Mohd. Munaf S/O Mohd. Habib And ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 1508 Bom

                                                                  J.APEAL.139.16
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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                            CRIMINAL APPEAL NOS. 139/16 & 189/16


     1]                      CRIMINAL APPEAL NO. 139 OF 2016

     1] Mohd. Hanif s/o Mohd. Habib,
        Age 39 years, Occ. Labour,

     2] Mohd. Azam s/o Mohd. Habib,
        Age 54 years, Occ. Labour,

          Both R/o Khangarpura, Akola.
          (At present in Amravati Prison).        ....           APPELLANTS.

                  // VERSUS //

     The State of Maharashtra, 
     through its Police Station
     Officer, Police Station 
     Ramdaspeth, Akola.                           ....           RESPONDENT.

     Mr. R.K. Tiwari, Advocate for the appellants,
     Mr. M.J. Khan, Additional Public Prosecutor for respondent.
     Mr. R.J. Mirza, Advocate to assist prosecution.


     2]                      CRIMINAL APPEAL NO. 189 OF 2016

     1] Mohd. Munaf s/o Mohd. Habib,
        Age 47 years, Occ. Broker,

     2] Mohd. Ansar  s/o Mohd. Habib,
        Age 45 years, Occ. Labour,

     3] Mohd. Irfan  s/o Mohd. Kasam,
        Age about 30 years, Occ. Labour,




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     4] Mohd. Amir s/o Mohd. Azam,
        Aged about 27 years, Occ. Labour,

          All R/o Khangarpura, Akola.
          (At present in Amravati Prison).             ....           APPELLANTS.

                  // VERSUS //

     The State of Maharashtra, 
     through its Police Station
     Officer, Police Station 
     Ramdaspeth, Akola.                                ....           RESPONDENT.


     Mr. A.V. Gupta, Senior Counsel with Mr. R.K. Tiwari, Advocate for the
     appellants,
     Mr. M.J. Khan, Additional Public Prosecutor for respondent.
     Mr. R.J. Mirza, Advocate to assist prosecution.


     CORAM :  B.R. GAVAI & KUM. INDIRA JAIN, JJ.     
     DATE OF RESERVING FOR JUDGMENT :  MARCH 17, 2017.
     DATE OF PRONOUNCMENT OF JUDGMENT :  APRIL 7, 2017.


     JUDGMENT (PER B.R. GAVAI, J.)

1] The appellants by way of these two appeals have

approached this Court being aggrieved by the judgment and order

passed by the learned Sessions Judge, Akola dated 8.6.2016 in

Sessions Trial Nos. 144/12 & 233/14, thereby convicting them for the

offences punishable under Sections 143, 144, 147, 148 and 324 read

with Section 149 and Section 302 read with Section 149 of the Indian

J.APEAL.139.16

Penal Code. In so far as the offences under Sections 143 & 144 of

the Indian Penal Code are concerned, the learned trial Judge has not

given separate sentence for Section 143 and the accused have been

sentenced to suffer rigorous imprisonment for two years and to pay a

fine of Rs.500/- and in default to suffer further R.I. for two months. In

so far as offences under Sections 147 & 148 are concerned, no

separate punishment is imposed for Section 147 of the Indian Penal

Code. The accused have been sentenced to suffer rigorous

imprisonment for two years each and to pay a fine of Rs.500/- and in

default to suffer undergo R.I. for two months. In so far as the

offences under Section 324 read with Section 149 of the Indian Penal

Code are concerned, the accused have been sentenced to suffer

rigorous imprisonment for three years and to pay a fine of Rs.500/-

and in default to suffer further R.I. for two months. In so far as the

offence under Section 302 read with Section 149 of the Indian Penal

Code are concerned, the accused have been sentenced to suffer

imprisonment for life and to pay a fine of Rs.10,000/- and in default to

suffer further R.I. for one year. No separate punishment is given for

the offence punishable under Section 120-B read with Section 149 of

the Indian Penal Code. The accused persons Mohd. Ansar s/o Mohd.

Habib and Mohd. Irfan @ Kaloo s/o Mohd. Kasam are convicted for

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the offence under Section 4 punishable under Section 25 of the Arms

Act and are sentenced to suffer rigorous imprisonment for three years

and to pay a fine of Rs.500/- each and in default to undergo further

R.I. for two months.

2] The prosecution case as could be gathered from the

material placed on record is thus :-

One Mohd. Irshad s/o Mohd. Ayub is unfortunate victim

deceased in the present case. It is the prosecution case that PW.5

Mohd. Wasim Mohd. Akram had taken a loan of Rs.40,000/- from

Mohd. Munaf s/o Mohd. Habib (accused no.1 in Sessions Trial No.

144/12) on interest of 15% per month. He was required to pay

Rs.6000/- per month as interest and he was required to return an

amount of Rs.40,000/- as principal amount. However, he was in

arrears of interest for the month of May, 2012. Accused no.1 Mohd.

Munaf had come to his house. He demanded interest and the

principal amount from him. He said that he was not having money,

thereupon he abused him and took away the laptop of Dell company

and told him that unless he would give him interest, he would not give

him the laptop. It is the prosecution case that thereafter he was

persistently demanding money from PW.5 Mohd. Wasim. At one

J.APEAL.139.16

point of time, he had also snatched keys of his motor-cycle and taken

the vehicle with him. At that time, his wife was admitted in the

hospital for delivery. The wife of PW.5 Wasim was discharged from

the hospital and then he went back to his home. Deceased Mohd.

