ORDER B. P. Singh, C.J.
1. These four criminal appeals and one revision application have been heard together and are being disposed of by this common judgment. Five persons were put up for trial before the Additional Sessions Judge, Bombay in Sessions Case No. 854 of 1989 charged of offences punishable under Section 302 read with Section 34 of the I.P.C. for murder, and under Section 460 read with Section 109 of the Indian Penal Code, for committing offence of lurking house trespass by night. One Indrajeet Bhagwant Singh Anand aged about 18 years was murdered on April 27, 1989. The death of Indrajeet Singh was allegedly caused by accused Nos. 1, 2 and 3. Accused No. 1 is Ahmed Shaikh Babajan, hrenafter referred to as Accused No. 1 Accused No. 2. Usmangani Jikrt Mohd. Shaik is the brother-in-law of accused No. 1 being the brother of his wife Asmabi, accused No. 4. He shall be referred to as 'Accused No. 2'. Accused No. 3 Moinuddin Ibrahim Khan is said to be the estate agent through whom the apartment belonging to Respondent No. 4 was let-out to P.W. 6 mother of the deceased, on leave and licence basis. As earlier stated, accused No. 4 Asmabi is the wife of accused No. 1, while accused No. 5 Rahimabi is the sister of accused No. 1. The Trial Court by its judgment and order dated 25.4.1995 has found accused Nos. 1, 2 and 3 guilty of offence punishable under Section 456 read with Section 109 of the I.P.C. and sentenced them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5000/- each, and in default to undergo simple imprisonment for six months. They have, however, been acquitted of the charge under Section 302 read with Section 34 of the I.P.C. Accused Nos. 4 and 5, the two female accused, have been found guilty of offence punishable under Section 456 of the I.P.C. and sentenced to 2 years rigorous imprisonment and to pay a fine of Rs. 5000/ - each, and in default to undergo simple imprisonment for six months. Though all the accused were charged of the offence punishable under Section 460 of the I.P.C., only accused Nos. 1, 2, and 3 were charged under Section 302 read with Section 34 of the I.P.C.
2. Criminal Appeal No. 240 of 1995 has been preferred by accused No. 2 Usmangani and accused No. 4 Asmabi. Criminal Appeal No. 241 of 1995 has been preferred by accused No. 1 Ahmed Shaikh and his sister Rahimabi accused No. 5. Criminal Appeal No. 273 of 1995 has been preferred by Moinuddin - accused No. 3.
Criminal Appeal No. 381 of 1995 has been preferred by the State of Maharashtra against acquittal of accused Nos. 1, 2 and 3 of the charge under Section 302 read with Section 34 of the I.P.C. as also against the acquittal of the accused under Section 460 of the I.P.C.
Criminal Revision Application No. 156 of 1995 has been preferred by the informant Arvinder Singh Bhagwant Singh Anand. P. W. 1 and Harjeet Kaur, P.W. 5.
As earlier noticed, accused No. 1 is the husband of accused No. 4 and the brother of accused No. 5. He is also the brother-in-law of accused No. 2. Accused No. 3 is the estate agent through whom P.W. 6 - Rani Bhagawant Singh mother of deceased, had obtained the apartment on leave and licence basis from accused No. 1.
3. The case of the prosecution is that on 27.4.1989 at about 7.30 p.m., accused Nos. 1, 2 and 3 assaulted Indrajeet Singh, brother of the informant Arvinder Singh, P.W. 1. It is not the prosecution's case that any arms were used, but the aforesaid accused persons assaulted him with fists and kicks, and it appears that in the scuffle Indrajeet Singh was strangulated to death, as disclosed by the medical evidence. The case of the prosecution is that the occurrence was witnessed by Arvinder Singh, P. W. 1 and Sunil Salvi, P.W. 2, a police constable and a resident of the locality. Immediately after the occurrence Indrajeet Singh was removed to the clinic of one Dr. Asif Ali (P.W. 8) which was on the ground floor of the same building in which the deceased resided. At the time when Indrajeet Singh (deceased) was removed to the clinic of Dr. Asif Ali, he was unconscious and did not respond to the treatment given by the said Dr. Asif Ali. The police patrol van had come on receiving information and apprehended accused No. 1 Ahmed Shaikh and accused No. 2 Usmangani who had been detained by the crowd for having assaulted Indrajeet Singh. They along with the injured had also been taken to the clinic of Dr. Asif Ali by the mob, where the police patrol van came on information being given to the Police Control Room. The injured was then taken to the Cooper Hospital for better treatment in the same police van. On reaching the hospital, the Medical Officer declared him dead. The First Information Report about the occurrence was lodged by P.W. 1 Arvinder Singh at about 10.30 p.m. at the D. N. Nagar Police Station pursuant to which, investigation was taken up and, ultimately, all the accused were charged of the offence punishable under Section 460 of the I.P.C., while accused Nos. 1. 2and3werealso charged of the offence punishable under Section 302 read with Section 34 of the I.P.C. They were put up for trial before the Additional Sessions Judge, Greater Bombay.
