Bombay High Court
Jafar Khijar Sheikh vs The State Of Maharashtra on 8 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
apeal.592.12 final2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 592 OF 2012
Jafar Khijar Sheikh,
Age - 27, Occu.- Nil,
R/o. Gaothan Lonawala,
Opp. Priyadarshini Sankul,
Tal - Maval, Dist. - Pune.
(At present in Yerawada Jail) } Appellant
Versus
The State of Maharashtra
(Through Lonavala Police Station) } Respondent
WITH
CRIMINAL APPLICATION NO.1131 OF 2019
IN
CRIMINAL APPEAL NO. 728 OF 2012
Sumit Appa @ Prakash Gawali } Appellant
Age-27, Occu-Nil, }
R/o, Nira Niwas, Gaothan Lonavala }
Opp. Priyadarshini Sankul, }
Tal.Maval, District-Pune }
(At present in Yerawada Jail) }
Versus
The State of Maharashtra } Respondent
-------------------
Mr. Niteen Pradhan a/w. Mr. Chaitanya Pendse a/w. Ms. S.D. Khot
a/w. Ms. Asavari Khandkar i.by Mr. Shailesh Chavan for the appellant
in Appeal/592/2012.
Mr. Niteen Pradhan a/w. Mr. Chaitanya Pendse a/w. Mr. S.D. Khot a/w.
Mr. Shailesh Chavan I/by Ms. Juanita Menezes for the appellant in
Apeal/728/2012.
Ms. P.P. Shinde-APP for the State.
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CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : MARCH 17, 2021.
PRONOUNCED ON : JUNE 8, 2021.
JUDGMENT :- (PER SADHANA S. JADHAV, J.)
1. The appellants herein take exception to the judgment and
order passed by District Judge- 10 and Additional Sessions Judge, Pune
in Sessions Case No. 1085 of 2009 dated 27 th of April 2012, thereby
convicting the appellants for the offence punishable under section 302
and 307 read with 34 of Indian Penal Code and sentencing them to
suffer rigorous imprisonment for life and to pay fine of Rs.5000 (Rs.
Five Thousand only) each in default, to suffer rigorous imprisonment
for six months as well as for the offence punishable under section 201
read with 34 of Indian Penal Code and sentencing them to suffer
rigorous imprisonment for 3 years and to pay fine of Rs.3000 (Rs.
Three Thousand only) each in default, to suffer rigorous imprisonment
for three years.
2. Such of the facts necessary for the decision of this appeal,
are as follows:-
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a. One Raju Choudhari was officiating as a
President of Municipal Council, Lonavala since the year
2008. On 26th May 2009 at about 1.30 p.m. when Mr.
Choudhari was in the office of Municipal Council Lonavala
along with PW.6 Umesh Mudliyar two persons barged into
his chamber. They were armed with deadly weapons and
had mounted assault upon Raju Chaudhari. They had also
assaulted Umesh Mudliyar and thereafter, they had fled
from the office. Mr. Mudliyar was taken to Parmar
Hospital. The statement of the injured was recorded in
Parmar Hospital. The said statement is at 'Exhibit-92'. The
injured PW.6 had stated that at about 2.30 p.m. the
accused Sumit Prakash Gavali along with one unknown
person had barged into the chamber of the Mayor,
mounted assaulted with a dagger, slit his neck and had
also assaulted PW.6 on his head and shoulder and he had
just learnt that Raju Chaudhari had succumbed to the said
injury. On the basis of station diary entry (Entry No. 23 of
2009, at about 2.45 p.m.) Crime No. 72 of 2009, was
registered against Sumit Gavali and one unknown person
for the offence punishable under section 302, 307 read
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with 34 of Indian Penal Code. The investigation was set
into motion.
b. On 24th August 2009, Charge-sheet was filed.
The case was registered as Sessions Case No. 1085 of 2009.
The prosecution examined 26 witnesses to bring home the
guilt of the accused. The accused has examined two
defence witnesses. There were 7 accused who faced the
trial, however, accused no. 4 was discharged by the High
Court, whereas accused no. 3, 5, 6 and 7 are acquitted. In
the present case, PW.6 happens to be an injured eyewitness
and the first informant in the present case.
In fact, it was Lonawala Municipal Council and not Lonawala
Municipal Corporation. Further, inadvertently, the post of the deceased
has been spelt by the witness and the presiding officers as Mayor and
the same needs to be corrected as President.
3. The case needs to be appreciated under four categories :-
Eye witness account. PW.6-Umesh Mudliyar, PW.14-Dashrath
Chorage.
Motive PW.6-Umesh Mudliyar, PW. 18-Shadan
Choudhari
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Circumstances PW.15-Prakash Hajare, PW.21-Rajesh
Chavhan, PW.14-Dashrath Chorage and
PW.5-Ashok Panchmukh.
Investigation PW.13-Dr. Rajendra Parmar, PW.19-Dr.
Mamata Parade and PW.20-Dr. Balaji
Gawade.