Irshad who was his cousin had come along with his wife and children

to see his wife. At that time, the accused no.1 Mohd. Munaf had

come to his house with another person. He had demanded interest of

two months and the principal amount. At that time, accused no.1

Mohd. Munaf had abused him loudly. After hearing the noise, Mohd.

Irshad came out of the house. Mohd. Irshad enquired as to what had

happened. He told him about what had happened. At that time,

Mohd. Irshad persuaded accused Mohd. Munaf and told him that till

12th he will ask PW.5 Mohd. Wasim to return back the money to him.

3] On 12th July at around 7.30 p.m. Mohd. Irshad had come to

the house of PW.5. His mother had collected amount of Rs.45,000/-

from relatives and gave the amount to him. Then he had taken the

vehicle of Unicorn model from his brother bearing no. MH-30/AB-

7800. He was driving the vehicle and Mohd. Irshad was pillion rider.

He had gone towards Subhash chowk via Akot bus stand. On the

square, he saw his cousin brother (real brother of Mohd. Irshad)

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Mohd. Ejaz PW.3 standing there. Mohd. Irshad had asked him to

stop the vehicle there. He told Mohd. Ejaz as to why he was standing

there and asked him to return back to home. Then he had taken his

vehicle ahead on the road. When they reached near the mobile shop

of accused Mohd. Munaf at Hashamseth library, they saw that Mohd.

Munaf, his brothers and nephews were standing there. They abused

him. Deceased Irshad told accused no.1 Mohd. Munaf that he had

brought amount of Rs.45,000/- to return back to him. Thereafter

Mohd. Munaf started abusing Mohd. Irshad also in loud noise. Mohd.

Munaf told Mohd. Irshad that he required Rs.75,000/-. Thereupon,

there was altercation between them. PW.5 Wasim was pushed

down. He went towards Hashamseth library and stood there.

Thereafter all the accused persons assaulted the deceased. The

witness ran away.

4] According to the prosecution, PW.3 Mohd. Ejaz had also

witnessed the incident and he had attempted to save his brother in

which he received injuries. However, he ran away towards his house.

From there, he along with his relatives came to the Police Station and

lodged oral report below Exh. 96, on the basis of which printed FIR

came to be registered below Exh. 97 for the offences punishable

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under Sections 143, 144, 147, 148, 149, 307, 302 of the Indian Penal

Code against 11 accused persons. PW.11 Deorao Khanderao -

Police Inspector in the meantime, had received information. He went

to the spot, sent the body of the deceased Mohd. Irshad to the

Government hospital wherein he was declared dead. He received

the information that the brother of the deceased had come to the

Police Station and came to the Police Station. The FIR was

registered. Further investigation was carried out. It appears that the

accused no.1 Mohd. Munaf, Mohd. Ansar, Mohd. Irfan Mohd. Kasam

and Mohd. Amir Mohd. Azam came to be arrested. Initially upon

completion of investigation, charge-sheet came to be filed against

them in the Court of learned J.M.F.C., Akola. Since the case was

exclusively triable by the Court of Sessions, the same came to be

committed to the Court of the learned Sessions Judge.

5] The learned trial Judge framed the Charges against the

said four persons in Sessions Trial No. 144/12. They pleaded "not

guilty" and claimed to be tried.

6] During the pendency of the trial of Sessions Trial No.

144/12, two more accused persons, namely, Mohd. Hanif s/o Mohd.

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Habib and Mohz. Azam s/o Mohd. Habib surrendered before the

Court. As such, a separate charge-sheet came to be filed against

them before the learned J.M.F.C., Akola. Since the learned J.M.F.C.

committed the same to the learned Sessions Judge, the Sessions

Trial No. 233/14 came to be registered against the said accused. The

charges were framed against the two accused separately. They were

read over to them and explained in vernacular. They also pleaded

"not guilty" and claimed to be tried. The accused also denied to

have any legal assistance from the State. As such, they were not

represented in the matter.

7] At the conclusion of the trial, the learned trial Judge

passed the order of conviction and sentence against the appellants,

as aforesaid. Being aggrieved thereby, the present appeals have

been filed.

8] Heard Shri A.V. Gupta, learned Senior Counsel and Shri

R.K. Tiwari, the learned Counsel appearing on behalf of the

appellants. The learned Counsel submit that though the prosecution

contends that there are four eye-witnesses, as a matter of fact, they

could not have been eye-witnesses. It is submitted that out of the

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four eye-witnesses, statements of three eye-witnesses are recorded

belatedly. It is submitted that the statement of the person who is said

to have accompanied the deceased, i.e. PW.5 Mohd. Wasim, was

recorded on the next day. It is submitted that in so far as PW.1

Mohd. Rizwan and PW.6 Sheikh Shakil Sk. Jalil are concerned, the

explanation given by them with regard to delay in recording the

statements belatedly is totally unpalatable. It is submitted that in so

far as PW.3 Mohd. Ezaj and PW.5 Mohd. Wasim are concerned, they

are respectively the real brother and the cousin of the deceased and

as such, are highly interested witnesses. It is, therefore, submitted

that merely on the testimony of such witnesses conviction would not

be sustainable. The learned Counsel for the appellants submit that

the conduct of these witnesses would also create a serious doubt as

to whether they have really witnessed the incident or not.

