Surjit Singh Gyansingh Aurora vs State Of Maharashtra
2002 Latest Caselaw 729 Bom

JUDGMENT

V.K. Tahilramani, J.

1. Through these appeals, the appellants are challenging the common judgment and order dated 26th February 1997 passed by the learned Additional Sessions Judge, Brihanmumbai in sessions Case No. 1271 of 1992 and sessions case No. 292/95. By the said judgment and order, they have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for causing the death of Anand Dadu Waghmare and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- i. d. R. I. for 1 month.

The appellant in Criminal Appeal No. 247 of 1997 is original accused No. 1 and the appellant in Criminal Appeal No. 335 of 1997 is original accused No. 3. For the sake of convenience they shall be referred as accused No. 1 and accused No. 3 respectively.

2. Briefly stated the prosecution case runs as under:

One Anand Dadu Waghmare (deceased) was residing at Room No. 1 Sunkabai Chawl, Karve Nagar, Vikkroli along with his family. On 26-3-1992 at about 11.00 a.m., he was called out of his room by accused No. 1. Thereafter, they went to the extreme end of the chawl i.e. Sunkabai Chawl where accused No. 2 Ashok Ramji Uttekar and accused No. 3 Surkya @ Suresh Sambhaji Kothavale joined accused No. 1. Suddenly thereafter, they fired bullet shots from a revolver at Anand Dadu Waghmare. This was seen by Anand's daughter P. W. 2 Karuna Waghmare and the noise of fire shots was also heard by P. W. 1 Jaya Wahgmare, wife of Anand who was in the house at that time. Upon hearing the noise, she came out, there she met P.W. 2 on the way. On reaching the scene of offence, she found Anand was lying in a pool of blood. He was carried to Rajawadi Hospital where he was declared dead. P.W. 1 Jaya Waghmare lodged the complaint (Exh. 15) with Kanjurmarg Police Station. The offence is registered vide C. R. No. 34/92.

3. The post mortem report Exhibit 23 shows that the deceased died due to shock and haemorrhage due to multiple firearm injuries (unnatural). The doctor has noted 5 firearm wounds of entry, two firearms wounds of exit and two abrasions.

4. The accused No. 1 was arrested on 25-9-1992. Sometime thereafter, accused Nos. 2 and 3 came to be arrested. Identification Parades were held in respect of accused Nos. 2 and 3. As they were arrested after long gaps of time, separate chargesheels came to be filed and separate sessions case numbers were given. The original accused No. 2 Ashok Waghmare who had also been convicted under Section 302 read with 34, Indian Penal Code had preferred Criminal Appeal No. 179/97. However, he has expired pending the said appeal. Thus, only the present two appeals are being heard.

5. The cases were committed to the Court of Session in the usual manner whereby the appellants were charged for offences punishable under Section 302 read with Section 34 and also read with Section 120B of the Indian Penal Code. They were also charged for the offence punishable under Section 3 read with Sections 25 and 27 read with Section 5 of the Indian Arms Act. They pleaded not guilty to the said charges and claimed to be tried.

6. During the trial, the prosecution examined ten witnesses. Out of the said witnesses, one witness i.e. P. W. No. 2 Karuna Waghmare was examined as an eye witness.

7. The learned trial Judge acquitted the accused under the Arms Act and under Section 120B of the Indian Penal Code. The learned Judge believed the evidence or P.W. 2 Karuna Waghmare and convicted and sentenced the appellants for the offence punishable under Section 302 read with Section 34, Indian Penal Code in the manner stated in paragraph 1, hence, this appeal.

8. We have heard Mr. Marwadi learned advocate for accused No. 1, Mr. Rasa! learned advocate for accused No. 3 and Ms. P. H. Kantharia learned A.P.P. for the State. We have perused the entire material on record. After utmost circumspection, we have reached to the conclusion that this appeal deserves to be allowed.

9. The conviction of the appellant is founded on the ocular account rendered by the solitary eye-witness P.W. 2 Karuna Waghmare.

The evidence or P.W. 2 Karuna Waghmare shows that on 26th March 1992 at about 11 a.m. the accused No. 1 Ganu came to their house and enquired about her father. He asked her father to come out. Her father went out. This witness claims that she followed them. Ganu went upto the extreme end of Sunkabai Chawl. There were three persons including Ganu. They started talking with her father. The other two persons were unknown to the witness. She thereafter says that Ganu was having a revolver in his hand and by means of revolver he shot at her father. The same revolver was used by all three persons to shoot at her father.