4. PW.6.- Umesh Mudliyar has deposed before the Court that
he happens to be the member of Education Board of Lonavala
Municipal Council and was elected from Graduate's Category. He and
the deceased belonged to the same party. That, the accused Sumit
Gavali happens to be the brother of Corporator, Amit Gavali. Amit
Gavali and Sumit Gavali are the sons of Prakash Gavali who was
running Ekvira Chinese Restaurant. That, upon directions of the High
Court a demolition drive was undertaken for removing encroachments
and in the said drive Ekvira Chinese, Ekvira Rasvanti Griha, Ekvira
Malvani and Ekvira Café owned by Gavali family were demolished. The
directions of the High Court were executed by the President. There was
political rivalry in between Gavali family and the deceased Raju
Choudhari. On 26th May 2009, he was in his own chamber, he had a
meeting with his colleagues namely Mr. Kadam, Mr. Rakshe and Mr.
Joshi. Thereafter, they all had proceeded to the chamber of the
President to discuss administrative issues. After the discussion Mr.
Rakshe, Mr. Joshi and Mr. Kadam had left the chamber and when he
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was still in discussion with the President, the assailants had barged
into the chamber and assaulted the President brutally. He continued to
be in the chamber. He was also assaulted by the assailants. The door of
the chamber was open. Sumit Gavali entered the cabin with dagger, he
was accompanied by an unknown person. While leaving the office, the
assailants had broken the glass-door of the cabin and thereafter the
assailants had fled. He left the cabin in an injured state and disclosed
to the office staff and others about the death of Raju Choudhari inside
the cabin. He was taken to Parmar hospital where his statement was
recorded in presence of doctor which is marked at 'Exhibit-92'. He was
then shifted to Birla Hospital by his relatives and friends. On 30 th May
2009, the police had disclosed the name of the second accused as Jafar
Shaikh to him. According to him, FIR/ statement was recorded on 30 th
May 2009 is at 'Exhibit-92'. On 9th January 2010 he was summoned for
test identification parade, more particularly, to identify the accused
no.2 and he had accordingly, identified the accused no. 2 as the
perpetrator who had accompanied Sumit Gavali.
5. PW.6 was subjected to cross-examination and his
admissions are as follows:-
a) That, 3 members of the family of the deceased are the
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office bearers of Lonavala Municipal Council i.e. President
himself, his wife Shadan Choudhari (PW.18.) and Usha
Choudhari, Sister-in-law of the deceased. That, Raju
Choudhari was elected as a President for two and half
years and that at the time of incident his term as a
President was about to expire.
b) That, he was in the business of real estate and continued
as one. That, the deceased had appointed him as Power of
Attorney holder on 24th May 2002. He had entered into
certain transactions on behalf of Raju Choudhari as a
Power of Attorney holder. Exhibits-94, 95, 96 and 97' are
the agreements between several persons and Raju
Chaudhari, wherein he had signed on behalf of the
deceased. He has denied to have signed the documents of
the deceased as Power of Attorney, after his demise. It is
admitted that he had sold the property of deceased Raju to
Prakash Parmar as a Power of Attorney holder. The
document of sale is at 'Exhibit-100'.
c) He has feigned ignorance about the criminal antecedents
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of the deceased. He has also feigned ignorance about the
criminal antecedents of the brother of the deceased namely
Ashok Choudhari but has admitted that the Corporator
Usha Choudhari happens to be the wife of Ashok
Choudhari. He has also denied about the filing of several
applications against the deceased and his family member
by N.R. Shinde, the owner of hutment area which is known
as Indira Nagar, Tungarli, the constituency of Shadan
Chaudhari, the wife of the deceased. It is admitted that
Prakash Gavali, the father of Sumit had challenged the
election of Usha Chaudhari on the ground that she had
filed a false caste certificate. Similar application was filed
against the deceased. That accused no.6 Shashikant
Jadhav and accused no.3 Prakash Gawali (acquitted) had
also sought disqualification of Usha Chaudhari as a
President on account of the irregularities during her
tenure. There were several complaints against the
Choudhari Family. One Nandu Aaurange had also
challenged the President-ship of Raju Chaudhari. That,
Suryakant Waghmare-the President of Republican Party,
Mahindra Kharade-the Taluka President of Shivsena Party,
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Jaiwant Kawul- the president of Congress-I Party had
raised slogans against the President and Chief Officer of
Lonavala Municipal Council after demolition of 750
constructions within two days. It is admitted that Prakash
Gavali (i.e. acquitted accused no.3 ) the father of accused
no.1. is a social worker, he is the main trustee of
Bhairavnath Trust and has established Chhatrapati Shivaji
Pratisthan Trust. PW.6 was confronted with the Map of the
scene of offence drawn by the city survey office. The said
Map is at 'Exhibit-98', the sketch drawn by the Circle
Officer is admitted by PW.6.
d) That, the police station is diagonally opposite to the office
of Municipal Council and is about 25 to 30 feet away from
its compound. The Map is at 'Exhibit-98' and scene of
offence is at 'Exhibit-107'.
e) He was in Parmar hospital for 30 minutes. His wife and 22
to 25 friends were with him as he was treated as an O.P.D
patient. His injuries were sutured in Parmar Hospital.