9] Shri R.K. Tiwari, learned Counsel for the appellants,

submits that the testimony of these witnesses would reveal that all

these witnesses have given a parrot like version and the role

attributed by them to all the 11 accused is totally identical. It is

submitted that it is humanly impossible that all the four witnesses

would remember the sequence in which all the accused have

J.APEAL.139.16

assaulted the deceased in an identical manner. It is, therefore,

submitted that no reliance could be placed on the testimony of such

eye-witnesses. The learned Counsel relies on the judgment of the

Apex Court in the case of Lakshmi Singh and others etc. .vs. State

of Bihar reported in AIR 1976 SC 2263, Rambilas and others .vs.

State of Madhya Pradesh reported in AIR 1997 SC 3954 and

Hemraj and others .vs. State of Haryana reported in 2005 CRI.L.J.

2152 in support of this proposition.

10] The learned Counsel further submit that there are several

improbabilities in the prosecution case and as such, the prosecution

case cannot be believed. Reliance is placed on the judgment of the

Apex Court in the case of Dharam Singh and others .vs. State of

Punjab reported in AIR 1993 SC 319.

11] The learned Counsel further submit that there is an

inordinate delay of two days in recording the statements of witnesses

and the same is fatal to the prosecution case. Reliance in this

respect is placed on the judgment of the Division Bench of this Court

in the case of Laxman Bapurao Ghaiwane .vs. The State of

Maharashtra reported in 2012 ALL MR (Cri) 3605.

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12] The learned A.P.P., on the contrary, submits that all the

four witnesses, i.e. PW.1 Mohd. Rizwan, PW.3 Mohd. Ezaj, PW.5

Mohd. Wasim and PW.6 Sheikh Shakil have consistently supported

the prosecution case. The learned A.P.P. submits that merely

because the version given by them is identical cannot be a ground to

discard their testimony. The learned A.P.P. further submits that

merely because two of the witnesses, i.e. PW.1 Mohd. Rizwan and

PW.3 Mohd. Ezaj are related to the deceased also cannot be a

ground to discard their testimony. The learned A.P.P. submits that as

a matter of fact, the presence of the injuries on the person of the

PW.3 Mohd. Ezaj corroborates his presence at the time of the

incident. The learned A.P.P. relies on the following judgments :-

I. (2012) 6 SCC 581 : Abdul Nawaz .vs. State of West Bengal,

II. AIR 2012 SC 2600 : Jagroop Singh .vs. State of Punjab,

III. 2005 ALL MR (Cri) 786 (S.C.) : Sunil Kumar & another .vs.

State of Rajasthan,

IV. 2015 ALL MR (Cri) 2636 : Raju Maruti Dhumal & another vs.

State of Maharashtra,

V. 2007 ALL MR (Cri) 2938 (S.C.) : State of Rajasthan .vs. Nana

& others,

VI. 2010 ALL MR (Cri) 3337 (S.C.) : Narinder Kumar .vs. State of

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J. & K.

VII. 2010 ALL MR (Cri) 3872 : Amol Bhaskarrao

Waghmare & others .vs. State of Maharashtra.

13] With the assistance of the learned A.P.P. as well as the

learned Counsel for the appellants, we have scrutinized the entire

evidence on record.

14] No doubt that the prosecution relies on the ocular

testimony of four eye-witnesses. If the testimony of these four

witnesses is found to be trustworthy, reliable and cogent, it will not be

at all necessary for us to go into the other circumstantial evidence.

As is a settled principle of law that even if the testimony of a solitary

witness is found to be trustworthy, cogent and the one which inspires

the confidence in the mind of the Court, conviction on the basis of the

same could be rested. It is equally settled that merely because the

witnesses are interested cannot be a ground to discard their

testimony.

15] PW.3 Mohd. Ezaj is the first informant. He states in his

evidence that on 12.7.2012 at around 8.30 p.m. he was standing near

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one Pan-stall which was close on the corner of Subhash chowk. He

was waiting for his friend Sk. Farukh. At that time, his brother Mohd.

Irshad and his cousin brother Mohd. Wasim both were going by

motor-cycle from Subhash Chowk to Tajnapeth. At that time, his

brother Mohd. Irshad stopped the motor-cycle on seeing him and told

him to return back to home. Thereafter Mohd. Irshad and Mohd.

Wasim went at some distance and he was about to return back to

home. At that time, lights on electric pole were on and also the lights

of the shops were on. Thereafter, he states thus :-

"When my brother was going ahead, his motor-cycle was

stopped near Lucky footwear by Mohd. Munaf Mohd. Habib.

At that time Mohd. Azam Mohd. Habib was having sword in

his hand. He had given blow of sword on Mohd. Irshad.

Mohd. Harish Mohd. Habib was having sword in his hand and

he had given blow of sword to Mohd. Irshad. Mohd. Ayub

Mohd. Habib was having sword in his hand. He had given

blow of sword to Mohd. Irshad. Mohd. Muzaffar Mohd. Habib

was having knife in his hand. He had given blow of knife to

Mohd. Irshad. Mohd. Ansar Mohd. Habib was having knife in

his hand. He had given blow of knife to Mohd. Irshad. Mohd.

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Hanif Mohd. Habib was having knife in his hand. He had

given blow of it to Mohd. Irshad. Mohd. Irfan @ Kaloo s/o

Mohd. Kasam was having stick-sword in his hand and he had

given blow of stick sword to Mohd. Irshad. Mohd. Awesh

Mohd. Ayub was having stick sword in his hand and he had

given blow of it to Mohd. Irshad. Mohd. Amir Mohd. Azam

was having iron pipe in his hand and he had given blow of it

to Mohd. Irshad. Mohd. Aman Mohd. Ayub was having iron

pipe in his hand and he had given blow of it to Mohd. Irshad.

