Akbar S/O Nazir Ahmed, Mohammed ... vs The State Of Maharashtra
2003 Latest Caselaw 793 Bom

JUDGMENT

D.B. Bhosale, J.

1. This appeal is directed against the judgment and order dated 2nd November, 1988 rendered by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 15 of 1981 by which the appellants-accused (for short "appellants' or "accused') have been convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code (for short, "I.P.C.") and sentenced to undergo imprisonment for life. They are also convicted for the offence punishable under Section 147 I.P.C. and sentenced to undergo one year R.I. and a fine of Rs. 100/- each. Accused Nos. 1, 4 and 5 are also convicted for the offence punishable under Section 148 I.P.C. and sentenced to undergo one year R.I. and a fine of Rs. 100/-. This was on the allegations that appellant Nos. 1 to 5 alongwith some unknown persons being members of the unlawful assembly have committed murder of one Salauddin on 18th July, 1978 at 3.40 p.m.

2. The prosecution case, as unfolded from the evidence of an eye witness Krishna Shelar (PW 1) stated briefly is that on 18th July, 1978 he was proceeding in a bus No. 302 towards Kurla bus depot. He was sitting behind driver's seat. When the bus reached near Shivaji Kutir Mandir, he saw one tall person, who is deceased in the instant appeal, came running from Shivaji Kutir Mandir and 10-15 persons were chasing him. He witnessed the entire incident from the bus which, according to him, was proceeding slowly on account of crowd and rush on the street. He saw one of the persons amongst those 10-15 persons threw one iron pipe so as to hit the same to the deceased which did not knock him. The person armed with iron pipe was appellant No. 1. Thereafter he saw two persons caught the deceased and released him immediately since he was having knife in his hand. The deceased went further and stopped in front of the bus depot. There he was trying to enter a shop of scrap. The shop owner, however, asked those 10-15 persons not to assault him in his shop. Those 10-15 persons caught the deceased and pulled him out of the shop. One tall and thin person amongst those 10-15 persons, holding iron pipe, who was subsequently identified as appellant No. 1, hit the deceased on his head. It is case of the prosecution that the deceased was holding knife smeared with blood at the relevant time. After he was assaulted with the iron pipe he threw the knife towards a small hillock. It appears that as a result of the blow of iron pipe the deceased fell down. Thereafter, 5-6 persons, out of those 10-15 persons, assaulted the deceased with kicks and fist blows. One person assaulted the deceased on his stomach and head with stone. He was subsequently identified as appellant No. 5. One another person alleged to have stabbed twice on his stomach and neck with knife. He was identified as appellant No. 3. PW 1 complainant proceeds to state that he got down from the bus near depot and went to the spot of incident. There he was threatened by one of the persons amongst those 10-15 persons to go away. In the meanwhile police reached the scene of offence in van and seeing that the assailants fled. The injured was thereafter taken in the van to hospital.

The complainant - PW 1 was taken to police station in another van where he narrated the entire incident as seen by him. It was reduced to writing at 4.45 p.m. as F.I.R. Exhibit 16. The investigation was set in motion on the basis of F.I.R. lodged by PW 1. PW 1 was taken to hospital to identify dead body of the deceased Salauddin. The appellants were also identified by PW 1 in the identification parade conducted by PW 4 Shinde on 21.7.1978 and 27.7.1978. PW 1 identified appellant No. 5 as a person who hit with iron pipe to the deceased and appellant No. 3 who stated twice on the stomach and neck of the deceased. PW 1 appear to have committed serious error in his testimony regarding identification of the accused persons. We will deal with that while recording our reasons in the latter part of the instant judgment.

The investigation was completed and charge sheet was submitted on 29.2.1980 in the court of Additional Chief Metropolitan Magistrate, 11th Court, Kurla vide C.C. No. 345/P/80 and the case was committed to the court of Sessions by Order dated 10.12.1980. The charge was framed in the present case on 20.9.1988 under Section 302 read with Section 149 I.P.C. and in the alternative under Section 302 read with Section 34 I.P.C. and also under Section 147 I.P.C. against all the accused and under Section 148 I.P.C. against accused Nos. 1, 4 and 5. The plea of the accused was recorded on 20.9.1988. the accused entered plea of not guilty and claimed to be tried. The defence propounded by the accused persons is of alibi. They have emphatically denied to have any connection with the murder of Salauddin. According to them they were not present at the spot of offence, they are innocent and did not have any knowledge of the alleged incident. Accused No. 1 has taken a categoric defence that he was at his village and there he received telegram about the attempt on the life of his Maternal Uncle Lias Mohammed and, therefore, he came down to Bombay where he learnt about the alleged incident. The defence of other accused is also somewhat similar who have denied their presence at the scene of offence.

