Bombay High Court
Deepak Ramchandra Chavria vs The State Of Maharashtra. : on 23 November, 2010
Bench: D.D. Sinha, A.P. Bhangale
1 APEAL708.03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.708 OF 2003
1. Deepak Ramchandra Chavria )
Age: 26 years, Occu: was conducting a )
Poultry Farm, R/o. Narayan Kalbhor Chawl, )
Chawl No.21/4, Kalbhor Nagar, )
Chinchwada, Pune--411 019. )
2. Sangram Shriram Mote
Age : 23 years, Occu. Student (B.Com.)
)
)
R/o. B-9/9, Guru Ganesh Nagar, )
Near Kumbre Park, Kothrud, )
Pune--411 038. )
(Both at present lodged at Yervada )
Central Prison). ): Appellants
(Orig.Accused nos.1&2)
V/s.
The State of Maharashtra. : Respondent
...
Mr.Nitin Pradhan i/b. Ms S.D.Khot and Ms A. Kuttikrishnan for appellant
no.1 (original accused no.1).
Mr.M.S.Mohite i/b. Mr.A.R.Kapadnis and Mr.Vijay Killedar for appellant
no.2 (original accused no.2).
Mr.Y.S.Shinde, Addl. Public Prosecutor for the State.
...
WITH
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2 APEAL708.03
CRIMINAL APPEAL NO.709 OF 2003
1. Shridhar Babaji Kinjalkar )
Age : 24 years, Occu: was in service )
R/o. Sahebrao Kalbhor Chawl No.2, )
Room No.5, Kalbhornagar, Chinchwad, )
Pune--411 019. )
2. Jitendra Tanaji Mane )
Age : 23 years, Occu. Nil )
R/o. Waman Kalbhor Chawl No.4, )
Kalbhornagar, Chinchwad, )
Pune--411 019. )
Central Prison).
(Both at present lodged at Yervada )
): Appellants
(Orig.Accused Nos.3 & 4)
V/s.
The State of Maharashtra : Respondent
....
Mr.M.S.Mohite i/b. Mr.A.R.Kapadnis and Mr.Vijay Killedar for appellant
no.1 (original accused no.3).
Mr.Nitin Pradhan i/b. Ms S.D.Khot and Ms A. Kuttikrishnan for appellant
no.2 (original accused no.4).
Mr.Y.S.Shinde, Addl. Public Prosecutor for the State.
....
CORAM : D.D. SINHA & A.P.BHANGALE,JJ.
Date of Reserving ) : 14.10.2010.
the Judgement. )
Date of Pronouncing ) : 23.11.2010.
the Judgement. )
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3 APEAL708.03
JUDGEMENT (Per D.D.Sinha,J.)
As these appeals give rise to common questions of facts and law
and arise out of the same incident and the same Sessions Case, they were
heard together and are being disposed of by this common judgement.
2. Heard the learned counsel for the respective appellants and the
learned Addl. Public Prosecutor for the State.
3. These Criminal Appeals are directed against the judgement and
order dated 16.4.2003 passed by the Special Judge under M.C.O.C. Act &
Addl. Sessions Judge, Pune, whereby the appellants are convicted for the
offence punishable under section 302 read with section 34 of the Indian
Penal Code and sentenced to suffer R.I. for life and to pay a fine of
Rs.1,000/- each, in default to undergo further rigorous imprisonment for
three months. The appellants are acquitted for the offence punishable
under section 4 read with section 25 of the Indian Arms Act as well as
offences punishable under section 3(1)(i) and 3(2) of the Maharashtra
Control of Organised Crime Act, 1999. The State has not preferred an
appeal against the order of acquittal.
4. The prosecution case in a nutshell is as follows:-
4 APEAL708.03
Deceased Sunil Anant Durge was the younger brother of Raju
Durge ((P.W.7). Their house, at the relevant time, was situated in Kalbhor
Nagar, Nigadi, Pune. Both of them were residing jointly with their family
members. Raju Durge was a Municipal Corporator from Kalbhor and was
also the Chairman of Omkar Swarupa Nagari Sahakari Finance society.
All the appellants were also hailing from the same locality. The house of
accused Sangram Mote was located on way to the house of Raju Durge.
The father of the appellant Sangram Mote was addicted to drinks and
whenever Raju Durge and his family members used to pass by the road
which was in front of the house of the accused Sangram Mote, his father
used to spit. Once Raju Durge and his brother deceased Sunil questioned
the father of the appellant Sangram about his conduct. The father of the
appellant Sangram, at that time, abused deceased Sunil and P.W. Raju.
Raju lodged a complaint, on the basis thereof, a non-cognizable case was
registered against the father of the appellant Sangram by Mohannagar
police chowky. Appellant Sangram was annoyed because of this act of
Raju.
5. It is the case of the prosecution that in the night of 8.12.2000, all
the appellants and two others went to the house of Raju Durge, armed
with weapons like swords, daggers, iron bars, etc. Accused Sangram was
5 APEAL708.03
also having a pistol with him. They knocked the door of the house of
Raju Durge, who opened the door and saw all the appellants armed with
weapons. It is the case of the prosecution that the appellant Sangram
dragged Raju outside the house and pointed the pistol towards him. All
the appellants abused and assaulted him. The information about the said
incident was received by deceased Sunil and others and, therefore, they
came to the house of Raju. However, by then the appellants had left the
said place. Raju Durge was injured in the said assault, therefore, he was
shifted to Lokmanya Hospital, Chinchwad. On the complaint of Raju,
crime was registered under sections 395, 397 and 326 of the Indian Penal
Code as well as sections 4 read with section 25 of the Indian Arms Act by
the Police Station, Pimpri. All the assailants were prosecuted by the
police.
