Bombay High Court
Rais Kahn Ahmed Khan vs The State Of Maharashtra on 19 December, 2017
Bench: R.M. Savant
1 apeal66.31.41.95.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 66 OF 1995
1 Sagir Ahmed Nasir Ahemed Ansari )
residing at Room No. 11, Mehmood )
Maqbool Chawl, Behram Baug, New )
Link Road (Near Badar Masjid), )
Jogeshwari (West), )
Bombay 400 102. )
)
2 Abdul Kadar Abdul Razak, )
residing at Room No. 5, Shivpujan )
Gupta Chawl, Behram Baug, )
Jogeshwari (West), )
Bombay 400 102. )
)
3 Zuberuddin Sartajuddin Munshi, )
residing at 17A/3, Gulistan )
Co-operative Housing Society, )
Kapadia Nagar, C.S.T. Nagar, )
Kurla(West), )
Bombay 400 070. )..Appellants.
Versus
The State of Maharashtra. ..Respondent.
WITH
CRIMINAL APPEAL NO. 31 OF 1995
Rais Khan Ahmed Khan. )
residing at Room No. 30, )
Ground floor, Ahmed Khan's Chawl, )
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Bandra Plot Road, Jogeshwari, )
Bombay 400 060. )..Appellant.
Versus
The State of Maharashtra. ..Respondent.
WITH
CRIMINAL APPEAL NO. 41 OF 1995
ALONG WITH
CRIMINAL APPLICATION NO. 959 OF 2016
WITH
CRIMINAL APPLICATION NO. 949 OF 2016
Nijamuddin Sartajuddin Munshi, )
residing at Abida House, )
Behram Baug, Link Road, )
Jogeshwari, Bombay 400 102. )..Appellant.
Versus
The State of Maharashtra. ..Respondent.
---
Mr. Shyam Kalyankar, for Appellant Nos. 1 and 2 in Appeal No.
66/95.
Mr. S.R. Phanse, amicus curiae for Appellant in Appeal No. 31/95 and
amicus curiae for appellant No. 3 in Appeal No. 66/95.
Mr. Avinash Gupta, Sr. Advocate i/b. Dewani & Associates. for the
appellant in Appeal No. 41/95.
Mrs. P.P. Shinde, APP for State.
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---
CORAM : R.M. SAVANT &
SMT.SADHANA S. JADHAV,JJ
JUDGMENT RESERVED ON: NOVEMBER 30, 2017
JUDGMENT PRONOUNCED ON : DECEMBER 19, 2017.
JUDGMENT :(PER SMT. SADHANA S. JADHAV,J)
The above Appeals were heard and reserved for Judgment
on 20th July,2017. The original accused No.1 - Nizamuddin
Sartajuddin Munshi was absconding, this Court has therefore
appointed Advocate Shri Shantanu Phanse as amicus curiae to
represent the original accused No.1. The non-bailable warrant issued
against the original accused was awaiting execution and the police
has sought time to execute the same as the earlier attempts had
failed. The Judgment was therefore not pronounced. In the
meanwhile, the original accused No.1 filed Criminal Application
No.1536 of 2017 on 9th November,2017 expressing a desire to
surrender and be represented by Senior Counsel Shri Avinash Gupta.
Hence, with a view to afford a fair opportunity, this Court allowed the
said application, whereby the accused accused No.1 was taken into
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custody on 15.11.2017 and fixed the hearing of the Appeal No.41 of
1995 on 30.11.2017 to hear the submissions of the learned Senior
Counsel Shri Avinash Gupta. That is how the judgment is now being
pronounced today i.e. 19th December, 2017.
2 The Appellants herein are convicted for the offences
punishable under section 302, 143, 144, 147, 148, 149, 307 of the
Indian Penal Code and sentenced to suffer R.I. for life by the
Additional Sessions Judge, Mumbai in Sessions Case No. 634 of 1991
vide Judgment and Order dated 12/1/1995. Hence, this Appeal.
3 The case of the prosecution is as under :
(i) On 8/2/1991 Mohammed Ashfaq Khan Mumtaj Khan
lodged a report at the police station alleging therein that he resides in
a chawl in room No. 1, which belongs to Shankar Feku
Yadav(hereinafter referred to as Shankar Seth). That there are 13
rooms. Shankar Seth had purchased the land from a Parsi trust. The
accused No. 1 Nijamuddin and his brother-in-law Abdul Kadar were
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claiming the said piece of land and hence, there were civil suits
pending between the parties.
(ii) According to the Complainant, on 25/12/1990
Nijamuddin, Zuber, Sagir and Kader had obtained signatures of the
complainant on two blank papers under coercion and had taken
possession of the residential room. A report was lodged at the
Oshiwara Police Station.
(iii) On 8/2/1991 at about 7.45 p.m. the complainant and
Shankar Seth were sitting in front of Yadav Lime Depot and
chitchatting with Ramkaran Yadav and Shekhar Tiwari. At about 8
p.m. one police constable namely Dhadas who was acquainted with
the complainant was going towards Behraum Baug. He was stopped
by the complainant. Suddenly 8 to 10 persons came at the spot. They
were armed with weapons such as sword, stick. One amongst them
had assaulted Dhadas on his head by a stick in his hand from rear
side. According to the complainant, Nijamuddin i.e. accused No. 1
had assaulted Shankar Seth with sword at the same time.
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(iv) The complainant had also witnessed Abdul Kadar and
Nijamuddin Munshi assaulting Shankar Seth on his chest with sword,
Sagir and Zuber had assaulted on his hand and on his rib with sword.
Nijamuddin assaulted Shankar Seth on his back by sword.
(v) When the assault was going on, the persons
accompanying Shankar Seth were initially requesting miscreants not
to assault and thereafter, they had run inside the gate to search for
some weapons to use in defence.
(vi) The complainant and Harilal Yadav took Shankar Seth to
Cooper Hospital. On the way, he had become unconscious.
(vii) That PSI Anpat who was posted at Oshiwara police
station had also reached the hospital. The complainant has given
description of unidentified persons in the first information report.
(viii) On the basis of the said FIR, Crime No. 72/1991 was
registered initially for offences punishable under section 307, 324,
143, 144, 147, 148, 149 of the Indian Penal Code.
(ix) After Shankar Yadav succumbed to the injury Section 302
of the Indian Penal Code was added.
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(x) After completion of investigation, charge-sheet was filed.
The case was committed to the Court of Sessions and registered as
Sessions Case No. 634 of 1991. The prosecution examined 20
witnesses to bring home the guilt of the accused.
4 P.W. 1 Mohammed Ashfaq Khan Mohammad Mumtaz
Khan is an eye witness to the incident. He has deposed before the
Court that he resides in Shankar Seth's Chawl and Shankar Seth
happens to be the owner of the said building. Shankar Seth had
purchased a piece of land admeasuring about 1200 sq. yards from the
Parsi Trust. There was a dispute between the original Accused Nos. 1
to 3 and 5 and Shankar Seth over the said piece of land.
5 According to P.W. 1, when he had been to his native
place, he left the keys of his house with the neighbour. That the
accused Nos. 1 to 3 and 5 had demanded the said keys from the
neighbour and had put on their own lock to the room of P.W. 1.