The alleged motive for committing the offence in question was that one Lias Mohammed, Maternal Uncle of accused No. 1, was stabbed by Salauddin on the opposite footpath of same road before the occurrence in the present case. The chasing of Salauddin and assault on him was fall out of the said stabbing to Lias Mohammed by the deceased Salauddin. The offence also came to be registered under Section 302 I.P.C. vide C.R. No. 512/78 for the alleged attack on Lias Mohammed by the deceased.

3. The prosecution, to bring home the guilt of the appellants, has examined as many as seven witnesses consisting of an eye witness namely Krishna Shelar (PW 1); Anis Mohammed (PW 2) another eye witness, who turned hostile; two panchas; Shinde (PW 4) Special Executive Magistrate, who conducted test identification parade; Moghe (PW 6) - Investigating Officer and Dr. Franklin (P.W. 7). The Additional Sessions Judge on appraisal of the deposition of the witnesses and perusal of various exhibits, relied upon by the prosecution convicted the accused by the impugned judgment. The conviction is mainly based upon the evidence of PW 1 and circumstantial evidence such as identification parade; recovery of clothes of accused No. 1 having blood stains of "A" group; which was the blood group of the deceased Salauddin; the panchanama of the scene of offence and the post mortem report as corroborative piece of evidence.

4. We have heard learned counsel for both the sides at considerable length. We have meticulously examined the deposition of the witnesses and perused various exhibits proved by the prosecution to substantiate their case. We have also carefully examined the impugned judgment with the assistance of the learned counsel appearing for the parties. We would deal with the submissions of learned counsel for the parties at its appropriate place instead of reproducing them at this stage. The prosecution case is mainly based on the evidence of the sole eye witness Shelar (PW 1) and in support of his testimony, evidence of PW 4, PW 6 and evidence or identification parade. We would, therefore, straight way like to examine the testimony of PW 1.

5. The conviction even for a grave offence can be based on the testimony of a solitary witness provided he is beyond reproach and entitled to full, credit and provided further that it is safe to do so. In other words, the conviction could be based on the evidence of such witness, if the testimony of such witness is free from suspicion, above the board, free from fair and reasonable criticism and can be accepted without reservation. However, if the evidence of such witness is highly unnatural and inexplicable and casts heavy clouds on his claim to be present on the spot and to have seen the occurrence, it is not safe to rely upon the evidence of such witness. The evidence of such witness could be placed reliance upon only if his testimony is convincing and trustworthy and is sufficient to maintain conviction of the accused. Keeping in view the aforesaid well settled principles of law we now proceed to examine the evidence of PW 1 and test whether it is free from suspicion and entitled to full credit.

6. Shelar (PW 1) on his own showing was a chance witness. He was extensively cross examined on behalf of all the appellants. The cross examination was mainly on the identification of the accused persons. The learned Public Prosecutor, while commenting on the testimony of this witness, submitted that he was an independent witness and was not interested even indirectly in conviction of the accused persons, and, therefore, his evidence is worth to base conviction of the accused in the present case.

7. Disinterested evidence is not necessarily true and interested evidence is not necessarily false. It is to be judged whether it is true or false on the basic of manner in which the witness has deposed before the Court. The norms of appreciation of evidence do not warrant that evidence of a witness who is independent and has no reason to falsely implicate the accused persons, should be mechanically accepted as gospel truth. Even the testimony of witnesses who fall in the aforesaid category can be accepted only after it is established that they are truthful witnesses and their evidence is in consonance with probabilities. For the reasons, we propose to record hereinafter, this is not the case here.

8. Mr. Naik, learned counsel for the accused, strenuously argued that the testimony of this witness is not natural and is far from probability. He invited our attention to several discrepancies, inconsistencies and contradictions to show that it was highly improbable for this witness to have had seen the incident with minute details such as individual overt acts attributed by him and it was impossible for him to identify the assailants in identification parade.

9. We cannot brush aside the fact that this witness was examined in the court after more than ten years of the occurrence. In view thereof the discrepancies, contradictions and omissions of minor nature will have to be ignored. The alleged incident took place on 18.7.1978 whereas the evidence was recorded on 6.10.1988, in view thereof, there bound to be some errors in narrating the sequence of the events, discrepancies, inconsistencies which shall have to be ignored while examining the evidence on record.

