Colony vs The State Of Maharashtra
2010 Latest Caselaw 97 Bom

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Ladda


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                                                         
                       CRIMINAL  APPELLATE  JURISDICTION


                       CRIMINAL   APPEAL   No.  37  of 2005.




                                                        
                                              
        Anil Shashikant Alve,       ]
        age 29 years,             ig]
        R/o A/6 Ground Floor,       ]
        Room No.1, Sahar, P.N.T.    ]
                                
        Colony, Andheri, Bombay    ]
        At present in Yerwada       ]
        Central Prison, Pune        ]
               


                                      ..    ..  Appellant. (Orig. accused) 
            



        Versus
       




        The State of Maharashtra   ..       ..  Respondent.





        Mr Sudeep Pasbola,   for the  Appellant.(Appointed).

        Mrs  A.S. Pai,  Additional Public Prosecutor, for the  Respondent-State.
                   




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    CORAM:-      D.D. SINHA   AND  A. P.  BHANGALE, JJ.

DATE OF RESERVING THE JUDGMENT :- 11TH OCTOBER , 2010.

DATE OF PRONOUNCING THE JUDGMENT:- 27th OCTOBER, 2010.

JUDGMENT (PER A. P. BHANGALE, J):-

1. This Appeal is directed against the Judgment and order dated

17/12/2004 passed in the Sessions Case No.285 of 2002 by the learned

Additional Sessions Judge, at Court of Sessions, Mumbai, whereby the

Appellant Anil Shashikant Alve was found guilty of the offence punishable

under Section 302 read with section 34 of the Indian Penal Code (IPC) and

sentenced to suffer imprisonment for life and to pay fine in the sum of Rs.

20,000/-, in default to undergo rigorous imprisonment for four months.

Being aggrieved by the judgment and order of conviction, present appeal is

filed by the appellant.

2. Brief facts which led to the prosecution of the Appellant are:

Complaint (Exh.10) was lodged by Shri Chandrashekhar (PW1) in

respect of the incident which occurred on 09/12/2001 at about 10:15 p.m. at

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the Chatrapati Shiwaji road opposite, Nityanand Hindu Hotel, Vakola

bridge Santacruz (East) Mumbai. After the first informant had attended hotel

and was sitting at the counter and while watching traffic on the road, saw

that Santosh Karunakaran Malli, who had visited the hotel and who after

enjoying a beer in the hotel, paid the bill and left the hotel, was stabbed

repeatedly by three persons by means of weapons like chopper and Gupti.

People had collected at the spot due to the incident. Santosh Malli fell on

the road in injured condition.

ig He was taken to the Hospital, but was

declared dead before admission. The Complaint was registered as FIR No

550 of 2001 at the Vakola Police Station(Exh 10 & Exh 10 A). It was

recorded by PW9 Vijay Dalvi, the investigating officer, on 09/12/2001, who

had proceeded to the spot along with the staff soon after receiving

telephonic information. Inquest(Exh. 30) was drawn. During the inquest

Panchnama, wrist watch (Art.1), bracelet (Art.2) and blood stained clothes

of the deceased (Art Nos. 3 to 6) were recovered from the dead body and

they were sealed and labeled. The dead body of the deceased was referred

for the post-postmortem examination to Cooper Hospital. P.S.I., Shri Patel

drew spot Panchnama, as the spot was pointed out by the first informant

(Exh 31). The accused Manoj Yadav @ Kanya was arrested on 14/12/2001.

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The appellant Anil Alve and the accused Ashok Yadav were arrested on

23/12/2001. The accused Anil had made disclosure statement (Exh. 22),

pursuant to which a Chopper (Art. No 7) was discovered at his instance. On

25/12/2001, Panchnama regarding Disclosure Statement was made, in

respect of the Statement of A-2, and pursuant to which knife was recovered

under the Panchnama (Exh 24-A).

