Virendrasingh S/O Rampukar ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 4286 Bom

                                                    1           apeal174.236.263.15.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                       CRIMINAL APPEAL NO.174/2015

      Virendrasingh s/o Rampurkar Khairwar,
      aged 35 years, Occ. Business, r/o Vaishali 
      Nagar, Near Priyadarshani Hostel, Nagpur
      (At present in Central Prison, Nagpur) .....APPELLANT
                        ...V E R S U S...

      The State of Maharashtra, through 
      MIDC Police Station, Nagpur.                            ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. S. P. Gadling, Advocate for appellant.
 Mr. S. S. Doifode, A.P.P. for respondent.
 -------------------------------------------------------------------------------------------
                                            AND
                       CRIMINAL APPEAL NO.236/2015

      Firoz Khan s/o Chandkhan Pathan, 
      aged 26 years, Occ. Nil, r/o Gopal Nagar,  
      Nagpur.
      (At present in Central Prison, Nagpur) .....APPELLANT
                        ...V E R S U S...

      The State of Maharashtra, through 
      MIDC Police Station, Nagpur.                            ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. R. M. Daga, Advocate for appellant.
 Mr. S. S. Doifode, A.P.P. for respondent.
 -------------------------------------------------------------------------------------------
                                            AND
                       CRIMINAL APPEAL NO.263/2015

      Rajesh s/o Shriram Gawande,
      aged 35 years, R/o Surendra Nagar, 
      Nagpur
      (At present in Central Prison, Nagpur)                 .....APPELLANT
                        ...V E R S U S...

      The State of Maharashtra, through 
      MIDC Police Station, Nagpur.                           ...RESPONDENT




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                                                      2          apeal174.236.263.15.odt

  -------------------------------------------------------------------------------------------
  Mr. Mir Nagman Ali,  Advocate for appellant.
  Mr. S. S. Doifode, A.P.P. for respondent.
  -------------------------------------------------------------------------------------------
  Coram -      B. P. Dharmadhikari & V. M. Deshpande, JJ.

Date of Reserving the Judgment : 05.05.2017 Date of Pronouncing the Judgment : 11.07.2017

ORAL JUDGMENT (Per : V. M. Deshpande, J.)

1. These three appeals are decided by this common

judgment since they arise out of the judgment and order of

conviction passed by the learned Additional Sessions Judge-4,

Nagpur dated 30.03.2015 in Sessions Trial No.196/2013.

2. These three appellants are convicted for the offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code and Court below directed that they should suffer

imprisonment for life and to pay a fine of Rs.2,000/- by each of

them and in default of payment of fine to suffer simple

imprisonment for six months. They are also convicted for the

offence punishable under Section 307 read with Section 34 of the

IPC and on that count they are sentenced to suffer rigorous

imprisonment for five years and to pay a fine of Rs.1,000/- by

each of them, in default of payment of fine to suffer simple

imprisonment for one month.

3 apeal174.236.263.15.odt

3. Criminal Appeal No.174/2015 is filed by appellant-

Virendrasingh Khairwar, the original accused no.1, Criminal

Appeal No. 236/2015 is filed by Firoz Khan, original accused no.2

and Criminal Appeal No.263/2015 is filed by Rajesh Gawande,

original accused no.3. In this judgment, these appellants will be

referred to by their original positions.

4. Satish Jadhav (PW13) was working as Police Sub

Inspector at Police Station, M.I.D.C. Nagpur. On 16.01.2013 from

09.30 p.m. to 09.00 a.m. of 17.01.2013 he was on duty as Night

Officer of the said Police Station. While he was on patrolling duty

at about 1.30 a.m., he received a message by which it was

informed that one murder is committed at Bobade Sabhagruha,

Wanadongri, Nagpur. On getting such information, he along with

police staff reached to the spot. He noticed splash of blood on the

spot. However, nobody was present at the spot. He made inquiry

and from the said inquiry he came to know that the injured is

taken to Lata Mangeshkar Hospital, Nagpur. He therefore

immediately went to Lata Mangeshkar Hospital. There the doctors

informed that one Ajay Kadu is brought dead and Pralhad @ Pintu

Patil (PW8) is injured and he is receiving treatment. He recorded

statement of Pralhad @ Pintu Patil (PW8) which is at Exh.-68. On

4 apeal174.236.263.15.odt

the basis of the said report, he registered an offence against the

accused persons vide Crime No.16/2013 for an offence punishable

under Section 302, 307, 326, 504 read with Section 34 of the IPC

and under Section 4 and 25 of the Arms Act. The printed FIR is at

Exh.-69. He also conducted inquest over the dead body of Ajay

vide inquest panchanama Exh.-45 in presence of panchas.