10. Shelar (PW 1) in examination in chief has stated that one tall and thin person, amongst 10-15 persons who were chasing the deceased had a iron pipe and he hit the deceased with that on his head. He identified this tall and thin man as accused No. 1 in the identification parade. He has further stated that the deceased was, thereafter, assaulted by 5-6 persons by kicks and fist blows and one another person hit the deceased with big stone on his stomach and head. The person who hit with stone, was identified by PW 1 as accused No. 5. He further states that one more person amongst those 10-15 persons stabbed the deceased twice on his stomach and the neck with knife. He was identified by PW 1 as accused No. 3.

11. PW 1 though has identified accused No. 3 as the assailant who stabbed the deceased twice on the stomach and on the neck with knife, he did not implicate and/or attribute such overt act in his police statement. Having confronted PW 1 with this omission in his statement he only replied saying that he had stated so and he cannot explain why the police did not record it. The statement of PW 1 in respect of accused No. 3 is coming for first time in his deposition and hence we are not prepared to accept it. We could have given some credence to his testimony in respect of accused No. 3 had it been contained in the F.I.R. There is absolutely no other corroborative piece of evidence to support the deposition of PW 1 in respect of accused No. 3.

12. PW 1 in examination in chief has stated that on 21.7.1978 he identified accused No. 5, who had beard and who hit the deceased with iron pipe, and on 27.7.1978 he identified accused Nos. 1 to 4. In the cross examination he asserts that he identified accused No. 5 on 21.7.1978 as a person who hit the deceased with iron pipe. He was specifically asked in the cross examination whether it was accused No. 1 or accused No. 5 who hit the deceased with iron pipe? He once again in the cross examination asserted that it was accused No. 5. He has also stated in the cross examination that on 21.7.1978 when he identified accused No. 5 no other person standing in the row of identification parade had beard. In paragraph 15 of the cross examination he has stated that "It is not true to say that I did not identify accused No. 5 on 21.7.1978 and I also did not identify accused Nos. 1 to 4 on 27.7.1978 and that I am stating falsely in that respect". Thus, P.W. 1 had again and again asserted that on 21.7.1978 he identified accused No. 5. Shinde (PW 4) Special Executive Magistrate, however, has stated that on 21.7.1978 accused No. 1 alone was identified by the witness. Moghe (PW 6) - the Investigating Officer in paragraph 26 of the cross examination has stated that accused No. 5 was not in custody on 21.7.1978 and no identification parade on that date was conducted to identify him. The learned A.P.P. conceeds that on 21.7.1978 identification parade of accused No. 1 was held.

13. Shelar (PW 1) in the F.I.R. did not give description of the accused except the specific mention of appellant No. 1 as tall and thin person. In so far as appellant No. 5 is concerned, he has stated that he had beard at the relevant time. In the cross examination he has stated that police did not ask him to describe the assailants, however, he had sufficient time to observe the accused persons and, therefore, he could identify them in the identification parade. Moghe (PW 6), however, has stated that "I asked him the description of the assailants but he was unable to give detailed description of the assailants. It is true to say that he had given description of one of the assailants as tall person and not given description of other assailants. He said that as there was a mole or crowd of persons it would not be possible for him to give the detailed description of the assailants even though it would have been possible for him to identify the assailants. I cannot tell why police did not record the inability of the complainant Shelar to give the description in the statement-F.I.R." In the cross examination in paragraph 35, PW 6 has stated that "no description was asked and no description was recorded in the F.I.R. of the assailants". It is thus clear that this witness did not give any description whatsoever of the assailants when his Statement-F.I.R. was recorded by the police. Therefore, we are at loss to understand as what was the basis, for this witness, to say he could identify and in fact he claimed to have identified the appellants in the identification parade. All this throws a cloud of doubt on the claim of P.W. 1 of having identified accused Nos. 1 and 2 as assailants. The cloud of doubt becomes all the more ominous by the testimonies of P.W. 4 and P.W. 6 who with all firmness have stated that accused No. 1 was identified on 21.7.1978. There is no good reason for not accepting the evidence of P.W.4 and P.W.6 on the point of identification of accused No. 1 on 21.7.1978. In view of this the identification of accused No. 1 and 5 looses its significance.

