\n
    witness to the said incident.   It is however true that PW 4 Rizwan visited <\/p>\n
    the hospital.\n<\/p>\n
    23]                      The   prosecution   has   examined   PW   6   –   Dr.   Sunil   Bhoir,   a <\/p>\n
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    Casualty Medical  Officer attached to the Rajawadi Hospital.  He examined <\/p>\n
    PW 2 Jahid as also the accused no.1 Arunkumar.  He deposed that PW 2 <\/p>\n
    Jahid gave the history of assault by many people by multiple objects. He <\/p>\n
    also examined accused no.1 who also gave history of assault with multiple <\/p>\n
    object   by   many   people.     He   deposed   that   the   accused   no.1   sustained <\/p>\n
    multiple  contusion  marks on  the  back  and shoulder and the said injury <\/p>\n
    could   have   been   possible   due   to   fall   on   hard   and   blunt   substance.\n<\/p>\n
    Mr.Pasbola,   learned   counsel   for   the   appellants,   submitted   that   the <\/p>\n
    prosecution has not explained the injury of accused no.1.   He   submitted <\/p>\n
    that the non explanation of the injury sustained by accused no.1 at the time <\/p>\n
    of occurrence or in the course of incident is very important circumstance, <\/p>\n
    from which, the court can draw the following inferences:\n<\/p>\n
                             a)  That the prosecution had suppressed the genesis and  <\/p>\n
                                origin of the occurrence and has thus not presented the  <\/p>\n
                                true version.\n<\/p><\/blockquote>\n
                             b) That the witnesses denied the presence of the injuries  <\/p>\n
                                on   the   person   of   the   accused   are   lying   on   a   most  <\/p>\n
                                material point and therefore their evidence is unreliable.<\/p><\/blockquote>\n
                             c) That in a case there is a defence version which explains  <\/p>\n
                                the injuries on the person of the accused it is rendered  <\/p>\n
                                probable   so   as   to   thrown   doubt   on   the   prosecution  <\/p>\n
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\n                                                    27<\/span><\/p>\n
                                  case.\n<\/p>\n
    He submitted  that the omission on the part of the prosecution to explain <\/p>\n
    the   injuries   on   the   person   of   the   accused   no.1   assumes   much   greater <\/p>\n
    importance   where   the   evidence     consists   of   the   interested   or   inimical <\/p>\n
    witnesses   or   where   the   defence   gives   a   version   which   competes <\/p>\n
    improbability   with   that   of   the   prosecution   version.     In   support   of   this <\/p>\n
    submission, Mr.Pasbola, learned counsel for the appellants, relied upon a <\/p>\n
    decision of the Apex Court in the case of  Lakshmi Singh and others Vs.  <\/p>\n
    State of Bihar, 1976 SCC (Cri) 671.\n<\/p>\n
    24]                      On the other hand, Mrs.Bhosale, learned APP for respondent <\/p>\n
    State, has submitted that the prosecution has satisfactorily explained the <\/p>\n
    injuries of accused no.1.  She submitted that in the FIR at exhibit 18 lodged <\/p>\n
    by PW 2 Jahid,  he clearly stated that when he went to save the victim, the <\/p>\n
    accused   no.1   while   getting   up,   fell   down   on   the   wooden   plank.     This <\/p>\n
    version is supported by PW 3 Zulfikar when he deposed that PW 2 Jahid <\/p>\n
    apprehending   further   attack   ran   towards   the   bakery   and   on   account   of <\/p>\n
    assault on the head, but, accused no.1 then followed him.  However, while <\/p>\n
    running,   accused no.1 fell   down, and   therefore, he   sustained injury.\n<\/p>\n
    From the nature of injuries received by the accused No.1, it would appear <\/p>\n
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\n                                                    28<\/span><\/p>\n
    that the same were simple and miner ones.   Mrs.Bhosale, learned APP <\/p>\n
    therefore submitted that the prosecution has satisfactorily   explained the <\/p>\n
    injuries.     She submitted that even otherwise the non-explanation of the <\/p>\n
    injuries  on  the accused  cannot ipso facto be ground for throwing out the <\/p>\n
    prosecution   case   especially   when   it   is   supported   by   the   eye  witnesses <\/p>\n
    including the injured witness.  She  relied upon the judgment of the Apex <\/p>\n
    Court   in   the   case   of  Amar   Malla   and   others   Vs.State   of   Tripura,   2002  <\/p>\n
    Cri.L.J.   4117    and   submitted   that   the   prosecution   has   proved   its   case <\/p>\n
    beyond  reasonable doubt.\n<\/p>\n
    25]                      In the FIR exhibit 18, PW 2 Jahid Khan had stated that the <\/p>\n
    accused   no.1   while   getting   up,   fell   down   on   the   wooden   plank.     This <\/p>\n
    version is supported by PW 3 Zulfikar in his oral evidence.  PW 6 Dr.Sunil <\/p>\n