Mohd. Afshan Mohd. Ayub was having iron pipe in his hand

and he had given blow of it to Mohd. Irshad. Because of this

assault by weapons, Mohd. Irshad was smeared with blood

and fell down on earth. When I had tried to intervene to

rescue my brother, Mohd. Azam Mohd. Habib had given blow

of sword on my hand. When my brother fell down, Mohd.

Munaf had picked up one big stone from a Peepal tree

besides and hit it on the head of Mohd. Irshad several times

and smashed it......"

Though in his examination-in-chief he states that PW.1 Mohd. Rizwan

Mohd. Salim and PW.6 Sk. Shakil Sk. Jalil were present on the spot

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when the incident took place, the same is by way of an improvement.

The said omission in his police statement is duly proved in the

evidence of PW.11 Deorao Khanderao - Investigating Officer. Apart

from that, there are other contradictions and omissions in his

evidence. However, we would not like to go into the minor details.

16] The next is the evidence of PW.5 Mohammad Wasim s/o

Mohammad Akram. It is the prosecution case that the entire incident

is an outcome of the dispute between the accused no.1 and this

witness. It is the prosecution case that this witness had taken a hand

loan of Rs.40,000/- from the accused no.1 and was required to pay

interest @ 15% per annum and since he had failed to pay the same,

the accused no.1 had taken his motor-cycle as well as laptop and

was harassing him to pay the same. It is also the prosecution case

that after his wife was discharged from the hospital the deceased had

come to see her along with his family and at that time the accused

had come there and started abusing him. At that time, the deceased

came out and assured the accused that the money would be returned

on 12th. It is further the prosecution case that on 12 th at around 7.30

p.m. deceased came to his house, his mother had collected

Rs.45,000/- and gave the amount to him. Then he had taken the

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vehicle from his brother. He was driving and Mohd. Irshad was a

pillion rider. They went near Subhash Chowk. They saw PW.3

Mohd. Ezaj. Deceased asked Mohd. Ezaj to go home. Then he had

taken the vehicle ahead on the road. At that time, lights of his

vehicle, lights on the road and also of the shops were on. It will be

relevant to refer to further part of his evidence, which reads thus :-

"When we reached near the mobile shop of accused Mohd.

Munaf at Hashamseth library, we saw that Mohd. Munaf his

brothers and nephews were standing there. I know them.

They had stopped my vehicle. They were having swords,

knives, stick-sword and iron pipies in their hands. Thereafter

Mohd. Munaf had abused me. Thereupon, Mohd. Irshad said

to Mohd. Munaf that we had brought amount of Rs.45,000/-

to return back to him. Thereupon Mohd. Munaf started

abusing Mohd. Irshad also in loud voice. Mohd. Munaf said

to Mohd. Irshad that he required Rs.75,000/-. Thereupon

Mohd. Irshad said to him, why he was demanding excess

amount. I know Mohd. Ayub, the brother of Mohd. Munaf.

Mohd. Ayub had given me push. Thereupon I went (girte-

padte) towards Hashamseth library and stood there. At that

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time Mohd. Azam Belim had given blow of sword on the hand

of Mohd. Irshad. Mohd. Muzaffar Mohd. Habib Belim had

given several knife blows on the chest of Mohd. Irshad.

Mohd. Harish Mohd. Habib and Mohd. Ayub Mohd. Mohd.

Habib had given blows of swords on the back, hands and

legs of Mohd. Irshad. Mohd. Ansar Mohd. Habib, and Mohd.

Hanif Mohd. Habib had given blows of knives to Mohd.

Irshad. At that time my cousin brother Mohd. Ejaz came to

save Mohd. Irshad, at that time Mohd. Azam Mohd. Habib

had given blow of sword on the hand of Mohd. Ejaz. Due to

this assault, Mohd. Irshad fell down in front of Lucky

Footwear. He was smeared with blood. After he fell down,

Mohd. Irfan Mohd. Ksam and Mohd. Awesh Mohd. Ayub had

given blows of stick sword to Mohd. Irshad. Mohd. Amir

Mohd. Azam, Mohd. Aman Mohd. Ayub and Mohd. Afshan

Mohd. Ayub had given blows of iron rod to Mohd. Irshad on

his back, legs and hands. At that time Mohd. Irshad was

moving hands and legs and was trying to save himself.

Thereafter Mohd. Munaf had brought a big stone which was

lying below a Peepal tree besides the road and hit it several

times on the head of Mohd. Irshad. At that time Mohd. Irshad

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had stopped movements of his hands and legs. Thereafter

Mohd. Munaf, his brothers and his nephews ran behind

myself and Mohd. Ejaz to kill us with the weapons in their

hands......."

17] PW.1 Mohd. Rizwan Mohd. Salim states that he was doing

the business of his truck bearing No. MH-27/X-2148 and he used to

park his truck at Subhash chowk. He knew deceased Mohd. Irshad

and Mohd. Wasim. He knows all the four accused. He knows them

because they all belong to his community. He states that on 12 th July

at around 8.30 p.m. he had parked his truck near Subhash chowk and

he was going for recharging his mobile phone at the shop by name

"Muskan" of accused no.1 Mohd. Munaf. He was required to go from

Subhash chowk by Tajnapeth road. He saw Mohd. Irshad and Mohd.