Thereafter, he visited the spot of the occurrence and prepared the

spot panchanama in presence of panchas, Exh.-34. From the spot

of occurrence he seized simple as well as blood mixed soil, blood

stained cement flooring, blood stained sand, blood stained metal.

He sealed those articles on the spot itself. Thereafter, he handed

over the investigation to PI Nagesh Gore (PW12).

5. The police got the knowledge while recording the

statement Exh.-68 that the assailants ran away from the spot in

white Indigo Manza car bearing registration No.MH-31/BN-3120.

Therefore, the said information was also transmitted to various

police stations.

6. Vijay Kuhikar (PW15) on 17.01.2013 was working as

Police Inspector at Police Station, Wardha. On the said day, he

was on night patrolling duty. He received wireless message that

5 apeal174.236.263.15.odt

accused persons are fleeing in one white Indigo Manza car bearing

registration No.MH-31/BN-3120. That time, Vijay Kuhikar was at

Gopuri chowk, Wardha. He noticed the said vehicle proceeding

towards Deoli from Nagpur. He chased the said vehicle and

informed about the said vehicle to Deoli Mobile, Sewagaram

Mobile and Police Control Room, Wardha. The said vehicle was

intercepted near village Sonegaon Abadi. On inquiry, the persons

sitting disclosed their identity as Pathan, Gawande and Khairwar.

They were brought to Police Station, Wardha and the said

information was also given to the Control Room, Wardha. Vijay

Kuhikar took the entry in the station diary at Exh.-127. Thereafter

he called two panchas and prepared the seizure panchanama of

the articles seized from the said vehicle, Exh.-38. He handed over

the accused persons to API Jaiswal from MIDC Police Station,

Nagpur at 12.00 in the noon at Wardha along with seized

muddemal and sent them to Nagpur.

7. Nagesh Gore (PW12) was Police Inspector of Police

Station, MIDC, Nagpur. On 17.01.2013, night officer PSI Jadhav

informed him about the occurrence of murder in front of Bobade

Sabhagruha, Wanadongri. He also informed PI Gore that one

dead and one injured are taken to Lata Mangeshkar Hospital.

6 apeal174.236.263.15.odt

Therefore, he went there. He noticed that the treatment was also

going on the injured person.

He took investigation of crime No.16/2013 to himself.

API Jaiswal brought the accused from Wardha to Police Station,

MIDC, Nagpur. API Jaiswal also produced the documents of Police

Station, Wardha, weapons and Indigo Manza vehicle used in the

crime. He seized those articles in presence of panchas under

seizure memo Exh.100. The arrest panchanama of accused

persons are at Exh.-101 to 103. he also recorded the statement of

witnesses.

On 18.01.2003, he seized the blood stained clothes of

Pralhad in presence of panchas under the seizure memo Exh.-73

so also under the seizure memo Exh.-109 seized the clothes of

deceased Ajay.

While in custody, on 20.01.2013, accused no.1

Virendra Kahairwar gave his memorandum statement thereby he

agreed to show the place where the knife was hidden. His

memorandum statement is at Exh.-71. Accordingly, police party

along with accused no.1-Virendra reached to the spot where he

produced knife from the bushes. It was seized under seizure

panchanama Exh.-72.

7 apeal174.236.263.15.odt

He also seized blood sample and hair sample of the

complainant-Pralhad under seizure memo Exh.-118 so also the

officials of the Forensic Laboratory seized the blood stained vehicle

and the said were seized under seizure panchanama Exh.-74. All

the seized articles were sent to the Forensic Laboratory for

chemical analysis. Further investigation was carried by Police

Inspector Mahalle (PW14).

On 25.02.2013, Mahalle (PW14) received the case

papers of Crime No.16/2013 for investigation. During

investigation, he gave requisition to Medical Officer for query

about the injury sustained by the first informant-injured vide Exh.-

55. He also seized marriage invitation card of Shakuntlal Yadav

under seizure panchanama Exh.-44. He also collected Wireless

Log Book by issuing letters to Police Control Room, Nagpur and

Superintendent of Police Wardha, those are at Exhs.121 and 122.