10. We have carefully gone through the evidence of the sole eye witness Karuna P.W. 2 and we are constrained to observe that we have a grave doubt regarding her claim of having seen the incident. In our view, it would be difficult to sustain her claim of having witnessed the incident for the reasons hereinafter stated.

Karuna has categorically stated that one revolver was used by all the accused. As per the post mortem report, there are 5 firearm wounds of entry and 2 exit wounds i.e. 5 bullets were fired at the deceased. Three bullets were found in the body of the deceased. These 3 bullets were sent to the Ballistic Expert. The Ballistic Expert-Madhukar Damodar Asgekar P.W. 8 has categorically stated that out of the 3 bullets, 2 bullets Exhibit 1 and 2 were fired from a .32" calibre revolver and the 3rd bullet i.e. Exhibit 3 was fired from .38 calibre revolver. Thus, two different weapons were used to fire shots at the deceased. Thus, there is a serious doubt regarding Karuna witnessing the incident.

Secondly, P.W. 2 in her evidence before the court has categorically stated that Ganu was carrying a revolver and he fired at the deceased and thereafter with the same revolver, the other two unknown persons had fired shots at the deceased. She has categorically stated that all three assailants used only one revolver to fire shots. However, in her statement before the police, she has stated that only the two unknown persons had fired at the deceased. She has not stated anything about Ganu having revolver or firing any bullet at her father in her police statement and the said contradiction has been proved by the defence.

11. Ms. Kantharia has contended that the omissions and contradictions are not such as to affect the basic structure of the prosecution case and in support of this contention, she has placed reliance on the decision , State of Madhya Pradesh v. Sardar. We have gone through the said decision and and we found that the said case is clearly distinguishable on facts. Hence, this decision would be of no avail to the prosecution. In our opinion, the omissions and contradictions are such as to affect the basic structure of the prosecution case.

12. The learned Advocate for the accused has contended that another factor that shows that the Karuna has not witnessed the incident is that Karuna stated that the incident occurred at the end of the chawl, whereas P.W. 1 says that her husband was shot dead below a tree. As per the spot panchanama the said tree is 46 feet away from the chawl. However, bloodstains are neither found under the tree nor at the end of the chawl. The blood stains are found on the grass some distance away from the chawl. The learned Advocate has contended that there is discrepancy relating to the spot of the incident and therefore, in such case, it is clear that P.W. 2 could not have seen the incident. In our view, looking to these facts, there appears to be serious doubt whether P.W. 2 had seen the incident or was present when the incident took place.

13. In respect of the discrepancy in the scene of offence, Ms. Kantharia relied upon the decision reported in 2002 Cri.LJ. 1821, Rajesh @ Raju Chandulal Gandhi However, the said case is clearly distinguishable on facts and thus it would not help her in any manner.

14. As regards the accused No. 1 Ganu, it is pertinent to note that in his statement under 313, he admit that he had gone to the house of the deceased on the relevant date. In his statement under 313, he has stated :

I was asked by Raj Mohammed to call the deceased. Hence, I called him out of the house and went away. I do not know anything except this. I have been falsely involved in this case.

Mr. Marwadi has urged that accused No. 1 had called the deceased and thereafter he went away. It appears that thereafter the unknown persons have fired on the deceased. Accused No. 1 did not take part in the said incident. Only because Accused No. 1 had come to the house of the deceased some time prior to the incident, the witnesses have assumed that he has taken part in the incident and they have implicated him.

15. In this connection, we would like to advert to the evidence of the complainant P.W. 1 Jaya Waghmare. She has stated that there was some enmity between one Raj Mohammed and his son Munna with her husband due to transaction relating to a Matador Van. Ganu used to visit the residence of the complainant in connection with this Matador Van. Due to this statement of the complainant, in the F.I.R. the names of accused No. 1 Ganu, Raj Mohammed and Munna are mentioned along with two unknown persons. However, thereafter, the prosecution has come up with the case that accused No. 2 Ashok Uttekar had some dispute with the deceased over some open plot of land and due to this, he was shot dead, it is pertinent to note that Raj Mohammed and Munna were discharged in this case on the prosecution filing application under Section 169 Criminal Procedure Code. In these circumstances, it is contended by the learned Advocate for the accused No. 1 that it is Ashok Uttekar who had the motive to do away with the deceased and accused No. 1 was not concerned in any way with accused No. 2 Ashok Uttekar or accused No. 3. Therefore, there was no question of accused No. 1 sharing a common intention with accused Nos. 2 and 3 as accused No. 1 was only connected with Raj Mohammed and Munna.