3. Muddemal articles, weapon recovered from the spot as well as

sample of earth taken from the spot and clothes of the deceased were

referred to the Chemical Analyzer with letter dated 10/12/2001. Reports of

Chemical Analysis were received as per Exhs. 34 and 35 colly, indicating

that the sample of earth soil, and clothes of the deceased were found stained

with human blood, while stains of human blood were also detected on

weapons i.e. chopper and also knife which were seized, during the course of

investigation, pursuant to disclosures from the accused. Results as to blood

group, however, were inconclusive. Upon completion of investigation the

accused were charge sheeted before learned Metropolitan Magistrate, 21st

Court, at Bandra. On 04/04/2002 the case was committed to the Court of

Sessions, Mumbai.

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4. The Charge was framed on 20/06/2003 (Exh.2). The Appellant/

accused pleaded not guilty and claimed trial. (Plea recorded at Exh. 3).

5. The prosecution examined ten witnesses and closed evidence in the

trial Court. The defence of the accused was of total denial.

6. We have heard learned Advocate for the Appellant and Learned

A.P.P. for the State.

7.

PW1 Dr. Kalyankar had conducted post-postmortem examination of

the dead body of the victim Santosh Malli. According to him, he found

following external injuries on the dead body:

1) Incised Stab wound over right side chest front 8 cm;, below right clavicle and ½ cm right to mid

line, Oblique spindle shaped size 7.5 cms x 3 cms x cavity deep.

2) Incised Stab wound over left side chest front 4 cms, below left clavicle, and 6 cms lateral to mid line, oblique upper edge undermine spindle shape

measuring 3 cms x 2 cms x cavity deep.

3) Incised stab wound over left side of chest front 3 cms below injury Nos. 2 and 7 cms left to mid line, spindle shaped size 3 cms x 1 cm oblique.

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4) Incised stab wound over left side chest front,5 cm left to mid line, 2 cms below injury No.3,

spindle shaped, horizontal size 4 cms x 1 cm x cavity deep.

5) Two incised stab wounds, one below another intermingled at one and spindle shaped ½ cm below injury no.4. 3 cms left to mid line size upper

one 5 cms x 2 cms x cavity deep and below one 6 cms x 3 cms x cavity deep.

6) Incise stab wound over left side chest 2 cms

below injury No.5, Oblique size 3.5 cms x 1 cms x cavity deep.

7) Two incised stab wounds over left side

abdomen ½ cms apart one below another 1 cm left mid line upper one side 2 cms x 1 x cavity deep.

Spindle shaped.

8) Incised wound over west side sub coastal region, 10 cms left to mid line. 3 x 1 cm x muscle

deep. Spindle shaped.

9) Incised stab wound over left side mix axillary line. abdominal fold 2 cms above left pelvic crest

size 2 cms x1 cm x cavity deep.

10)Incised stab wound left side chest posterior auxiliary 14 cms below posterior auxiliary fold

vertically oblique 4 cms x 2 cms x cavity deep.

11) Incised wound over upper end of left upper arm, vertical Spindle shaped, 3 cms x 1 cm x muscle deep.

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12) Incised wound over neck front horizontal, Spindle shaped 5 x 5 cms x muscle deep.

13) Incised wound over left upper arm back 6 cms

below posterior axillaries fold oblique 2.5 x 1 cm x muscle deep.

14)Incised wound over left side Chest back 2 cms

below shoulder line oblique 6 cms x 1 cm x muscle deep with 1 cm tailing below.

15) Three incised wound over left side chest back

scapular region ½ cm apart of size each 3 cms x 1 cm x muscle deep.

16)Two incised wound over left side chest back 1

cm apart each size 3 cms x 1 cm x muscle deep.

17)Incised wound over left back lumbar region1 cm left to mid line oblique 3 cms x 1 cm x muscle

deep.

18)Two chop wounds over left side occipital temporal region 1 cm apart horizontal, parallel to each other each size 7 cms x .5 cms x with bone outer table cut.

19)Incised stab wound over right chest back 12 cms below shoulder line 4 cms right to mid line horizontally oblique size 3 cms x 1 x cavity deep.