Wasim going by motor-cycle. Mohd. Wasim was riding the motor-

cycle. Mohd. Irshad was the pillion rider. He saw that Mohd. Munaf,

his brothers, his nephews and other 3-4 persons were standing near

Muskan shop with swords, stick sword, knife and iron rods. He saw

Mohd. Ejaz PW.3 the younger brother of the deceased Mohd. Irshad

standing at some distance from Subhash chowk. He stated that at

that time Mohd. Munaf and others restrained the motor-cycle of

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Mohd. Irshad and started making disputes with them on the count of

some money transaction. Mohd. Irshad tried to convince them. It will

be relevant to refer to the further evidence of this witness, which

reads as under :-

"At that time Mohd. Azam Mohd. Habib gave a blow of sword

on the hand of Mohd. Irshad. Mohd. Harish Mohd. Habib and

Mohd. Ayub Mohd. Habib gave blows of swords on the legs,

back and hands of Mohd. Irshad. Mohd. Muzaffar Mohd.

Habib had given several blows of knife on the chest of Mohd.

Irshad. Mohd. Ansar Mohd. Habib and Mohd. Hanif Mohd.

Habib gave blows of knife to Mohd. Irshad. Because of it,

Mohd. Irshad got smeared with blood and fell on the road in

front of Lucky Footwear. Thereafter Mohd. Irfan @ Kaloo s/o

Mohd. Kasam and Mohd. Avesh Mohd. Habib had given

blows of stick sword (Gupti) on his back, below chest.

Thereafter Mohd. Amir Mohd. Azam, Mohd. Amaan Mohd.

Ayub, Mohd. Afshan Mohd. Ayub had given blows of iron

pipes on his back and legs. At that time Mohd. Irshad was

making movements of his hands and legs to save his life.

Thereafter accused No. 01 Mohd. Munaf had picked a stone

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from below the Peepal tree by the side of road and hit it on

the head of Mohd. Irshad several times and smashed it.

Because of it, Mohd. Irshad stopped movements of his hands

and legs. During this Mohd. Ejaz Mohd. Habib had come

there. At that time Mohd. Azam Mohd. Habib had given

blows of sword to Mohd. Ejaz. Because of the sword blow,

blood was oozing out from the hand of Mohd. Ejaz.

Thereafter Mohd. Ejaz and Mohd. Wasim ran away to save

their lives. Thereafter all the accused with their weapons ran

away. I myself had witnessed this incident, therefore, I know

about it........"

There are many contradictions and omissions in his evidence.

Though he has stated in his deposition that PW.3 Mohd. Ezaj was

standing at Subhash chowk, the same is by way of an improvement.

The said omission in his police statement is duly proved in the

deposition of the Investigating Officer. So also his deposition that at

that time Munaf, his brothers and nephews were standing near

Muskan mobile shop with sword, stick sword, knife and iron rods is

also by way of an improvement.

18] PW.6 Shakh Shakil Sk. Jalil is an auto-driver. He states

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that he knows the accused persons because previously he was

residing in front of Hasamseth library. He states that on the day of

the incident, i.e. 12th July, at around 8.30 p.m. he was coming from

Tajnapeth towards Subhash chowk for searching passengers. He

knew deceased Mohd. Irshad and PW.3 Mohd. Ezaj. He was going

upto Hasamseth library. At that time, Mohd. Irshad was coming from

Subhash chowk towards Hasamseth library on a motor-cycle. He

was a pillion rider and other boy was driving the motor-cycle. He

states that at that time, it was darkness, however, they could be seen

from the light out of the shop and also from the street lights. At that

time, Mohd. Munaf, his brothers and nephews having the weapons

like knife, sword and gupti had restrained the motor-cycle. He states

that at that time Mohd. Munaf and others started quarrelling with

Mohd. Irshad on the count of money. He stopped his auto by the

side of the road and started seeing that. At that time, Mohd. Irshad

was trying to convince him. At that time, Mohd. Ezaj also reached

there. It will be appropriate to refer to the following deposition of this

witness :-

"Mohd. Ajam Mohd. Habib gave blow of sword to Mohd.

Irshad on his hand. Due to which, he had sustained

bleeding injury. At that time, Mohd. Harish Mohd. Habib and

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Mohd. Ayub Mohd. Habib had given blows of swords on his

hand, leg and back of Mohd. Irshad. Mohd. Mujjafar Mohd.

Habib had given several blows of knife on the chest of Mohd.

Irshad. Mohd. Ansar and Mohd. Hanif had given blows of

knifes to Mohd. Irshad. Because of these blows, Mohd.

Irshad sustained injuries and he fell in front of Lucky

Footwear smeared with blood. Mohd. Avesh Mohd. Ayub

and Mohd. Irfan @ Kalu s/o Mohd. Kasam had given blows

of gupti to Mohd. Irshad below his chest and on his back.

Mohd. Amir Mohd. Azam, Mohd. Aman Mohd. Ayub & Mohd.

Afshan Mohd. Ayub gave blows of pipes to Mohd. Irshad.

Mohd. Irshad was moving his hands and legs and was trying

to avoid the blows. At that time, Mohd. Munaf had brought a

big stone from below a peepal tree by the side of road and

put it several times on the head of Mohd. Irshad. Thereafter,

Mohd. Irshad's hands and legs had no movements. Mohd.

Ajam s/o Mohd. Habib had given blows of sword to Mohd.