    Bhoir deposed that the injury is possible if one falls on a hard and blunt <\/p>\n
    surface. As held by the Apex Court in the case of Amar Malla (Supra) even <\/p>\n
    otherwise the non explaination of the injuries on the accused can not ipso <\/p>\n
    facto be ground for throwing out the prosecution case especially when it is <\/p>\n
    supported by the eye witnesses including injured witness PW 2.  From the <\/p>\n
    evidence on record we are satisfied that the accused were aggressors and <\/p>\n
    the prosecution has already brought on record the genesis and origin of <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
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\n                                                       29<\/span><\/p>\n
    the   occurrence.     We   are,   therefore,   satisfied   that   the   prosecution   has <\/p>\n
    satisfactorily explained the injury of the accused no.1.   That apart, in the <\/p>\n
    present case, PW 2 Jahid and PW 3 Zulfikar are the eye witnesses and as <\/p>\n
    observed earlier they have given coherent and consistent version about <\/p>\n
    the occurrence of the incident.\n<\/p>\n
    26]                      The   prosecution   has   examined   PW   5   Dr.Rajaram   Marathe, <\/p>\n
    Medical Officer attached to the Rajawadi Hospital, who conducted autopsy <\/p>\n
    on the dead body  of the victim and issued P.M. notes exhibit 24.   The <\/p>\n
    prosecution   has   duly   proved     the   P.M.   report   at   exhibit   24.       The <\/p>\n
    prosecution has also examined PW 7 Tanaji Sakharam Shinde who is the <\/p>\n
    witness to the seizer panchnama of belt exhibit  33 and PW 8 Jagannath <\/p>\n
    Baburao   Udugare     who   is   the   panch   witness   to  the   seizer   panchnama <\/p>\n
    exhibit   35   under   which   the   cloths   of   the   accused   were   seized.     The <\/p>\n
    prosecution has proved these panchnamas.\n<\/p>\n
    27]                      Mr.Pasbola, learned counsel for the appellants, submitted that <\/p>\n
    in   the   facts   and   circumstance   of   this   case,   Section   34   IPC   is   not <\/p>\n
    applicable.  He submitted that the incident in question occurred at the spur <\/p>\n
    of moment and it is not outcome of a pre-arranged plan.   There was not <\/p>\n
    meeting of minds of the accused persons.   He submitted that the victim <\/p>\n
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\n                                                    30<\/span><\/p>\n
    initially picked up the wooden plank, and thereafter, accused no.3 picked <\/p>\n
    up the stone and gave blow on the head of the victim, due to which the <\/p>\n
    victim fell down.  At that time, accused no.1 did not know that accused no.2 <\/p>\n
    will catch hold of the legs of the victim. Accused no.2, in turn, did not know <\/p>\n
    that, thereafter,  accused no.1 will give blows on the head of the victim.  In <\/p>\n
    support   of   this   submission   Mr.Pasbola   relied   upon   the   following <\/p>\n
    judgments:-\n<\/p>\n
                     (1)  Shambhu Kuer Vs. State of Bihar,  (1982) 1 SCC 486.\n<\/p><\/blockquote>\n
                     (2) Dajya Moshya Bhil and others Vs. State of Maharashtra, 1984
\n                         SCC (Cri) 611..\n<\/p><\/blockquote>\n
                     (3) Harbans Nonia and another Vs.State of Bihar, 1993 SCC (Cri)  <\/p>\n
                         257.<\/span><\/p>\n
                     (4) Kashmira Singh Vs. State of Punjab, 1995 SCC (Cri) 890.\n<\/p><\/blockquote>\n
                     (5) Badruddin Vs.State of U.P., 1998 SCC (Cri) 1619.\n<\/p><\/blockquote>\n
                     (6) Mithu Singh Vs. State of Punjab, 2001 SCC (Cri) 668.\n<\/p><\/blockquote>\n
                     (7) Babu Ram and another Vs. State  of U.P. and others, 2002  <\/p>\n
                         SCC (Cri) 1400.\n<\/p><\/blockquote>\n
    28]                      On the other hand, Mrs.Bhosale, learned APP submitted that <\/p>\n
    Section   34   really   means   that   if   two   or   more  persons   intentionally   do   a <\/p>\n
    common thing jointly, it is just the same as if each of them had done it <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
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\n                                                          31<\/span><\/p>\n
    individually.   It is a well recognised cannon of criminal jurisprudence that <\/p>\n
    the   Courts   cannot   distinguish   between   co-conspirators,   nor   can   they <\/p>\n
    inquire, even if it were possible as to the part taken by each in the crime.\n<\/p>\n
    Where parties go with a common purpose to execute a common object <\/p>\n
    each and every person becomes responsible for the act of each and every <\/p>\n
    other   in   execution   and   furtherance   of   their   common   purpose;   as   the <\/p>\n
    purpose is common, so must be the responsibility.   She relied upon the <\/p>\n
    judgment of the Apex Court in the case of Parasa Raja Manikyala Rao and  <\/p>\n
    another Vs. State of A.P., 2004 Cri.L.J. 390.\n<\/p>\n
