Bombay High Court
Ganesh Suresh Jadhav And Ors vs The State Of Maharashtra on 5 April, 2022
Bench: S.S. Jadhav, P. K. Chavan
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 39 OF 2016
1. Ganesh Suresh Jadhav, ]
Age - 24 years, Occ : Labourer, ]
R/at - PCMC Colony, Nigadi Naka, ]
Nigadi, Pune & Parvati Paitha ]
Janata Vasahat, Pune. ]
2. Riyaz Mehboob Korbu, ]
Age - 20 years, Occ - Labourer, ]
R/at, Azad Chowk, Ota Scheme, ]
Nigadi, Pune. ]
3. Chandrabhan @ Prem Ramesh ]
Jaiswar, Age - 20 years, ]
Occ: Labourer, R/at: Tapowan Nagar, ]
Near Anganwadi, More Vasti, ]
Chikhali, Tal - Haveli, Pune. ] Appellants...
(At present all are in ]
Yerwada Central Prison) ]
Versus
The State of Maharashtra ] Respondent...
.....
Mr. Satyavrat Joshi a/w Mr. Pratik Jadhav a/w Ms. Tanvi Tapkire
a/w Mr. Nitesh Mohite, Advocate for the appellants
Ms. Veera Shinde, APP for respondent/State
....
Digitally
signed by
UDAY UDAY SHIVAJI
JAGTAP
SHIVAJI Date:
JAGTAP 2022.04.07
14:49:41
+0530
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AND
CRIMINAL APPEAL NO. 42 OF 2016
Amol Arjun Khalage ]
Aged about : 24 years, ]
Occupation : Labour, ]
Residing at Anand Nagar, Chinchwad, ]
Pune, District : Pune. ]
(At present in Yerwada Jail) ] Appellant...
Versus
The State of Maharashtra ] Respondent...
.....
Mr. K. B. Katake a/w Ms. Chandrika Katake a/w Mr. P. V. Nawale,
Advocate for the appellant
Ms. Veera Shinde, APP for respondent/State
....
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 02.12.2021
PRONOUNCED ON : 05.04.2022
JUDGMENT: [Per Prithviraj K. Chavan, J.]
1. These appeals are by original accused No.1, 4, 5 and 6
who have been convicted of the offence punishable under section
302 r/w 34 of the Indian Penal Code (for short "I.P.C") and
sentenced to suffer imprisonment for life, inter alia, fine of
Rs.2000/- each, in default, rigorous imprisonment for two months.
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2. Original Accused No.2, 3 and 7 have been acquitted of
the said offence.
3. All the accused have also been acquitted of the offence
punishable under sections 143, 147, 148 of the I.P.C., 37(1) (a)
and (3) punishable under section 135 of the Bombay Police Act,
1951 and section 4 punishable under section 25 of the Arms Act,
1959.
4. Prosecution story goes like this;
5. Ketan Bansode (deceased), Siddiq Arkate (deceased)
and first informant - Narsingh Chavan (P.W.1) were residents of
Talwade and good friends. They used to dine and roam together.
On the fateful day of 1st March, 2010 around 7.00 p.m, P.W.1 -
Narsingh and deceased Ketan met at Triveni Nagar Chowk. They
decided to visit Chinese stall of one Ravi for having Chinese food.
Accordingly, they went to Chinese cart of Mr. Ravi which was
situated near Krushnanagar Water Storage Tank. Chinese food
was served after they placed an order to that effect. When they
were about to start eating, 7 to 8 boys suddenly appeared at the
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scene around 8.30 pm and started kicking tables and chairs.
Crockery on the table of the deceased and P.W.1-Narsingh fell
down. Obviously, deceased Ketan asked those boys as to why they
were kicking the furniture and, therefore, there was altercation.
However, Ravi - the Chinese cart owner intervened and those boys
left the spot.
6. The said boys returned after a while. Four of them
were armed with swords. They started assaulting deceased Ketan.
When Siddiq tried to intervene (who also subsequently succumbed
to injuries), he too was beaten by those boys on the head and
waist. Deceased Ketan was assaulted on his chest by means of
stone and on his back by means of sword. Blows of swords were
inflicted on the head, hands and hips of deceased Siddiq. One
Harjitsingh sitting on another table tried to intervene, however, he
too received injuries on his hand. After the assault, assailants
escaped.