After he returned from his native place, he learnt about it from the
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neighbour. He had been to the house of accused No.1 to enquire
about the said incident and at that time, the accused Nos. 2 and 5
had assaulted him and he was threatened of dire consequences by the
accused No. 1. According to P.W. 1, the accused No. 1 had asked him
to sign certain blank papers under coercion. He had lodged complaint
about the said incident after 8 days with Oshiwara Police Station.
According to prosecution, this part of evidence would substantiate the
motive of the accused in commission of the offence.
6 As far as the incident in question is concerned, P.W. 1 has
deposed that on 8/2/1991 in the evening he was sitting with
Shankar Seth, Ramkaran and Tiwari opposite Yadav Lime Depot at
Behram Baug. He was sitting on the bench with Shankar. They had
seen constable Dhadas passing by the road. Constable Dhadas was in
civil dress. P.W. 1 was acquainted with him. He had called constable
Dhadas and exchanged salutation with him and further requested him
to have a cup of tea. P.W. 1 was chatting with Dhadas just near the
bench. Suddenly accused No. 4 had appeared on the scene behind
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constable Dhadas and assaulted him on his head with a wooden stick.
Then Accused No. 1 Nijamuddin had assaulted P.W. 1 on his right
shoulder with sword and at the same time, 4 to 5 persons were
assaulting Shankar Seth.
7 It is further stated that while Shankar Yadav was avoiding
the blow he had sustained injury on his right side elbow of his hand.
The Accused No. 5 had assaulted Shankar Yadav on his right side ribs
below armpit with sword. Nijamuddin had assaulted Shankar on his
back with sword. As a result, Shankar had fallen on the ground.
Even thereafter, the accused No. 1 continued assaulting Shankar with
sword above left side waist. People had started running helter skelter
out of fear. Two persons accompanying Shankar Yadav had rushed
inside the gate. P.W. 1 had also rushed inside the gate to find some
wooden stick in order to assault the accused. Shankar Yadav had
fallen unconscious. He was taken to the hospital by Harilal Yadav.
Harilal Yadav happens to be the cousin of Shankar Yadav.
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8 According to P.W. 1, the deceased had regained
consciousness in the taxi and had requested him to take him to the
hospital as he was not feeling well. P.W. 1 was also treated as he was
injured. He met PSI Anpat at the hospital. P.W. 1 claims to have
disclosed the names of the other accused persons to PSI Anpat as well
as names of the persons who had mounted assault on Shankar Yadav.
9 P.W.1 has further stated that he had also sustained
injuries on his right shoulder and therefore, he had requested Hari to
take Shankar to the hospital. That according to P.W. 1, Hari was also
present at the time of incident. That when they were in taxi and
Shankar was told that they would go to police station, he had told
them that he should be first taken to the hospital. P.W.1 had
allegedly disclosed the names of accused No. 1 Nijamuddin, Jaber
Accused No.5, Abdul Kadar Accused No. 3 and Sagir Accused No. 2.
He had also informed PSI Anpat that the above mentioned accused
were accompanied by three more unknown persons, whose
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description he had given to PSI Anpat. He has proved the contents of
the FIR which is marked at Exh. 16.
10 P.W. 1 has referred to the first FIR filed by him at
Oshiwara Police Station when he was forcibly evicted from his room
by Accused Nijamuddin and others. He had guided the police while
conducting the scene of offence panchanama.
11 It is pertinent to note that P.W.1 has categorically stated
that on 18/5/1991 he was called at the police station by the police
officer and was informed that the accused are arrested and that the
Special Executive Magistrate is to visit the police station. That the
test identification parade was held at the police station. He has
identified his clothes seized in the course of investigation.
12 It is elicited in the cross-examination that there are two
Yadav Chawls and he is residing in one of the them. One Ali Mohd is
residing in room No. 2 next to him. One Niyazbhai and Mangal
Kumar owned garage in the said vicinity. He has expressed his
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inability to give the date when the incident had occurred. That the
distance between Yadav Chawl and residence of accused Nos. 1, 3
and 5 is about 100 meters. They were also residing in the same
chawl. P.W. 1 has feigned ignorance as to whether the chawl
belongs to accused Nos. 1, 3 and 5. He had learnt from the deceased
that the accused No. 3 is the brother-in-law of accused Nos. 1 and 5.
That there was an injunction in favour of Shankar and against
accused Nos. 1 and 5. P.W. 1 used to accompany Shankar to the
court but could not recollect the date when the injunction order was
passed. According to him, the original accused No. 1 had forced him
to sign the stamp papers. The accused No. 1 had locked the room of
P.W. 1 when he was out of station and therefore, he was constrained
to lodge the report against the accused No. 1 at the police station.
Deceased Shankar had accompanied him to the police station at the
relevant time.
13 It is elicited in the cross-examination that it was PSI
Anpat who had taken P.W. 1 from Cooper Hospital to Police station
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to enable him to lodge the report in respect of the said incident. P.W.
1 has admitted that apart from havaldar Dhadas he did not know
anybody from Oshiwara Police Station. He has also deposed in the
cross-examination that Yadav Lime Depot was at the distance of 8 to
10 feet from the place where Shankar was chitchatting with P.W. 1
and other witnesses. That the assailants had come from the rear side
of Dhadas. First Dhadas was assaulted and then Shankar and P.W.1.
P.W.1 has deposed before the Court that he had seen the faces of the
assailants as they had surrounded him. According to PW 1, when the
assault commenced, he went to the gate to get some weapon and in
search of a piece of wood. In the meanwhile, the accused assailants
were fleeing from the spot of incident. That Ramkaran Hari Tiwari
and P.W. 1 were requesting the assailants not to assault. He has
specifically stated that he was assaulted by sword and another blow
was given by stick.
14 P.W. 2 Ramkaran Yadav also claims to be an eye witness
to the incident in which Shankar had sustained fatal injuries. He was
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acquainted with Shankar for more than 20 to 25 years. That
according to P.W. 2, he was also acquainted with P.W. 1 who
happens to be the tenant of Shankar Yadav. He has identified the
accused before the Court and has reiterated that the accused Nos. 1,
2, 3 and 5 had forcibly taken possession of the room of P.W. 1 and
hence, the complaint was lodged against them. They had also
forcibly taken possession of the piece of land and two chawls from
Shankar Yadav. He has narrated the incident by stating that
Shekhar Tiwari, P.W. 1 and 2 were chitchatting. One police
constable had come across and greeted them. Ashfaq got up from his
seat, walked 5 to 6 steps towards that constable and at that time, 5 to
6 persons had come from behind and mounted assault on them. The
first assault was on the constable. P.W. 2 had pointed towards
accused No. 4 as the same person who had assaulted the constable by
stick on the back of his head. P.W. 2 also claims to have run towards
lime depot for getting a stick to retaliate. In the meanwhile Shankar
had fallen on the ground in an injured condition with bleeding
injuries. Hari and P.W. 1 had taken Shankar to Cooper Hospital.
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P.W. 2 claims to have followed the taxi in which Shankar was carried
to Cooper Hospital. He also claims to have gone to Oshiwara Police
Station at about 11 p.m. where his statement was recorded. That he
had identified 3 persons at the identification parade which was held
at the police station and that accused No. 4 was one of those 3
persons whom he had identified.
15 It is elicited in the cross-examination that Yadav Lime
Depot is run by him. P.W. 2 has also given topography of the scene
of offence. He claims to know the accused Nos. 1,2, 3 and 5 since 5
to 6 years prior to the incident as they are residing in their
neighbourhood. There were inimical terms between the accused Nos.