4. It is necessary to notice the background in which the occurrence took place. It is not in dispute that flat number H-14 located on the 3rd floor of Zohra Agadi, Yari Road, Versova, Andheri is owned by Ahmed Shaikh accused No. 1. By an agreement of leave and licence dated 28th July, 1988 he inducted Rani Bhagwant Singh (P.W. 6), mother of the deceased, as a licensee of the said premises. The agreement was for a period of nine months and was to expire on 27th April, 1989. The estate agent, through whom the said deal was finalised, is accused No. 3 Moinuddin Ibrahim Khan. The premises was occupied by Rani Bhagwant Singh along with her husband Bhagwant Singh- P.W. 4, her daughter Harjeet Kaur P.W. 5, her sons Indrajeet Singh (deceased), Arvinder Singh P.W. 1 and Harvinder Singh (not examined). On the 24th, 25th and 26th of April. 1989, a request was made by accused No. 1, who came along with accused Nos. 2 and 3, for vacating the premises since the agreement of leave and licence was to expire on 27th April, 1989. It is the prosecution's case that on all three occasions Bhagwant Singh explained to them that his wife and daughter had gone to Hyderabad, and after they returned from Hyderabad, the premises will be vacated. Accused Nos. 1. 2 and 3 thereafter went away, and it is not the case of the prosecution that any untoward incident took place. The case of the prosecution is that accused No. 3 Moinudin Ibrahim Khan has a shop on the ground floor in the same society, 3 buildings away from the building in which the prosecution witnesses reside. Accused No. 3 runs his business in the name and style of "A-1 Furniture Mart", which is near the crossing of Yari Road and the lane which leads to the building in which the prosecution witnesses reside. The case of the prosecution is that on the 27th April, 1989. Arvinder Singh P.W. 1 went to the Gurudwara at about 7.00 p.m. leaving behind his father Bhagwant Singh P.W. 4 and his brother Indrajeet Singh (deceased) in the flat. The sister and mother of P.W. 1 Arvinder Singh were expected to come later in the evening by train from Hyderabad.
At about 7.30 p.m. Arvinder Singh P.W. 1 was returning home. He saw a crowd from a distance but when he came near the place of occurrence, he saw accused Nos. 1 and 2 and 3 assaulting his brother Indrajeet Singh. He rushed to help his brother, who was being assaulted and found that his brother was hurt and was speechless. Several persons had gathered there and accused Nos. 1 and 2 had been detained by them as being the assailants of his brother. Accused No. 3 had managed to escape. The injured was removed to the clinic of Dr. Asif Ali located on the ground floor of the same building in which P.W. 1 resided. The police control room was informed and a mobile police patrol party came to the clinic of Dr. Asif Ali. Though Dr. Asif Ali had given some treatment. Indrajeet Singh did not respond and, therefore, he was removed to the Cooper Hospital in the police van, where he was declared dead. It is also the prosecution's case that in the same police van Appellants/ accused Nos. 1 and 2 were also taken to the Cooper Hospital, and later to the police station. After Indrajeet Singh was declared dead, Arvinder Singh - P.W. 1 returned home in search of his father. When he went to his flat, he found accused Nos. 4 and 5 in the flat with a child. He had also met his brother Harvinder Singh on his way, who had also accompanied him to the flat. He thereafter searched out his father and then came to the hospital along with his father - P.W. 4 and his brother Harvinder Singh. Leaving them at the Cooper Hospital, he went to the police station and lodged F.I.R. at 10.35. p.m.
5. It is stated in the F.I.R. lodged at the D.N. Nagar Police Station that, the informant with his family members resided in the flat taken by his mother P.W. 6 from accused No. 1 through accused No. 3, an estate agent. About 12 days before the date of occurrence and thereafter, on 24th. 25th and 26th of April 1989, accused Nos. 1 to 3 had come to the flat and had requested his father to vacate the premises on the expiry of the leave and licence agreement on 27.4.89. His father had explained to them that his wife and daughter had gone to Hyderabad and after their return, the flat will be vacated. On the date of occurrence at 7.05 p.m.. he went to the Gurudwara and was returning at about 7.30 p.m. when he saw that a fight was going on. When he came near the place of occurrence, he saw that accused Nos. 1, 2 and 3 were assaulting his brother Indrajeet Singh. This occurrence took place to front of the furniture shop of accused No. 3. He noticed that accused No. 1 Ahmed Shaikh had caught hold of his brother Indrajeet Singh by hand around his neck and accused No. 2 Usmangani had caught hold of his brother and was assaulting him with fists and kicks, while accused No. 3 Moinuddin Khan was also assaulting his brother from front with fists. When he rushed to rescue his brother, he found him lying on the ground as a result of the assault. He immediately requested for help from the people, who had gathered there. Accused Nos. 1 and 2 were detained by the mob which had assembled there, but accused No. 3 managed to escape. With the help of the people who had assembled there, he look his brother Indrajeet Singh to the clinic of Dr. Asif Ali, who was a resident of the same building in which he resided. The doctor gave an injection and started the treatment. In the meantime, police wireless vehicle came there and Indrajeet Singh was taken to the Cooper Hospital in that van. On reaching the hospital he was declared dead. Accused Nos. 1 and 2 Ahmed Shaikh and Usmangani were also taken to the hospital in the same police van.
6. It may be noticed that though this report was lodged as late as 10.35 p.m., the informant has not mentioned anything about the forcible entry of Accused 4 and 5 in his flat. The report is completely silent about the occupation of the flat by accused Nos. 4 and 5. In fact, there is no mention whatsoever about the flat having been occupied by any one by use of force or otherwise. The F.I.R. also does not mention the presence of P.W. 2 Sunil Salvi, who claimed to be an eye-witness. Moreover, P.W. 2 did not support the prosecution's case when examined as a witness and turned hostile.