6. On 24.12.2000 at about 11.00 to 11.30 a.m., Sunil and Pralhad
Mhaske (P.W.8) had gone to Bhosari by motorcycle bearing registration
no.MVM-935. At Bhosari, Sunil was given an amount of Rs.900/- by his
friend. Thereafter, they went to workshop at Akurdi to buy spare-parts for
the motorcycle of deceased Sunil. It is the case of the prosecution that
they purchased the spare-parts at about 1.45 p.m. on 24.12.2000. The
complainant Pralhad (P.W.8) was riding the motorcycle and deceased
Sunil was the pillion rider, who was holding the spare-parts. When they
6 APEAL708.03
were proceeding by a kaccha road leading to Vitthal Mandir through
Boudha Vasti, the appellants who were sitting by the side of the road, all
of a sudden, got up. They were armed with swords and knives in their
hands. As soon as deceased Sunil and the complainant saw the accused
who were armed with weapons, both were afraid and, therefore, they left
the motorcycle and started running away from the said place. The
complainant Pralhad asked the deceased Sunil to run away from there and
told him that he would prevent the accused persons from chasing him.
Pralhad tried to prevent the appellants by hurling stones and brick-bats,
however, he could not stop them. The appellants continued to chase
deceased Sunil. It is the case of the prosecution that the accused Deepak
and Sangram assaulted Sunil by swords due to which Sunil sustained
injuries and collapsed on the ground. Accused Sridhar and Jitendra
assaulted deceased Sunil with stones on his head. The complainant
Pralhad witnessed the incident of assault, immediately thereafter went to
the house of Raju Durge and informed him about the incident. Thereafter,
both of them came to the place of the incident by car and saw the dead-
body of Sunil lying near the hut of one Zanzarabai. Both of them
thereafter went to the police station, Nigadi, and lodged the complaint. In
the meanwhile, Chinchwad-gaon police chowky, on receiving the
information about the incident, Police Inspector Gaikwad (P.W.15) rushed
to the spot. He saw Sunil in an injured condition and, therefore, sent him
7 APEAL708.03
to Y.C.M. Hospital. P.S.I. Marathe and P.S.I. Kulkarni and other police
staff members also came on the scene of offence. P.S.I. Marathe recorded
the complaint (exh.57) lodged by Pralhad (P.W.8), on the basis thereof,
crime no.221/2000 under section 302 read with section 34 of the Indian
Penal Code came to be registered. P.S.I. Marathe, thereafter, went to
Y.C.M. Hospital and prepared inquest over the dead-body of Sunil as per
inquest panchanama (exh.42). P.S.I. Kulkarni recorded the spot
panchanama in the presence of panchas, seized shock-absorbers of the
motorcycle, stones stained with blood, one iron handle, one pair of white
coloured sleeper, etc., from the spot. The appellants were arrested and
their clothes were seized which had blood-stains, in the presence of
panchas as per panchanama (exh.37). The appellant Deepak made a
disclosure statement that the weapons were concealed by him and he
would produce it. At his instance, the weapons came to be recovered
from throny bushes near the railway line. On 25.12.2000 P.I. Gaikwad
recorded the statement of the witnesses. On 26.12.2000, the blood
samples of all the appellants were collected which were forwarded to the
hospital with a request letter (exh.75). On 31.12.2000 blood sample
bottles as well as other muddemal articles were sent to the Chemical
Analyser, Pune, with yadi (exh.77). On 22.2.2001 P.I. Gaikwad handed
over the case papers to his successor P.I. Kadus (P.W.16). On completion
of the investigation, the charge was framed against the appellants for the
8 APEAL708.03
offence punishable under section 302 read with 34 of the I.P.C., section 4
read with section 25 of the Indian Arms Act as well as under the
provisions of the Maharashtra Control of Organised Crime Act. The same
was explained and read over to the appellants and they pleaded not guilty
and claimed to be tried. The trial Court convicted the appellants for the
offence of murder with the aid of section 34 of the I.P.C. and acquitted
them for the offence punishable under the M.C.O.C. Act and the Arms
Act. Being aggrieved by the order of conviction and sentence, the
appellants have filed the present appeals.