He also gave requisition to Police Station, Hingna for preparation

of map Exh.-125 and after investigation, he filed charge-sheet in

the court of law.

8. The learned Additional Sessions Judge, Nagpur framed

the charge against all the accused persons for the offence

punishable under Section 302 read with Section 34 of the IPC for

8 apeal174.236.263.15.odt

committing murder of Ajay Kadu so also for the offence punishable

under Section 307 read with Section 34 of the IPC for making

murderous assault on the person of the first informant Pralhad

Patil (PW8). Also, charge for an offence punishable under sections

4 and 25 of the Arms Act was also framed.

In order to bring home the guilt of the accused persons,

the prosecution has examined in all 15 witnesses and also relied

on various documents proved during the course of trial. After

appreciating the prosecution case, the learned Judge of the Court

below was of the view that the prosecution has successfully proved

its case against all the appellants and therefore passed the order of

conviction and sentence as observed in the opening paragraph of

the judgment.

9. We have heard Mr. Gadling, learned counsel for

accused no.1, Mr. R. M. Daga, learned counsel for accused no.2,

Mr. Mir Nagman Ali, learned counsel for accused no.3 and Mr. S.

S. Doifode, learned A.P.P. for the respondent-State.

According to the learned counsel for the appellants,

except the evidence of Pralhad (PW8), all the independent

witnesses had turned hostile and thus the only version that is

available on record is an interested version. Therefore, according

9 apeal174.236.263.15.odt

to them, it is unsafe to record conviction and to uphold the same

on the basis of the said interested version.

All the learned counsel also pointed out certain

irregularities committed by the investigating officer during the

course of investigation. They submitted that the benefit of

irregularities has to be extended in favour of the accused persons.

Further, it is their submission that the role attributed in

the FIR Exh.-68 against the accused persons and the role

attributed in the substantive evidence is materially different.

According to them, that shows that the first informant is not a

trustworthy witness and therefore they be acquitted. The learned

counsel Mr. Gadling placed reliance on the following judgments

and submitted that Virendrasingh cannot be convicted with the aid

of Section 34 of the IPC since the prosecution has failed to prove

that he shared common intention with other accused persons.

1) Ram Kumar Pande .vs. The State of Madhya Pradesh;

AIR 1975 SC 1026

2) Ramashish Yadav & Ors. .vs. State of Bihar;

(1999) 8 SCC 555.

 3)     Badruddin .vs. State of Uttar Pradesh;
        AIR 1998 SC 3243.
 4)   Mithu Singh .vs. State of Punjab;
        AIR 2001 SC 1929.





                                             10         apeal174.236.263.15.odt

 5)     Bunnilal Chaudhary .vs. State of Bihar;
        2006 ALL MR (Cri) 2640 (SC)
 6)  Nanak Ram .vs. State of Rajasthan;
        2014 (1) Crimes 244 (SC)
 7)     Swapnali @ Sapana Sharad Mahadik .vs. The State of 
        Maharashtra; 2016 ALL MR (Cri) 1824
 8)     Kiran Ashok Jadhav .vs. The State of Maharashtra;

        2014 ALL MR (Cri) 3850.

Mr. Mir Nagman Ali, learned counsel for the accused

no.3-Rajesh Gawande relied on the judgment in the case of

Lalchand Cheddilal Yadav ..vs.. State of Maharashtra; 2000

ALL MR (Cri) 1485 to submit that the possibility of spreading the

blood on the seized articles at the hands of of the investigating

officer is not clearly ruled out.

Mr. Daga, the learned counsel for the accused-Firoz

Khan submitted that since the name of accused is mentioned only

as "Firoz" in the FIR, though it was obligatory on the part of the

investigating officer to hold and conduct test identification parade,

the same is not done and therefore in his submission, the

prosecution has failed to prove the presence of Firoz Khan on the

spot itself. He also submitted that the prosecution has not given

any explanation as to how he sent six weapons to the doctor under

Exh.-66 when only 3 accused are tried for the offence. He

11 apeal174.236.263.15.odt

submitted that Exh.-53 shows that the victim was trapped when

two groups fought in the marriage. He submitted that the

investigation is not properly conducted and therefore the benefit

should be extended in favour of the appellant. The learned counsel

also invited our attention that the Court below has used the

chemical analyzer's report against the accused persons for

convicting them. However, when the accused persons were

examined by the court below under Section 313 of Cr. P. C. the

said incriminating material was not pointed out to them and no

explanation was sought from the accused persons. Therefore, they

submitted that the said piece of evidence is require to be kept

aside while deciding the present appeal.