3 and 5 and deceased Shankar. That P.W. 1 and 2 and the deceased
used to meet regularly and sit together. According to P.W.2, on the
date of incident, they were all chitchatting. That the accused
mounted assault upon Shankar. He has specifically admitted in the
cross-examination that accused No. 1 Nijamuddin was leading the
other accused persons. That the accused No. 1 had assaulted
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Shankar by sword. Out of seven, two were armed with stick. He had
called for help but nobody came on the spot. His servants were
inside the depot at the time of the incident and therefore, he had
rushed towards the lime depot to search for a stick. He had reported
the incident to PSI Anpat which was reduced into writing.
16 P.W.3 Kisan Dhadas was attached to Oshiwara Police
Station as a police constable. He has deposed before the court that on
the day of the incident when he was passing from the front of Yadav
Lime Depot, Mohd. Ashfaq called him. At that time, Mohd. Ashfaq
was in the company of 2 to 3 persons. Mohd. Ashfaq was proceeding
towards him to extend greeting while Shankar Yadav was sitting on a
bench with other person. Suddenly he was given a blow by hard and
blunt object on the back of his head. He saw that at the same time,
somebody was assaulting Ashfaq. P.W. 2 had rushed into Lime Depot
to search for some stick. He had sustained bleeding injuries. When
he returned to the spot, he learnt about the fact that Shankar Yadav
was assaulted by sword. They all went to Cooper Hospital. Mohd.
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Ashfaq was also treated as he had also sustained injury. While
Shankar Yadav was admitted in the ICU, Sub-Inspector Anpat who is
attached to Oshiwara Police Station had come to the hospital.
17 It is apparent that neither the persons accompanying
Shankar Yadav nor the assailants were known to P.W. 3, who had
feigned ignorance about the area where the offence had taken.
According to him, the distance between the scene of offence and
Oshiwara Police Station can be travelled within less than 15 to 20
minutes by auto. It is admitted that Oshiwara Police Station is on the
way to Cooper Hospital. It is also admitted that Yadav Lime Depot is
surrounded by shops. He had no knowledge as to whether there is
telephone connection in the Lime Depot. It is admitted that his
supplementary statement dated 19/2/1991 was recorded by PSI
Anpat. It is also admitted that he had not seen any person who was
accompanying Shankar Yadav in the Lime Depot. P.W.3 has further
admitted that he was not knowing Shankar Yadav. It is therefore
clear that P.W. 3 is not an eye-witness to the assault upon Shankar
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Yadav. P.W. 1 and P.W. 2 are falsified to the extent that they were in
Lime Depot searching for sticks to retaliate.
18 P.W.4 Ramjit Sahdev Yadav is the son-in-law of deceased
Shankar Yadav. According to him, in the year 1983, Shankar Yadav
had purchased a plot of land from a Parsi Trust and also a chawl
which he had given on rent. P.W. 1 was one of the tenants in the
chawl. He was knowing the accused Nos. 1 to 3 by name. That
Zuber Munshi is the brother of accused No. 1. That his father-in-law
was on inimical terms with Accused Nos, 1 to 3 and Zuber. The bone
of contention was the plot of land which he had purchased from the
Parsi Trust. The accused claimed ownership over the said land
which the deceased had purchased in a dispute. His father-in-law
had filed a civil suit against the accused and P.W. 1 was assisting him.
The witness had identified the accused in the court.
19 It is also alleged that on 6/2/1991 the accused Zuber had
threatened his father-in-law in the court premises. On 8/2/1991
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when P.W. 3 was sitting in Gulab Restaurant at about 8.15 p.m.
Manilal informed him that Shankar was lying in a pool of blood at
Behram Baug. Manilal happens to be the common relative of Shankar
Yadav and P.W. 4.
20 According to P.W. 4, he had rushed to the hospital and
met his father-in-law in ICU. Upon enquiry his father-in-law informed
him that accused No. 1 and his associates had assaulted him and
that they need to be punished. He had also further instructed P.W. 4
that they should take revenge. On 9/2/1991 P.W. 4 had been to
Oshiwara police station and at that time 3 accused persons were
present in the police station and one of them was Nijamuddin
Sataruddin Munshi. His father-in-law also knew Nijamuddin Munshi.
The prosecution had introduced the oral dying declaration of Shankar
through P.W. 4.
21 It is elicited in the cross examination that he alone had
been in the ICU to meet his father-in-law, whereas his mother-in-law
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and other family members had not gone inside the ICU nor his father-
in-law had enquired with him about other members of the family. It
is also elicited that the disclosure statement made by his father-in-law
was not conveyed to anybody by him. P.W. 4 has deposed in the
cross-examination that Gulab Restaurant is situated at a distance of 1
or 1 ½ k.m. from the scene of offence, from where Manilal had come.
22 P.W.5 Narendra Dhemre is a draughtsman who had
drawn the map of the scene of offence. Since the scene of offence is
admitted, it would not be necessary to discuss the evidence of the said
witness.
23 P.W. 6 Dhirendra Tripathi was Special Executive
Magistrate at that time. The Police had contacted him on
17//5/1991. Accordingly, he had visited police station on
18/5/1991. He has selected the panchas at the police station. It is
admitted position that the test identification parade was conducted at
the police station. He has narrated the steps taken by him in
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conducting test identification parade. It is elicited in the cross-
examination that he had seen all the 20 dummies in the room of PI
Khalkamkar. He had selected the dummies who were about 20 to 35
years old. It is admitted that P.W. 6 had not obtained signatures of all
the panchas on all the pages of memorandum of test identification
parade. He himself has signed all pages except last page.
24 P.W. 7 Vasantrao Shevale was attached to Juhu Police
Station since 7/8/1990. He was posted at Cooper Hospital and was
incharge of emergency police register. According to him, on
8/2/1991 when he was on duty, injured was brought to the
emergency ward of Cooper Hospital by his brother Harilal Yadav.
They were also accompanied by 2 to 3 more persons. The
information was given to him by Harilal Yadav. The entry is at
number 503.
25 P.W. 8 Ashok Jadhav was officiating as police constable at
Oshiwara police station and was a member of crime detection squad.
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He has deposed before the court that on 8/2/1991 at about 8.30 p.m.
he had accompanied PSI Anpat to Cooper Hospital for investigation.
He has then stated that in fact, he had gone for investigation in
another case. They had learnt that Shankar Yadav was admitted in
ICU and upon further enquiry, they found that he was in an
unconscious condition. He has identified the clothes of the injured.
It is elicited in the cross-examination that nobody was accompanying
the deceased in the ICU. There was no seizure panchanama as far as
the clothes of the injured was concerned.
26 P.W. 9 Girish Jariwala had acted as panch for the seizure
of blood stained clothes of the deceased. The said panchanama is at
Exh. 37.
27 P.W. 10 Nafiz Shaikh has also acted as panch for the
scene of offence. The panchanama is at Exh. 39. He has admitted in
the cross-examination that Ashfaq did not show his shop to the
panchas but had shown the place where he was assaulted. It is
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further admitted that the trail of blood was seen from the bench to
the gate of Yadav Lime Depot. It is pertinent to note that wooden
planks were found on the bench where the deceased was sitting and
chatting with his friends and the trail of blood was found near the
bench till the Lime Depot.