7. The learned counsel for the appellants have submitted that the
prosecution has examined in all 19 witnesses to prove the charge framed
against the appellants, out of which P.W.2 Ramesh Shelar, P.W.4
A.R.Tiwari and P.W.8 P.S.Mhaske (complainant) were examined by the
prosecution as eye-witnesses to the incident. It is submitted by the
learned counsel for the appellants that P.W.2 has not identified the
accused in the Court and, therefore, there is no substantive evidence on
record to show that the appellants were the very persons who have
committed the alleged assault. It is contended that in the examination-in-
chief of P.W.2, he has stated that he noticed deceased Sunil Durge running
away from the spot followed by unknown boys/persons. In cross-
examination, P.W.2 has admitted that at the time of the incident, he was
9 APEAL708.03
not knowing Sunil or Raju Durge. However, he has named them in his
examination-in-chief, which creates doubt about his own presence at the
scene of offence. It is further contended by the learned counsel for the
appellants that P.W.2 has stated that the assault on Sunil was committed
by the appellants from behind. P.W.6 Dr.Subhash Madane who conducted
the post-mortem examination, in his cross-examination has stated that if
blows were given by sword and the nature of injuries noticed on the
deceased, the victim would not be in a position to run. It is, therefore,
contended that the case of the prosecution in respect of the first assault on
deceased Sunil alleged to have been committed by sword does not appear
to be truthful and, therefore, the trial Court rightly disbelieved the
evidence of P.W.2 Ramesh.
8. The learned counsel for the appellants has submitted that so far
as the evidence of P.W.4 A.R.Tiwari is concerned, this witness has also
not identified the accused before the Court and, therefore, there is no
substantive evidence on record to show that the appellants are the same
persons who have committed the alleged assault. It is contended that
even as per the testimony of P.W.4 Tiwari, the assault on Sunil was
committed from behind by sword and if this story of the prosecution is
considered in the light of evidence of the Medical Officer Dr.Subhash
Madane (P.W.6) which shows that in case blows were given by sword to
10 APEAL708.03
the victim, as in the present case, the victim would not be in a position to
run, hence, it creates doubt about the authenticity of the testimony of P.W.
4 Tiwari. It is further submitted that P.W.4 Tiwari has, at the relevant
time, wanted to go to his friend P.W.9 Jaykumar Tyagi's house to borrow
moneys. However, P.W.9 Jaykumar Tyagi has stated that he has no
acquaintance with P.W.4 Tiwari which creates serious doubts about the
presence of P.W.4 Tiwari at the scene of offence, apart from the fact that
he was a chance witness. It is submitted that the testimony of P.W.4 also
does not corroborate the sequence of events of the assault as disclosed by
P.W.2 in his evidence.
9. The counsel or the appellants have submitted that P.W.8 Pralhad
Mhaske, another eye-witness who lodged the complaint (exh.56) was also
not knowing the appellants and, for the first time, has seen them at the
time of the incident. The First Information Report which was lodged on
24.12.2000 at 3.30 p.m. wherein P.W.8 has mentioned the names of the
appellants-accused though he saw the appellants for the first time at the
time of the incident. Mentioning of the names of the appellants in the
First Information Report when P.W.8 Pralhad Mhaske did not know them
prior to the incident creates doubt about the authenticity of the First
Information Report itself. P.W.8 Pralhad Mhaske in his cross-
examination has stated that in the evening on 24.12.2000 he was called by
11 APEAL708.03
the police to the police station. The police by then had already arrested
all the appellants and when P.W.8 Pralhad Mhaske visited the police
station, the appellants were shown to him and he identified them in the
police station as assailants. It is contended that the testimony of P.W.8
Pralhad Mhaske is also not consistent with that of the other two eye-
witnesses in respect of the actual assault alleged to have been committed
by the appellants. It is further submitted that this witness has also stated
in his evidence that the sword blows were given to deceased Sunil Durge
from behind while he was running. Such possibility has been ruled out by
the Medical Officer P.W.6 Dr.Subhash Madane who has admitted in his
cross-examination that if the nature of blows were given by sword, the
victim would not be in a position to run. The counsel for the appellants,
therefore, contended that the evidence of the so-called eye-witnesses is
neither cogent nor trustworthy. On the other hand, the story put forth by
the witnesses in respect of the assault, if considered in the light of
admission given by the Medical Officer P.W.6 Dr.Subhash in his cross-
examination, would create serious doubts about the presence of these
witnesses as well as the authenticity of the prosecution case.
10. The learned counsel for the appellants further contended that the
other circumstantial evidence brought on record by the prosecution in the
form of discovery of weapons under section 27 of the Evidence Act by the
12 APEAL708.03
appellant Deepak by examining P.W.1 Ramesh Yewale (panch on spot
panchanama), P.W.10 R.G.Wani (panch on discovery panchanama) is not
clinching in nature and that by itself is wholly inadequate to bring home
the guilt of the appellants for the offence of murder of Sunil. It is further
contended that the other prosecution evidence consists of police officers
who conducted investigation in the present case i.e. A.G.Marathe (P.W.
12) (P.S.I. who conducted part of the investigation), P.W.13 B.D.Dalvi,
I.O. who conducted part of the investigation pertaining to the arrest of the
appellants-accused and conducted discovery proceedings under section 27
of the Evidence Act at the behest of the appellant Deepak. P.W.14 Dilip
Kulkarni, another I.O., who has drawn spot panchanama and discovery
panchanama regarding two swords alleged to have been discovered by the
appellant no.1. It is contended that the evidence of these Police Officers
was of a formal nature which only demonstrates the nature of the
investigation conducted by each one of them while investigating the
crime in question and, therefore, is not of much help to the prosecution.