Ejaz on his hand. At that time, the boy who was driving the

motor-cycle and Mohd. Ejaj ran away from the spot.

Thereafter, those persons had left the place with their

weapons...."

J.APEAL.139.16

It could thus be seen that all these four witnesses have given totally

identical version in so far as the role played by each of the 11

accused is concerned and that too in the very same sequence. It is

to be noted that the incident is alleged to have taken place during the

night hours. Even according to the prosecution, these four witnesses

have witnessed the incident from four different places.

19] It will be apposite to refer to following observations of Their

Lordships of the Apex Court in the case of Lakshmi Singh and

others etc. .vs. State of Bihar (cited supra) :-

"10. These are the only witnesses who have proved the participation of the five appellants in the assault. No independent witness has been examined by the prosecution to support the assault. In fact P. W.1 Ramji Singh has admitted that when he reached the place of occurrence he found 6 to 7 persons of the village and yet none of them have been examined to corroborate the evidence of the interested or inimical witnesses examined by the prosecution. Moreover the evidence of P.Ws. 1 to 4 clearly shows that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gives an impression that they have given a parrot-like version acting under a conspiracy to depose to one set of facts

J.APEAL.139.16

and one set of facts only......"

It could be seen that all the four witnesses have given graphic

description of the assault with regard to the order, the manner and the

parts of the body with absolute consistency. We find that in the

present case also, the testimony given by the witnesses gives an

impression that they have given a parrot like version acting under a

conspiracy to depose to one set of facts and one set of facts only.

Similar are the observations made by Their Lordships of Apex Court

in the case of Rambilas and others .vs. State of Madhya Pradesh

(cited supra) which read thus :-

".......If we compare the evidence of these eye-witnesses it is immediately noticed that their evidence is just like a parrot, telling about what is taught. Even the omissions, contradictions and improvements are identical. The claim of these eye-witnesses is totally unbelievable when they testified that they had gone to the place of occurrence........"

Again in the case of Dharam Singh and others .vs. State of Punjab

(cited supra), Their Lordships observed thus :-

".........However, as noted above the statement of each

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witness is verbatim the same as that of others. Contradictions and omissions are the same. Narrations and sequence of events are meticulously in the same order. Therefore, we think it is not safe to place reliance on the evidence of these witnesses."

20] However, the puppet like version is not the only ground

which should put doubt on the trustworthiness of these witnesses.

We find that the conduct of these witnesses could also cause a

serious doubt with regard to their credibility and a further doubt as to

whether they have really witnessed the incident or not. It will be

relevant to note that the deceased is not said to have any sort of

enmity with the accused. It is the prosecution case that it is the PW.5

Mohd. Wasim, who had an enmity with accused no.1 on the issue of

loan taken by him and non-payment of interest and the principal

amount. It is the prosecution case that on account of this, the

accused no.1 had also taken the laptop and the motor-cycle of the

PW.5. It is the prosecution case that when the deceased had come

to the house of PW.5 Mohd. Wasim to see the wife of PW.5 Mohd.

Wasim, who had given the birth to a child, the accused no.1 had

come there and was abusing him. At that point of time, the deceased

came out of the house and enquired with PW.5 Mohd. Wasim. He

J.APEAL.139.16

pacified the accused no.1 and told him that the amount would be paid

by 12th. It is further the prosecution case that on 12th the deceased

came to the house of PW.5 Mohd. Wasim. The mother of the

deceased who had arranged the amount, gave the amount to PW.5

and they went to the shop of the accused no.1 where they were

assaulted. According to PW.5 Mohd. Wasim, at that time all the

accused assaulted the deceased. He went on the side of the road

and started looking at the incident. After the assault was over, he

started running. He states that the accused might have followed him

and PW.3 Mohd. Ezaj. They went running upto Telipura by the road

and then he went ahead and he did not know where Mohd. Ezaj went.

He went to home by running. He had told his mother, his wife and his

brother about the incident. He states that he was not asked by his

family members as to what had happened to Mohd. Irshad. He

further states that the family members did not say anything about

taking Mohd. Irshad to hospital. He further admits that on 12th only he

learnt that Mohd. Irshad had expired. He further admits that on 12 th

neither he went to Police Station nor he had made any phone call to

police station. He further states that he had not told about the

incident to anybody except his family members till his statement was

recorded. We are of the considered view that the conduct of this

J.APEAL.139.16

witness is totally unnatural. Firstly, the enmity that the accused had

was with him and not with the deceased. In any case, if the

deceased was assaulted on account of the reason that he was

helping this witness, then the least that was expected was

immediately inform the police about the same. However, even not

enquiring about what has happened to the deceased for the entire

night till his statement is recorded by the police on the next day, in our

considered view, depicts a very unnatural conduct and casts a

serious doubt about the veracity of this witness.

21] PW.1 Mohd. Rizwan and PW.6 Sheikh Shakil Sk. Jalil are

chance witnesses. Even from their conduct, it is doubtful as to

whether they have really witnessed the incident or not. PW.1 Mohd.

Rizwan clearly admits in the evidence that he knows the deceased as

well as PW.3 Mohd. Ezaj and PW.5 Mohd. Wasim. He gives entire

narration of the incident. However, he states that after witnessing

such a deadly incident at around 9.15 p.m., he leaves with his truck

for Jalgaon and returns back on the night of 13 th at around 2 to 3 a.m.