Mr. Doifode, the learned A.P.P. vehemently submitted

that the learned Judge of the Court below has correctly evaluated

the prosecution evidence. He submitted that merely because the

other witnesses turned hostile but when Pralhad (PW8) vividly

described the attack on the deceased Ajay Kadu, merely because

he is an interested witness, his evidence cannot be discarded since

there is due corroboration to his version. He therefore submitted

that the appeal is liable to be dismissed.

12 apeal174.236.263.15.odt

10. The submission of the learned counsel for the appellant

on the point of statement under Section 313 of Cr.P.C. was made

after hearing them extensively. We have also noticed that the

notes of the chemical analyzers report were not brought to the

notice of the accused persons at the time of their examination

under Section 313 Cr. P. C. though the said piece of evidence was

pressed into service by the learned Judge of the Court below while

recording their conviction.

11. During the discussion, we have noticed that the

incriminating material was not brought to the notice of the

accused persons. We therefore passed the appropriate orders

calling upon the accused persons before us for recording their

further examination under Section 313 Cr.P.C. and accordingly

their further statements were recorded on 04.05.2017. Again an

opportunity of hearing was given to all the learned counsel and

accordingly after their further arguments, on 05.05.2017 the case

was closed for judgment.

12. Dr. Bellari Zaki (PW5), who was on duty in casualty

department of Lata Mangeshkar Hospital, Nagpur on 17.01.2013,

examined both; the deceased Ajay Kadu and Pralhad (PW8).

13 apeal174.236.263.15.odt

When Ajay was brought to him in the hospital, he was in dead

condition. He noticed following injuries on the person of the

deceased:

(1) Sharp cut of 5X2 cm over forehead. (2) Clean sharp cut wound of size 2 X 0.5 cm over right upper eyelid.

(3) Clear sharp cut wound of size 3 X 0.5 cm. over left cheek.

(4) Sharp cut wound of size 10X2 cm. running across the face which was from medial canthus of right eye extending till left zygomatic eminus. (5) Stab wound of 4 X 3 cm over right side of thorax just above costal margin.

He also examined Pralhad (PW8) and he noticed the

following injuries:

(1) Sharp cut of size 8 X 3 cm over left fronto parital region.

(2) Stab wound of size 5 X 3 cm over right arm which was muscle deep, defused ooze of blood was present.

(3) Stab wound of size 4 X 3 cm over back of left side of chest continuous fresh bleeding was present. (4) Stab injury over right iliac fossa of size 2 X 2 cm.

His evidence shows that the cut wounds of the injured

were sutured by surgeon and he was admitted as an injured

patient. He proved the injury certificate of injured Exh.-54. The

14 apeal174.236.263.15.odt

injuries noticed on the person of Pralhad (PW8) are grievous one

and they were on the vital parts.

13. The post mortem on the body of deceased Ajay was

done by Dr. Hrishikesh Pathak (PW7). He proved the post mortem

report Exh.-65. As per the post mortem report, he noticed

following injuries:

"1. Incised wound present over forehead of size 6 cm X 0.5 cm. X bone deep, vertically oblique, on either side of midline, with upper and placed 9 cm above medical 1/3rd part of right eyebrow and lever and placed 4 cm above medial 1/3rd part of left eyebrow.

2. Incised wound present just below lateral half of right eyebrow at size 3.5 cm X 0.2 cm X muscle deep horizontal.

3. Incised wound present over left forehead of size 2.5 cm X 0.2 cm X subcutaneous tissue deep, vertical with lower and merging with middle 1/3rd part of left eyebrow.

4. Incised wound present over left zygomatic region and adjacent area of cheek of size 3.5 cm X 0.2 cm X subcutaneous tissue deep vertically oblique.

5. Incised wound present over left side of face, involving left side of nose and left cheek of size 10 cm X 0.5 cm X muscle deep with tailing of 3 cm towards angle of left jaw.

15 apeal174.236.263.15.odt

6. Stab wound present over right hypochondrium in anterior axillary line of size 2.5 cm X 0.5 cm X cavity deep, vertically oblique, margins sharp both ends sharp, directed medially, downward and straight.