20) Two chop wounds 4 cms below injury no. 18, 2 cms apart horizontal parallel to each other each size 7 cms x 1 cm x bone cut outer table.

Doctor found following internal injuries:

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1) on dissection of external injuries Nos. 2, 3, 4, 5, & 6, & 10 it was found that left side chest muscles

(intercostal muscles) perforated through and through left side lung perforated, heart, left atrium

perforated by injury no 3, left side diaphragm and left side lower lung lob perforated by injury No. 6 and 5 th and 6 th ribs cut by injury No.5.

2) On dissection of external injury Nos.7, 8, 9, abdominal wall, muscles perforated through and through, coils small intestines, stomach greater

curvature, large intestinal coins mesentery, and peritoneum, perforated through and through.

3) On dissection of injury no. 1 right side chest 4 to 6th ribs cut Right Atrium of the heart perforated

right lung perforated through and through.

4) On dissection of injury no 19 right chest back muscles, intercostal muscles perforated right side

lung middle lobe perforated through and through.

PW 5 Dr Kalyankar had noted that the alcohol content was 132 ml.

grams per 100 ml. which was found positive in C.A report (Exh 18 colly)

which corroborates to the contents of First Information Report (FIR) (Exh.

10) lodged by PW 1, the eye witness, that the deceased had visited his Hotel

and consumed a beer prior to the incident. It is often said that "Men may lie

but circumstances can not". The medical evidence, therefore, becomes a safe

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yardstick to measure veracity of the testimony of an eye-witness, unless the

ocular evidence appears inherently improbable or intrinsically infirm. The

medical evidence indicates that the deceased had received multiple number

of stab blows associated with chop injuries on vital part of the body caused

by not less than two assailants carrying weapons like knife and chopper.

8. The cause of death of Santosh Mall, as per medical evidence, was due

to hemorrhage and shock due to multiple incised stab injuries associated

with chop wounds over skull, it was unnatural death, and the injuries were

possible by reason of sharp edged weapons like Gupti, Sura, Chopper, sword

Knife etc. PW 5 Dr Kalyankar, in post postmortem notes (Exh 19), has

opined that all the injuries described by him were ante mortem and fatal in

nature. The defence did not raise any serious challenge nor dislodged these

facts. We have no hesitation, whatsoever, to conclude that the prosecution

has established beyond reasonable doubt that the deceased Santosh Malli

met with homicidal death.

9. The next important question is : as to who were authors of the injuries

noted above on the body of the deceased. Prosecution witnesses Nos. 1 and

2 are eye-witnesses to the incident. PW1 Chandrashekhar, Manager of

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Nityanand Hindu Hotel at Vakola bridge Santacruz (East) saw two persons

assaulting the victim by means of chopper and Knife and he had

immediately dialed 100 for police help. PW 9 has corroborated this fact in

his testimony. While deposing PW 1 Chandrashekhar also identified the

accused Anil and Ashok, as assailants, who were seen inflicting the blows

by weapons upon the victim. He pointed out at them while deposing. It

appears from his evidence, earlier also when summoned, he had identified

the accused during the test identification parade held in the Jail. His

evidence indicates that he knew the deceased Santosh Malli since 4 or 5

years prior to the incident as he used to casually visit the hotel once or twice

in a month. The evidence of PW1 is also corroborated by the complaint

(Exh. 10). PW 1 was cross-examined at length. When questioned about the

FIR (complaint), in Para 4 he stated thus:-

"--- I had signed my complaint also on the same day. Police recorded my complaint as per my narration."