On behalf of accused No. 3, it was contended that the Investigating Agency has let off the real culprits and has falsely implicated the present accused persons.

16. As far as accused No. 3 is concerned, he was one of the unknown assailants. The learned Counsel for the accused No. 3 has contended that there are a large number of discrepancies in holding the Test Identification Parade and hence, the identification of accused No. 3 by the witnesses is not free from doubt. He urged that the identification proceeding in the instant case was a big farce, and that being so, the conviction of accused No. 3 cannot be sustained. We find considerable merit in the aforesaid statement. The learned counsel has pointed out various infirmities. They are as follows :

1) The TIP Memo states that the parade commenced at 17.00 hrs. and it was completed at 16.10 hrs. Mr. Rasal contended that the parade thus ended before it began.

2) The TIP was held at Kanjur Marg police station and P.W. 2 Karuna has stated that on the day of the parade i.e. on 21-10-1994, she attended the police station at 11.00 a.m. thus between 11.00 am and 4.00 p.m./5.00 p.m. there was ample opportunity for Karuna to see accused No. 3 or for accused No. 3 to be shown to her by the police. It was urged that the only reason for calling Karuna so many hours in advance was to show accused No. 3 to her prior to the parade.

3) That the dummies and the accused persons in the parade were dissimilar. There were 7 dummies in the parade. P.W. has stated that one or the dummies was dark, One of them was bearded and one of them had a moustache whereas accused No. 3 was having long hair.

4). P.W. 2 has stated that the room where Test Identification Parade was held was having a grill. It was contended that thus there was opportunity for the witness to see accused No. 3 in the Test Identification Parade room before the witness went in to identify him.

5) The S.E.M. P.W. 6 who held the parade has stated that he did not know about the guidelines given by the High Court for holding Test Identification Parade. It was contended that he has not followed the proper procedure for holding the parade. Moreover, the S.E.M. did not enquire with the witnesses whether the accused was shown to them prior to the parade.

6) After the accused took his place among the dummies, the panch was sent to call Karuna.

7) P.W. 2 Karuna has stated that one Hawaldar directed her to go in the room where the parade was held. Thus, presence of police personnel at the time of the parade was not excluded. Hence, necessary precautions were not taken by the S.E.M. to ensure that police personnel were excluded from the parade proceedings.

8) Though Jaya Waghmare P.W. 1 does not claim to be an eye witness to the incident yet she has identified accused No. 3 in the parade as the person who fired at her husband with a revolver. It was contended that this fact clearly shows that the witnesses were tutored to identify accused No. 3.

17. In our view, all the above factors taken cumulatively would vitiate the identification of accused No. 3. The Test Identification Parade loses its significance for all the abovementioned reasons and in such case, the identification of accused No. 3 by P.W. 1 and P.W. 2 cannot be accepted as it is not free from doubt.

18. The learned A.P.P. has relied on the following authorities in respect of the Test Identification Parade a) , Daya Singh v. State of Haryana. b) 2001 SCC (Cri) 1384, Ravindra Kumar v. State of Punjab and c) , Ramanbhai Naranbhai Patel v. State of Gujarat. However none of these decisions would be applicable to the facts of the present case.

19. In this view of the matter, we feel that it is highly unsafe to rely on the said identification. We are of the view that the trial Court has wrongly placed reliance on the evidence of P.W. 2. The result is that the participation of accused Nos. 1 and 3 in the said occurrence is not established beyond reasonable doubt.

20. For the said reasons, we feel that this is a fit case wherein the appellants should be extended the benefit of doubt.

21. In the result, we allow this appeal. We set aside the conviction and sentence of life imprisonment imposed on the appellants for the offence punishable under Section 302 read with Section 34, Indian Penal Code and acquit them therein and direct that in case they have paid the fine for the offence under Section 302 Indian Penal Code, the same shall stand refunded to them.

22. The appellants are in jail and shall be released forthwith unless wanted in some other case.