7. There are a few significant facts worth noticing at this stage- The F.I.R. was recorded by Police Inspector Pagare, who could not be examined at the trial since he was dead. It also appears that the police personnel, who were in the mobile patrol van, were not examined as witnesses nor were they examined even in the course of investigation. It also appears from the evidence that the officer who was in-charge of the police mobile patrol van was one Sub-Inspector Balasaheb Bankar. The evidence of the Inspector Vijay More P.W. 9 is to the effect that, the said Balasaheb Bankar has not been attending duty for last 5 to 6 years and was not available. He also admitted that he had not recorded the statement of the said Sub-Inspector Bankar.
8. Inspector Vijay More was examined as P.W. 9. As earlier noticed, Police Inspector Pagare, who was the Investigating Officer, had died, and since Vijay More was associated with the investigation of the case, he was examined at the trial as P.W. 9. He stated that on the date of occurrence, he was attached to the D. N. Nagar Police Station as Police Sub-Inspector and was in-charge as the Station House Officer from 8.00 p.m. to 8.00 a.m. on the night intervening 27th and 28th April, 1989. According to him, at about 9.00 p.m. he received a message on wireless from the Control Room informing him that an injured had been removed to Cooper Hospital in a police van. He along with Police Inspector Pagare (deceased) and other officers went to Cooper Hospital after making a station diary entry. They were told by the doctor at the Cooper Hospital that the injured had been declared dead when he was brought to the hospital, Police Inspector Pagare recorded the F.I.R. on the statement of Arvinder Singh P.W. 1 at the police station the same night at 10.35 p.m. This was marked as Exh. 17. The inquest panchanama (Exh. 27() was prepared at 11.10 p.m. on identification of the dead body by Arvinder Singh P.W. 1. At that stage, it appeared that death was on account of pressing of throat of the deceased. Between 11.30 p.m. and 12.10a.m. the scene of offence panchanama (Exh. 24) was prepared. This witness, along with Inspector Pagare and others, had gone to the place of occurrence where the panchanama was prepared. Thereafter, they visited the flat in which the deceased resided and which was on 3rd floor. It was found that the lock of the door was intact, but the latch of the door was damaged. Exhibit 29 panchanama was prepared at 1.30 a.m. This witness further stated that he was throughout helping Police Inspector Pagare, who was the Investigating Officer and who had examined the eye-witnesses and ultimately filed chargesheet in the case. This witness has also stated that accused Nos. 1 and 2 were seen at the Cooper Hospital in the police van and they were later brought to the police station and arrested. Thereafter accused No. 3 was also arrested. In the early hours of 28th April, 1989, the two female accused Nos. 4 and 5 were also arrested. The post-mortem was conducted at the Cooper Hospital on 28.4.1989. He admitted that he did not see any visible injury on accused No. 1 and he did not know whether he was medically examined. As regards Sub-Inspector Bankar, who was the Officer in-charge of the mobile patrol van in which, injured and accused Nos. 1 and 2 were brought to the hospital, he stated that Sub-Inspector Bankar was not attending duties for last 5 or 6 years. He did not record his statement but Inspector Pagare might have recorded his statement.
9. Dr. Pritish .Jalgaonkar (P.W. 10) conducted the post-mortem examination on the dead body of the deceased and the cause of death, according to him, was asphyxia due to strangulation.
10. To prove the first part of the occurrence in which deceased Indrajeet Singh was assaulted by accused Nos. 1 to 3, the prosecution examined two eye-witnesses namely, Arvinder Singh (P.W. 1) and Sunil Salvi (P.W. 2).
In his deposition, P.W. 1 stated that he was residing with his family members in the flat in question. At about 7.30 p.m. when he was returning to his flat, he saw from a distance of about 20 feet that his brother was being assaulted by accused Nos. 1, 2 and 3. He ran to save him. He further described the manner in which the three accused were assaulting his brother. In more or less the same manner as described in the F.I.R. Many persons had assembled at the place of occurrence which was just in front of the furniture shop of accused No. 3. All the three assailants had been detained by the mob, but accused No. 3 managed to escape. The remaining two namely, accused Nos. 1 and 2 along with the injured were taken to the clinic of Dr. Asif Ali which was on the ground floor of the same building in which the witness resided. The condition of Indrajeet Singh was serious as there was no movement and he was unconscious and speechless. He was not even responding to questions put to him. Dr. Asif Ali started the treatment, but in the meantime the police van came there and put the injured along with accused Nos. 1 and 2 in the said van and took them to Cooper Hospital. He claims to have disclosed their names to them as the assailants. When they reached Cooper Hospital, the doctor pronounced injured Indrajeet Singh dead. Thereafter, he returned home. While he was returning home, he met his brother Harbinder Singh near Yari Road and told him about the occurrence. Both then went to their flat in search of their father, but he was not seen in the flat. Instead, he found two ladies and a child in the flat. It was between 9.00 and 10.00 p.m. that he saw accused Nos. 4 and 5 in the flat. When he protested, they retorted by saying that he had no right to occupy the premises after the expiry of the agreement . Those two female accused had entered the flat after breaking open the entrance lock as stated by them. He further stated that when he had left for Gurudwara, his father and brother Indrajeet Singh (deceased) were in the flat and his mother and sister were expected to return from Hyderabad the same evening. According to P.W. 1 when he did not find his father, he along with his brother Harvinder Singh went in an auto-rickshaw in search of his father and, ultimately, found him in the garden of Seven Bunglows. He told him about the occurrence and thereafter all three went to Cooper Hospital. His father and brother remained in the hospital while, he went to the police station and lodged the F.I.R.. According to this witness, accused Nos. 1, 2 and 3, who had been requesting his father to vacate the premises, were bent upon to get them evicted and, that is why, they had assaulted his brother. The key of the flat had fallen out of the pocket of Indrajeet Singh when he had been taken to the clinic of Dr. Asif Ali. This witness further claims that after lodging the report, he took the police to the place of occurrence where the panchanama was prepared and later they visited his flat. When the police visited his flat, his mother and sister were in the flat, but the female accused namely, accused Nos. 4 and 5 were not there. The lock was found intact but the latch was damaged and there were signs of breaking by use of force.