10. We have scrutinized the contents of complaint and found that it

can not be brushed aside entirely with regard to material contents as to the

incident of assault and murder deposed by PW1. It is true that the FIR is not

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a substantive evidence, but when proved, it may be used as a previous

statement of the witness in evidence to find out whether it corroborates the

first informant's testimony, in material particulars, in view of the provision

under section 157 of the Indian Evidence Act. Learned Advocate for the

Appellant argued that the police had already received telephonic information

as to commission of cognizable offence and, therefore, complaint can not be

read in evidence. We can not agree with this submission because there was

no evidence to show that police had received the telephonic information

furnishing enough details as to the nature of the offence committed when,

where and by whom. It is true that the FIR need not be encyclopedia

encompassing all the facts, but at the same time, cryptic telephonic message

received by the police station can not be considered as FIR, without

disclosing the nature and details of the information in relation to the

cognizable offence committed. It can not be considered as FIR because

police may be required to move out to verify and check the authenticity of

the message /information which may be vague at that preliminary stage. The

FIR is a report, giving information of the commission of a cognizable crime,

which may be made by the complainant or by any other person knowing

about the commission of such an offence. It is intended to set the criminal

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law in motion. Any information relating to the commission of a cognizable

offence is required to be reduced into writing by the officer-in charge of the

Police Station, which has to be signed by the person giving it and the

substance thereof is required to be entered in a book to be kept by such

officer, in such a form as the State Government may prescribe in that behalf.

The registration of the FIR empowers the officer in charge of the police

station to commence investigation with respect to the commission of

cognizable crime reported to him.

10. The tenor of the cross-examination in the instant case shows that the

defence did not seriously dispute the stabbing incident which led to death of

the victim at the time mentioned by the prosecution. Furthermore, nothing

worthwhile could be extracted from the eye-witnesses to damage the main

ocular account of the incident. PW 1 has deposed having seen two persons

assaulting the victim by means of chopper and knife. PW 1 explained that

he stated so in the complaint due to confusion as few persons had gathered

near the place of incident. It is also brought on record that the witness was

scared and the shopkeepers had also downed their shutters. In Para 8 he

stated thus-

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"It is true that I was scared after seeing the

incident. It is true that after police arrived it took

some time to compose myself and thereafter I

gave statement to the police. Police had recorded

my statement in the same night after about one or

two hours. I can not say what the exact timing

was. It is true that by the time my statement was

recorded it was 10/12/2001"

He clarified further in Para 10 of his cross-examination that

"It is true that in confusion I had stated the

assailants are 3 persons. As there was confusion in

my mind, I was not certain whether there were two

persons or three persons"

Under these circumstances, when the assailants were known to

witness by faces, as they were residing in the same locality, an explanation

given by the witness is reasonable and acceptable. PW1 was also cross

examined about the identity of the assailants. He maintained that one

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assailant was armed with chopper and another with knife. According to PW

1, he had seen the accused Ashok Yadav in the locality of Vakola Bridge

prior to the incident. It is revealed in the course of cross-examination of

PW 1 that he knew both the assailants by their faces but not by their names

since prior to the incident as they were residing in the same locality where

witness resided. PW 1 appears firm about the identity of two assailants at the

time of the incident. Presence of third person armed with Gupti at the time of

incident as a third assailant, as suggested in the cross examination of PW 1,

would not diminish the collective penal liability of the accused identified as

assailants who were seen assaulting the victim, and who were armed with

chopper and knife at the time of the incident. PW 1 confirms that he had

given the description of the assailants in respect of their age, height, and

complexion and built. He was not expected to give the assailant's colour of

the eyes or hair or their feature, particularly, considering that the incident

had occurred during night time nor he was expected to give minute details as

to exact length of the weapon in inches. The accused No. 2 was known to

PW1 as the accused No. 2 had resided in Happy House and was studying in

the St. Anthony High School.

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11. PW2 Padmakar Shetty is another eye witness who was having a Pan

Shop. He knew the victim, as the resident of the same locality, who used to

come to his shop quite often to buy cigarette. He had seen two persons

arrived in auto rickshaw and after getting down they assaulted the victim and

killed him. The assailants were armed with weapons and after the incident

they ran away by the same auto rickshaw. He identified Accused Ashok

Yadav as one of the assailant while he expressed his inability to identify the

second assailant in the court. But, according to him, he had identified two

assailants at the time of test identification parade on 10/01/2002 in Arthur

Road Jail. He candidly stated that he feel that he had identified Accused No.