11. Mr.Pradhan, the learned counsel appearing for the appellants
(original accused nos.1 & 4) has submitted that in the instant case, the
alleged eye-witness P.W.2 Ramesh Shelar did not identify the appellants
in the Court. Similar is the case so far as another eye-witness P.W.4
A.R.Tiwari is concerned whereas the evidence of Pralhad Mhaske (P.W.
13 APEAL708.03
8), the complainant is concerned, it shows that he was not knowing the
appellants before the alleged incident in question and has seen them for
the first time at the time of the incident. There was no identification
parade conducted by the prosecution and the identification of the
appellants by this witness for the first time in Court cannot be relied upon
for fixing the identify of the assailants. In order to substantiate his
contentions, the learned counsel has placed reliance on the decision of the
apex Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746].
12. Mr.Shinde, the learned Addl. Public Prosecutor, has submitted
that the case of the prosecution is based on direct evidence of P.Ws.2, 4
and 8 as well as the following circumstantial evidence:-
(i) Discovery of weapons under section 27 by the appellant Deepak.
(ii)Recovery of weapons/articles from the spot.
(iii)Medical evidence.
(iv)Motive.
(v) Recovery of blood-stained clothes from all the appellants.
(vi)All the appellants were absconding after the incident.
(vii)Identification of the appellants by independent witnesses before
the Court.
(viii)Finding of human blood on the clothes of the appellants.
14 APEAL708.03
13. The learned Addl. Public Prosecutor has contended that the
evidence of eye-witness P.W.2 Ramesh has been wrongly discarded by the
trial Court merely because this witness did not inform about the incident
in question to anybody till his statement was recorded by the police. The
conduct of the witness after witnessing the incident not to disclose it to
anybody and straightaway going home has been held to be unnatural by
the trial Court. Similarly, the conduct of this witness of not raising any
shouts on witnessing the incident also has been held to be unnatural by
the trial Court. The learned Addl. Public Prosecutor has contended that
P.W.2 was knowing all the accused persons prior to the incident. It is
contended that the evidence of this witness would show that the appellant
Deepak and Sangram were having swords and the appellant Shridhar and
Jitendra were having wooden logs and stones. According to this witness,
the appellants assaulted the deceased with their respective weapons. This
witness has identified the swords and sticks. P.W.2 has identified all the
accused persons before the Court. It is contended that in cross-
examination of this witness, he has admitted that the appellants assaulted
the deceased and also admitted that he has seen the incident. The learned
Addl. Public Prosecutor, therefore, contended that the testimony of this
witness ought not to have been discarded merely on the basis of his
subsequent conduct as mentioned hereinabove by the trial Court.
15 APEAL708.03
14. The learned Addl. Public Prosecutor further contented that the
evidence of P.W.4 A.R.Tiwari, the other eye-witness examined by the
prosecution demonstrates that he has witnessed the incident and
mentioned their names in his substantive evidence and, therefore, though
the prosecution has failed to hold identification parade as well as non-
identification of the appellants by this witness in the Court would not
adversely affect the veracity of the evidence of this witness.
ig The
testimony of this witness is corroborated by the evidence of another eye-
witness P.W.8. Pralhad Mhaske.
15. The learned Addl. Public Prosecutor has submitted that P.W.8
Pralhad (complainant) was with the deceased at the time of the incident.
He has witnessed the incident and also identified all the appellants before
the Court. It is contended that merely because there were some cases
pending against this witness, the evidence of this witness cannot be
discarded on this count. It has come in the cross-examination of this
witness that he has seen the incident and the testimony of this witness is
free from material omissions and contradictions. It is contended that the
evidence of eye-witness P.Ws.2, 4 and 8 has been completely
corroborated by the medical evidence and other circumstantial evidence.
16 APEAL708.03
16. P.W.1 Ramesh is the panch witness who has proved the spot
panchanama. The evidence of this witness would show that blood-stained
stones, cover of the sword, dagger, cover of dagger were found on the
spot of the incident. P.W.3 Rahul is another panch witness who has
proved the arrest panchanama of the appellants, seizure panchanama i.e.
seizure of blood-stained clothes. There is no cross-examination by the
defence on the point of finding of blood-stains on the clothes of the
appellants. P.W.7 Raju Durge (brother of the deceased) was examined by
the prosecution to establish the motive behind the crime. The evidence of
this witness would show that there was previous enmity between the
deceased and the accused party. The learned Addl. Public Prosecutor has
submitted that P.W.10 Raju Wani is another panch who has proved the
memorandum statement of Deepak as well as production of sword by the
appellant Deepak from the bushes which had blood-stains on it.
17. The learned Addl. Public Prosecutor has contended that the
evidence of the Medical Officer P.W.6 Dr.Subhash who has conducted the
post-mortem examination on the dead body of the deceased would show
that there were 16 injuries found on the person of the deceased which
were ante-mortem and as per the opinion of the Doctor, the same could
have been caused by the articles seized and produced during the course of
investigation. It is contended that the medical evidence corroborates the
17 APEAL708.03
ocular testimony of all the eye-witnesses coupled with the other material
circumstances established by the prosecution, the trial Court was justified
in holding that the prosecution proved the case against the appellants for
the offences charged beyond all reasonable doubts. The learned Addl.
Public Prosecutor has submitted that in a case where the accused are
known to the witnesses and are not strangers to them, in that case, test
identification parade is not really necessary. In order to substantiate his
contention, reliance is placed on the decision of the Supreme Court in the
case of State of U.P. v. Sukhpal Singh (2009 All MR (Cri.) 3773 (S.C.).