11. In cross-examination, P.W. 1 stated that the building in which they resided was in the lane which joins Yari Road, the place of occurrence was in front of the furniture shop of accused No. 3 which was near the point where the lane joined Yari Road. It was three buildings away from the building in which the witness resided. Those were Ramzan days and many hawkers were present at the time of occurrence. He, however, denied the suggestion that the flat was in joint possession of his father and P.W. 6 Rani Bhagwant Singh. He also denied the suggestion that there were two sets of keys, and one set was given to accused No. 1, owner of the premises. According to him, they were in exclusive possession of the flat. He had suspected forcible eviction from the tenor of the talk and heated discussions which had earlier taken place, though no report was made to the police. Indrajeet Singh was a child artist and had acted in many films. This witness admitted that Sunil Salvi, P.W. 2 was a close friend of deceased Indrajeet Singh. P.W. 2 was a constable and was also known to him as he had come to his house on many occasions and was a resident of the same locality. This witness clarified that when he first saw the occurrence from a distance of about 20 to 30 feet, he could not make out who was assaulting whom, but when he came near he recognised the assailants. As soon as he reached there, the assailants left his brother and his brother fell down. He had seen P.W. 2 Sunil Dalvi amongst the persons who had assembled there and who had accosted the accused. His father statement was recorded at about 10.30 p.m. the same night. Even on 29th April. 1989 when he was questioned about the keys, he had not stated about the occupation of the flat by accused Nos. 4 and 5 which he had seen on the night of 27th April. 1989. He further admitted that even when the panchanama of the flat was prepared, he did not mention about the presence of accused Nos. 4 and 5 in the flat on the night of occurrence. He could not give any reason as to why he had not so stated, and he attributed this to his shocked state of mind. This witness further admitted that he did not make any statement to the police officers present in the Cooper Hospital who were the same policeman, who had reached the spot in the patrol van. He further admitted that after Indrajeet Singh was declared dead, he did not tell the police about the occurrence. Similarly, he did not tell the police officers, who were present in the patrol van the names of the assailants, although both accused Nos. 1 and 2 had accompanied them in the said van. He has further deposed that he had decided not to lodge F.I.R. unless he met his father and informed him about the occurance.
The flat occupied by this witness and his family members consisted of one bed-room, one hall and one kitchen admeasuring about 450 sq.ft. The flat had only one entrance and they had a lock on it. He dented the suggestion that bed-room portion was retained by the landlord accused No. 1 and his wife accused No. 4. He also denied the suggestion that duplicate set of keys of the flat were given to accused Nos. 1 and 4. This witness further admitted that in his report to the police, he did not mention the names of the persons known to him who were members of the crowd which had assembled at the time of assault. He also did not disclose the name of Sunil Salvi as a person present who had helped him in removing the injured to the hospital. According to this witness, the crowd accosted accused Nos. 1 and 2 and the said Sunil Salvi. P.W. 2 arrested them on the spot, though he was in a civilian dress at that time. He however, admitted that the name of Sunil was not mentioned in the F.I.R. as the person, who helped him reach the injured to the clinic. He also admitted that in the F.I.R. he had not mentioned the names of accused Nos. 4 and 5 as the persons, who had trespassed into and occupied their flat after the incident. He could not assign any reason for this omission. He denied the suggestion that accused No. 1 Ahmed Shaikh was called by them to discuss the matter regarding possession of the premises and that he had come near the furniture shop of accused No. 3 at about 7.00 p.m. on 27th April, 1989. He also further denied the suggestion that when accused No. 1 had come to meet them, he, his father and his brothers Harbinder and Indrajit (deceased) and his friend Sunil Salvi caught accused No. 1 on the road and assaulted him brutally with fist blows and kicks. He also denied the suggestion that when accused No. 1 was being so assaulted, many people had gathered on the spot and in that occurrence Indrajeet (deceased) had sustained injuries. He further denied the suggestion that after assaulting accused No. 1 he and his brother Harbinder and father ran away to save themselves from the crowd but Indrajeet Singh remained amidst the crowd. He also denied the suggestion that after sometime when he returned to the spot to see what had happened to his brother Indrajeet Singh he came to know that he had sustained injuries as a result of which his condition was critical and he was taken to doctor Asifali's clinic by some persons. He also denied the suggestion that accused No. 1 also sustained injuries and was therefore removed to the hospital in the police van. This witness stated that when he rushed to save his brother, he was not assaulted by anyone and, in fact, even before his brother could fall he lifted him with his hands. He did not see any member of the crowd intervening to save his brother. He was the only person to intervene and help his brother. He asserted that in his complaint recorded by the police, it has not been correctly recorded that he had seen his brother falling on the ground as a result of the assault. The fact was that when he reached his brother, he lifted him by hand and did not allow him to fall on the ground. He however, could not explain how this fact was not mentioned in the F.I.R.