28 P.W. 11 Dr. Rajaram Marathe had conducted autopsy on
the dead body of Shankar Yadav on 9/2/1991 and the post mortem
notes are at Exh. 41. It is admitted in the cross-examination that
except injury No. 17, no other injuries were fatal. Injury No. 17 was
a cut through and through. Injury No. 17 is incise wound 4.5 x 0.5 x
Cavity on 12th rib near vertebral column. Upon perusal of the post
mortem notes, it is clear that the other injuries were on elbows,
shoulder, supra mammary region, infra mammary region, scapula
region and one on the head was incise wound which was 1.5 x 0.5.
The cause of death was shock due to multiple injuries.
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29 P.W. 12 Dr. Manoj Kumar Shenoy was attached to Cooper
Hospital on 8/2/1991. According to him, on that day, Shankar was
admitted at about 9.15 p.m. and he expired at about 10.15 p.m. He
was admitted in ICU. The Patient was conscious at the time of
admission and there is entry to that effect. He did not regain
consciousness. The history of assault was given by the constable
accompanying the patient that day in the evening. The injury on the
12th rib was the fatal injury. He had also noted in the notes as -
"History of assault Unconsciousness since then."
30 P.W. 13 Babasaheb Chougule was attached to Oshiwara
Police Station. In the night intervening between 8.2.1991 and
9.2.1991, he was informed about the case. He went to Oshiwara
Police Station and saw that Crime No. 72 of 1991 was registered
under various sections. He took the charge of investigation from PSI
Anpat on 9/2/1991. He had recorded statement of Ramjit Yadav,
Gulab Shankar Yadav and had arrested accused Nos. 1, 2 and 3. He
had interrogated them on 10/2/1991 he could not recover any
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weapon at the hands of accused Nos. 1, 2 and 3. Investigation was
then transferred to PI Mr. Bhamre. It is admitted that initially, Crime
No. 72 of 1991 was registered under section 307 of the Indian Penal
Code and on the next date it was altered to 302 of the Indian Penal
Code.
31 P.W. 14 Dr. Rohit Shah was also attached to Cooper
Hospital. According to him, the patient was brought at about 8.35
p.m. He had examined the patient. He has given the description of
the injuries sustained by the patient as observed by him. The injured
Mohd. Ashfaq, Kisan Dhadas were given preliminary treatment and
discharged. The witness was cross-examined at length in respect of
the injuries sustained by the deceased which are as follows :
1 C.L.W. Left side of chest 2 inches above and medium to
nipple 2 inches x 1 inch x quarry deep.
2 C.L.W Left arm 1 ½ inches x 1/6 inches x quarry deep.
3 C.L.W. Left below chest 1 ½ inches x 1/5th inches x quarry
deep.
4 2 C.L.W. Over back 1 ½ inches x ½ inches x quarry deep.
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32 In view of the evidence of P.W.14, it is clear that the
cause of death was shock due to multiple injuries and more
particularly the incised wounds which are mentioned in the column
No. 17 and which are corresponding injuries in column No. 19 and
20. The said injuries are as follows :
(1) IW (two) 1.5 x 5D x 0.5 & 1 x 5D x 0.5 on parietal region.
(2) Abrasion 10 cm on right arm laterally.
(3) IW 5.5 x 2 MD right forearm lateral near elbow.
(4) IW 4 X 1.5 X MD on right arm medially near elbow.
(5) IW 7.5 x 1.5 x MD on right interphalangeal space between
thumb and index finger.
(6) IW 2 x 1 X BD on right 1st index index phylangeal.
(7) IW 1.3. x 0.3 x SD on right middle finger near nail.
(8) Slicing wound 3 x 2 x SD on left shoulder.
(9) IW 6 x 1.5 x SD on left supramammary region.
(10) IW 4.5 x 1 x BD as right arm midway lateral.
(11) IW 4 x 1.5 x SD on left inframammary region.
(12) Abrasion 4.5 cm on left forearm medially.
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(13) IW 3 x 0.5 x SD on left wrist medially.
(14) Abrasion 5 cm on right seepulg.
(15) Abrasion 10 cm on left lumber region.
(16) IW 4.5 x 1 X MD on right lumber region.
(17) IW 4.5 x 0.5 x cavity or 12th rib near vertebral column.
(18) Abrasion 9 cm on right buttock
The cause of death as shown in post mortem notes is shock and
hemorrhage due to multiple injuries. In the substantive evidence,
P.W. 14 has categorically stated that the injuries at Sr. 10, 11 and 17
are fatal injuries as they are on the vital part of the body. The
substantive evidence of P.W. 14 is in consonance with the substantive
evidence of the eye witnesses who have attributed specific overt act
to the accused person.
33 P.W. 15 Rupsingh Tadvi was attached to Oshiwara Police
Station. He had taken charge of accused No. 5 when he was arrested.
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34 P.W. 16 Sunil Malusare was attached as API to Oshiwara
Police Station and he had assisted PSI Anpat in the investigation. It is
elicited in the cross-examination that the investigating officer was not
present in the parade room when the accused No. 4 was subjected to
test identification. The accused No. 4 was absconding from 9/2/1991
till 15/2/1991.
35 P.W. 17 Balkrishna Kalkhamkar was transferred to
Oshiwara Police station on 27/3/1991. He had taken up the
investigation from PI Chougule. He had arrested 3 accused viz. Khaliz
Zariwala on 12/5/1991 and Rahiz Khan and Rajesh Solanki on
15/5/1992. According to him, out of them, two persons are
absconding. He admits before the court that he had called the Special
Executive Magistrate P.W. 6 Dhirendra Tripathi for conducting
identification parade and had recorded the statement of the witnesses
after the test identification parade was over. He has admitted that he
has not prepared the list of documents before taking over the
investigation and the index of the said documents was prepared at
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the time of filing of the charge-sheet. According to him, he had
arrested the accused No. 4 at Jogeshwari. He had made available his
own office and also adjoining store room for conducting test
identification parade. It is admitted that the staff had made dummies
available for the purpose of test identification parade and that the
place for conducting test identification parade was selected by the
Special Executive Magistrate.
36 P.W. 18 Arjun Sawant was also attached to Oshiwara
Police station. He had been to the scene of offence alongwith PSI
Anpat. He had drawn the panchanama of clothes of accused Nos. 1,
2 and 3. According to him, the complaint was recorded by PSI Anpat.
37 P.W.19 Suhas Anpat was attached to Oshiwara Police
Station. According to him, on 8/2/1991 at about 8.30 p.m. he had
received a message in respect of another case and therefore, he had
visited Cooper Hospital and there at about 9 p.m. P.W. 7 contacted
him and told him that Shankar Yadav was seriously assaulted by 5 to
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6 persons with dangerous weapon and was admitted in ICU in
Cooper Hospital. He had kept a constable as guard near the ICU.
Shankar Yadav was unconscious. Harilal Yadav and Ramkaran were
present in the hospital. He had then taken P.W. 1 Harilal Yadav to
the police station and recorded their statement and the same was
treated as FIR which is at Exh. 16. He had registered Crime No. 72 of
1991 under section 307 of the Indian Penal Code. PSI Waghmare
had recorded panchanama which is at Exh. 39, whereas PW 19
recorded statement of Dhadas on 9/2/1991. He had transferred the
investigation to PI Chougule.