7. Stab wound present over right buttock over outer and upper quadrant of size 3 cm X 0.3 cm. X muscle deep, horizontal margins clean cut, both ends sharp, directed forward, slightly downward and straight.

8. Abrasion present over posterior aspect of left elbow of size 0.5 cm X 0.5 cm red.

Age of injures : Fresh.

Probable Weapon:

1. Incised wounds possible by sharp cutting weapon

2. Stab wounds possible by pointed sharp cutting weapon"

The cause of death as per the autopsy surgeon was

"Hemorrhage and shock due to stab injury to abdomen."

14. From the evidence of Dr. Zaki (PW5), Dr. Hrishikesh

Pathak (PW7) and from the post mortem report Exh.-65, it is clear

that the deceased Ajay Kadu met with homicidal death.

So also from the evidence of Dr. Zaki (PW5) and injury

certificate Exh.-54, it is established that Pralhad @ Pintu Patil

suffered grievous injuries.

16 apeal174.236.263.15.odt

As per the prosecution, the accused persons are

responsible for death of Ajay and for injuries on the person of

Pralhad.

15. Pralhad @ Pintu (PW8) set the criminal law into

motion. On the basis of the said report, a crime was registered as

Crime No. 16/2013 with Police Station, MIDC Nagpur. Printed

FIR is at Exh.-69.

The report discloses that there was a marriage of sister

of his friend Manoj Yadav. The said marriage was to be performed

at Babde Sabhagruha, Wanadongri on 16.01.2013. This particular

statement in the FIR and the evidence in that behalf by Pralhad

(PW8) is duly corroborated by Exh.-44, the seizure memo under

which the Invitation Card is seized by the Investigating Officer

from Manoj Narayan Yadav showing that there was a marriage of

his sister on 16.01.2003.

As per the FIR, the first informant who is the friend of

the deceased Ajay Kadu attended the same. As per the evidence,

Pralhad (PW8), he, the deceased Ajay Kadu and the accused

persons also attended the marriage ceremony. His evidence

further shows that the deceased asked the accused Virendra as to

whether he will provide liquor and the said request was accepted

17 apeal174.236.263.15.odt

by the accused Virendra and thereafter he called his vehicle Indica

Manza and in the said, 7-8 persons including the accused persons

went to the beer-bar. Pradip Mahant (PW2) though, he was

declared as hostile, he has accepted the existence of Beer-bar near

Babde Sabhagruha.

16. The evidence of Pralhad (PW8) further shows that after

consuming the liquor a verbal duel took place in between the

deceased and the accused Virenda. That time, accused Firoz and

Rajesh also started abusing him. The said verbal duel was pacified

by Pralhad and others.

It is further the evidence of Pralhad that at about 12.30

p.m. in the night, they went to marriage hall. In the bar some

amount of the bill was paid by accused Virendra while some was

paid by complainant Pralhad. It is further the evidence of Pralhad

that he and the deceased Ajay went inside for taking their meals.

In between 1.30 to 1.50 p.m. after taking meals when others came

outside the hall, that time all three accused persons were standing

outside the hall and they picked up quarrel with the deceased and

when Pralhad tried to intervene in the said duel, all the accused

started abusing him by saying that, "lkys rq fcp es er cksy" As per

the evidence, thereafter accused-Firoz taken out a sharp Gupti and

18 apeal174.236.263.15.odt

accused Virendra taken out a knife. The accused Firoz gave Gupti

blow on the abdomen of Ajay, the deceased and accused Virendra

gave blow of knife on the forehead and nose of the deceased Ajay,

resulting into the falling of Ajay on the ground and when Pralhad

tried to intervene, the accused Rajesh gave a forcible push to him.

Thereafter when Pralhad stood, the accused-Virendra gave blow of

knife on the left side head, right arm, abdomen and back. Pralhad

started shouting for help and hearing that shout his other friends

Pradip Mahant (PW2) and Vijay Dahake (PW6) who were taking

meals, came for his help. After their arrival, all the accused

persons ran away in their vehicle.

17. According to the submission of the learned counsel for

the appellants, the evidence of this prosecution witness Pralhad is

not reliable in view of material discrepancy in respect of the

assault as mentioned in the FIR Exh.-68 in and his substantive

evidence. They pointed out that in the FIR it is stated that the

accused Rajesh and accused Firoz assaulted by sharp weapon on

the deceased and Virendra assaulted on the first informant.