According to him, the doctor had not enquired with him
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about the transaction in which he had sustained the
injuries and neither he had voluntarily disclosed about it.
He was then taken to Birla hospital which is 35 km away
from Parmar hospital. The police had visited him in Birla
hospital.
f) It is pertinent to note that according to PW.6 his statement
was not recorded by the police during the period 26 th May
2009 to 30th May 2009 and thereafter, on 30 th May 2009
his statement was recorded in the police station for the
first time.
g) That, in the cross-examination, it is admitted that at the
time of incident i.e. at about 1.30 p.m. there was
movement of staff members in and out of his chamber.
That the chairs in the chamber of the President were 'light
cream colour'. The chairs were not shifted after the
departure of his colleagues Kadam, Joshi and Rakshe.
That, he would be unable to say as to which of the accused
had assaulted the President and which of the accused had
assaulted him.
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h) That, neither he nor the President had raised cries when
they were assaulted. At the time of incident the door of the
chamber was open. The whole incident was over within 4
to 5 minutes but he had hit the chair on the person of the
assailants, when they were near the President and the
chair was lying there itself. That, he had sustained four
injuries. That, he had crossed the broken glass door and
continued to stand there till he was taken to the hospital.
Neither the employees of Municipal Council nor the
citizens / visitors enquired with him. There is an admission
in the statement before the police that he had not disclosed
that he had told the people outside the chamber about the
incident. He had walked his way to the hospital and was
accompanied by the staff members of Municipal Council.
The police had reached the scene of offence while he was
still in the premises of Municipal Council. That he had
learnt the name of accused no.2 from the police on 30 th
May 2009.
i) That, he had visited the police station before he left for
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Yerwada Jail for the purpose of test identification parade.
He was in Lonavala police station from 7.00 a.m. to
10.00a.m. and thereafter, they proceeded to Yerwada jail
for test identification parade. That, there were 8 to 10
dummies along with Jafar who were placed for test
identification parade. All the other dummies were having
hair on their head, whereas Jafar had very small hair on
his head.
6. PW.5- Ashok Panchmukh has deposed before the Court that
he wanted to go to Pune, therefore, he was at Lonavala Railway
Station on platform no.1 at about 2.45p.m. He met Sumit Gavali who
handed over his wallet to him. He had asked PW.5 to hand over the
said wallet to his family member. He took the wallet and went to Pune.
He returned to Lonavala on the same day and the next day he again
travelled to Pune. On 28th May 2009, he was called by Lonavala Police
Station. He handed over the wallet to the police. In the cross-
examination, it is admitted that there was a crowd on the railway
station on that day and that he had found a wallet on the platform. He
picked up the wallet and boarded the train to Pune. He had not seen
the contents of the wallet. When he went to the police station, Sumit
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Gavali and Jafer Shaikh were not present neither Ramzan Shaikh and
Yogesh Shirke were present. He has not produced any ticket or pass to
establish his presence on the railway station on 26th May 2009. On 28th
May 2009 his statement was recorded in the police station.
7. It is a matter of record that PW.7 Vishwanath Aaurange
who was working as a peon in Lonavala Municipal Council was the
first person to report the said incident to the police station. The said
witness PW.7 is declared hostile as he deposed before the court that on
the day of incident at about 2.00 to 2.15p.m. when he returned from
his lunch he saw from the glass door that Umesh Mudliyar was in the
chamber of the President and that he had sustained bleeding injury on
his head. That, Umesh Mudliyar had told him that quarrel took place
inside the room. He, therefore, rushed to the police station and gave
an information about the quarrel inside the cabin of the President and
brought the police along with him. At the request of the prosecution he
was declared hostile. He has admitted before the Court that Nandu
Aaurange happens to be his paternal uncle and that the wife of Nandu
Aaurange had filed nomination against the wife of Sumit Gavali but
had withdrawn her nomination. It is pertinent to note, at this stage,
that the remand yadi dated 28.05.2009 shows the name of Nandu
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Aaurange as one of the suspect in the present case.
8. PW.10-Narayan Kambli, happens to be the panch who has
proved panchnama of scene of offence which is at 'Exhibit-107'. The
scene of offence was conducted on 26th May 2009 at about 3.00 p.m.
i.e. soon after the incident. The scene of offence was shown by a peon,
Vijay More. The spot was the cabin of the President which was
admeasuring 15 x 12 feet. The glass on the table was stained with
blood and one cover of knife was lying at the northern side of the
wooden table. A cellphone was also lying on the table. There was a
pool of blood under the chair of the President. Spectacles, wrists
watch and shoes were lying on the table. The plastic chairs were 'red in
colour' and they were scattered in the cabin. There were blood stains
near the door of ante-chamber and also on the wall of the southern
side and on the window of the northern side. The glass door next to
the chamber of Deputy President was cracked. The blood samples were
collected from the spot and the scene of offence. He has proved the
contents of the spot panchnama and has stated that he was present at
the time of conducting spot panchnama and has signed it there, the
cellphone was also seized.