    29]                      From   the   evidence   on   record,   it   cannot   be   said   that   the <\/p>\n
    accused   had   a   common   intention   from   the   beginning   regarding <\/p>\n
    committing murder of the victim as they were not following the victim with <\/p>\n
    any   deadly   weapon.     As   per   the   evidence   of   prosecution,   none   of   the <\/p>\n
    accused   were   having   any   deadly   weapon   with   them.   However,   after <\/p>\n
    chasing   the   victim   and   others,   they   started   exchanging   the   words   and <\/p>\n
    altercation took place between both the sides. At that time, accused no.3 <\/p>\n
    picked up a stone which was lying on the road and gave blow on the head <\/p>\n
    of   the   victim.     Accused   no.2   caught   hold   of   the   victim   and   thereafter <\/p>\n
    accused no.1 gave series of successive blows on the head of the victim.  It <\/p>\n
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\n                                                   32<\/span><\/p>\n
    cannot be said that accused followed the victim with an intention to commit <\/p>\n
    murder.   However, in a given case, common intention can be developed <\/p>\n
    even at the spur of a moment.  The fact that accused No.2 caught hold the <\/p>\n
    legs   of   the   deceased   and   prevented   him   from   being   run   away,   which <\/p>\n
    facilitated accused No.1 to give fatal blows to the deceased, would suggest <\/p>\n
    that   at   a   spur   of   moment   common   intention   was   developed   between <\/p>\n
    accused No.1 and 2. As we have stated earlier that it cannot be said that <\/p>\n
    from   the   beginning   the   accused   had   gone   with   an   intention   to   commit <\/p>\n
    murder of the deceased as they had not gone with any deadly weapon <\/p>\n
    with them.   However, ultimately unfortunate incident happened in which <\/p>\n
    accused Nos.1 and 2 actively participated in committing the murder of the <\/p>\n
    deceased.   In our view, accused No.1 and 2 even for their individual act, <\/p>\n
    can be said to have committed act of brutal murder of the deceased and <\/p>\n
    they are required to be convicted for the offence punishable under Section <\/p>\n
    302 IPC.   In the instant case it is not possible to say that there was a <\/p>\n
    common intention of all the accused to commit murder of the victim.  The <\/p>\n
    individual role of each of the accused is required to be considered to find <\/p>\n
    out as to which crime he has committed.   Since the accused no.3 had <\/p>\n
    given   one   blow   of   the   stone   on   the   head   of   the   victim,     it   cannot   be <\/p>\n
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\n                                                    33<\/span><\/p>\n
    attributed to be a vital injury.   Therefore, he cannot be convicted under <\/p>\n
    Section   302   IPC.     We   have   thoroughly   gone   through   the   evidence   on <\/p>\n
    record and we have found that there was no common intention on the part <\/p>\n
    of accused no.3 to commit the murder of the victim.\n<\/p>\n
    30]                      Accused no.2 was holding belt and for the purpose of defence <\/p>\n
    the victim picked up a wooden plank.  At that point of time, accused no.3 <\/p>\n
    picked up a stone and gave blow on the vital part of body of the victim <\/p>\n
    namely head. The impact of blow was such that victim fell down.  At that <\/p>\n
    time, accused no.2 caught hold of the legs of the victim when he tried to <\/p>\n
    get up.  If the accused no.2 were not to hold the legs of the victim, possibly <\/p>\n
    he could have escaped.   However, since the accuse no.2 caught hold of <\/p>\n
    the legs of the victim he could not escape, and thereafter, the accused no.\n<\/p>\n
    1 gave repeated blows of stone on the vital part of the victim namely head.\n<\/p>\n
    The accused no.2 clearly facilitated the assault made by the accused no.1 <\/p>\n
    on the victim.    The prosecution has established that there was a common <\/p>\n
    intention of the accused No.1 and 2 which was developed at the spur of <\/p>\n
    the moment.   So as to ensure that PW 2 Jahid, PW 3 Zulfikar and the <\/p>\n
    victim   do   not   report   the   matter   to   the   police   and   each   of   them   had <\/p>\n
    participated in the same manner in the act constituting offence.  We are, <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
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\n                                                         34<\/span><\/p>\n
    therefore,   satisfied   that   the   prosecution   has   established   a   common <\/p>\n
    intention as also applicability of Section 34 IPC in so far accused No.1 and <\/p>\n
    2 are concerned.\n<\/p>\n
    31]                      In   the   case   of   Shambhu   Kuer   (Supra),   the   conviction   of <\/p>\n
    appellant therein was upheld by the High Court  with the findings that he <\/p>\n