Merely because there are some discrepancy in the FIR

and in the substantive evidence, we are not accepting the

submission of the learned counsel for the appellant that for that

19 apeal174.236.263.15.odt

reason the testimony of Pralhad should be discarded. It is not that

the names of the present appellants were not finding place in

Exh.-68.

It is the further submission of the counsel for the

accused persons that the other prosecution witnesses who were

examined by the prosecution and who are the eye witnesses have

turned hostile and therefore the conviction cannot be based on the

sole testimony of Pralhad (PW8) who is an interested one.

18. It is a trite law that the evidence of witnesses cannot be

discarded merely on the ground that he is a related witness or sole

witness, if otherwise the same is found to be believable. It is the

duty of the court to be more careful in the matter of scrutiny of

evidence of such witnesses and if on such scrutiny it is noticed that

the evidence of sole witness is worth credence, the same should

not be discarded merely on the ground that he is an interested

witness.

As observed above in the preceding paras of the

judgment, Dr. Zaki noticed serious and grievous injuries on the

person of Pralhad (PW8). The injuries on the person of Pralhad

lend credence to his testimony that he was attacked by accused

persons when he tried to save his friend, the deceased Ajay.

20 apeal174.236.263.15.odt

19. Learned counsel for the appellants submitted that

Pralhad (PW8) is a tutored witness. To fortify their contentions,

our attention was invited to paragraph 3 of his deposition in

examination in chief, which reads thus:

"3. Thereafter Pradeep Mahant and Vijay Dahake called the vehicle and shifted Ajay Kadu to Lata Mangeshkar Hospital and I also followed them on my motorcycle. There doctor gave me treatment. On my inquiry, Medical officer told me that Ajay Kadu was dead."

They submitted that though this prosecution witness is

giving the exact registration number of Manza car in the report

Exh.-68 and in his evidence, he does not know the registration

number of his motor bike by which he went to the hospital after

incident which is brought on record in his cross-examination.

20. Though, at the first blush, this submission appears to be

very attractive, after careful perusal of the entire record and the

evidence of this prosecution witness in vernacular, we have

noticed that paragraph 3 in his English version evidence is not

correctly recorded. In his Marathi evidence, Pralhad (PW8) has

stated as under:

21 apeal174.236.263.15.odt

"R;k uraj izfni eagr o fot; Mgkds ;kauh xkMh cksykoqu vt; dMqyk yrk eaxs'kdj gkWLihVy ;sFks usys o R;kapk ekxksekxp eh eksVkjlk;dyus gkWLihVye/;s xsyks "

(Emphasis supplied)

Thus from Marathi version of the evidence it is clear

that these prosecution witnesses did not reach to the hospital on

his own motorcycle. Therefore, if he is not remembering the

number of the motorcycle that by itself is not sufficient to cast

doubt on his testimony. Further, in the FIR itself, the first

informant disclosed the make of the vehicle and its registration

number. He has also stated in the FIR that registration number

was gathered by him from Pradip Mahant (PW2) at the spot itself.

Though Pradip Mahant (PW2) has turned hostile, he

has established the presence of Pralhad (PW8) along with the

deceased Ajay for marriage and to that extent, he is supporting the

prosecution. Thus even this witness establishes the presence of

Pralhad with the deceased Ajay.

21. According to the learned counsel for the appellants,

they are falsely implicated in this crime by the MIDC Police Station

authorities. They submitted that after discharge from the hospital

on 19.01.2013, Pralhad (PW8) never went to the police station.

They also invited our attention to the deposition of Satish Jadhav

22 apeal174.236.263.15.odt

(PW13) to show that the FIR register, station diary and Malkhana

register are important registers in the police station and those

registers cannot be moved outside the police station. They invited

our attention to the printed FIR Exh.-69 to point out that even on

the printed FIR the signature of Pralhad (PW8) is appearing. They

therefore submitted that they are falsely implicated in the crime.

Merely because signature of Pralhad is appearing on

the printed FIR, that by itself is not sufficient to jump to the

conclusion that the accused persons are innocent and they are

falsely implicated in the crime. At the most, it appears that it is an

irregularity committed by police officer but for such irregularities

committed during the course of investigation by the Investigating

Officer are not sufficient to deny justice with the victim.