14. This takes us to consider whether it was possible for PW 1 to see the alleged incident so as to identify the assailants. This witness was in the bus when he alleged to have seen appellant No. 1 giving blow with iron pipe on the head of deceased, 5-6 persons giving kicks and fist blows, accused No. 5 hitting the deceased with stone and accused No. 3 stabbing him with knife twice on his stomach and neck. PW 1 claims that he had some work in Kurla Court and after he finished that he caught bus near Kurla Court proceeding towards Kurla bus depot. Between Kurla Court and Kurla depot there were three bus stops namely post office, gol building and Adjanibaimagar. According to this witness to cover the distance between Kurla court and Kurla depot it takes about 5 to 10 minutes. He has stated that at the relevant time the bus was going slow on account of heavy rush and crowd on the street. The entire incident according to PW 1 of chasing the victim and assaulting him continued for 15 to 20 minutes. According to PW 1, as stated by him in examination in chief, he witnessed the incident from the bus. He is very categoric in his examination in chief that all throughout 10-15 persons were chasing the deceased and five out of them, who are appellants, have been ascribed the specific role. While narrating the prosecution case in second paragraph of this judgment, we have referred to the examination in chief of PW 1, to avoid repetition. In paragraph 27 of the cross examination PW 1 gave detail account of the role played by every individual accused, how the deceased was being chased by 10-15 persons and the crowd of more than 200 persons was moving the deceased and accused persons, it would be (SIC) it (SIC) paragraph 27 to appreciate the submissions of Mr. Naik, learned counsel for the accused. Mr. Naik submitted that the manner in which the incident alleged to have occurred it is highly improbable for a person travelling in bus to see the incident with minute details as narrated by PW 1, and identify the assailants. paragraph 27 reads thus:

"27. It is true to say that from Kurla Court bus stop, our Bus reached to Shivaji Kutir Mandir within 10 minutes as there was no rush of traffic on the road. It is true to say that only about one and half minute is required to reach Kurla bus depot from Shivaji Kutir Mandal. Shivaji Kutir Mandal was situated at the left hand side of the direction of the bus. I was sitting at the backside of the driver. My attention was attracted as some persons came out of Shivaji Kutir Mandal by raising shouts and cries. The crowd which came out of Shivaji Kutir Mandir was proceeding further in front of our bus and our bus was following them. The persons who came from Shivaji Kutir Mandir were 10 to 15 at first 200 to 300 people. In the bus in which I was a passenger, the same was full with passengers. It is true to say that as I was trying to see the incident from the bus, similarly other passengers in the bus also were trying to see the incident. In front of our bus these people were there and there was no other vehicle in front of our bus. Similarly there was no vehicle by any of the side of our bus. The victim of the assault crossed the road and the persons who were following him also crossed the road. The other persons gathered at the spot from the crowd also were proceeding towards that direction for seeing the incident. When the persons in front of our bus crossed the road, the way for our bus was cleared. Thus bus thereafter immediately went further and stopped near Kurla depot. Nothing was happened at the back side of the bus and the people were running at the parallel side to the bus. Even though the way was clear still our bus proceeded slowly upto Kurla depot. It is true to say that the crowd was running behind the victim till the time our bus stopped at Kurla depot."

15. If what this witness has stated in the aforestated paragraph is correct we find ourselves in agreement with Mr. Naik, learned counsel for the accused, that it would not only be improbable but it was impossible to see the incident, from bus, which was surrounded by more than 200-300 persons and in which not only the assailants/accused but ten more assailants were also involved and, who according to this witness, participated in the incident. PW 1 is also not consistent as to what time the bus took to reach Kurla depot. In examination in chief he has stated that bus was going very slow on account of rush and crowd on the street and in cross examination he states that bus reached within 10 minutes from Kurla court to Shivaji Mandir as there was no rush of traffic on the road. He has further stated in the cross examination that from Shivaji Kutir Mandir to Kurla bus depot the bus reached within one and half minute. According to him when the bus was proceeding the alleged incident was occurring. The crowd of more than 200 persons was running behind the victim and the accused persons. When we try to visualise or imagine the incident, we find it not only improbable but impossible for a person sitting behind the driver's seat in a moving bus to witness the occurrence surrounded by more than 200 persons and identify the assailants with the specific role played by them. Moghe (PW 6) has stated that the complainant could not give description of the assailants since it was not possible for him to give such description because of the crowd assembled at the scene of offence. The testimony of this witness, therefore, inspires no confidence. We have no hesitation in holding that P.W. 1 either did not see the incident or even he had seen it, it was not possible to see and identify the assailants with the role played by them.