    continued to hold the deceased till the assault was completed by Mandip.\n<\/p>\n
    One of the three injuries on the deceased one which had pierced the right <\/p>\n
    lung, was according to the medical witness, sufficient to cause the death in <\/p>\n
    the ordinary course.  In that the eye witness did not clearly state that the <\/p>\n
    appellant   continued   to   hold   the   deceased   till   the   assault   was   over.     It <\/p>\n
    appeared in the evidence that Shambhu Kuer caught hold of the deceased <\/p>\n
    and   the   latter   scuffled   to   get   himself   released.     Immediately   thereafter <\/p>\n
    Mandip   took   out   a   knife   and   started   assaulting   the   deceased.     In   that <\/p>\n
    context it was held that from the mere fact that the appellant caught hold of <\/p>\n
    the deceased and scuffled with him, while Mandip took out a knife and <\/p>\n
    commenced the assault, it cannot be inferred beyond reasonable doubt, <\/p>\n
    that he shared the intention of Mandip to murder the deceased.     In the <\/p>\n
    instant case, we have already held that the accuse no.2 caught hold of the <\/p>\n
    legs of victim and accused no.1 gave successive blows on the head of the <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
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\n                                                     35<\/span><\/p>\n
    victim.  In fact, as the accused no.2 caught hold of the legs of the victim he <\/p>\n
    could not escape.   The case of Shambhu Buer (supra) does not advance <\/p>\n
    case of the appellants any further.\n<\/p>\n
    32]                      In the case of Dajya Moshya Bhil (supra) the appellants no.2 <\/p>\n
    and 3 therein along with appellant no.1 chased Gunjarya when he tried to <\/p>\n
    escape  from the scene of occurrence.  It was also brought in the evidence <\/p>\n
    that the appellant nos.2 and 3 pelted stones but no one said whether the <\/p>\n
    stones hit Gunjarya.  The gap in the evidence in this behalf was sought to <\/p>\n
    be filled in by a reference to the medical evidence which indicated that <\/p>\n
    Gunjarya had suffered two lacerated wounds.   The prosecution has laid <\/p>\n
    the evidence in the instant case which clearly bring home the sequence in <\/p>\n
    which the accused assaulted victim as also PW 2.   The Judgment in the <\/p>\n
    case of Dajya (Supra) does not advance the case of the appellant   any <\/p>\n
    further.\n<\/p>\n
    33]                      In the case of Harbans Nonia (Supra) on the basis of material <\/p>\n
    on record the Apex Court came to the conclusion that the two appellants <\/p>\n
    before it did not have any intention to participate with one Shyambali Nonia <\/p>\n
    to   cause   death   of   the   deceased.       The   facts   in   the   present   case   are <\/p>\n
    materially different from the facts in the case of Harbans Nonia (Supra).  In <\/p>\n
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\n                                                     36<\/span><\/p>\n
    the case of Kashmira Singh (Supra) it was observed by the Apex Court <\/p>\n
    that the appellant tried to pick the pocket of PW 5 who called the deceased <\/p>\n
    and the deceased tried to catch hold of the appellant and it was a sudden <\/p>\n
    act   on   the  part   of  William   who   picked   out  a   knife   from   his  pocket  and <\/p>\n
    inflected a single injury on the deceased.   Under these circumstances, it <\/p>\n
    was held it could not be said that the appellant and Sukhchain Singh had <\/p>\n
    prior knowledge that William was armed with a knife and the part played by <\/p>\n
    William could not be a conjoint act so as to attract the element of common <\/p>\n
    intention on the part of the appellant as well as Sukhchain Singh.\n<\/p>\n
    34]                      We have already held that in the instant case the prosecution <\/p>\n
    has established applicability of Section 34 IPC as accused No.1 and 2 had <\/p>\n
    a common intention to commit the offence.  It is also relevant to note that <\/p>\n
    in the case of Kashmira Singh (Supra), the learned Sessions Judge had <\/p>\n
    acquitted the appellant and Sukhchain Singh which was reversed by the <\/p>\n
    High Court.   In that context, the Apex Court in paragraph No.3 observed <\/p>\n
    that the High Court did not examine reasons given by the Sessions Court <\/p>\n
    for acquitting the appellant and Sukhchain Singh.  It may be possible that <\/p>\n
    two views are possible, but the view taken by the Sessions Judge in that <\/p>\n
    case could be said to be unsound.\n<\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
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\n                                                      37<\/span><\/p>\n
    35]                      In the case of Badruddin (Supra) the Apex Court came to the <\/p>\n
    conclusion   that   it   was   difficult   to   sustain   the   conclusion   that   there   was <\/p>\n
    common   intention   between   the   appellant   and   other   persons   to   kill   the <\/p>\n