12. The only other eye-witness examined by the prosecution regarding the first part of the occurrence is P.W. 2. Sunil Salvi. This witness claims to be a police constable, though he was not on duty when the occurrence took place. He deposed that he was resident of Nirman Kutir Building on Yarl Road, Versova, just opposite the furniture shop of accused No. 3, whom he knew. At about 7.30 p.m. on 27th April, 1989, he saw a crowd of about 20 persons near the furniture shop of accused No. 3. At that time, he was near a tea shall taking tea on the other side of the road. Seeing the crowd, he crossed the Yari Road and came to the place of occurrence. On reaching that place he saw Indrajeet Singh (deceased) lying in front of the shop of accused No. 3. He also saw accused Nos. 1 and 2 standing there and he accosted them at the behest of members of the mob. The persons who had assembled there knew him to be a police constable and they told him that these two accused had assaulted Indrajeet Singh. 25 to 30 persons had gathered when the occurrence took place. He knew Indrajeet Singh (deceased) as he was a resident of the same locality, though he was not his friend. He denied to have ever visited the house of Indrajeet Singh earlier. This witness goes on to say that with the help of the persons who had assembled there, the injured Indrajeet Singh was removed to the nearest dispensary of Dr. Asifali. He also took accused Nos. 1 and 2 to the same clinic since they were concerned with the occurrence. He had also seen accused No. 3 standing near his shop, but he noticed that he went to his house which was behind his shop.
The statement of this witness was recorded by the police on 29th April, 1989, two days after the occurrence. This witness has further stated that after reaching the clinic of Dr. Asifali, the police control room was contacted or phone. After about half an hour, the police mobile van reached there along with some police officers and policemen. Police Officer Bankar took into custody accused Nos. 1 and 2 who had been detained by the mob. This witness made a significant statement that he came to know from the people assembled there that Indrajeet Singh was assaulted by fist blows. He had not seen the occurrence in which Indrajeet Singh was assaulted, and it was at the instance of persons who had assembled there, that he had accosted accused Nos. 1 and 2.
This witness was declared hostile, as apparently he claimed to be an eye-witness in the course of investigation. When he was confronted with a portion of his statement recorded under Section 161, he denied having made any such statement. In his further cross-examination, he stated that on 27th April, 1989 as also on 28th April, 1989, he came to his house after performing his duty. He knew Arvinder. P.W. 1, as the brother of Indrajeet Singh, but he did not know his name at the time of occurrence. When accused Nos. 1 and 2 were being taken to the clinic of Dr. Asifali after the occurrence, he had seen Arvinder. P.W. 1 coming from the spot where the crowd had gathered, after it was decided to remove Indrajeet Singh to the clinic. Arvinder Singh. P. W. 1 had just reached the spot.
13. These are the only two eye-witnesses examined by the prosecution to prove the first part of the occurrence which took place at about 7.30 p.m. in front of the furniture shop of accused No. 3. So far as P.W. 2 Sunil Salvi is concerned, he did not support the prosecution case inasmuch as, he did not claim to have seen the actual occurrence in which Indrajeet Singh (deceased) was assaulted. His deposition discusses that he came soon after the assault and P.W. 1 came even later. At the behest of persons who had assembled there, he accosted accused Nos. 1 and 2 and it was he who helped to remove the injured to the clinic of Dr. Asifali. By the time this witness reached, the deceased had fallen on the ground and was lying in front of the furniture shop of accused No. 3. According to this witness, after they decided to remove the injured to the clinic of Dr. Asifali, he saw P.W. 1 Arvinder for the first time coming from the spot where the mob had gathered and where the assault took place. If the deposition of this witness is to be believed, it would lead to the conclusion that Arvinder Singh, P. W. 1 had come after the occurrence, and his claim that he had seen the occurrence and rushed to the rescue of his brother and had held him even before he had fallen on the ground. is untrue. It is significant that so far as P.W. 1 Arvinder Singh is concerned, in his F.I.R. he has not even mentioned about the presence of this witness P.W. 2 Sunil Salvi. In his examination in chief also P.W. 1 has not mentioned the name of P. W. 2, and, it was only in his cross-examination, that for the first time he mentioned about the presence of P. W. 2 as the person, who came and helped him in rescuing Indrajeet Singh and taking him to the clinic of Dr. Asifali. Similarly. P. W. 2 also did not mention the presence of P. W. 1 in his examination in chief, and the name of P.W. 1 was mentioned by him only in reply to a question put to him in cross-examination.
14. The Trial Court has characterized witness Sunil Salvi as an independent witness and has attached great importance to the evidence of this witness. He was instrumental in removing the injured Indrajeet Singh to the clinic of Dr. Asifali and in detaining accused Nos. 1 and 2. The Trial Court has also noticed the evidence of this witness that P. W. 1 Arvinder appeared at the fag end when the injured was being removed to the clinic of Dr. Asifali. In fact, the Trial Court has found that the evidence of P.W. 1 Arvinder Singh is not consistent with the testimony of P. W. 2 Sunil Salvi, and that is one reason for disbelieving P. W. 1 Arvinder.
15. We are not inclined to adopt the approached of the Trial Court and we do not wish to rely implicitly on the testimony of P. W. 2 Sunil. It cannot be lost sight of that this witness turned hostile as he did not support the version given out by him in the course of investigation. In the course of investigation, he claimed to be an eye-witness, but in the course of deposition before the Court he denied having seen the actual occurrence and claimed that he came to the place of occurrence after Indrajeet Singh had been assaulted and was lying on the ground. This itself makes his evidence suspect, and he cannot be said to be a witness fully trustworthy. No doubt, the evidence of a hostile witness is admissible in evidence, but the value to be attached to such evidence depends on the facts and circumstances of each case. As a rule of prudence, the Court will not accept the testimony of such a witness unless, there is circumstantial evidence or other evidence of a reliable nature corroborating his testimony. We have no such evidence in this case and, therefore, we are not persuaded to disbelieve P. W. 1 Arvinder Singh merely on the ground that, according to P. W, 2 Sunil Salvi, he came to the place of occurrence after Indrajeet Singh was assaulted. We would rather scrutinize the evidence of P. W. 1 Arvinder, and reach an Independent conclusion as to, whether his evidence can be relied upon.