38 It is candidly admitted in the cross-examination that the
other case about which he received the message was not pertaining to
the jurisdiction of Oshiwara Police station. No officers of Goregaon
Police Station were present in Cooper Hospital. According to P.W. 19,
Shankar Yadav was taken to ICU before 9.15 p.m. When he was in
the O.P.D., P.W. 19 could not record his statement. He had not
visited the injured in the ICU. The deceased was unconscious in ICU.
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In the out patient department also he was unconscious. He has
further stated that he was present in the ICU for 10 minutes i.e. from
9.15 p.m. to 9.40 p.m. He had posted his constable inside the ICU.
Only to ascertain when the injured would regain consciousness, as he
could not record his statement earlier. He had not received
information from the constable that the patient had regained
consciousness. He admits to have seen the accused Nos. 1, 2 and 3 at
the police station on 9/2/1991 in the morning.
39 According to P.W.19, the incident occurred at the gate of
Lime Depot. The scene of offence is 10 ft. away from the gate
towards road. A suggestion was given that the FIR recorded at the
first point of time was destroyed. He claims to have assisted
Investigating Officer Chougule in the investigation of the present case.
The witness also claims to have made enquiry with Ashfaq Khan and
Harilal Yadav.
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40 P.W.20 Pravin Chandra Gore was working as Assistant
Chemical Analyser at Government Forensic Science Laboratory,
Bombay. The prosecution examined him to prove the C.A. report
dated 2/7/1991 which was signed by PW. 20. The said report is
marked as Exh. 69. In the cross-examination, the witness has
admitted that there are 40% persons having 'O' group, 30% with 'B'
group, 25% 'A' group and 5% 'AB' group.
41 The accused has examined the defence witness advocate
Premchand Choube. He has deposed before the court that accused
Nos. 1, 3 and 5 used to visit his office. He was acquainted with
Shankar Feku Yadav. The advocate used to park his vehicle near
Khalid Timber Mart opposite Beer Bar on Link road. The distance
between the Beer Bar and Lime Depot is approximately 80 to 90 feet.
There was a telephone connection in Khalid Timber Mart. And that
the advocate used to use the said telephone for communication as he
did not have a telephone connection in his office. The advocate was
present in his office when the incident had occurred. He was sitting
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near Khalid Timber Mart alongwith the original accused Nos. 1,3 and
5 as he was discussing the case registered against the original accused
Nos. 1, 3 and 5 at Oshiwara Police station. He was in the company of
the accused Nos. 1, 3 and 5 till 9 p.m. There was no electric supply
in his office at the relevant time and therefore, he was sitting near the
Timber Mart.
42 The defence witness has further asserted that he was
facing Yadav Lime Depot at the time of the incident. He had not seen
the incident as alleged by the prosecution. He had no occasion to
help Shankar Yadav at the relevant time. He had not disclosed this
fact to anybody till his statement was recorded before the court. He
had not caused his appearance for the accused in the present mater at
any stage and it was only four months prior to recording of his
statement, he had learnt that accused Nos. 1, 3 and 5 have been
wrongly framed in the present case. He had not taken any action as a
lawyer although he had learnt four months back that the accused Nos.
1, 3 and 5 have been wrongly framed.
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43 The witness was questioned by the court and apparently
falsified at that stage. It was brought to his notice that in the
statement recorded under section 313 of the Code of Criminal
Procedure, 1973 none of the accused Nos. 1, 3 and 5 had referred to
him.
44 On meticulous examination of the depositions of 20
witnesses examined by the prosecution, it is clear on the face of the
record that there are eye witnesses to the incident. P.W.1 who was in
the company of the deceased at the time of the incident has stated
that the original accused No. 4 i.e. Rais Khan was the one who had
taken first step by assaulting constable Dhadas on his head with a
wooden log. At that time, the original accused No.1 had assaulted
P.W. 1 with sword and at the relevant time, Shankar Yadav was
attacked by 4 to 5 persons. According to P.W. 1, accused No. 5 had
also assaulted Shankar Yadav on his ribs below arm pit with his sword
and thereafter, it was the original accused No. 1 who had continued
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assaulting Shankar Yadav with sword. It is pertinent to note that no
specific act is attributed to original accused Nos. 2 and 3 except an
omnibus statement that 4 to 5 persons had mounted assault upon
Shankar Yadav. This has to be read in consonance with the fact that
there is no recovery of weapons at the instance of the original accused
Nos. 2 and 3.
45 The incident is dated 8/2/1991. The original accused
Nos. 1, 2 and 3 were arrested on 9/2/1991. There was no recovery of
weapons at the instance of accused No. 1, 2 and 3. It is further
pertinent to note that the accused Nos. 2 and 3 were arrested from
their residential houses.
46 P.W. 2 Ramkaran Yadav has also claimed to be an eye
witness. He was in the company of the deceased at the time of the
incident. According to him, Ashfaq had got up to greet constable
Dhadas and at that time, 5 to 6 persons mounted assault on them.
P.W. 2 has identified the original accused No. 4 as the person who
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had assaulted constable Dhadas by stick on the rear back side of his
head. There is consistency as far as the role of accused No. 4 is
concerned. He had also identified the accused No. 4 as the assailants.
In fact, it was P.W. 2 who is running Yadav Lime Depot.
47 As far as the role of the overt act of the accused are
concerned, according to P.W. 2, the accused No. 1 had assaulted
Shankar with sword. In all there were 7 persons. Two were armed
with stick and therefore, he had also rushed towards Lime Depot to
search for a stick. He has specifically admitted that accused No. 1 was
leading other accused persons. Hence, he is consistent as far as the
role of accused Nos. 1 and 4 is concerned. P.W. 3 is the injured
witness constable Dhadas. He had met Ashfaq at the relevant time.
He fell down with a blow on his head. P.W. 2 had rushed into Lime
Depot to search for a stick and when he returned, found that Shankar
Yadav was assaulted with sword. Neither the assailants or the
companion of Shankar Yadav except Ashfaq were known to P.W. 3.
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48 It is pertinent to note that Shankar Yadav had sustained
fatal injuries as stated in the post mortem notes. Post mortem notes
at Exh. 41 would clearly indicate that deceased Shankar Yadav had
sustained as many as 18 injuries. There were two incised wounds on
the parietal region, incise wound on supra mammary region, incise
wound at left arm lateral incise wound at infra mammary region.
Besides, incise wound which were probably defence injuries found on
the body of Shankar Yadav, diaphragm was cut and that is injury No.
9, 10 and 11. It is in these circumstances that the evidence of the
witness i.e. P.W.4 stating that his father-in-law had informed him that
he was assaulted by accused No. 1 and his associates in the ICU would
not inspire confidence of the court. In any case, it is an oral dying
declaration which is introduced for the first time by P.W. 4. Since
the witnesses have not specifically named the rest of the accused, it
would be relevant to consider the test identification parade.
49 In this case, the test identification parade was held in the
police station. The practice of conducting test identification parade in
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the police station is deprecated by this court on several occasions.
The Division Bench of this Court in the case of Ramcharan Bhudiram
Gupta vs. State of Maharashtra reported in 1995 Cri. L.J. 4048 has
specifically observed as follows :
"16. We strongly deprecate the practice of conducting
identification at police stations; a practice which we are
informed at the Bar is only prevalent in Greater Bombay.