    deceased.     It   was   also   observed   that   though   establishing   common <\/p>\n
    intention is a difficult task for the prosecution, yet, however difficult it may <\/p>\n
    be,   the   prosecution   has   to   establish   by   evidence,   whether   direct   or <\/p>\n
    circumstantial,   that   there   was   a   plan   or   meeting   of   mind   of   all   the <\/p>\n
    assailants to commit the offence, be it prearranged or on the spur of the <\/p>\n
    moment but it must necessarily be before the commission of the crime.\n<\/p>\n
    Where   direct   evidence   is   not   available,   it   has   to   be   inferred   from   the <\/p>\n
    circumstantial evidence.    In the present case, from the material brought <\/p>\n
    on   record   by   the  prosecution  we  are   satisfied  that   the   prosecution   has <\/p>\n
    established its case.\n<\/p>\n
    36]                      In the case of Mithu Singh (Supra) on facts it was held by the <\/p>\n
    Apex Court  that there was nothing on record to draw the inference that the <\/p>\n
    co-accused had gone to the house of the deceased with the intention of <\/p>\n
    causing her death and such intention was known to the appellant, much <\/p>\n
    less shared by him.    It was observed in paragraph No.6 as under:-\n<\/p>\n
                             “6. To substantiate a charge under Section 302 with the aid of  <\/p>\n
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\n                                                          38<\/span><\/p>\n
                             Section 34 it must be shown that the criminal act complained  <\/p>\n
                             against   was   done   by   one   of   the   accused   persons   in  <\/p>\n
                             furtherance   of   the   common   intention   of   both.     Common  <\/p>\n
                             intention   has   to   be   distinguished   from   same   or   similar  <\/p>\n
                             intention.  It is true that it is difficult, if not impossible, to collect  <\/p>\n
                             and produce direct evidence in proof of the intention of the  <\/p>\n
                             accused and mostly an inference as to intention shall have to  <\/p>\n
                             be drawn from the acts or conduct of the accused or other  <\/p>\n
                             relevant   circumstances,   as   available.     An   inference   as   to  <\/p>\n
                             common   intention   shall   not   be   readily   drawn;   the   culpable  <\/p>\n
                             liability can arise only if such inference can be drawn with a  <\/p>\n
                             certain degree of assurance……”\n<\/p>\n
    37]                      In the case of Babu Ram (Supra) the Apex Court recorded <\/p>\n
    that the prosecution case itself was that there was no prior meeting of the <\/p>\n
    minds of co-accused.   In view of this, in the present case, the reliance <\/p>\n
    placed by Mr.Pasbola, learned counsel for the appellants, on the judgment <\/p>\n
    of   the   Apex   Court   referred   herein   above   is   of   no   assistance   to   the <\/p>\n
    appellants.\n<\/p>\n
    38]                      Mr.Pasbola submitted that the incident in question occurred at <\/p>\n
    the   spur   of   moment.     He   further   submitted   that   the   accused   were   not <\/p>\n
    carrying any weapon, and therefore, they had no intention to kill the victim.\n<\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
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\n                                                    39<\/span><\/p>\n
    He submitted that, Section 302 IPC is not applicable.   In support of his <\/p>\n
    submission he relied upon the following judgment :-\n<\/p>\n
                     (1) Ram Karan and others Vs.State of Uttar Pradesh, 1982 SCC  <\/p>\n
                         (Cri) 386.\n<\/p><\/blockquote>\n
                     (2) Arvind Kumar Vs. State of Uttar Pradesh, 1988 SCC (Cri) 132.\n<\/p><\/blockquote>\n
                     (3) Khuman Singh and others Vs. State of M.P., 2005 SCC (Cri)
\n                         1451.\n<\/p><\/blockquote>\n
    On   the   other   hand,   Mrs.Bhosale,   APP   submitted   that   the   accused   in <\/p>\n
    furtherance of their common intention committed the offence.  There was <\/p>\n
    pre-arranged plan among the accused to ensure that PW 2 Jahid, PW 3 <\/p>\n
    Zulfikar and victim do not report the matter to the police.  They have also <\/p>\n
    threatened these persons earlier that they will see what to do next.  Since <\/p>\n
    PW 3 Zulfikar insisted that the accused  persons should not carry on the <\/p>\n
    business in their area and since the accused persons intended to carry on <\/p>\n
    their business in the same area, accused committed offence in question.\n<\/p>\n
    39]                      In the case of Ram Karan and others (Supra) in paragraph no.\n<\/p>\n
    6 the Apex Court observed that both sides were in an exasperated mood.\n<\/p>\n