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9. That, the peon Vijay More used to work in the chamber of
the President. At the time of conducting scene of offence panchnama a
dog squad had arrived, the dog was going towards the glass door and
returning to the chamber again. That, the dog squad did not go beyond
the broken glass. The incident had taken place at 2.30 p.m. In the
cross-examination, he had stated that he learnt about the incident only
because the police came running to the spot. There was no
conversation between PW.6 and PW.10 but he had heard PW.6 telling
the police that somebody assaulted him. The spot panchnama was
conducted between 3.55 to 5.10 p.m.
10. PW.11- Rickshaw Driver -Sagar Gavali has been examined
by the prosecution to prove the conspiracy hatched between Prakash
Gavali and his two sons Amit and Sumit and one another person. That,
according to him, 15 days prior to the incident at 8.00 to 8.30 p.m. he
had been to Ekvira Chinese for taking parcel and had over heard them
talking against Raju Choudhari but when they saw him, they had
changed the topic. According to him, his statement was recorded on
29th May 2009 i.e. prior to recording the statement of PW.6. In any
case, the accused appellants are acquitted of the charge under section
120-B of Indian Penal Code.
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11. The case mainly rests on the evidence of PW.6, who is an
eyewitness.
12. PW.13. Dr. Rajendra Parmar had examined PW.6 on 26th
May 2009 at about 2.45 p.m. PW.6 had given history of assault. He had
sustained one injury on left temporal parietal region, another on left
shoulder and two incised wounds over right axilla. The Police had
arrived in his hospital and recorded the statement of the injured in the
presence of PW.13. He has proved his endorsement on the statement
dated 26th May 2009. His endorsement is at 'Exhibit-111' but he could
not recollect the contents of the disclosure made to the police by PW.6
in his presence. The medical certificate was in the handwriting of Dr.
Manoj Mopgar. The patient was in the hospital for 20 to 30 minutes
and was transferred to Aditya Birla Hospital as per his advise by the
relatives of the patient. That the statement of PW.13, was recorded on
10th August 2009. There is an admission that the injuries mentioned in
the certificate which is at 'Exhibit-112' were not mentioned in the
statement. No internal organs were damaged. The certificate only
depicts as "alleged history of assault on 26th May 2009 at about 2.30
p.m."
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13. The prosecution has examined PW.14 Dashrath Chorage, a
Rickshaw driver who knew Jafar Shaikh and the other accused. His
statement was recorded on 18th June 2009 i.e. practically after 22 days
of the alleged incident and according to him on 26 th May 2009 at about
2.15 p.m. he along with Vilas More had been to hotel Trupti, when
they were on the road they saw Sumit Gavali and Jafar Shaikh who
came from Lonavala Municipal Council. They were brandishing their
weapons and were abusing. He saw them proceeding towards railway
station through a small lane. He also claims to have seen all the
acquitted accused at that time. He had left for his village on 27 th May
2009. The police had summoned him on 18 th June 2009 and his
statement was recorded. The said witness was confronted with a video
recording. He has identified his presence in the said video but had
feigned ignorance about the identity of two other persons. He has
denied the conversation and has reiterated that he had not disclosed
the said incident to any one till 18th June 2009. In any case this witness
is unreliable as his statement is recorded after 22 days, moreover, the
contents of the video would show that he was a got up witness.
14. PW.18.-Shadan Choudhari is wife of deceased Raju
Choudhari. According to her, since Ekvira Chinese and other structure
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raised by the accused were demolished within two days, the accused
had a grudge against Raju Choudhari and being encouraged by
original accused nos.3 and 5, the accused- Sumit Gavali has caused the
homicidal death of Raju Choudhari. On 25 th May 2009, at about 12.00
noon they had appeared before the Collector, in response to an
application filed by Shashikant Jadhav, Prakash Gavali and Nandu
Aaurange seeking to disqualify her and her husband. While they were
descending the staircase, they came across Prakash Gavali who
challenged them and threatened them that he would put an end to
everything. She had responded. Her husband warned her not to argue
with Prakash Gavali. On their way, back home they saw Shashikant
Jadhav passing in his car and staring at them angrily, her husband
asked her to see the face of Shashikant Jadhav. He had threat
perception from all the accused persons and therefore, asked her to
remember their names and faces. That on 26.05.2009 at about
2.45p.m. Pradeep Agarwal informed her that her husband was serious
and therefore she had rushed to the chamber of Raju Choudhari.
According to her, the original accused no.3 Prakash Gavali and his sons
had suffered economic loss due to the demolition of structure and also
that the Gavali family had political rivalry with them and that was
their motive to eliminate Raju Choudhari.