The sooner it is abandoned the better it is because, the
probability of the suspects being shown to the witnesses
prior to the test identification is always there at the police
station. At any rate, on account of such a practice, there is
always a lurking suspicion in the mind of the court that
the witnesses might have seen the suspects prior to the
test identification.
17. In order to make identification evidence beyond
reproach, it is high time that an end is put to the practice
of holding of identification at police station and
identification parades instead are held in jail. This practice
would not only enable the police to wash the stigma of
showing suspects prior to their identification; a stigma
which more than often is unfounded, but has manifold
other advantages. Jails have a large population these
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days. It would be easy there to find persons similar to the
suspects sought to be put for identification. Such similar
persons have to be mixed with the suspects at the time of
identification.
The identification in jail would not only actually be
free from any taint or suspicion but equally importantly it
would also appear to be so. It would instil a sense of
confidence both in the minds of the suspects sought to be
put for identification as well as the court.
Moreover, there are serious lacunas in the test identification parade
and hence, the same would not inspire the confidence of this court.
50 In the present case, the accused are being convicted with
the aid of section 149 of the Code of Criminal Procedure, 1973 as
there were about more than 5 person. According to the learned APP,
although P.W. 1, 2 and 3 have not referred to any overt act by the
original accused Nos. 2 and 3, presence of the accused as a part of
unlawful assembly is sufficient for conviction. Even if no overt act is
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attributed to them, according to the learned APP, the common object
is writ large on the face of the record.
51 The learned Counsel Mr. Kalyankar appearing for the
original accused Nos. 2 and 3 and learned Counsel Mr. Phanse,
appointed as amicus for original accused Nos. 4 and 5 had
vehemently urged before the Court that the prosecution has miserably
failed to prove the case against the accused beyond reasonable doubt.
According to the Counsel, non-examination of Harilal Yadav is fatal to
the prosecution as according to the learned Counsel, it was Harilal
who had taken Shankar to the hospital.
52 It is vehemently urged that PSI Anpat had no reason to be
in Cooper Hospital soonafter Shankar Yadav was admitted in the
hospital. That PSI Anpat has failed to give sufficient reason why he
had visited Cooper Hospital, rather how he had learnt about the
incident. He had vaguely referred to another case in respect of which
he had received message. However, it does not appear that he had
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taken any steps in the case for which he had come. It was P.W. 19
Anpat who had met Harilal Yadav and Ramkaran at the hospital and
had recorded their statement which was treated as FIR. He has
further admitted that the other case which he was referring was of
Goregaon Police Station and not of Oshiwara Police Station. It is also
admitted by him that the deceased was unconscious in the ICU. This
is another reason why the oral dying declaration would not inspire
the confidence of the Court.
53 The most important aspect is that P.W. 19 has specifically
admitted that he had seen the accused on 9/2/1991 at the police
station in the morning. This further makes it clear that the accused
had visited police station on the very next day.
54 It is further pertinent to note that Harilal Yadav was
summoned for the test identification parade. P.W. 7 Vasantrao
Shevale who was posted at Cooper Hospital has stated that the
injured was brought by Harilal Yadav. He had mentioned the name of
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Harilal Yadav in the register and had also obtained his thumb
impression. The facts of the incident were narrated by Harilal Yadav.
P.W. 7 has proved the entry No. 503 in the EPR. The EPR which is at
Exh. 34 shows that the patient was brought in unconscious condition
and there is no evidence that the injured had regained consciousness.
55 In cases where there is direct evidence, it would be
necessary to ascertain the motive. The learned Counsel Mr. Phanse
has vehemently urged that the only role i.e. attributed to the original
accused No. 4 is that he had assaulted the constable and not the
deceased. This by itself would indicate that the original accused No. 4
had assaulted constable Dhadas and not the deceased. The learned
APP submits that it can be inferred that contused lacerated wound
sustained by the deceased could be attributed to an assault by stick at
the hands of the accused No.4. However, such presumption cannot
be drawn in the absence of the evidence. The cause of death is also
shock and haemorrahge due to multiple injuries.
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56 In the case of Darbara Singh vs. State of Punjab
reported in AIR 2013 SC 840, the Hon'ble Apex Court has held that -
"So far as the question of inconsistency between medical
evidence and ocular evidence is concerned, the law is well
settled that, unless the oral evidence available is totally
irreconcilable with the medical evidence, the oral
evidence would have primacy. In the event of
contradictions between medical and ocular evidence, the
ocular testimony of a witness will have greater evidentiary
value vis-à-vis medical evidence and when medical
evidence makes the oral testimony improbable, the same
becomes a relevant factor in the process of evaluation of
such evidence. It is only when the contradiction between
the two is so extreme that the medical evidence
completely rules out all possibilities of the ocular evidence
being true at all, that the ocular evidence is liable to be
disbelieved."
57 P.W. 1 has made an omnibus statement that accused No.
3 had also assaulted Shankar Yadav with sword. However, in the
cross-examination, it is admitted that he was surrounded by 3
persons. He had rushed towards the gate to search for weapon. He
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had not seen the real assailants of Shankar Yadav but after Shankar
Yadav had fallen Nijamuddin original accused No.1 continued to
assault him brutally. It is admitted by him that the assault lasted for
about a minute or minute and half and that according to him, besides
Shankar Yadav, Harilal Yadav, Ramkaran and himself, they were not
accompanied by any other person. The evidence that Shankar Yadav
was able to speak with P.W. 1 in the taxi is also unbelievable since he
had fallen unconscious on the spot.
58 P.W. 2 has also reiterated that there were 7 persons.
Accused No. 1 assaulted the deceased by sword. Out of 7 assailants,
two were armed with stick. He could identify the persons who had
assaulted by stick but the test identification parade does not inspire
confidence. The accused Nos. 2 and 3 would be entitled to benefit of
doubt. As far as the accused No.4 is concerned, there is no material
evidence on record to clearly indicate that he was a part of the
unlawful assembly. As far as accused No. 5 is concerned, a fatal
injury is attributed to him. Both the eye witnesses were consistent on
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the point that the accused Nos. 1, 2, 3 and 5 were assaulting the
deceased. Accused No. 4 deserves to be convicted for an offence
punishable under section 324 read with section 149 of the Indian
Penal Code. Since the fact that he had assaulted constable Dhadas on
his head with stick would clearly indicate that he was also armed
with a stick. There is evidence on record that the accused Nos. 1 and
5 are relatives. The case was filed against the original accused Nos. 1
and 5 by the deceased. The learned Counsel for the appellant-original
accused No. 3 Abdul Kadar Abdul Razak submits that the original
accused No. 3 is related to original accused Nos. 1 and 5 and
therefore, he has been implicated in the present case.
59 As far as motive is concerned also there is material on
record to show that it was only original accused Nos. 1 and 5 who had
enmity against Shankar Yadav. P.W. 1 has categorically stated that
original accused Nos. 1 and 5 used to visit Shankar Seth Chawl to
show chawl and garage to other people. However, he was not sure as
to whether to sell the premises or give it on rent. P.W. 1 has also
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stated that the deceased had obtained stay order against accused Nos.
1, 2 and 4, which would show that the accused Nos. 3 had no
connection with the civil suit.