    Suddenly  at the  spur  of the  moment there ensued a  quarrel.    Prakash <\/p>\n
    Chandra   and Umesh Chandra on the side of the prosecution died and <\/p>\n
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\n                                                    40<\/span><\/p>\n
    Chhotelal   on   the   side   of   the   accused   died   and   each   of   them   met   a <\/p>\n
    homicidal   death.     On   the   side   of   the   prosecution   Dinesh   Chandra   was <\/p>\n
    injured, on the side of accused  Ram Karan was injured.   From this  an <\/p>\n
    irresistible inference ensued that Exception 4 to Section 300, IPC would be <\/p>\n
    attracted.   The exception provides that culpable homicide is not murder, if <\/p>\n
    it   is   committed   without   premeditation   in   a   sudden   fight   in   the   heat   of <\/p>\n
    passion upon a sudden quarrel and without the offenders  having taken <\/p>\n
    undue advantage or acted in a cruel or unusual manner.    In the present <\/p>\n
    case, we have already held that the accused No.3 cannot be held guilty of <\/p>\n
    the   offence   under   Section   302   IPC   and   the   common   intention   was <\/p>\n
    developed between the accused No.1 and 2 at the spur of the moment.\n<\/p>\n
    The case of Ram Karan (Supra) does not advance the case of present <\/p>\n
    appellants any further.\n<\/p>\n
    40]                      In the case of Arvind Kumar (Supra), on the fateful day, the <\/p>\n
    appellant Arvind Kumar and the deceased Om Prakash Gupta, who were <\/p>\n
    the   student   of   Motilal   Nehru   Regional   Engineering   College,   Allahabad, <\/p>\n
    came late and were not allowed to join their classes. They took the key <\/p>\n
    from PW 4 Ajit Singh and went to his room   in the hostel.   When PW 4 <\/p>\n
    came to his room he found the appellant and the deceased playing a game <\/p>\n
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\n                                                         41<\/span><\/p>\n
    of cards.   There was a sudden quarrel leading to an altercation and the <\/p>\n
    appellant   whipped   out   a   knife   and   struck   two   blows   on   the   deceased <\/p>\n
    resulting in his instantaneous death.     The facts in the case at hand are <\/p>\n
    different from the facts in the case of Arvind Kumar (Supra).\n<\/p>\n
    41]                      In   the   case   of   Khuman   Singh   (Supra)   the   Doctor   who <\/p>\n
    conducted post mortem examination did not state that he had found any <\/p>\n
    injury which was sufficient in the ordinary course of nature to cause death.\n<\/p>\n
    In   paragraph   10,   the   Apex   Court,   on   the   basis   of   material   on   record, <\/p>\n
    observed   that   the   occurrence   took   place   suddenly   and   there   was   no <\/p>\n
    premeditation on the part of the appellants.   The case of Khuman Singh <\/p>\n
    (Supra) also is of no assistance to the present appellants.\n<\/p>\n
    42]                      The prosecution has examined PW 5 Dr.Rararam Narayanrao <\/p>\n
    Marathe at exhibit 23.  At the relevant time he was working as the Medical <\/p>\n
    Officer at Rajawadi Hospital. He carried out post mortem examination of <\/p>\n
    the victim on April 5, 2003.   On external examination, he found following <\/p>\n
    external injuries:-\n<\/p>\n
                                i. CLW   4   cm   X   1   cm   bone   deep   verticle   with   contuse  <\/p>\n
                                   margin 1.5 cm on right forehead.\n<\/p><\/blockquote>\n
                                ii. CLW  3   cm  X   1   cm.  Bone   deep   verticle   with  contuse  <\/p>\n
                                   margin 1 cm on left forehead.\n<\/p><\/blockquote>\n
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\n                                                           42<\/span><\/p>\n
                                iii. CLW   5 cm X 1 cm bone deep, oblique with contused  <\/p>\n
                                   margin 1 cm on left forehead.\n<\/p>\n
                                iv. CLW 3 cm X 1 cm bone deep, horizontal with contused  <\/p>\n
                                   margin 1 cm on frontal region with depressed fracture  <\/p>\n
                                   on frontal bone.\n<\/p>\n
                                v. CLW 2 cm X 1 cm skin deep, oblique behind left ear.\n<\/p>\n
                                vi. Contusion 5 cm X 4 cm reddish colour on left scapular  <\/p>\n
                                   region.\n<\/p>\n
                                vii. Contusion 5 cm X 2 cm reddish colour on behind neck.\n<\/p>\n
                                viii.Minor   contusion   on   left   shoulder,   below   left   angle   of  <\/p>\n
                                   mandible left cheek and right cheek.\n<\/p>\n
    On   internal  examination,   he  noticed  depressed   fracture   of  frontal   bone.\n<\/p>\n
    There was subdural hamorrage on frontal lobe.  According to this witness, <\/p>\n
    the cause of death was shock due to fracture skull.  It  was unnatural.  The <\/p>\n