16. We have earlier noticed the evidence of P. W. 1. There are serious infirmities in the deposition of this witness, the witness in his F.I.R. has stated that when he went running to save his brother, he found him lying on the ground. This was also his version in the earlier part of his deposition. However, later in the course of his cross-examination he changed his version and he deposed that, he rushed to the rescue of his brother even before he could fallen the ground and held him so as to prevent him from falling on the ground. No explanation has been offered by this witness about this inconsistency. It appears that this witness has deliberately sought to improve upon his earlier version with a view to establish that he had reached the place of occurrence, had witnessed the occurrence, and held his brother even before he could fall on the ground as a result of the assault. This does not appear to be true and his earlier version that he reached the place of occurrence after his brother had fallen on the ground appears to be true. If we were to accept the deposition of P. W. 2, we must hold that he reached the place of occurrence when the mob was removing the injured Indrajeet Singh to the clinic of Dr. Asifali.
There is another aspect of the matter. The witness claims to have witnessed the occurrence and noticed the role played by accused Nos. 1, 2 and 3. He, however, admits that when the police personnel came in the police patrol van, he did not disclose the names of the assailants to them. He did not do so even when the injured along with the two apprehended accused namely, accused Nos. 1 and 2, were being taken to the Cooper Hospital in the same van. Not only this, even after his brother Indrajeet Singh was declared dead by the doctor at the Cooper Hospital, he did not mention the names of the assailants to the police officers present in the hospital. After his brother was declared dead, he did not lodge a report with the police, and he has given an explanation for that. He stated that he did not want to lodge an F.I.R. without first informing his father. That is why, after his brother was declared dead, rather than going to the police station or informing the police officers present in the hospital, he went back to his flat in search of his father. On the way he met Harbinder his brother. Both of them went to the flat and not finding his father there, and finding accused Nos. 4 and 5 instead in the flat, they again went in search of their father, whom, they found in the garden of Seven Bungalows. He narrated the incident to his father. Thereafter, all the three went to Cooper Hospital. From Cooper Hospital he went to the D. N. Nagar Police Station where he lodged the report at 10.35 p.m. We fail to understand why P. W. 1 did not disclose the names of the assailants to the police officers, who had come in the patrol van. That was the first opportunity which the witness had to narrate the occurrence to a police officer. Even thereafter he did not disclose the names of the assailants while going to the Cooper Hospital, or even at the Cooper Hospital where, admittedly, police officers were present. Only after meeting his father he went to lodge the F.I.R. at 10.35 p.m. i.e., almost three hours after the occurrence. Even though during this period he had opportunity of informing the police officers who were present, he did not do so. These facts lead us to suspect the claim of P. W. 1 Arvinder Singh that he had witnesse the occurrence. If he had really witnessed the occurrence nothing prevented him from disclosing the names of the assailants to the police officers whom he met. The fact that he waited to meet his father, and only thereafter lodged the report makes his evidence suspect.
17. So far as P. W. 2, Sunil Salvi is concerned, in the F.I.R. there is not even a mention about his presence. In his deposition before the Court, P. W. 1 claims to have met Sunil P. W. 2 who helped him in removing the injured to the clinic of Dr. Asifali and in apprehending accused Nos. 1 and 2. Though he claims to have known Sunil P. W. 2 as a friend of his brother Indrajeet Singh (deceased), his failure to disclose his presence in the F.I.R. creates a grave doubt. We are not, therefore, inclined to place implicit reliance upon then testimony of P. W. 1 Arvinder Singh without corroboration. Sunil. P. W. 2 does not corroborate the testimony of P. W. 1 Arvinder Singh because he does not say that P. W. 1 Arvinder Singh had come to the place of occurrence immediately after the occurrence and had helped his brother or that he had helped in removing injured Indrajeet Singh to the clinic of Dr. Asifali. In fact, deposition of P. W. 2 Sunil, read as a whole, is to the effect that he himself did not witness the occurrence as he came later, and P. W. 1 Arvinder came even thereafter, and could not therefore be an eye-witness. No member of the crowd which had gathered there has been examined to support the case of the prosecution.
18. The Trial Court did not believe the testimony of P. W. 1 Arvinder and, in our view, rightly. The Trial Court, on appreciation of the evidence on record, has come to the conclusion, which is supported by evidence on record. The view taken by the Trial Court is possible reasonable view of the evidence on record. We have ourselves carefully scrutinised the evidence of P. W. 1 Arvinder and we concur with the view of the Trial Court that, P. W. 1 Arvinder is not a truthful witness on whose testimony a conviction can be based. We therefore hold, agreeing with the Trial Court, that the charge under Section 302 read with Section 34 of I.P.C. has not been established by the prosecution and acquittal of accused Nos. 1, 2 and 3 is justified.
19. The second part of the prosecution case relates to commission of the offence under Section 460 of the I.P.C. We may notice the charge framed against the accused persons under Section 460 and Section 302 read with Section 34 of the I.P.C. which is as follows :
"Firstly : That you all persons Accused Nos. 1, 2, 3, 4 and 5 above named on 27.4.89 between 7.00 and 7.30 P.M. at Johra Aghadi Nagar, Yari Road, Varsova. Bombay-61 jointly with each other committed lurking house-breaking by night, by entering into the flat No. H/14, third floor of the aforesaid building in the possession of the complainant Arvindsingh Bhagwantsingh Anand, Indrajeet Bhagawantsingh (the deceased) and others and used as a human dwelling and at the time of the committing the said lurking house-breaking by night, you accused No. 1, 2 and 3 above named voluntarily caused death of said Indrajeet Bhagawantsingh Anand and you thereby committed an offence punishable U/Sec. 460 of the I.P.C.