60 All the accused are on bail. The appellant Nizamuddin in
Criminal Appeal No. 41 of 1995 was absconding and at present he is
jail. The appellant Nos. 1 and 2 in Criminal Appeal No. 66 of 1995
who are original accused Nos. 2 and 3 are present before the Court.
The appellant in Criminal Appeal No. 31 of 1995 is original accused
No. 4 and the appellant No. 3 in Criminal Appeal No. 66 of 1995 is
original accused No. 5. Original accused Nos. 4 and 5 were not
represented. Therefore, this Court has appointed learned Counsel
Mr. S.R. Phanse as amicus to appear on behalf of original accused
Nos. 4 and 5.
61 Standing non-bailable warrant has been issued against the
original accused No. 1. It is seen from time to time that the original
accused No. 1 is in fact absconding. On 6/9/2017, P.I. of Tilak Nagar
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Police Station had filed a report that it was learnt from reliable source
that the original accused No. 1 is residing at Flat No. 104, Shelter
Park, Kopara Village, Sector 10, Kharghar, Navi Mumbai. However,
the said house was locked. Upon realising that the police has kept
strict vigilance. It appears that he is absconding. The police has also
kept a track on the cell phone mentioned in the report.
62 At the commencement of hearing of this appeal, it was
seen that the Counsel for the appellant/accused No. 1 had filed an
application seeking recall of the order of cancellation of bail and
issuance of non-bailable warrant vide order dated 10/4/2015. The
learned Counsel for the appellant/accused No. 1 had placed on record
certain medical records to show that the appellant/accused No.1 is ill.
Thereafter, this Court had directed that since non-bailable warrant is
issued, he should appear before the court and get it cancelled.
However, subsequently, the learned Counsel for the
appellant/accused No. 1 had submitted that he was in contact with
the appellant and has been informed that the appellant is not in a
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position to attend before the court as he is hospitalised. Thereafter, on
6/7/2017 it was directed that the matter be placed at 11 a.m. on
7/7/2017.
63 On 7/7/2017 learned Counsel Mr. Kamran Shaikh had
mentioned before the Court that the appellant is at his residence and
had given the address which is mentioned in the cause title of
Criminal Misc. Application No. 959 of 2016. The Deputy
Commissioner of Police, Zone-6 was directed to see that the appellant
is taken in custody by executing non-bailable warrant and he was to
be produced before this court on 11/7/2017.
64 On 11/7/2017 the learned Counsel for the appellant did
not remain present and it was reported that the appellant is not
residing at the given address. This Court had observed that Mr.
Kamran Shaikh appearing for the appellant/accused No. 1 had given
two different reasons on two occasions to express the inability of the
appellant to remain present before the Court, firstly by stating that
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the appellant is seriously ill and secondly that he is admitted in
hospital. Therefore, this Court had directed the Deputy Commissioner
of Police, Zone-6 to enquire into the whereabouts of the appellant
based on the pan card, which was produced for his identification at
the time of affirmation. There was a further direction to the police to
carry out an enquiry including recording the statement of advocate
Mr. Kamran Shaikh and submit report to this Court within one week.
65 Hearing of the matter was deferred from time to time and
on 18/7/2017 the report was placed before this Court showing that
the statement of advocate Mr. Kamran Shaikh was recorded and the
cell phone number was given by advocate Mr. Kamran Shaikh was
found to be switched of since 7/7/2017 i.e. after this Court had
commenced the hearing of the companion appeals bearing Nos.
66/1995 and 31/1995. Time to time, the police has submitted the
report. On 6/9/2017 also the learned APP had submitted on the basis
of the report of Tilak Nagar Police Station that efforts are being made
to trace the accused.
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66 As indicated earlier, this Court had in fact appointed
advocate Shri Shantanu Phanse to represent the original accused No.
1 i.e. the appellant in Criminal Appeal No. 41 of 1995. The police
had sought time to execute non-bailable warrant and therefore, the
Judgment was not pronounced. In the meanwhile the original
accused No. 1 filed Criminal Application No. 1536 of 2017 on
9.11.2017 expressing a desire to surrender before the court and and
to be represented by the Senior Counsel Shri Avinash Gupta and
therefore, this Court in order to give fair opportunity to the accused
No.1 had allowed the application and had taken the original accused
No. 1 in custody on 15/11/2017. The learned Senior Counsel Shri
Gupta was accordingly heard on 30/11/2017.
67 The learned Senior Counsel Shri Gupta has drawn
attention of this court to the specific evidence adduced by the
prosecution as far as the original accused No. 1 is concerned.
According to the learned Senior Counsel, the eye-witnesses are not
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reliable witnesses and their evidence does not inspire confidence.
According to the learned Senior Counsel, P.W. 1 has deposed before
the court that after the assault had ensued upon Shankar Seth, they
had rushed inside the Lime Depot to search for some weapon in
order to retaliate and when he returned to the scene of offence, he
noticed that accused Nos. 1 to 5 and 2 others were fleeing from the
scene of offence. According to the learned Senior Counsel, this by
itself would indicate that P.W. 1 has not seen the actual assault on
Shankar Seth and therefore, his evidence deserves to be discarded. It
is also submitted that P.W. 1 had not raised any cry for help although
the incident had occurred on the road. The learned Senior Counsel
has further drawn the attention of this Court to the cross-
examination of P.W. 2 wherein he had stated that Nijam Accused No.
1 was leading those who came from East. All of them assaulted the
deceased. He has also drawn the attention of this Court on the part of
the cross-examination of P.W. 2, wherein he has deposed as follows :
"All the accused persons came together at the same point of
time. They together assaulted us. It is not correct to say that I
did not see the accused No. 1 leading that group. I know the
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persons leading who came from north. ... I know the persons
who was leading the group who came from east.... Nizam
Accused No. 1 was leading those who came from east."
The learned Senior Counsel submits that on the basis of this evidence,
it needs to be appreciated that there were two groups who came to
the scene of offence. One had come from east direction and the other
had come from north direction. Nijam was leading the group who
came from east and therefore, according to the learned Counsel the
witness in all probabilities could not have seen the incident as
narrated by him. It is also submitted that P.W. 1 has specifically
stated that when he went in search of stick in Lime Depot, Shankar
Seth had fallen on the ground. In fact, this by itself would indicate
that P.W. 1 is an eye-witness and had left the spot only after Shankar
had fallen down.
68 The next contention of the learned Senior Counsel is that
P.W. 1 has specifically stated that Shankar was only breathing when
he was taken to hospital and was not in a position to speak. This
according to the learned Senior Counsel, should be appreciated in
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view of the fact that according to the prosecution there is an oral
dying declaration in the hospital in which the name of the accused
Nijam is disclosed. It is submitted that P.W. 2 Ramkaran Yadav has
stated that at the time of the incident, 3 persons had come from
northern side and 4 persons had come from the eastern side. One of
them had assaulted Hawaldar(Dhadas) on his rear side. It is
submitted that there is no specific evidence as to whether the persons
who came from east side or north side had mounted assault on
Shankar. It is submitted that P.W. 2 has made an omnibus
statement that accused No. 1, 2, 3 and 5 and 2 others started
assaulting the deceased Shankar by swords in their respective hands.
It is reiterated that P.W. 2 had also gone in search of a stick in order
to retaliate and therefore, he had not seen the actual assault.