2 (Anil) also in the test identification parade. In the course of his cross-

examination, PW2 Padmakar stated in Para 7 thus-

"I was knowing both the persons prior to the incident for the past 3 months. Those two persons were also

coming to my shop for purchase of cigarettes. They were also coming to Nityanand Hotel. At the time when my statement was recorded it did not come to

my mind that those two persons were known to me and coming to my shop and the Hotel. This fact I did not disclosed to the police at any time."

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In view of the above explanations extracted from the eye witnesses, in the

course of their cross examination, evidence against the Appellant Anil is in

fact got bolstered up further. In the facts and circumstances of the present

case, we find that the ruling cited by learned counsel for the appellant in A.

Y. Madar & ors vs State AIR 1956 SC 471 can not be pressed in to service

for to rescue the Appellant Anil. We need to bear in mind the observations

by the Apex Court in Shivaji Sahabrao Bobade vs. State of Maharashtra,

(1973) 2 SCC 793, at page 800: The Supreme Court observed as under:-

"The evil of acquitting a guilty person light

heartedly as a learned Author (Glanville Williams in 'Proof of Guilt') has sapiently observed, goes

much beyond the simple fact that just one guilty person has gone unpunished. If unmerited

acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads

to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. Thus,

too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a

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miscarriage of justice may arise from the acquittal

of the guilty no less than from the conviction of the innocent."

12. Learned Advocate for the Appellant submitted that the evidence of

test identification parade held in the jail, as deposed by PW 4 Suresh

Shinde, Special Executive Magistrate (S.E.O.), ought to be discarded as the

eye witnesses knew the assailants by faces prior to the incident. It is trite to

say that the substantive evidence is the evidence of identification in court.

Apart from the clear provisions of section 9 of the Evidence Act, the

position in law is well settled by catena of decisions of the Supreme Court.

The facts, which establish the identity of the accused persons, are relevant

under section 9 of the Evidence Act. As a general rule, the substantive

evidence of a witness is the statement made in court. The evidence of mere

identification of the accused person at the trial for the first time is, from its

very nature, inherently of a weak character. The purpose of prior test

identification, therefore, is to test and strengthen the trustworthiness of that

evidence. It is accordingly considered a safe rule of prudence to generally

look for corroboration of the sworn testimony of witnesses in court as to the

identity of the accused who are strangers to them, in the form of earlier

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identification proceedings. This rule of prudence, however, is subject to

exceptions; for example, the court is impressed by a particular witness on

whose testimony it can safely rely, without any corroboration. If eye

witnesses knew the offenders by faces since prior to the incident, it may not

be necessary to hold test identification parade during the investigation,

unless the investigating officer wants to reassure himself that the

investigation is proceeding on correct lines. The identification parades

belong to the stage of investigation, and there is no provision in the Code of

Criminal Procedure, which obliges the investigating agency to hold, or to

confer a right upon the accused to claim that a test identification parade must

be held. As such, test identification parades do not constitute substantive

evidence and these parades are essentially governed by section 162 of the

Code of Criminal Procedure. Failure to hold a test identification parade

would not make inadmissible the evidence of identification in court. The

weight to be attached to such identification depends upon facts of each case.

In appropriate cases, the evidence of identification, even without insisting on

corroboration, can be accepted. (See Kanta Prashad vs. Delhi Administration

: AIR 1958 SC 350; Vaikuntam Chandrappa and others vs. State of Andhra

Pradesh: AIR 1960 SC 1340 ; Budhsen and another vs. State of U.P. : AIR

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1970 SC 1321 and Rameshwar Singh vs. State of Jammu and Kashmir :

(1971) 2 SCC 715 ).

13 . In the present case, it has been brought on record that the eye

witnesses knew the assailants by faces since prior to the date of the incident.