AND Secondly : That you accused Nos. 1, 2 and 3 named above on or about, at the date and time mentioned aforesaid in charge No. 1 above and in the same transaction committed murder by causing death of said Indrajeet Bhagwantsingh Anand by assaulting him near A-1 Furniture Mart, Opposite to Bldg. H-1 of Aghadi Nagar described in Charge No. 1 above and thereby you accused Nos. 1, 2 and 3 committed an offence punishable U/Sec. 302 of I.P.C. r/w. 34 of the I.P.C. and within my cognizance."
20. It appears from the charge framed under Section 302 read with Section 34 of the I.P.C. that, accused Nos. 1, 2 and 3 were charged of having committed murder of Indrajeetsingh in the same transaction, meaning thereby that the murder of Indrajeetsingh was committed while committing the offence under Section 460 of I.P.C. Mr. Chitnis appearing on behalf of the accused submitted that the charge is defective and has caused prejudice to the accused. The charges framed against the accused seem to suggest that the murder of Indrajeetsingh was committed while the offence under Section 460 of the I.P.C. was being committed, which is not even the prosecution's case. We have no doubt that the charge has not been properly framed, but we have also no doubt that no prejudice has been caused to the accused on account of such defect. We shall therefore proceed to examine the evidence adduced at the trial in support of the charge under Section 460 of the I.P.C.
21. Before doing that, we may observe that the Trial Court did not find that the offence under Section 460 of the I.P.C. was made out. However, the Trial Court found that the offence under Section 456 was made out, and it has accordingly convicted and sentenced all the five accused. The female accused Nos. 4 and 5 have been convicted under Section 456, while accused Nos. 1, 2 and 3 have been convicted under section 456 read with Section 109 of the I.P.C. On this aspect of the prosecution's case, there are four witnesses whose evidence is worth examining. The first witness is P. W. 1 Arvindersingh the informant himself. Apart from P. W. 1 Arvindersingh, his mother Rani Bhagwantsingh, P. W. 6 and sister Harjeet Kaur P. W. 5 are the other witnesses. One Najma Khan, P. W. 3 was also examined in support of the prosecution case, but she was declared hostile as she did not support the prosecution case. So far as P. W. 1 Arvindersingh is concerned, he is the informant in this case. He lodged the F.I.R. 3 hours after the occurrence and, that too, after consulting his father Bhagwantsingh. In the F.I.R. lodged at 10.35 p.m., he has mentioned about the assault on his brother Indrajeetsingh, but there is not award in the F.I.R. about the forcible occupation of the flat by accused Nos.4 and 5, the female accused. He admits that he did not mention about their involvement in this case even on 29.4.89 when he was further examined by the police. According to him, after his brother was declared dead, he went to his flat in search of his father. He did not find his father there, but he found accused Nos. 4 and 5 occupying the flat after breaking the latch fixed on the door. There was an altercation between him and accused Nos. 4 and 5, who claimed right to possess the flat after expiry of the agreement. If what is deposed to by P. W. 1 Arvindersingh is true, we fail to understand why P. W. 1 Arvindersingh did not mention these facts in his F.I.R. Nor did he mention this fact when he accompanied the police for preparation of panchanamas of the place of occurrence and of the flat in question the same night. Nor did he mention these facts even when he was examined by the police two days later on 29.4.1989, as admitted by him. So far as P. W. 3 Mrs. Najma Khan is concerned, she claims to be residing on the 3rd Floor of the same building in which the informant lived, being the occupant of flat No. H-16. This witness has not supported the case of the prosecution and, from her deposition, it appears that the police constable had visited her house asking for a hammer. According to this witness, accused No. 4 used to occasionally visit flat No. 14 which was also occupied by the family of one Sardarji. This witness was declared hostile and there is nothing in her testimony which supports the case of the prosecution.
22. Harjeet Kaur, P. W. 5 has no doubt deposed that on the date of occurrence, they had returned from Hyderabad and they alighted at the V.T. Railway Station by about 9 p.m. They thereafter took a local train and came to Bandra where they hired an auto-rickshaw and reached home. Near the entrance of their building, they saw a crowd, but no one disclosed anything to them and, therefore, they climbed upto 3rd floor with their luggage. When she called out the name of her brother Indrajeet to help them in carrying the luggage, no one responded. She found that the door of the flat was open and she was stunned to see accused Nos. 4 and 5 and one small child present in the room near the entrance. They carried their luggage and entered the room, but accused No. 4 did not permit them to occupy the house and said that Indrajeetsingh (deceased) had assaulted her husband. Accused No. 4 threw their luggage outside the flat with the assistance of accused No. 5. Later a police constable came and enquired about her mother, she introduced her mother to the police constable as mother of Indrajeet singh. This witness told the police constable about accused Nos. 4 and 5 throwing out the luggage. The police constable compelled them (Accused Nos. 4 and 5) to follow him to the police station, while she remained in the house. Her mother also went to the hospital, and along with her brothers returned home late in the neight and disclosed about the sad news of the death of Indrajeetsingh, who was killed by accused Nos. 1, 2 and 3.
23. To the same effect is the deposition of Rani Bhagwantsingh, P. W. 6, mother of the deceased, who had returned from Hyderabad along with P. W. 5.