He states that when he had gone to Subhash chowk to take his

vehicle, police had asked him whether he was knowing about the

incident and when he stated in the affirmative, then he had called him

J.APEAL.139.16

to the Police Station and then recorded the statement. It is to be

noted that the explanation which is given by him regarding the delay

in giving statement is by way of improvement. PW.11 Khanderao in

paragraph 19 of his cross-examination has admitted that he had

recorded the statement of PW.1 Mohd. Rizwan on 14.7.2012 and had

also asked these witnesses as to why they had come late to give their

statements. We find that not mentioning of these facts in the police

statement and stating the same for the first time in the deposition is

only to cover up the delay in recording the statement.

22] The next witness is PW.6 Sk. Shakil Sk. Jalil. We have

reproduced his version hereinabove. He states that after witnessing

the incident he was frightened and he had taken his auto back and

returned back after two days to Subhash chowk square. At that time,

the police came there and asked him as to whether he was plying his

autorickshaw at that place and as to whether on that day he had

witnessed the incident. He answered to them as "yes" and thereafter

his statement was recorded. He has also given explanation in the

examination-in-chief that in the meantime his family member was not

feeling well as at that time she was admitted in the hospital. It is to be

noted that the explanation for not recording the statement is also an

J.APEAL.139.16

improvement and omission in the police statement. The Investigating

Officer in his cross-examination has admitted that the statement of

these witnesses is recorded on 15th of July and he was also asked

about the reason for belated informing the police. It is to be noted

that both the witnesses in their examination-in-chief have admitted

regarding their criminal antecedents. We find that taking into

consideration the unnatural conduct of these witnesses, it will not be

safe to rely on their testimony. The Division Bench of this Court in

Laxman Bapurao Ghaiwane .vs. The State of Maharashtra

reported in 2012 ALL MR (Cri) 3605 has observed on the point of

delay as under :-

"18. The effect of delay in recording statements of witnesses under Section 161 of the Code of Criminal Procedure was examined by the Hon'ble Supreme Court in the case of State of H.P. Vs. Gian Chand, reported at AIR 2001 SC 2075 and it was observed :

"If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by

J.APEAL.139.16

itself be a ground for disbelieving and discarding the entire prosecution case."

The effect of delay was also considered by the Supreme Court in the matter of Dilawar Singh Vs. State of Delhi, reported at AIR 2007 SC 3234 : [2007 ALL SCR 2430] and it was observed :

"In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.

Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."

23] That leaves us with the evidence of PW.3 Mohd. Ezaj, the

first informant. He is the brother of the deceased. No doubt that

merely because the witness is an interested witness cannot be a

J.APEAL.139.16

ground to discard his testimony. However, the evidence of such

witness is required to be scrutinized with a greater caution and

circumspection and a conviction could be awarded on the basis of

same if the same is found to be trustworthy, cogent and reliable. No

doubt that he is an injured witness and normally his testimony would

have been sufficient enough to inspire the confidence in the mind of

the Court. However, we find that the overzealousness and various

glaring lacunae committed by the investigation have themselves

brought the testimony of this witness in a shadow of doubt. It will be

relevant to refer to the injuries sustained by this witness, which are as

under :-

1) Incised wound 3 x 0.5 x 0.3 cm. over right forearm,

2) C.L.W. 2 x 0.5 x 0.3 cm over right forearm,

3) linear abrasion 2 x 0.1 x 0.3 cm at the base of left hand palmer aspect,

4) linear abrasion 7 x 0.1 cm over right forearm and

5) Incised wound 5 x 0.1 x 0.1 cm over right hand palmer aspect.

The perusal of the cross-examination of PW.10 Dr. Vikramsingh

Daberao would reveal that the thickness of the injuries are between .1

cm to .3 cm. He has admitted that all these injuries are skin deep

injuries.

J.APEAL.139.16

24] We have discussed in extenso the evidence of the other

three eye-witnesses and for the reasons recorded, we have found the

evidence of those three witnesses to be not trustworthy. We have

also reproduced in extenso the examination-in-chief of all the four

witnesses attributing the role to each of the accused. The role

attributed by PW.3 Mohd. Ezaj is identical with the role attributed by

all the three witnesses, which we have disbelieved. We, therefore,

find that it will not be safe to rest the conviction solely on the basis of

evidence of PW.3 Mohd. Ezaj without there being corroboration by

any other evidence.

25] The prosecution relies on the seizure of blood stained

clothes from the person of the accused and the weapons allegedly

recovered from the person of the accused Mohd. Ansar, Mohd. Hanif

and Mohd. Irfan on memorandum under Section 27 of the Indian

Evidence Act. It is to be noted that all these memorandums are

recorded by PW.11 Khanderao and proved in the evidence of PW.8

Syed Mazhar Syed Rustam. The consequent recovery panchnamas

are also proved in the evidence of this witness. The memorandum of

accused Mohd. Ansar is recorded in the Police Station Ramdaspeth

on 23.7.2012 between 13.40 to 13.45 hours. The knife is seized from

J.APEAL.139.16

his house on the same day between 14.05 to 14.40 hours. The

memorandum of accused Mohd. Amir is between 13.46 to 13.51

hours and the recovery panchnama is between 14.05 to 14.50 hours

under which a steel pipe is seized from him. The memorandum of

accused Mohd. Irfan Mohd. Kasam is between 13.52 to 14.00 hours

and the recovery panchnama is between 14.01 to 15.15 hours. The

perusal of the recovery panchnamas would reveal that not only the

Investigating Officer but the other staff and the panchas who were

conducting these recoveries are also same. It could thus be seen

that the I.O. was possessing some superhuman powers for

conducting three recoveries simultaneously at three different places.