The learned Addl. Public Prosecutor further stated that if the evidence of a
witness having criminal background is corroborated by the evidence of
other witnesses and if his presence at the scene of occurrence is not
doubted, the same can be relied upon by the Court. In order to
substantiate this contention, reliance is placed on the decision of the
Supreme Court in the case of State of U.P. v. Farid Khan [(2005) 9 SCC
103]. The learned Addl. Public Prosecutor has submitted that it is open
for the Court to reject the part of the evidence of the witness and accept
the remaining part of the evidence. Merely because part of the evidence
is rejected by the Court, the entire evidence need not be rejected only
because some part of the evidence is found to be false. In order to
substantiate this contention, reliance is placed on the decision of the
Supreme Court in State of Maharashtra v. Tulshiram Bhanudas Kamble
18 APEAL708.03
[(2007) 14 SCC 627].
18. We have given anxious thoughts to the various contentions and
propositions of law advanced by the learned counsel for the appellants as
well as the learned Addl. Public Prosecutor appearing for the State. In the
instant case, though the prosecution has examined in all 19 witnesses to
bring home the guilt of the appellants for the offence of murder, however,
medical evidence is of P.W.2 Ramesh, P.W.4 Ashok Tiwari and P.W.8
Pralhad Mhaske (complainant) who were examined by the prosecution as
eye-witnesses to the incident. The case of the prosecution is based on
direct evidence of these witnesses as well as circumstantial evidence
which is brought on record by the prosecution in the form of discovery
under section 27, spot panchanama of scene of offence, recovery of
blood-stained clothes, etc. The prosecution has examined P.W.6
Dr.Subhash Madane to prove the post-mortem report. We now propose to
consider and scrutinise the evidence of the eye-witnesses examined by the
prosecution.
19. P.W.2 Ramesh Yewale in his examination-in-chief has stated that
he knew the appellants before the Court. This witness has stated that on
24.12.2000 at about 1.30 p.m., he was going towards the house of his
friend Sameer Shaikh who was residing in Akurdi village. This witness
19 APEAL708.03
has further stated that he was going by a road which was leading to
Bauddha wasti and when he came near Dr.Babasaheb Ambedkar Cultural
Centre, he noticed one Yamaha motorcycle lying in front of that centre.
At that time, he noticed deceased Sunil running towards Bauddha Wasti
and one another unknown boy was also running with Sunil Durge. P.W.2
has further stated that at START that time he noticed that the appellant
Deepak, Sangram, Sridhar and Jitendra were chasing Sunil Durge.
Deepak and Sanagram were having swords in their hands and Jitendra and
Sridhar were having wooden logs in their hands. This witness stated in
his examination-in-chief that he noticed appellant Deepak and Sangram
assaulting deceased Sunil by means of swords while Sunil was
proceeding towards one house. P.W.2 has stated in his evidence that
appellant Sridhar and Jitendra assaulted the deceased by the wooden logs.
P.W.2 has further stated in his examination-in-chief that when Sunil was
in front of the said house, appellant Deepak and Sangram assaulted Sunil
by swords. Sunil fell down on the ground and, thereafter, the appellants
Jitendra and Sridhar assaulted deceased Sunil on his head with stones.
This witness has identified the swords (art.19 and 20) as well as the
wooden sticks (art.14) before the Court.
20. It is pertinent to note that in cross-examination of P.W.2 Ramesh,
he has admitted that Sunil Durge was running towards Bauddha Wasti and
20 APEAL708.03
was being chased by the appellants. There was an unknown boy who was
with Sunil at the relevant time and the appellants were chasing them.
P.W.2 has further admitted in his cross-examination that the first attack on
Sunil by the appellants was made when Sunil was running and after he
fell down Sunil was also assaulted by the appellants. The appellants
inflicted injuries on the back of Sunil when he was running. This witness
has further stated in his cross-examination that he has seen a blow
inflicted on the forehead of the deceased by sword. According to this
witness, he has seen the entire incident while standing in front of
Ambedkar Centre. However, according to this witness, no one from the
crowd intervened to save the deceased Sunil. The omissions which are
brought by the defence in the testimony of this witness in respect of his
police statement are not material omissions which would affect the
veracity of the testimony of this witness. The close scrutiny of the cross-
examination of P.W.2 would show that all the material particulars of the
prosecution case disclosed by this witness in his examination-in-chief are
virtually re-affirmed in the cross-examination and the testimony of this
witness is also free from material omissions and contradictions.
However, it appears that the trial Court discarded the evidence of this
witness on the ground that P.W.2 failed to disclose the incident to anyone
till his police statement was recorded. It is not in dispute that the
statement of P.W.2 was recorded by the police on the same day and,
21 APEAL708.03
therefore, the conduct of P.W.2 of not disclosing the incident to anyone
till his statement was recorded, in the facts and circumstances of the
present case, in our view, is not fatal to the prosecution case, particularly
because the evidence of this witness otherwise is cogent and corroborated
by the evidence of other eye-witnesses as well as medical evidence. The
finding of the trial Court rejecting the testimony of this witness on the
ground of his conduct of non-disclosure of incident to anyone, in our
view, is unsustainable in law and, therefore, we don't agree with the said
finding.