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15. PW.19.- Dr. Mamata Parade had examined Sumit Gavali on
29th May 2009 in Rural Hospital Vadgaon-Maval, Pune and she noticed
one incised wound 4 x 1 x 1 cm. over right hand between first and
second finger. Age of injury was more than 24 hours. The injury was
simple in nature and was caused by sharp edged weapon. The medical
certificate is at 'Exhibit-143'.
16. PW.20-Dr. Balaji Gawade performed autopsy on the dead
body of Raju Choudhari and found in all 42 injuries which were in the
nature of lacerated wound, incised wound and chopped wound. All
injuries collectively were sufficient to cause death in ordinary course of
nature. The postmortem notes are at 'Exhibit-146'. In the cross
examination, it is admitted that out of 42 injuries 26 were lacerated, 8
were incised, 6 were stabbed wound and 2 were chopped wounds.
That, lacerated wound could be caused by any blunt or rough edge
weapon and chopped wound may be caused by any heavy cutting
weapon.
17. PW.21-Rajesh Chavhan, Nayab Tahsildar had conducted the
test identification parade on 9th January 2010 for the identification of
Jafar Shaikh. The persons who were called for test identification
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parade was PW.6, Umesh Mudliyar. That PW.6 identified the accused,
Jafar Shaikh, whereas the witnesses Sudam Adsul, Wilson John Jadhav,
Deepraj Ashok Choudhari and Shekhar Choudhari identified all the
accused. However, Vishwanath Aaurange, Vijay More, Bhogoji Malve
could not identify the accused persons.
18. It is admitted in the cross-examination that except the
family members of Raju Choudhari and Umesh Mudliyar other four
witnesses could not identify the accused.
19. PW.23-Rajendra Pawar was A.S.I at Lonavala Police Station.
On 26th May 2009, he had received the complaint lodged by Umesh
Mudliyar from Police Constable Khan, on the basis of which he
registered Crime No. 72 of 2009.
20. The admissions in the cross-examination are as follows:-
a) On 26th May 2009 at about 2.35 p.m. two
persons from Lonavala Municipal Council i.e. Bhagoji Malve
and Vishal Aaurange reached the police station and
informed that a quarrel had taken place in the cabin of the
President. He deputed police head constable Suryawanshi
to Municipal Council immediately as Municipal Council is
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opposite to the police station. Head constable returned to
the police station and informed that the President is lying in
a pool of blood on his table, whereas Umesh Mudliyar is
injured, the entries were taken accordingly in the station
diary. It is admitted that the original First Information
Report does not depict the time of lodging the First
Information Report. Neither it shows the date and time of
sending the First Information Report to the Court of Judicial
Magistrate First Class. That, Vadgaon Maval is the nearest
Judicial Magistrate First Class Court for Lonavala. The
witness was confronted with the original station diary dated
26th May 2009 and he has admitted the contents mentioned
in the station diary are in black ink but the date 26 th May
2009 and Section 34 are added subsequently. He had no
knowledge as to who made the said entry in station diary
entries at "Exhibits- 167, 168 and 170".
21. PW.24-Sudam Darekar, P.I., was on duty at Lonavala Police
Station. At about 2.45 p.m. P.S.O. Pawar had informed him about the
assault on President-Raju Choudhari. He, accordingly, went to
Lonavala Municipal Council and saw Raju Choudhari was lying in his
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chamber and one injured was admitted in Parmar Hospital. He,
therefore, went to Parmar Hospital to meet injured Umesh Mudliyar
and recorded his statement in writing, which is at Exhibit-92. He had
obtained the endorsement of Dr. Parmar on the said complaint and
thereafter he sent the complaint to P.S.O, Pawar for registration of
Crime. Accordingly, Crime No. 72 of 2009 was registered for offence
punishable under section 302 and 307 read with 34 of Indian Penal
Code. He has proved the omissions and contradictions in the evidence
of Vishwanath Aaurange and Wilson John Jadhav as well as Sudam
Harsole.
22. On 28th May 2005, he received a report about arrest of
Jafar Shaikh and Sumit Gavali from Local Crime Branch, Pune. It is
admitted in the cross-examination that at the time of conducting the
spot panchnama, which is at 'Exhibit-107', the investigation team had
noticed two black colour covers of knife in the chamber of President
but there was no enquiry about it. The cellphone of the deceased was
seized. It is also admitted that on the same day a dog squad was also
called. It is reiterated that the dog squad was called because the
identity of the perpetrators was not known. That, the statements of
A.K. Joshi, Pravin Kadam and Rakshe who accompanied PW.6 to the
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chamber of the deceased a few minutes before the incident is not
recorded in the course of investigation. He has admitted the remand
report dated 28th May 2009 in which Nandkumar Aaurange was shown
as an accused, as Choudhari family was complaining against him. That,
the deceased and his family had criminal antecedents. The accused no.