    injuries   were   fetal   in   ordinary   course   of   nature.     He   deposed   that   the <\/p>\n
    injuries mentioned by him were possible by use of article “C-1” and “C-2”.\n<\/p>\n
    In the cross-examination, he deposed that it is true that the injury no.(iv) <\/p>\n
    was connected to internal injury mentioned in column no.19(ii) of his report <\/p>\n
    exhibit 24.  External injury no.19(iv) corresponding to internal injury no.19(ii) <\/p>\n
    was the cause of death.\n<\/p>\n
    43]                      The   prosecution   also   examined   PW   6   Dr.Sunil   Wamanrao <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
                                                                          ::: Downloaded on – 09\/06\/2013 15:37:51 :::<\/span>
\n                                                    43<\/span><\/p>\n
    Bhoir   at   exhibit   26,   the   Casualty   Medical   Officer   attached   to   Rajawadi <\/p>\n
    Hospital,   Ghatkopar.     He   examined   PW   2   Jahid   and   noted   following <\/p>\n
    injuries on his body:-\n<\/p>\n
                               i. CLW left temporal 1 \u00bd cm X \u00bd cm X \u00bd cm.\n<\/p>\n
                               ii. CLW left forehead \u00be cm X \u00be cm X \u00be cm.\n<\/p>\n
    To that effect, he produced notes at exhibit 27.  He also examined accused <\/p>\n
    no.1 on April, 4, 2003 and noted the following injuries:-\n<\/p>\n
                                  i.  Multiple contusion marks on the back and shoulder.\n<\/p>\n
    He   produced   notes   to   that   effect   at   exhibit   28.     He   opined   that   the <\/p>\n
    aforesaid injuries are possible if one falls on a hard and blunt substance.\n<\/p>\n
    In the cross-examination, he deposed that the multiple contusion on the <\/p>\n
    shoulder and back of accused no.1 could have been possible by any hard <\/p>\n
    and blunt object.\n<\/p>\n
    44]                      The prosecution has also relied upon the inquest panchnama <\/p>\n
    dated   April   4,   2003   at   exhibit   37   which   discloses   the   nature  of   injuries <\/p>\n
    sustained   by   the   victim.     This   evidence   is   substantiated   from   the   C.A.\n<\/p>\n
    Report (Exhibit 40) which indicates that the muddemal stones marked as <\/p>\n
    exhibit 14 by the C.A. were the stones with human blood group “B”   It is <\/p>\n
    clear   from   the   said   C.A.   report   that   on   the   cloths   of   the   victim   namely <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 15:37:51 :::<\/span>
\n                                                   44<\/span><\/p>\n
    trouser, Sando Baniyan and  nicker, stains of human blood group “B” were <\/p>\n
    found.  The blood group of the victim was “B”.  The blood group of PW 2 <\/p>\n
    Jahid was “AB” as is evident from the C.A. report exhibit 41. The blood <\/p>\n
    group of accused no.1 is “O” as per the C.A. Report exhibit 45.  As far as <\/p>\n
    blood  group of accused no.2 is concerned, it could not be determined as <\/p>\n
    the result  was inconclusive as is evident from the C.A. report exhibit 42.\n<\/p>\n
    The blood group of accused no.3 is “O” as is evident from the C.A. report <\/p>\n
    exhibit 43.   The prosecution has established that the Articles “C-1” and <\/p>\n
    “C-2” were used  as  weapons  in  the  commission of offence.   Thus, the <\/p>\n
    prosecution has established the commission of offence on the   basis of <\/p>\n
    this material as also on the basis of evidence of eye witnesses PW 2 and <\/p>\n
    PW 3.\n<\/p>\n
    45]                      On behalf of the appellants an attempt was made to submit <\/p>\n
    that at the time of incident other persons also gathered on the spot and <\/p>\n
    they pelted stones on the victim.   On account of this pelting stones from <\/p>\n
    the mob, the victim sustained injuries and in consequence he died.   The <\/p>\n
    learned Sessions Judge has rightly observed in paragraph Nos.23 to 25 <\/p>\n
    that it was   accused nos.1 and 3 who gave blows of the stones  to the <\/p>\n
    victim.     Even,   the   post   mortem   notes   at   exhibit   24   prepared   by   PW   5 <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:37:51 :::<\/span>
\n                                                    45<\/span><\/p>\n
    Dr.Marathe indicate that there was subdural hamorrage and fracture on the <\/p>\n
    frontal bone and the cause of death was shock due to fracture of skull and <\/p>\n
    frontal bone.  This leads to the conclusion that the death of the victim was <\/p>\n
    homicidal.\n<\/p>\n
    46]                      PW 2 Jahid and PW 3 Zulfikar had deposed that about 4 to 5 <\/p>\n
    days prior to the incident in question a quarrel took place between the PW <\/p>\n
    3   Zulfikar   and   uncle   of   accused   no.1   as   the   accused   were   selling   the <\/p>\n
    bakery products, milk, eggs in Hiranandani Complex where PW 2 Jahid <\/p>\n
    and PW 3 Zulfikar used to sell the said products.    On April 3, 2003, the <\/p>\n
    accused nos.1 and 2 came to bakery at about 4 pm. and started abusing <\/p>\n