16. We are at a loss to understand whether the incident really happened in the manner given by the prosecution at the places mentioned by it then why no independent witnesses are coming to depose in support of the prosecution case. It is true that PW 1 was also an independent witness but in our opinion his evidence does not inspire confidence. It was possible for the prosecution to examine some other witness either from the same bus or from the crowed or the scrap shop owner in the present case. It appears from the evidence of PW 4 that three more identifying witnesses were present when the test identification parade was conducted, however, they could not identify the assailants in the parade. PW 1 in his testimony has stated that he saw deceased entering into a scrap shop when the shop owner told all the appellants not to assault the deceased in his shop. The said shop owner could have been the best witness to corroborate the evidence of P.W. 1. Failure on part of the prosecution to examine such witnesses undoubtedly throws a cloud of doubt on the claim of PW 1. We are aware about well settled position of law that occular version of a solitary witness is also sufficient to base conviction without their being any corroboration provided it is trustworthy. However, in the present case PW 1 cannot be said to be truthful witness for the reasons recorded. The evidence of PW 1 does not inspire confidence. The evidence of every independent or disinterested witness is not true. The manner in which the incident in the instant appeal occurred the prosecution ought to have examined some more witnesses. Admittedly the occurrence took place in broad day light on a crowded street and more than 200 persons were moving with the deceased and assailants. P.W. 1 has stated that he was threatened by the appellants to go away if he was wise. We are at a loss to understand why PW 1 alone was chosen by the assailants and threatened him to leave the scene of offence when admittedly huge crowd of more than 200 persons had surrounded the deceased and the assailants. In view of this the prosecution ought to have examined atleast one or two more witnesses in support of their case. Failure to examine other independent witnesses, therefore, is certainly fatal to the prosecution.

17. The test identification parade is not substantive evidence and it can only be used as corroborative evidence of the statement in the court. The prosecution has placed heavy reliance on the evidence of identification as corroborative piece of evidence to the testimony of PW 1 in the instant appeal. We have already expressed earlier that it was not only improbable but impossible for PW 1 to have seen the alleged incident in the manner in which he claims to have seen the same. We are fortified by next piece of evidence namely identification parade which suffers from serious infirmity and, therefore, does not inspire confidence.

18. Mr. Naik, learned counsel for the accused invited our attention to the evidence of Shinde (PW 4) and memorandum of identification parade to contend that the identification parade suffers from serious infirmities and the manner in which it was conducted PW 1 cannot be said to have identified the appellants as the assailants in the alleged occurrence. He submitted that the identification parade held on 21.7.1978 and 27.7.1978 were conducted in defiance of the guidelines prescribed by the High Court in the Criminal Manual. The four accused were made to stand at one and same time with twenty dummies in the parade which was in contravention of the guidelines. He further submitted that the dummies were selected by the police and not by P.W. 4. The appearance of the dummies was also not similar to the accused persons. He also invited our attention to the discrepancies and inconsistencies in the testimony of PW 1 and PW 4 in respect of number of dummies made to stand in the identification parade. On the other hand the learned A.P.P. submitted that PW 4 had taken all precaution and safeguard while conducting the identification parade and hence it could be relied upon as corroborative piece of evidence in support of the testimony of PW 1.

19. While considering the evidence of PW 1 we have already observed in the earlier part of the judgment that P.W. 1 committed serious error in identifying accused Nos. 1 and 5. The witness was not sure as to whom did he identify on 21.7.1978. The identification of accused No. 1 and 5, in our view, throws a cloud of doubt on the claim of P.W. 1 to have identified them. P.W. 4 claims that he took all precautions and safeguards while conducting the identification parade, PW 1 in paragraph 13 of his deposition has stated that some police officers were present in the room. He was not sure whether it was PW 6 the investigating officer or any other officer. He is very specific that the police officer were present on both the occasions when the identification parades were conducted. On 21st July, 1978 one Naik Satam was present in the room where the identification parade was conduced. Naik Satam is P.S.I. who has admittedly participated in the investigation of this case. On 27.7.1978 four accused were identified by P.W. 1 at one and same time who were made to stand with 20 dummies. The dummies were selected by police and not by P.W. 4. According to P.W. 4, three identifying witnesses, including P.W. 1 were present for the parade whereas P.W. 1 in his deposition has stated that except him no other identifying witness was present. P.W. 4 has admitted in his testimony that the dummies and panch witnesses were selected by the police. Admittedly, none of the dummies had beard though accused No. 5 had beard. P.W. 4 did admit in the cross examination that the dummies were expected of similar age, height and physical appearance. However, that precaution was not taken by P.W. 4.