69 As far as P.W. 3 is concerned, it is submitted that in fact,
P.W. 3 Kisan Dhadas was the first person who was assaulted. He was
a constable and yet he had not taken any effective steps to avoid
assault on Shankar Seth. The attention of this Court is drawn to the
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54 apeal66.31.41.95.sxw
portion of cross-examination where P.W. 3 has stated that he was
present at the scene of offence till he saw all the injured being
removed to Cooper Hospital in a motor taxi. Thereafter, he had seen
P.W. 1 in the hospital. It is also submitted that P.W. 3 had also
not raised shout and that it was only P.W. 1 who had shouted for him.
70 The learned Senior Counsel has criticised the evidence in
the nature of dying declaration which had specifically implicated the
appellant. In any case, this Court had discarded the evidence in the
nature of dying declaration as there is ample evidence on record
which would show that the injured was unconscious at the time of
admission in the hospital. There is nothing on record to indicate that
he had regained consciousness just before he had disclosed about the
incident to P.W. 4 and hence, the same does not deserve any
discussion.
71 The learned Senior Counsel has placed reliance upon the
Judgment of the Hon'ble Apex Court in the case of Indira Devi & ors.
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55 apeal66.31.41.95.sxw
v/s. State of Himachal Pradesh reported in 2016 Law Suit (SC)
592, wherein the Hon'ble Apex Court had considered a case of false
implication. The fact of the case in the matter of Indira Devi(supra)
would not be relevant in the present case. The learned Senior
Counsel hence, drawn attention of this Court to the observations in
paragraph-7 which reads thus :
"(7) The proposition of law that an injured witness is generally
reliable is no doubt correct but even an injured witness must be
subjected to careful scrutiny if circumstances and material
available on record suggest that he may have falsely implicated
some innocent persons also as an after thought on account of
enmity and vendetta."
This is an admitted position in criminal jurisprudence and there
cannot be a second opinion on this aspect, but at the same, the facts
of each case have to be taken into consideration and the proposition
of the law has to be applied in the facts of the case. In the present
case, the evidence of P.W. 1 and 2 are reliable and there cannot be
any doubt that they are eye witnesses to the incident and they have
actually seen the assault on Shankar Seth.
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56 apeal66.31.41.95.sxw
72 The learned Senior Counsel has then placed implicit
reliance on the Judgment of the Division Bench of this Court in the
case of Narayan Kanu Datavale v/s. State of Maharashtra reported
in 1997 Cr. L.J. At page 1788. It is in respect of the same
proposition of law wherein the Court had discarded the evidence of
the injured eye witness. In the instant case, the evidence of P.W. 1
and 3 is not being relied upon as they are injured witnesses and
therefore, Narayan Datavale's case (supra) would have no relevance
in the present case. The Hon'ble Division Bench had observed that -
"It is an elementary norm of appreciation of evidence that
before the testimony of even an injured witness can be
accepted, it has to pass the test of truthfulness and should be in
consonance with probabilities."
In fact we have scrutinized the evidence of the eye-witnesses and
arrived at a conclusion that the sterling testimony of two eye-
witnesses as far as the incident in question is concerned cannot be
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57 apeal66.31.41.95.sxw
discarded on immaterial omission and contradiction. The witness has
stood the test of scrutiny. Hence, the Criminal Appeal No. 41 of 1995
deserves to be dismissed.
73 The learned Counsel Mr. Phanse has demonstrated before
the court that the accused are being falsely implicated only because
there was a motive. It is strongly submitted by Mr. Phanse that motive
by itself cannot be taken into consideration to hold that the offence
under section 302 of the Indian Penal Code is proved.
74 In fact, there is ocular evidence to that effect. This is a
case of direct evidence and there is no reason to disbelieve P.W. 1 and
P.W. 2 who have established the identity of the original accused Nos.
1 and 5. As far as the original accused No. 1 is concerned, there is
cogent and convincing evidence that even after Shankar Yadav had
fallen to the ground, the original accused No. 1 continued to assault
him. One of the fatal blows just below the arm pit was given by the
original accused No. 5.
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58 apeal66.31.41.95.sxw
75 The witnesses were acquainted with the accused and
therefore, it also cannot be said that this is a case of mistaken identity.
There is no cogent and convincing evidence to hold that the original
accused No.4 had in fact, assaulted the deceased. The evidence to the
extent that he had assaulted constable Dhadas, at that relevant time,
he was armed with stick is established. There is also cogent and
convincing evidence to the effect that two accused were holding
sticks and assaulting with stick. It is in these circumstances that the
original accused Nos. 2 and 3 deserve benefit of doubt, whereas the
original accused No. 4 deserves to be convicted under section 324 of
the Indian Penal Code and sentenced to the period already
undergone.
76 After taking into consideration the submissions made by
learned Senior Counsel Mr. Gupta, on behalf of accused No. 1,
learned advocate Mr. Phanse on behalf of accused No. 5, this Court is
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59 apeal66.31.41.95.sxw
of the opinion that the conviction against them deserves to be
confirmed.
77 Before parting with the Judgment, we record our
appreciation for the assistance rendered by learned Counsel Shri S.R.
Phanse, appointed as an amicus curiae to espouse the cause of
accused Nos. 4 and 5. The learned advocate would be paid
professional fees in accordance with law.
78 Hence, following order is passed :
ORDER
(i) The Criminal Appeal No. 66 of 1995 is partly allowed.
(ii) The Judgment and Order of conviction dated 12/1/1995
passed by the Additional Sessions Judge, Mumbai in Sessions Case
No. 634 of 1991 against the Appellant Nos. 1 and 2 i.e. accused Nos.
2 and 3 is quashed and set aside. They are acquitted of all the
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60 apeal66.31.41.95.sxw
charges levelled against them. Their bail bonds stand cancelled. Fine
amount, if paid, be refunded.
(iii) The Judgment and Order of conviction dated 12/1/1995
passed by the Additional Sessions Judge, Mumbai in Sessions Case
No. 634 of 1991 against the appellant No. 3 i.e. accused No. 5 is
hereby confirmed. The substantive sentence and sentence of fine are
maintained.
(iv) The Judgment and Order of conviction under section 302
of the Indian Penal Code dated 12/1/1995 passed by the Additional
Sessions Judge, Mumbai in Sessions Case No. 634 of 1991 against the
appellant in Cri. Appeal No. 31 of 1995 i.e. accused No. 4 is quashed
and set aside. Instead, the appellant/accused No. 4 is convicted
under section 324 of the Indian Penal Code and sentenced to the
period already undergone.
(v) The Criminal Appeal No. 31 of 1995 is partly allowed.
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61 apeal66.31.41.95.sxw
(vi) The Criminal Appeal No. 41 of 1995 is dismissed. The
Judgment and Order of conviction dated 12/1/1995 passed by the
Additional Sessions Judge, Mumbai in Sessions Case No. 634 of 1991
against the appellant in Cri. Appeal No. 41 of 1995 i.e. accused No. 1
is confirmed. The substantive sentence and sentence of fine are
maintained.
79 All the appeals are disposed of accordingly.
80. In view of the disposal of the Appeal No.41 of 1995,
nothing survives in Criminal Application Nos.959 of 2016 and 949 of
2016 and the same stand disposed of.
(SMT. SADHANA S. JADHAV,J) (R.M. SAVANT, J)
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