1 was arrested on 28th May 2009 in the evening at 6.10 p.m. at
Chandni Chowk Pune by local Crime Branch while they were
patrolling. On 29th May 2005 they were shifted to the lock-up at
Vadgaon Maval Police Station at about 10.00 a.m.
23. PW.25, P.S.I, Ashok Kadam was also posted at Lonavala
Police Station. On 26th May 2009, P.I. Darekar instructed him to
conduct spot panchnama. The spot was shown by Vijay More an
employee of Lonavala Municipal Council. They had noticed the
following:-
a) Bloodstains on door, glass door, chair, table cloth,
wall and on the floor. One spectacles, a pair of shoes of
Adidas Company, a wrist watch, two covers of knives - one
was all leather and another one was of cotton, all articles
were stained with blood. They were seized, sealed and
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wrapped in paper with wax. Finger prints on glass table,
door table, chairs and executive chair etc. were taken. The
cellphone of the deceased was lying on the table and was
taken into custody for investigation. The chamber of Chief
Officer and Deputy President were adjacent to the Chamber
of President but he had not recorded their statements.
b) Splinters of glass were lying outside the chamber of
the President and Deputy President.
24. On 31st May 2009, the accused nos. 1 and 2 were taken in
custody again. There was recovery of the clothes produced by accused
Sumit Gavali. He had also led the police to the places where they had
burnt their clothes and the places where they threw the knife. The
memorandum is at 'Exhibit-127'. The memorandum of Jafar is at
'Exhibit-128'. Pursuant to the memorandum the knife was seized at the
behest of Sumit Gavali in a drainage. The blade of knife was having
blood stains. The accused Jafar Shaikh had led the police from Pen
road towards Pali and the knife was recovered from a river. The blade
was having blood stains. The police had taken the accused to a shop
named Roshan Cloth Emporium where the accused had purchased new
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clothes. The accused had allegedly shown the spot where they had
burnt their clothes which they were wearing at the time of incident
and the police had collected the ash.
25. On 31st May 2009 the accused no. 1 and 2 were produced
before him in Lonavala Police Station. It is admitted that investigating
officer had directed PW.25 to investigate in Raigarh District, more
particularly, the place of Amba River and Roshan Cloth Emporium and
the places where the clothes and shoes were burnt.
26. PW.26.-Balraj Lanjire was P.I. posted at Lonavala Police
Station. He filed the final charge-sheet on the basis of the investigation
papers which he received from P.I. Darekar.
27. The learned counsel for the appellant submits that there
are several lacunas in the investigation. That PW.6 has admitted that
his statement was recorded for the first time on 30 th May 2009 and in
the same breath admits his statement recorded in Parmar Hospital,
which is at Exhibit-92. It is therefore, submitted that the statement at
Exhibit-92 in fact is an ante-dated statement recorded by the police
officer. It is also admitted by PW.6 in his deposition to the extent that
he had not disclosed to the office staff and others about the incident in
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the cabin. If the identity of one of the accused was known, the question
would remain as to why a dog squad was called by the police. The
contention of PW.6 that neither he nor the deceased had raised any cry
for help when they were being assaulted seems to be an unnatural
conduct.
28. The learned counsel further submits that the office of the
Deputy President and the Chief Officer is adjacent to the chamber of
the President and yet they had not realized that the President is being
assaulted. The learned counsel has also drawn the attention of the
Court to the discrepancy in colour of the chair in the Chamber of the
President. According to PW.6 the chairs were of light cream colour
whereas the scene of offence panchnama shows that the chairs were of
red colour.
29. The learned counsel has further drawn the attention of this
Court to the admission of PW.6 that the whole incident was over within
4 to 5 minutes and that he had crossed the broken glass door and
continued to stand there till he was taken to the hospital and yet
neither the employees of Municipal Council nor the citizens / visitors
had enquired with him. That, before going to Yerwada Jail for test
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identification parade he had visited the police station and remained at
the police station from 7.00 a.m.to 10 a.m. and therefore the
identification of accused Jafar Shaikh does not appear voluntary and
hence not reliable.
30. The learned counsel submits that although the statement of
the injured was recorded in the presence of the doctor. The doctor has
feigned ignorance about the contents of the statement and claims that
he could not recollect as to whether the injured had named the
accused / appellants.
31. The learned counsel submits that in view of the
inconsistencies in the deposition of eye witness (P.W.6) the conviction
on the basis of his statement deserves to be quashed. The learned
counsel has also submitted that, in any case, although canine inference
cannot be relied upon but at the same time it cannot be ignored that
the dog had not gone beyond the broken glass which ought to have
naturally raised a suspicion against none other than PW.6.
32. The credibility of PW.5 is also challenged on the ground
that there is inconsistency as to whether he had picked up the wallet
from the platform or it was handed over to him by the accused. Besides
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the said fact of PW.5 travelling to Pune is unreliable since he had not
placed on record any ticket or pass to show that he had travelled to
Pune on that day.