Therefore, the evidence led by the prosecution about the test identification

parade held in the jail became inconsequential and irrelevant in this case.

14. The next question is : whether the direct evidence of two eye

witnesses can be safely accepted. The prosecution, apart from the medical

evidence of homicidal death (supra) has also relied upon some more

evidence to corroborate the ocular evidence. PW6 Shri Pathak deposed

about the fact that he was called by the police at Vakola Police Station and

disclosure statement was made by the accused Anil Shashikant Alve

(identified correctly in the court) that he will point out the place where the

weapon Chopper was hidden by him. The Statement was reduced into

writing (Exh. 22). It appears that the accused Anil had led the police and

panchas to a gutter in the Mishra compound, in Yashwant nagar and took out

a Chopper (Art No.7 A) from the gutter which was recovered under the

Panchnama (Exh.22-A). Though cross examined at length, the evidence of

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the PW 6 Shri Pathak remained unshattered in his cross-examination. P.S.I.

Jamil Shaikh (PW 8) also deposed to corroborate the fact of disclosure

statement and the discovery of the Chopper pursuant thereto under the

Panchnama Exh 22 and Exh 22 A ( Chopper is identified in the court as Art.

No.7A). FSL report No.M-(T) 3452 of 2002 dated 02/03/2002 (part of Exh

34 Colly.) mentioned that the sealed parcel containing the Chopper was

examined and its blade was found stained with blood of human origin. The

Appellant Anil when questioned (vide Q.34) in Statement under Section 313

of the Cr. P. Code conveniently feigned ignorance about it. Learned

Advocate for the Appellant sought to press in to service the ruling in State

of M.P. Vs. Nisar (2007) 3 SCC (Cri) 5 to argue that no blood group of the

blood, detected on the blade of the chopper, was ascertained. Therefore, the

accused is entitled to get the benefit of the law declared in the said ruling.

We can not accept this submission, because in that case the first informant

did not disclose the fact of so called extra-judicial confession made to him,

though the FIR was lodged much later by him. In that case, the evidence

was found scanty and the prosecution version was held vulnerable. As such,

the ruling is not attracted in the facts and circumstances of the present case.

Each criminal case is required to be decided on the basis of its own facts and

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circumstances. The fact that the chopper was concealed in the gutter and the

place especially and exclusively known to the accused Anil and it is proved

to have been used in the commission of the offence and discovered at his

instance under the Discovery Panchnama is relevant under Section 27 of the

Indian Evidence Act. There is nothing in the evidence to indicate that the

place where from the Chopper was discovered was ordinarily visible to

others. The suggestion in the course of the cross examination that the

residents of the locality might be putting the garbage in the said open gutter

would not advance the case of the defense any further.

15. Arrival of the assailants collectively by the auto rickshaw,

commission of the offence together by them and the fact that the Appellant

fled away along with his associate by an auto rickshaw, as deposed by PW2

Padmakar in this case, is another additional circumstance which shows their

incriminating conduct apart from the above direct and circumstantial

evidence to nail the appellant in the crime of murder. Multiple Stab and chop

wounds were inflicted by the appellant and his associate mercilessly on vital

parts of the body causing injuries which proved fatal and resulted in the

death of the victim Santosh Malli on the spot of incident itself. The facts

proved lead to a safe inference that the Appellant and his associate in

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furtherance of their common intention intended to cause the bodily injuries

on vital parts of the victim's body, leaving no room for doubt that their

intention was to commit murder of Santosh Malli, considering the ocular,

medical, and circumstantial evidence led in the case. The case is clearly

covered under clause 3rdly of Section 300 of the Indian Penal Code to

attract punishment under Section 302 read with Section 34 of the Indian

Penal Code. No interference is warranted with the findings of facts recorded

by the learned trial Judge. In the facts and circumstances of the case, we do

not find any cogent ground to interfere with it.

Hence, Criminal Appeal is without merits and stands dismissed.

( D.D.SINHA,J )

(A. P. BHANGALE, J)