21. It is pertinent to note that P.W.2 in his examination-in-chief has
specifically stated that he knew all the appellants before the Court. This
part of the evidence of this witness has not been challenged by the
defence at all. There is not even a suggestion in this regard given by the
defence in the cross-examination of this witness and in the absence of any
challenge to this part of the evidence of P.W.2, there is no occasion for the
Court to hold otherwise. It is no doubt true that P.W.2 witnessed the
incident while he was on his way to the house of his friend Sameer
Shaikh and it has come in the cross-examination of this witness that he
did not disclose the name of his friend Sameer Shaikh at the time of
recording of his police statement. This inconsistency, in our view, is not a
material one and does not affect the testimony of this witness. The
22 APEAL708.03
evidence of P.W.2, in our view, is cogent, truthful and trustworthy.
22. P.W.4 Ashok Tiwari is another eye-witness examined by the
prosecution. This witness in his examination-in-chief has stated that
while he was going by a kaccha road which passes from Vithalwadi which
further goes towards Bauddha Wasti, he noticed one Yamaha motorcycle
in front of a country liquor shop. This witness noticed a mob of about
eight to ten persons assembled in front of the said liquor shop. He has
also noticed one Pralhad Mhaske (P.W.8) who was pelting stones on the
appellant Deepak, Sangram, Sridhar and Jitendra in front of Ambedkar
Cultural Centre. P.W.4 has stated in his examination-in-chief at that time
Deepak and Sangram were having swords in their hands and Sridhar and
Jitendra were armed with sticks. This witness noticed deceased Sunil
Durge running towards Akurdi village and the appellant Shridhar threw
wooden logs towards him which hit Sunil. This witness has further stated
in the examination-in-chief that when Sunil was running towards Akurdi
village, all the four appellants started chasing him and after crossing some
distance, the appellant Deepak and Sangram assaulted Sunil by means of
swords. Sunil fell down on the ground. This witness has further stated in
his examination-in-chief that the appellant Sridhar and Jitendra assaulted
Sunil with stones. In cross-examination of this witness, P.W.4 has
admitted that he was going towards his house on foot from Vithalwadi.
23 APEAL708.03
He noticed a Yamaha motorcycle lying in front of the country liquor shop.
There were some people assembled there. This witness also admitted in
his cross-examination that he was knowing P.W.8 Pralhad who was
pelting stones on the appellants for a period of two to three minutes and at
that time all the four appellants were standing at the distance of 10 to 15
feet from Mhaske. At that time, deceased Sunil was running towards
Akurdi village. It has come in the cross-examination of this witness that
the appellant Sridhar threw wooden logs towards Sunil and Sunil was hut
by the said wooden logs. This witness has further admitted in the cross-
examination that the incident of assault on Sunil was in front of a hut.
When Sunil started running, the appellants started chasing him and after
assault on Sunil, the appellants ran away towards Akurdi village. It is
pertinent to note that the material particulars of the prosecution case
disclosed by this witness in his examination-in-chief are re-affirmed in the
cross-examination of this witness. The admission given by this witness in
the cross-examination are wholly consistent with the case of the
prosecution disclosed by P.W.4 in his examination-in-chief and, therefore,
the testimony of this witness has not been shaken in the cross-
examination, though there are some omissions which, in our view, are not
material ones.
23. It is pertinent to note that this witness has mentioned the names
24 APEAL708.03
of the appellants in his substantive evidence as well as the role played by
each of them in the assault, including the weapons used by each one of
them. In cross-examination, this witness has admitted that he was not on
visiting terms with the appellants nor was there any transaction between
them. However, there is not even a suggestion given to this witness in
cross-examination by the defence that the appellants were neither known
to him nor was he acquainted with them before the incident in question.
On the other hand, the admission given by this witness in cross-
examination that he was not on visiting terms with the appellants would
show that the defence never wanted to challenge the fact that P.W.4 was
not knowing the appellants prior to the incident and only wanted to
demonstrate that this witness was not on visiting terms with the appellants
and, therefore, the defence did not give even a suggestion to this witness
in the cross-examination in this regard.
24. Pralhad Mhaske (P.W.8) is the third eye-witness examined by the
prosecution, who is also the complainant. P.W.8 Pralhad in his
examination-in-chief has specifically stated that he knew all the
appellants before the Court who were the assailants. The prosecution case
has already been mentioned by us in the earlier part of this judgement
and, therefore, it is not necessary to reiterate the same. This witness in his
examination-in-chief has stated that he was driving the motor-cycle and
25 APEAL708.03
deceased Sunil was the pillion rider who was holding the motor-cycle
spare parts purchased by them. When they came in front of one brick
building by a kaccha road, the appellants all of a sudden came in front of
them having swords in their hands. This witness has stated in his
examination-in-chief that as soon as the appellants came towards them,
they left the motor-cycle there and started running away from the said
place. P.W.8 Pralhad told Sunil to run away from that place and he will
prevent the assailants from chasing him and, therefore, he pelted stones
towards the appellants. He has stated in his substantive evidence that he
noticed Sunil running in front and all the four appellants were chasing
him. This witness noticed that the appellants Deepak and Sangram were
giving blows by swords on the person of deceased Sunil. He has
identified the appellants Deepak and Sangram in the Court as the
assailants who had assaulted Sunil by swords. This witness also
identified the appellants Sridhar and Jitendra in the Court as the persons
who had assualted Sunil with stones on his head. It is pertinent to note
that this witness after the incident without lapse of time went to Nigdi
police station and lodged the complaint of the incident. This witness
narrated the entire incident to the police which was reduced in writing and
the said document was signed by this witness. A close scrutiny of the
cross-examination of P.W.8 shows that this witness has admitted in his
cross-examination that all of a sudden, all the appellants rushed towards
26 APEAL708.03
them, armed with weapons, this witness and Sunil were frightened,
jumped from the motor-cycle and started running away from the place.