33. Per contra, the learned APP supports the judgment of the
trial Court and submits that the evidence of eye witness cannot be
discarded on the ground that there are minor discrepancies in the eye
witness account. That there was no reason for PW.6 to implicate the
accused persons. That, PW.6 was himself injured and on the very day
of the incident he has disclosed the names of the accused persons.
Hence, the learned APP prays for upholding the conviction of the
accused/appellants.
34. The account of the incident as disclosed by the eye witness
needs to be appreciated to sift the grain from the chaff. The eye
witness was none other than the Power of Attorney Holder of the
deceased. He had executed several agreements of sale on behalf of the
deceased which are at "Exhibits-34, 95, 96, 97 and 100". That, he had
also sold a property of the deceased to Prakash Parmar, who happens
to be the brother of Dr. Rajesh Parmar in his capacity of Power of
Attorney of the deceased.
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35. The admission that the door of the chamber of the
President was open when the accused persons barged into the room
with deadly weapons and had mounted assault directly upon the
President, without there being any prelude cannot be believed. Neither
the deceased nor the accused cried aloud calling for help. PW.6 would
have simply come outside the chamber and called the office staff.
However, he continued to remain in the chamber and left the chamber
on his own and walked upto to the broken glass door only after the
President was murdered. The office staff including the peon attached
to the Chamber of the President had neither seen the ingress or egress
of the accused in the Chamber of President. That, PW.6 has admitted
in the cross-examination that he had not disclosed to the staff or
visitors the name of the accused appellant -Sumit Gavali while he was
being taken to Parmar Hospital.
36. For the reasons best known to the investigating officer the
statements of Rakshe, Kadam and Joshi were not recorded by the
investigating officer. Neither the statements of Deputy President and
Chief Officer are recorded.
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37. At 2.35 p.m. Vishwanath Aaurange and Malave, the peons
had informed to the police that a quarrel has taken place in the
chamber of the President and therefore, the police had rushed to the
spot. This is substantiated by the station diary at 'Exhibit-167'. At 2.45
p.m. there is further station diary entry that PW.6 is also injured in the
same incident. It is clear that PW..6 had not disclosed the names of the
accused to the police on the spot or even when he was taken to Parmar
Hospital and therefore the investigating agency had called for the dog
squad. At this stage, the submission of the learned counsel for the
appellants has to be taken into consideration.
38. It is categorically admitted by PW.6 that his statement was
recorded for the first time in the police station on 30th May 2009. In
fact, he has deposed before the Court as follows:-
a. "The police came to Birla Hospital and inquired about
my health. My statement was not recorded during this period
till 30th May 2009. My statement was recorded in police
station on 30th May 2009". In view of this, the recording of
the statement of PW.6 in Parmar Hospital is shrouded with
mystery.
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39. The prosecution has failed to prove that the statement of
PW.6 was recorded on 26th May 2009 while he was in Parmar Hospital.
What is exhibited is the statement purportedly recorded on 26 th May
2009 and therefore, the printed proforma of first information report
does not indicate the date on which the First Information Report was
sent to the Court of the Judicial Magistrate First Class. This makes it
clear that there is no compliance of mandate of Section 157 of Cr.P.C.
40. The conduct of PW.6 post incident also does not inspire
confidence. The fact that he did not rush out of the Chamber to call the
staff, when the President was being assaulted and non-disclosure of the
names of the perpetrators of crime till he reached Parmar Hospital, and
then admitting that his statement was not recorded till 30 th May 2009
although the police visited him in Birla Hospital clearly indicates that
there is suppression of genesis, suppression of facts and an attempt to
mislead the investigation as well as the Court of law.
41. It is pertinent to note that Vishwanath Aaurange-PW.7, the
first person who reported the said incident to the police has been
declared hostile by the prosecution. Moreover, his paternal uncle
Nandu Aaurange was suspected as an accused and taken into custody.
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The statement of Vishwanath Aaurange that a quarrel had taken place
in the chamber of President establishes his presence near the chamber
of President.
42. Secondly, when PW.6 claims to have disclosed the names of
the accused on the date of incident there was no reason for the
investigating agency to arrest Prakash Gavali, Amit Gavali, Shashikant
Jadhav or Girish Kambli and Vaibhav Gavali. Exhibit-166 is proved by
PW.23 which shows that the accused were apprehended by the Crime
Branch of Pune at Chandni Chowk and were handed over to PW.23.
Whereas, the arrest panchnama of accused Sumit Gavli and Jafar
Shaikh shows 'place of arrest - Lonavala City Police Station on 28 th
May 2009 at 6.10 p.m. The identity of Jafar Shaikh was disclosed to
PW.6 by the police on 30th May 2009, however, it is to be noted that
PW.6 had not given the description of Jafar Shaikh nor a sketch was
drawn. Whereas the details are missing in Exhibit-166. The
prosecution has not examined P.I., D.S. Patil who had received the
report from Crime Branch of Lonavala Police Station. The report was
outwarded on 28th May 2009 by Crime Branch, Pune. The recovery of
the weapons at the hands of the accused does not inspire confidence as
the weapons were purportedly recovered at the behest of the accused
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from a flowing river and a drainage on 30st May 2009. It would be
difficult to hold that the alleged recovery would establish the use of the
said weapon by the accused to kill the deceased.