20. It is now well settled that while conducting identification parade it is necessary that such parades are not conducted in the presence of police officers and it should be as far as possible conducted when the accused are in jail custody and not at the police station. The object of the identification parade is to make sure that the ability of the witness to recognise the suspect has been fairly and adequately tested. It should be fair and seem to be fair and every precaution must be taken to exclude any suspicion of unfairness or risk of erroneous identification. The police officers concerned with the case should not take part in conducting the parade. In other words, the parade should be arranged by the officer who is not a police officer. The suspect should be placed amongst persons who are as far as possible of the same age, height, general appearance including standard of dress and grooming and position in life. Two suspects roughly of similar appearance should be paraded with atleast twelve other persons. Where, however, the two suspects are not similar in appearance of where there are more than two suspects, separate parades should be held using different person on each parade. The aforestated guidelines are expected to be observed by the person holding parades and he is also expected to follow the procedure for holding identification parade as laid down in paragraph 16 of the Criminal Manual issued by the High Court of Judicature, Appellate Side, Bombay. The perusal of evidence of P.W. 4, memorandum of identification parade at Exhibit 24 and the evidence of PW 1 show that the guidelines laid down by the High Court in Criminal Manual have not been followed at all. We are fortified by the view expressed in Ramcharan Budhiram Gupta v. The State of Maharashtra 1995 Criminal Law Journal 4048. This court, in the report had come across somewhat similar situation wherein after making reference to Criminal Manual this court observed that atleast in future it should be ensured that the Magistrate who conduct identification parades are made aware of the Criminal Manual which deals with the manner in which they are expected to conduct identification parades.

21. The condition precedent for accepting the evidence of identification is that it should be fair and beyond reproach and in accordance with the guidelines stipulated in the Criminal Manuals. The practice of holding identification parade in police station has been deprecated by this court time and again. Often, we have come across the cases, wherein the guidelines prescribed by the High Court have not been followed by the Executive Magistrates or they are not aware of such guidelines. The Executive Magistrate who conduct identification parade are expected to have knowledge of the guidelines stipulated in the Criminal Manual and follow them scrupulously while conducting the identification parade. In the present case we find that the instructions contained in Criminal Manual paragraph 16 concerning identification parades and the procedure for holding identification parades has not been followed at all and in view thereof the identification evidence cannot be accepted and will have to be rejected in toto. The infirmities noted above would render the evidence of the identification unworthy of acceptance.

22. Having discarded the evidence of PW 1 and the evidence of identification very little is left for us to consider in the present case. The learned A.P.P. submitted that circumstantial evidence corroborates the occular version of PW 1. The circumstantial evidence according to learned A.P.P. consists of recovery of blood stained clothes of accused No. 1 which were found smeared with blood of 'A' group. Admittedly blood group of the deceased was 'A' group. Though this piece of evidence supports the prosecution case it cannot be treated as corroborative piece of evidence for more than one reason. The blood group of the accused has not been determined in the present case. What is clinching is this, that the deceased when was being chased holding the knife smeared with blood. It has come in the evidence of PW 6 that before the deceased was being chased he had assaulted one Lias Mohammed, Maternal Uncle of accused No. 1. Lias Mohammed after assault had succumbed to the injuries. The incident of assault of Lias Mohammed by Salauddin i.e. the deceased in the present case and attack on the deceased by accused alongwith 10 other persons occurred one after another. It is not the case of the prosecution that the deceased either assaulted or made an attempt to assault the assailants or any other person when was being chased. The blood found on the knife, therefore, appears to be of Lias Mohammed to whom he had assaulted on the opposite side of the road. The perusal of the Chemical Analyser's report show that blood on the knife was of 'A' group. This indicates that even blood group of Lias Mohammed was of 'A' group and that being the position finding of the blood stains on clothes of accused No. 1 of 'A' group looses its significance. Such circumstances cannot be relied upon for any purpose whatsoever.

23. In the result, the appeal stands allowed. The impugned judgment dated 2nd November, 1988 is quashed and set aside. The bail bonds, if any, shall stand cancelled.

24. The copy of this judgment be forwarded to the Director General of Police and Director of prosecution, Government of Maharashtra for information and implementation.