P.W.8 also admitted that when he started pelting stones towards the
appellants, they rushed towards his side and at that time Sunil was
running towards the hut. This witness has further stated in his cross-
examination that the attack on Sunil was near the hut. Sunil threw away
the spare-parts. This witness further stated in his cross-examination that
he was unable to state by which side the appellants ran away from the
spot after they attacked deceased Sunil. It is important to note that the
First Information Report was lodged by Pralhad within no time after the
incident and narrated the entire incident to the police. The defence failed
to elucidate any material omission or contradiction in the cross-
examination of this witness. On the other hand, all the material
particulars of the prosecution case disclosed by this witness in the First
Information Report as well as in his substantive evidence before the Court
are virtually re-affirmed in the cross-examination. This witness in his
substantive evidence though has stated that he knew all the appellants and
also identified them in the Court, the defence did not give even a
suggestion to this witness that he was not knowing the appellants prior to
the incident. In any case, this witness has identified the appellants in the
Court. The evidence of this witness, in our view, is reliable and is also
corroborated by evidence of other eye-witnesses.
27 APEAL708.03
25. We have carefully scrutinised the evidence of three eye-witnesses,
viz., Ramesh, Ashok and Pralhad and found that their testimonies are
truthful, reliable and trustworthy. Their evidence is also free from
material contradictions and omissions. We think it appropriate at this
stage to discuss the law regarding identification parade in the light of the
provisions of section 9 of the Evidence Act as well as in view of the
decisions of the apex Court and this Court on the said subject. The facts
which establish the identity of the accused persons are relevant under
section 9 of the Evidence Act. Similarly, the substantive evidence of a
witness is the statement made in the Court. However, the purpose of prior
test identification, is to test and strengthen the trustworthiness of that
evidence. At the same time, failure to hold a test identification parade
would not make inadmissible the evidence of identification in the Court.
The apex Court in paragraph 25 of the judgement in the case of State of
U.P. v. Sukhpal Singh (supra) has observed thus:-
"25. In the instant case, all the witnesses have
stated that they had otherwise known the accused
persons and they were not strangers to them. In the
moonlight and latern light they clearly identified
them. Therefore, the test identification parade was
28 APEAL708.03
really not necessary in this case. Whether test
identification parade is necessary or not would
depend on the facts and circumstances of each
case. This court in a series of cases has taken the
view that the test identification parade under
section 9 of the Evidence Act is to test the veracity
of the witness and his capacity to identify the
unknown persons whom the witness must have
seen only once but in the instant case the witnesses
were otherwise known to accused persons,
therefore, the test identification parade has no great
relevance in the facts and circumstances of this
case."
The above referred observations of the apex Court clearly demonstrate
that whether test identification parade is necessary or not would depend
upon whether the witnesses are known to the accused persons and they
were not strangers to them. In other words, the identification parade
contemplated under section 9 of the Evidence Act is required to be held in
order to find out culpability/capacity of the witness to identify the
unknown persons whom the witness has seen only at the time of the
incident. However, if the accused otherwise are known to the witnesses,
29 APEAL708.03
it is not necessary to hold test identification parade, since the object of
holding identification parade under section 9 of the Evidence Act is to
identify the unknown persons and not the known ones.
26. In the instant case, P.W.Ramesh in his examination-in-chief has
specifically stated that he was knowing the accused before the Court and
the houses of the appellants were located near the school. Similarly, P.W.
4 Ashok in his cross-examination has admitted that he was not on visiting
terms with the appellants and there was no transactions between this
witness and the appellants. It is pertinent to note that the defence has not
questioned that P.W.2 and P.W.4 were not knowing the appellants prior to
the incident in question. The defence has not even given any suggestion,
in this regard, to both these witnesses and, therefore, there is no reason to
disbelieve the statement of P.W.2 before the Court that he named the
appellants who were before the Court. Similarly, the above admission
extracted by the defence in the cross-examination of P.W.4 clearly
demonstrates that the defence did not dispute that P.W.4 knew the
appellants prior to the incident, however, only wanted to know whether
P.W.4 was on visiting terms with the appellants or was there any
transactions between them. In view of these facts, it is not possible for us
to hold that P.W.2 Ramesh and P.W.4 Ashok were not knowing the
appellants prior to the incident and we would like to reiterate that this
30 APEAL708.03
aspect has also not been questioned by the defence. Since both these
witnesses knew the appellants prior to the incident and the appellants
were not strangers to them, in view of the law laid down by the apex
Court in the case of State of U.P. v. Sukhpal Singh (supra), it was not
necessary for the prosecution to hold the test identification parade in view
of section 9 of the Evidence Act since the same is required to be held to
identify unknown persons whom the witness has seen for the first time at
the time of the incident.