43. The admission of PW.5 that he had found the wallet on the
platform falsifies that Sumit Gavali personally gave him the wallet.
Although, the cellphone of the deceased was seized at the time of spot
panchnama and the CDR was available, the Nodal Officer has not been
examined even to ascertain as to who had made the last call to the
deceased, instead he is examined as a defence witness.
44. All the witnesses are consistent about the motive of the
accused to eliminate the deceased.
45. Prima facie, it is the case of prosecution that Nandu
Aaurange, Shashikant Pawar, Prakash Gavali and many others had
challenged the Presidentship of the deceased. They were political
rivals. Besides they had also sought disqualification of PW.18, Shadan
Choudhari, as a corporator. Similarly, there were charges of
misappropriation and irregularities against Usha Choudhari, the sister-
in-law of the deceased, when she was a President. Moreover, the
witnesses and the investigation officers have admitted that the
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deceased had criminal antecedents and in one case he was also
convicted for an offence under section 302 of Indian Penal Code and
was acquitted by the High Court. Whereas according to the
prosecution, the motive for the accused to eliminate the deceased is
said to be demolition of the structures, and Hotels owned by him.
However, the said demolition was pursuant to the orders passed by the
High Court and that incident had taken place more than a year prior to
the incident and hence it cannot be said that the said motive was
sufficient to cause the homicidal death of the President in broad
daylight and that too in his office without having the fear of being
arrested on the spot. All witnesses are consistent on motive of the
accused to kill the deceased.
46. It is a settled law that the account of an incident by an eye-
witness has to be necessarily a sterling testimony. It is further clear that
the investigating agency has got-up witnesses in order to substantiate
and fortify their investigation.
47. The same maxim is followed by the Supreme Court in the
case of Anil Phukan v/s State Of Assam1, where it has been held as
follows :-
1 AIR (1993) 1462
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" This case primarily hinges on the testimony of a single eye
witness Ajoy PW3. Indeed, conviction can be based on the
testimony of a single eye-witness and there is no rule of law
or evidence which says to the contrary provided the sole
witness passes the test of reliability. So long as the single
eye-witness is a wholly reliable witness the courts have no
difficulty in basing conviction on his testimony alone.
However, where the single eye-witness is not found to be a
wholly reliable witness, in the sense that there are some
circumstances which may show that he could have an
interest in the prosecution, then, the courts generally insist
upon some independent corroboration of his testimony, in
material particulars, before recording conviction. It is only
when the courts find that the single eyewitness is a wholly
unreliable witness that his testimony is discarded in toto and
no amount of corroboration can cure that defect. It is in the
light of these settled principles that we shall examine the
testimony of PW3 Ajoy".
48. It would be apt to refer to the judgment of the Supreme
Court in the case of Jagdish Prasad And Others v/s State Of Madhya
Pradesh2 has held as follows:-
"As a general rule, a court can and may act on the testimony
of a single witness though uncorroborated provided the
testimony of that single witness is found out entirely
reliable. In that case, there will be no legal impediment for
2 AIR (1994) SC 1251
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recording a conviction. But if the evidence is open to doubt
or suspicion, the court will require sufficient corroboration".
49. In criminal jurisprudence it is well-settled that witnesses
are eyes and ears of the Court. Therefore, the testimony of the
witnesses has to be supported by corroborative material. Moreover the
testimony must be truthful and must inspire the confidence of the
Court. The evidence has to be appreciated with logic by applying the
Rule of 'Deductive reasoning'.
"Deductive reasoning is the process of reasoning from one
or more statements (premises) to reach a logical conclusion.
If all premises are true, the terms are clear, and the rules of
deductive logic are followed, then the conclusion reached is
necessarily true".
50. In the present case, upon appreciating the evidence by
deductive logic the only conclusion that can be drawn is that the
prosecution has failed to prove the guilt of the accused beyond
reasonable doubt. Hence, the following order:-
ORDER
i) Criminal Appeal No. 592 of 2012 and Criminal
Appeal No. 728 of 2012 are allowed.
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ii) The judgment and order dated 27 th April 2012 passed
by District Judge-10 and Additional Sessions Judge, Pune
thereby, convicting the appellant for the offence punishable
under section 302, 307 and 201 read with 34 of Indian Penal
Code is quashed and set aside.
iii) The appellants be released forthwith, if not required
in any other offence.
iv) The appellants are acquitted of the offence
punishable under section 302, 307 and 201 read with 34 of
Indian Penal Code.
v) Criminal Application No.1131 of 2019 stands
disposed off accordingly.
vi) The appeals are accordingly disposed of.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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