    PW 3 Zulfikar.   After the exchange of hot words, the accused told them <\/p>\n
    that they will come on the next day and will see what to do.  They left  the <\/p>\n
    bakery thereafter.  On April 4, 2003 at about 4 pm. of the accused came to <\/p>\n
    the said bakery and started abusing PW 3 Zulfikar.   The Munshi of the <\/p>\n
    bakery and PW 2 Jahid started to pacify the accused.  Since there was no <\/p>\n
    response, PW 2 Jahid and PW 3 Zulfikar and victim told them that they will <\/p>\n
    lodge complaint to the police station.   When the victim, PW 2 Jahid and <\/p>\n
    PW 3 Zulfikar proceeded to lodge the complaint to Sakinaka police station, <\/p>\n
    at that time, near Siddhivinayak General Stores suddenly accused came <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 15:37:51 :::<\/span>
\n                                                     46<\/span><\/p>\n
    and intercepted them.   Accused no.2 was holding belt and the victim in <\/p>\n
    order to defend himself picked up a wooden plank lying there.   Accused <\/p>\n
    no.3 gave blow on the head of the victim and the victim fell down.  When <\/p>\n
    he  tried  to  get  up,  accused  no.2  caught  hold  of  the  legs  of   the  victim.\n<\/p>\n
    Thereafter, accused no.1 picked up stone and gave successive blows on <\/p>\n
    the head of the victim. Thus, accused no.2 facilitated the assault made by <\/p>\n
    accused   no.1   by   the   victim   and   played   prominent   role   in   the   incident.\n<\/p>\n
    Thus, accused nos.1 and 2 are found guilty with the intention of committing <\/p>\n
    murder of the victim.  The prosecution in order to sustain the Charge under <\/p>\n
    Section 302 r\/w.34 IPC has proved that the death of the victim was caused <\/p>\n
    by accused nos.1 and 2 and\/or it was outcome of  consequence of the act <\/p>\n
    of these accused.  Accused nos.1 and 2 knew that the injury by means of <\/p>\n
    stone may cause death of the victim.\n<\/p>\n
    47]                      We, therefore, uphold the conviction of accused nos.1 and 2 <\/p>\n
    under Section 302 r\/w.34 IPC. Accused nos.1 and 2 are found guilty under <\/p>\n
    Section 235(2) of Cr.P.C. of the offence punishable under Section 302 r\/w.\n<\/p>\n
    34 IPC and are sentenced to suffer imprisonment for life and pay fine of <\/p>\n
    Rs.5,000\/- each, in default, to suffer R.I. for three months.\n<\/p>\n
    (i)                      As far as accused no.2 is concerned, he is found guilty of the <\/p>\n
    cri.appeal.1034-08.sxw<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:37:51 :::<\/span>
\n                                                      47<\/span><\/p>\n
    offence punishable under Section 324 IPC in causing voluntary hurt to PW <\/p>\n
    2 Jahid.   He is, accordingly, sentenced to suffer R.I. for three years with <\/p>\n
    fine of Rs.2,000\/-, in default, to suffer R.I. for one month.   Accused no.2 <\/p>\n
    shall suffer the above said sentences concurrently.\n<\/p>\n
    (ii)                     As far as accused no.3 is concerned, the learned Sessions <\/p>\n
    Judge held him guilty of the offence punishable under Section 302 r\/w.34 <\/p>\n
    IPC and sentenced him to suffer life imprisonment.  After considering the <\/p>\n
    material on record, we are of the opinion that the learned Sessions Judge <\/p>\n
    was   not   justified   in   convicting   accused   no.3   for   the   offence   punishable <\/p>\n
    under Section 302 r\/w.34 IPC and sentencing him for life imprisonment.\n<\/p>\n
    We, therefore, set aside the conviction of the accused under Section 302 <\/p>\n
    r\/w.34 IPC as also sentence of life imprisonment awarded by the learned <\/p>\n
    Sessions Judge.   Having regard to the material on record, we are of the <\/p>\n
    opinion that the accused no.3 is guilty  of the offence punishable under <\/p>\n
    Section 323 IPC and is sentenced to suffer RI for one year.\n<\/p>\n
    (iii)                    Appeal is partly allowed in the aforesaid terms.\n<\/p>\n
               [R.G. KETKAR, J.]                            [P.B. MAJMUDAR, J.]\n\n    cri.appeal.1034-08.sxw\n\n\n\n                                                                  ::: Downloaded on - 09\/06\/2013 15:37:51 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Central Prison And Undergoing The vs The State Of Maharashtra on 18 February, 2010 Bench: P. B. Majmudar, Rajesh G. Ketkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1034 OF 2008 1] Arunkumar @ Kallu Rajendraprasad Pande, Aged : 34 years, 2] Ashok @ Guddu […]<\/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-218977","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nCentral Prison And Undergoing The vs The State Of Maharashtra on 18 February, 2010 - 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\/central-prison-and-undergoing-the-vs-the-state-of-maharashtra-on-18-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Central Prison And Undergoing The vs The State Of Maharashtra on 18 February, 2010 - 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