27. P.W.8 Pralhad in his substantive evidence has specifically stated
that he was knowing all the four appellants before the Court who have
assaulted Sunil and, therefore, there was no need for the prosecution to
hold test identification parade, but it appears that P.W.8 was called to
identify the appellants in the police station. However, since the appellants
were known to P.W.8 prior to the incident, there was no propriety to call
this witness to the police station to identify the appellants nor it has any
relevance in the facts and circumstances of the present case.
28. In the instant case, there is a material on record that there are/were
criminal cases pending against some of the witnesses, including eye-
witness and, therefore, it is contended that it is unsafe to rely on their
evidence for convicting the appellants. The apex Court in the case of
31 APEAL708.03
State of U.P. v. Farid Khan [(2005) 9 SCC 103] has observed in
paragraph 4 as under:-
"The learned Sessions Judge relied on the evidence
of this witness. However, the High Court
disbelieved his evidence on two counts - firstly on
the ground that he was previously convicted in a
criminal case and was sentenced to four years'
imprisonment. This, according to the High Court,
was a valid ground to discard his evidence.
Another ground to disbelieve the evidence of PW2
Sharif was that he must have been a chance
witness and his explanation that he was going to
the shop of Safi may not have been true as there
were several other "beedi" manufacturers in that
locality nearest to his house. Of course, the
evidence of a witness, who has got a criminal
background, is to be viewed with caution. But if
such an evidence gets sufficient corroboration
from the evidence of other witnesses, there is
nothing wrong in accepting such evidence.
Whether this witness was really an eyewitness or
32 APEAL708.03
not is the crucial question. If his presence could
not be doubted and if he deposed that he had seen
the incident, the court shall not feel shy of
accepting his evidence. The High Court must have
kept in mind that the Sessions Court, which had
the opportunity to see the witness, relied on the
evidence of such a witness and such an evidence
should not have been lightly discarded on these
grounds."
The above referred observations of the apex Court clearly demonstrate
that the involvement of the witness in the criminal case by itself cannot be
the ground to discard his evidence if his evidence otherwise is
trustworthy, reliable and is corroborated by other evidence. Considering
this legal position, we are of the view that in the present case, the
evidence of some of the eye-witnesses who are or were involved in the
criminal cases cannot be discarded only on this ground since their
evidence is otherwise cogent, trustworthy and also corroborated by other
evidence.
29. In the instant case, Subhash (P.W.6) has conducted the postmortem
examination on the dead body of the deceased Sunil and found 16 injuries
33 APEAL708.03
on the person of the deceased which were ante-mortem and, as per the
opinion of the Doctor, the same could have been caused by articles seized
and produced during the course of the investigation. It is pertinent to note
that out of 16 injuries, injury nos.2,3,4, 5 and 9 were incised woulds
which could have been caused by a weapon like sword. Similarly, injury
nos.1, 6, 11, 12 and 16 are in the form of contused abrasions which could
have been caused by the wooden logs and injury no.1 i.e. depressed face
as per the opinion of the Doctor could have been caused by hitting of big
stone. In the instant case, the medical evidence, in our view, completely
corroborates the ocular testimony of the eye-witnesses. In cross-
examination of the Medical Officer, he has admitted that in case blows
were given by sword, the victim will not be in a position to run. The
counsel for the appellants, on basis of this admission of the Medical
Officer, vehemently contended that as per the case of the prosecution, the
deceased Sunil was alleged to have been assaulted while running away
from the spot, however, if the blows alleged to have been given by the
sword to the victim, as per the admission of the Doctor, the victim would
not have been in a position to run which shows that either the eye-
witnesses examined by the prosecution were not present at the time of the
assault or the prosecution case disclosed by them is false since the victim
Sunil, according to the prosecution, kept on running. It is necessary to
consider this aspect in the light of the substantive evidence of these
34 APEAL708.03
witnesses. As per the evidence of these witnesses, Sunil was assaulted
while he was running, after the assault Sunil fell down on the ground and
was again assaulted by the appellants with the swords, sticks and stones.
In the circumstances, the contention canvassed by the counsel for the
appellants, in this regard, is misconceived. The evidence of eye-witnesses
is not only consistent with material particulars of the prosecution case, but
the same is also corroborated by medical evidence.
30.
Apart from direct evidence of eye-witnesses, there is a
circumstantial evidence available on record in the form of discovery of
swords and recovery of clothes of the accused having human blood and
there is no explanation forthcoming from the appellants in this regard.
Similarly, the spot panchanama shows that a stone having human blood
was seized from the spot of occurrence, apart from other evidence.
31. In the instant case, the direct evidence of eye-witnesses is
corroborated by the medical evidence and the other circumstantial
evidence and is cogent and trustworthy. Therefore, we have no hesitation
to hold that the prosecution succeeded in proving the charge of murder
with the aid of section 34 against all the appellants.
35 APEAL708.03
32. The Criminal Appeals suffer from lack of merit and, therefore,
are dismissed.
(D.D. SINHA, J.)
(A.P. BHANGALE,J.)