Therefore, the submission in that behalf made by the learned

counsel for the accused persons are rejected.

22. It is also the submission of the learned counsel for the

appellant that the articles were seized on 17.01.2013 and the said

were deposited on 21.02.2013. They therefore submitted that the

CA reports cannot be pressed into service for upholding their

conviction. They invited our attention to cross-examination of

Satish (PW13). The relevant portion of which, the learned counsel

23 apeal174.236.263.15.odt

for the accused persons relied reads thus:

"As per the spot panchanama (Exh.-34), the articles lying on the spot were seized on 17.01.2013 and the same were deposited in Malkhana on 21.02.2013."

Thus, the articles were seized on 17.02.2013 which

were seized from the spot and those later on were deposited in

Malkhana on 21.02.2013. Exh.-34 shows that following articles

were seized from the spot.

(i) Blood mixed cement flooring, (ii) simple cement flooring, (iii) Blood mixed boulders small and big, (iv) Blood collected on the cotton swab, (v) another sample of blood collected from cotton swab.

Exh.-34 shows that all aforesaid articles were sealed on

the spot itself. Exh.-34 is duly proved by Mangesh Sharma (PW1),

the panch witness.

23. Satish Gaikwad (PW3) has proved Exh.-38,

panchanama in respect of personal search and the vehicle. The

evidence of Vijay Kuhikar (PW15) shows that after interception of

car at Sonegaon Abadi village the said car and the persons

travelling in the said car was brought to the Police Station,

Wardha and in presence of Satish, they and the vehicle was

searched. Exh.-38 shows that the accused persons disclosed their

24 apeal174.236.263.15.odt

identity. Panchanama also noticed the blood stains not only on

the clothes of the accused persons but also in the vehicle. A Gupti

was also seized from the vehicle itself. The said panchanama was

drawn on 17.01.2013 at 7 O'clock and it was finished at 9 O'clock.

According to the learned counsel, another panchanama is drawn

by the Investigating Officer, Nagesh Gore at Exh.-100. They also

invited our attention to Exh.-34 and Exh.-100 and submitted that

the same is identical in all respect.

24. Exh.-34 was drawn at Wardha. Thereafter API Jaiswal

brought the accused persons along with the vehicle at M.I.D.C.

Police Station, Nagpur. Handing over of the accused and the

seized muddemal articles to API Jaiswal is duly proved and

corroborated by Vijay Kuhikar (PW15). Exh.-100 in the last

paragraph reads thus:

"ojhy iapukek dkjokbZ iksyhl LVs'ku o/kkZ ¼'kgj½ ;sFks iapukE;kizek.ks lkfgR; rkC;kr ?ksmu lgk-iks-fufj{kd ds- vkj- tSLoky iks-LVs- ,e- vk;-Mh-lh- ;kauh iks-LVs- yk gtj dsY;kus ueqn iapkle{k tIr dj.;kr vkys-

tIrh iapukek dkjokbZ fnukad [email protected]@2013 ps 16-10 ok- lq: d:u 17-40 ok- iw.kZ dj.;kr vkyh "

                                                 25         apeal174.236.263.15.odt

                Thus   Exh.-100   is   not   fresh   seizure   panchanama.     By

virtue of Exh.-100, it is only stated that all the articles and other

things which are mentioned in Exh.-34 are seized at MIDC Police

Station, Nagpur. Vide Exh.-112 on 23.03.2013 all the seized

articles were sent to the CA. In the cross-examination of the

Investigating Officer Nagesh Gore, it is brought on record that on

the day of seizure, the muddemal was deposited in Malkhana.

Thus, the articles which were seized under Exh.-100 were

deposited in Malkahna immediately, which rules out the possibility

of tampering as suggested by the learned counsel for the accused.

Since, all the articles were seized and sealed on the spot itself, as it

can be seen from Exh.-100, the reliance placed by the learned

counsel on Lalchand Cheddilal Yadav vs. State of Maharashtra;

2000 ALL MR Cri. 1485, is completely misplaced.

25. As per Exh.-112, a requisition to CA, the Investigating

Officer has sent all the articles for chemical analysis. The CA

reports are also placed on record.

As per the Exh.-32, blood group of deceased Ajay is

determined as "A". Blood group of injured Pralhad is determined

as "B". Blood group of accused Virendra and Firoz could not be

determined however blood group of Rajesh is determined as "A".