24. On the basis of the testimony of P. W. 5 and P, W. 6, the Trial Court has held that the offence under Section 456 of the I.P.C. had been proved by the prosecution beyond reasonable doubt. He therefore.
convicted accused Nos. 4 and 5 under section 456 of the I.P.C. and sentenced them as noticed earlier. Accused Nos. 1 and 2, and 3 were found guilty under section 456 read with section 109 of the I.P.C.
25. so far as accused Nos. 1, 2 and 3 are concerned, he has held that the female members of the family could not have possibly committed the offence under Section 456 of the I.P.C. without the help of the male members of the family. On that ground, he convicted accused Nos. 1. 2 and 3 of the offence punishable under Section 456 read with Section 109 of the I.P.C.
26. The conviction of accused Nos. 1, 2, and 3 under section 456 read with Section 109 of the I.P.C. is clearly untenable. On the facts established at the trial by the prosecution itself, accused Nos. 1, 2 and 3 could not possibly be held guilty of abetment of the offence under Section 456 of the I.P.C. It is an undisputed fact that accused Nos. 1 and 2 were apprehended by the mob soon after the occurrence in which Indrajeet Singh was allegedly assaulted by them. Thereafter, they remained throughout in police custody. It was, therefore, not possible for them to abet the commission of offence by accused Nos. 4 and 5, which took place sometime after the assault on Indrajeetsingh. No charge has been framed under Section 120B read with section 456 of the I.P.C., nor is there any evidence on record to prove that appellants/ accused Nos. 4 and 5 acted pursuant to a conspiracy either to commit murder or to commit the offence punishable under Section 456 of the I.P.C. There is also no evidence to support the charge of abetment. There is, therefore, no material on record to support the conviction of accused Nos. 1, 2 and 3 of the charge under Section 456 read with Section 109 of the I.P.C.
27. It is not clear from the record as to when appellants/accused Nos. 4 and 5 occupied the flat in question. In fact, the Trial Court has taken the view that the two transactions were distinct and separate transactions and not part of the same transaction. Even according to the prosecution, the assault on Indrajeetsingh (deceased) was by accused Nos. 1, 2 and 3 and, later the flat was allegedly forcibly occupied by accused Nos. 4 and 5.
28. P. W. 1 Arvinder has admitted that he had met his mother when she had come to the Cooper Hospital where he, his father Bhagwantsingh and his brother Harbinder were present. The F.I.R. was thereafter lodged at 10.35 p.m. However, in that report, there is no mention whatsoever of accused Nos. 4 and 5 having forcibly occupied flat No. H-14 which was in the exclusive possession of his family members. It is difficult to believe that, if P. W. 1 Arvindersingh had seen the aforesaid accused forcibly occupying the flat possessed by his family, this fact would not have been mentioned in the F.I.R. This is not a case of mere omission, but a case where the very facts constituting the offence are absent from the F.I.R., which is the earliest version of the occurrence. The statements of P. W. 5 and P. W. 6 were recorded later in the night. It appears that an improvement was sought to be made by implicating the female accused as well. We are not prepared to believe that after the male members had been arrested by the mob and taken into custody by the police, the two female members of the family would dare to forcibly occupy the flat by breaking open the latch on the door. It is also not disputed that when the police later came to the flat in question accused Nos. 4 and 5 were not present. They were seen in the flat for sometime only by P. W. 1, P. W. 5 and P. W. 6. Moreover, if the version of P.W. 5 is to be believed, accused 4 and 5 were apprehended by the police constable who had come to take P. W. 6 to the hospital. That constable has not been examined to prove this fact. In our view, the failure to mention this very important fact in the F.I.R. is fatal to the prosecution case insofar as the charge under Section 456 of the I.P.C. is concerned. It appears to us that part of the prosecution case is a later improvement and is a deliberate attempt to falsely implicate the female members of the family of the accused. We cannot, therefore, sustain the conviction of accused Nos. 4 and 5 under Section 456 of I.P.C. Their conviction and sentence is set aside.
29. Before parting with the judgment, we may observe that this is an unfortunate case where a young lad was killed in a busy marketplace. Unfortunately, there is no reliable evidence on record on the basis of which accused Nos. 1, 2 and 3 can be convicted of the offence of murder. The testimony of P. W. 1 Arvindersingh appears to be unreliable and untrustworthy. P. W. 2 Sunil Salvi, the only other eye-witness has not supported the prosecution case. No doubt there is some suggestion to P. W. 1 that the occurrence took place in a different manner and that it was really the prosecution party which was the aggressor. However, since the prosecution has failed to establish its case, the accused are entitled to the benefit of doubt.
30. In view of our findings, Criminal Appeal No. 381 of 1995 preferred by the State against acquittal of accused Nos. 1, 2 and 3 under Section 302 read with Section 109 and/or Section 34 of I.P.C. has no merit. Similarly, Criminal Revision Application No. 156 of 1995 has no merit.
31. In the result. Criminal Revision Application No. 156 of 1995 preferred by the informant and P. W. 5, and Criminal Appeal No. 381 of ,1995 preferred by the State are dismissed. Criminal Appeal No. 240 of 1995, Criminal Appeal No. 241 of 1995 and Criminal Appeal No. 273 of 1995 are allowed and accused Nos. 1, 2 and 3 are acquitted of the charge under Section 456 read with section 109 of the I.P.C., while accused Nos.
4 and 5 are acquitted of the charge under Section 456 of the I.P.C. Fine, if paid, to be refunded to the accused. Bail bonds of accused Nos. 1 to 5 stand cancelled.