We find that there could be nothing more farcical than such

recoveries.

26] The recovery of the blood stained clothes of the accused is

more interesting. The accused were arrested between 13th to 16th.

However, the clothes are seized on 24th of July and sent to Chemical

Analyzer on 6th of August. The cross-examination of the Investigating

Officer on the belated seizure of the clothes of the accused is rather

interesting. Though the I.O. admits in paragraph 18 of the cross-

examination that if the blood stains are found on the clothes on the

J.APEAL.139.16

person of the accused at the time of arrest, they are required to be

seized immediately, he states that he could not seize the clothes till

24th though they were in his custody, because their relatives had not

brought the other clothes for them. To a suggestion he has clearly

admitted that prior to 24th he had gone to the house of the accused

during investigation. However, to a query as to why he did not collect

the clothes from their house, he has stated that he had gone there for

seizure of the weapons and, therefore, he had not collected the

clothes. In this respect, it will be appropriate to refer to the following

observations of Their Lordships of the Apex Court in the case of

Gopal Singh and another .vs. The State of Madhya Pradesh and

another reported in AIR 1972 SC 1557, which read thus :-

"......Apparently, the High Court thought that corroboration was necessary and this it sought in the recovery of the blood stained shirt and bushshirt from the room of the appellants which the learned Sessions Judge had specifically discarded. We think that the learned Sessions Judge had given very satisfactory reasons for discarding this evidence and, in our opinion, the High Court was in error in taking a different view, especially, when the High Court had realised that there was something fishy in the manner in which a blood stained shirt was recovered from Hatesingh who had been

J.APEAL.139.16

acquitted. Hatesingh, like the appellants, had been arrested on the 10th. His shirt which he was wearing at the time was not seized. But next day his shirt was seized because some blood spots were noticed. It is rather extraordinary that the police should not see blood stains on the shirt when he was arrested but should notice them on the next day. The High Court, therefore, was right in discarding that evidence because it is plain enough that at the time of the arrest there must not have been really any blood stains on the shirt of Hatesingh....."

27] There is another angle. The FIR which is placed on record

below Exh. 97 does not tally with the carbon copy of the FIR which is

below Exh. 238, i.e. a part of the remand papers. It would show that

in all other columns it could be seen that entries are in the carbon

print, whereas the general diary reference and time in clause (c) of

column 3 is written in ink. It could further be seen that in column no.

5 though in Exh. 97 the direction shown is south, in Exh. 238 it is

shown as west. Though Investigating Officer has admitted about the

same, no explanation for the same is coming forward. The perusal of

paragraph 21 of his cross-examination would reveal that though an

ample opportunity is given to the Investigating Officer to explain these

lacunae, no explanation is coming forward from him.

J.APEAL.139.16

28] We are aware that merely on account of lapses by the

Investigating Officer, the prosecution case should not fail and the

prosecution case which is otherwise proved, should not result in

acquittal only on the ground of lacunae in the prosecution case.

However, in the present case, we are at pains to observe that on

account of overzealousness and on account of an attempt of

Investigating Officer to create the evidence which is not there, the

investigating agency has prevented a real picture coming before the

Court. May be, on account of the fabrication, an otherwise good case

which might have resulted into conviction of some of the real culprits

is resulting into an acquittal only on account of the fabrication by the

investigating agency. .

29] As already discussed hereinabove, there are number of

lacunae in the prosecution case. If the prosecution version is to be

believed, the question arises as to what had happened to the motor-

cycle on which the deceased and the PW.5 Mohd. Wasim had come

to the spot. The question arises as to what has happened to

Rs.45,000/- which were either with the deceased or with PW.5 Mohd.

Wasim. There are many other questions unanswered. The

prosecution has utterly failed to prove as to how all the 11 accused

J.APEAL.139.16

had gathered on the spot. The only evidence is of PW.5 Mohd.

Wasim, who states that the deceased had assured the accused no.1

Mohd. Munaf that the amount would be returned prior to 12th.

However, there is no evidence that the deceased or anyone had

assured that the amount would be returned at a particular spot on 12th

at around 8 to 8.30 p.m. It is another aspect that enmity, if any of the

accused no.1 was with PW.5 Mohd. Wasim and not with the

deceased. If the PW.5 was very much available, then why was he

not assaulted and why the deceased was brutally assaulted,

particularly when PW.5 was very much available and even according

to him, very much standing at a short distance. We find that the

investigating agency has withheld the real genesis of the incident and

has concocted a totally different version so as to implicate the entire

family of the accused persons.

30] It could be that there could have been a dispute between

the deceased and PW.3 Mohd. Ezaj on one hand and some of the

accused on the other hand, as a result of which the incident might

have taken place. However, it appears that for the reasons best

known to the investigating agency, totally different colour appears to

have been given without there being any material to support such a

J.APEAL.139.16

version. We are at pains to say that the investigating agency has

attempted to suppress the real picture coming to the Court which has

resulted in culprits of the crime going unpunished.

31] In the result, we find that the prosecution has failed to

prove the case beyond reasonable doubt. The accused are entitled

to benefit of doubt. As such, the appeals deserve to be allowed.

32] The Criminal Appeals are allowed. The appellants are

acquitted of the offences charged with. Fine amounts if paid by

appellants be refunded to them. The appellants are directed to be set

at liberty forthwith, if not required in any other case.

JUDGE JUDGE .

J.