26 apeal174.236.263.15.odt

The clothes of accused Virendra namely half shirt, full

pant and baniyan, were found to be stained with blood having

group "A".

Clothes of accused Firoz were also found stained with

blood having blood group "A". Even his jeans pant is also having

blood of both the blood groups "A" and "B". Further on the

footwear of this accused, human blood was noticed.

Insofar as accused Rajesh is concerned, the blood was

noticed on his full pant having groups "A" and "B".

When this CA report was brought to their notice during

their examination under Section 313 of the Cr. P. C. before this

Court, they failed to give any explanation about the existence of

blood having blood group "A" and "B" on their clothes as per the

CA report Exh.-27.

The CA report Exh.-27 further shows that the articles

which were collected from the spot of incident i.e. near Babde

Sabhagruha, they were stained with blood of group "A". The

weapon Gupti was also found stained with blood of group "A" so

also knife which was recovered at the behest of accused Firoz on

his memorandum statement recorded under Section 27 of the

Evidence Act as per Exh.-77 and recovery Panchanama Exh.-72

was also having blood group "A".

27 apeal174.236.263.15.odt

26. Before sending to the CA, the weapons were also sent

to Dr.Hrishikesh Pathak, (PW7) for query under requisition Exh.-

65. His report is at Exh.-66. As per the said report, the weapon

Gupti is a dangerous weapon. The blood stains were noticed at

the time of its examination and the injuries as mentioned in

column no. 17 at post mortem report Exh.-65 are possible by the

said weapon. Similarly, the weapon knife, according to the

autopsy surgeon was a dangerous weapon and it was stained with

blood, the injuries mentioned in column no.17 are possible by the

said weapon.

26. On a minute scrutiny of evidence of Pralhad Patil

(PW8), we are of the view that his evidence is trustworthy and it

inspires confidence. It is not the case of the accused person that

there was any reason for this prosecution witness to implicate

them falsely. Merely because Pralhad was friendly with the

deceased, in our view, does not reduce his position to an

interested witness especially when he also suffered grievous

injuries.

True it is that the other two eye witnesses Pradip

Mahant (PW2) and Vijay Dahake (PW6) have turned hostile. The

evidence of Pradip clearly shows that the injured Pralhad was in

28 apeal174.236.263.15.odt

the company of deceased Ajay. He also admitted before declaring

him hostile that Pralhad was taken to the hospital on motorcycle.

By catena of decisions, the Hon'ble Supreme Court has

ruled the legal position in respect of the testimony of solitary eye

witness. The Apex Court has ruled that in order to base conviction

upon the testimony of such solitary eye witness, it must of a

nature which inspires confidence of the Court. While looking into

such evidence the Apex Court always advocates the rule of caution

and such a corroboration from the other evidence and even in

absence of corroboration, if the testimony of single eye witness

inspires confidence then the conviction can be based merely

upon it.

28. No doubt true in the substantive evidence Pralhad

(PW8) does not attribute that the accused Rajesh has dealt any

knife or sword blow. However, his evidence clearly shows that the

accused Rajesh forcibly stopped Pralhad when he tried to save the

deceased Ajay. He was pushed down by the accused Rajesh.

Further, the fact that Rajesh was present on the spot, is also

proved by the scientific evidence. The murderous assault on two

persons was made in his presence by his two friends still he did

not try to stop them this factor shows that he also shared the

29 apeal174.236.263.15.odt

common intention with his friends, the remaining two accused.

Further, from the evidence of Pralhad (PW8) it is clear that right

from the beginning, accused Rajesh was in the company of the

remaining accused persons. He was also present in the beer bar

where initial altercations have taken place. Further, the clinching

evidence of Pralhad (PW8) shows that the accused Rajesh was

present with the remaining accused in front of Babde Sabhagruha

when Pralhad and deceased stepped outside Babde Sabhagruha

after finishing their meals. In our view, the above facts show that

Rajesh shared common intention with Virendra and Firoz and

therefore he was rightly convicted by the Court below by taking

the aid of Section 34 of the IPC.

On reappreciation of the entire prosecution case, we

are of the firm view that for homicidal death of Ajay Kadu and for

murderous assault on Pralhad the accused persons are responsible.

They are responsible for death of Ajay and causing grievous

injuries to Pralhad. Consequently, we see no merit in the present

appeals. The same are therefore dismissed.

(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)

kahale