7. P.W.1 - Narsingh informed brother of deceased Siddiq
on phone and hence Siddiq's brother came over there. Both
injured were initially taken to Mayur Hospital, Krushnanagar and
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thereafter Y.C.M Hospital, Pimpri. One Doctor Abhijit Lokhande
attached to casualty unit of Y.C.M Hospital examined injured
Siddiq and referred him to surgery department. He also examined
deceased Ketan. After treating both of them in Y.C.M Hospital,
they were sent to ICU ward. Siddiq was taken to Birla Hospital,
however, he was declared dead before admission. P.W.1 - Narsingh
Chavan thereafter went to Dehu Road Police Station and lodged a
report Exhibit 62. P.W.17 - P.S.I Mohandule who was present at
the Police Station on 2nd March, 2010 recorded the complaint of
P.W.1-Narsingh at 1.40 a.m. Exhibit 62. An offence came to be
registered vide C.R. No.72 of 2010 under sections 302, 307, 143,
147, 149 of the Indian Penal Code, 4/25 of Arms Act and 37(1)
135 of the Bombay Police Act. P.W.17 - P.S.I Mohandule went to
Y.C.M Hospital and in the presence of pancha witnesses drew
inquest on the dead body of Siddiq.
8. Thereafter, P.W.18- Mr. Gokave, Police Inspector took
charge of the investigation. On 2nd March, 2010 around 7.00 a.m,
he visited the spot of the incident. He drew sport panchnama
Exhibit 145. He had seized some articles lying on the spot i.e one
chappal, torn pocket of shirt, broken button of shirt, blood mixed
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earth as well as plain earth and blood stained small stones. He
recorded the statements of witnesses as well as statement of
deceased Ketan, who was in an injured condition at that time.
9. P.W.11 - Dr. Subhash Madne conducted autopsy over
the dead body of Siddiq between 6.15 and 7.15 a.m at Y.C.M.
Hospital, Pimpri. He had noted three external injuries on the
person of deceased Siddiq. Autopsy report is at Exhibit 122. He
opined that the injuries were sufficient to cause death of a person
in an ordinary course of nature. However, he reserved his opinion
as to cause of death. After receiving histo-pathological examination
and C.A reports, he opined the cause of death as "Due to head
injury".
10. Clothes of the deceased Siddiq were also came to be
seized vide Exhibit 78 by P.W.18 - P.I. Gokave on the same day as
well as clothes of deceased Ketan vide Exhibit 79. Accused Ganesh
Jadhav, Sagar Potbhare and Samadhan Shinde were arrested on
that day. One of the accused - Samadhan Shinde was juvenile-in-
conflict with law. Since deceased Ketan was admitted in Y.C.M
Hospital on 4th March, 2010, he was examined by P.W.14-
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Dr.Dakshayani Nirahale. Since the condition of Ketan was critical,
he was on ventilator. However, he succumbed to the injuries in the
Hospital on 5th March, 2010 around 10.15 a.m. Intimation of his
death was given to the Police Station. P.W.17 - P.S.I Mohandule
visited D.Y. Patil Hospital and prepared inquest Exhibit 77. Dead
body of deceased Ketan was forwarded to Y.C.M Hospital for
postmortem. P.W.13- Dr. Rokade conducted postmortem on 5 th
March, 2010 between 16.00 hours and 17.10 hours.
11. The prosecution case further reveals that accused
Ganesh Jadhav made disclosure statement, pursuant to which,
sword used in the crime was discovered. Accused Chandrabhan
Jaiswar and Pradip Thombare were also arrested. The blood
stained clothes of the accused were seized. Pursuant to the
disclosure statement of accused Sagar Potbhare, another sword
used in the commission of the offence came to be seized and those
articles were forwarded for chemical analysis. Investigating officer
had also presented the accused for Test Identification Parade and
after investigation, he filed a charge-sheet. On committal, the
Sessions Court framed a charge as against the accused to which
they pleaded not guilty and claimed to be tried. Defence was of
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total denial and false implication. There is no defence evidence.
12. At the trial, prosecution examined 18 witnesses
coupled with documentary evidence. The learned Additional
Sessions Judge, after hearing the prosecution and defence and on
going through the evidence on record, found accused No.1, 4, 5
and 6 guilty of the offence under section 302 r/w 34 of the Indian
Penal Code and accordingly sentenced them as above. He
acquitted accused No. 2, 3 and 7 of the said charge.
13. We heard Mr. Joshi and Mr. Katake, learned Counsel
for the appellants at length and have also gone through the
evidence on record with the assistance of the Counsel. We also
heard Ms. Veera Shinde, learned A.P.P.
14. At the outset, Mr. Joshi would argue that the trial
Court has committed an error not only on facts and laws but has
also overlooked glaring contradictions and omissions brought on
record. The impugned Judgment, according to Mr. Joshi, is totally
on hypothesis, imagination, conjectures and surmises which will
not sustain in the eyes of law. The counsel would further argue
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that there are inherent lacunae in the prosecution case. The
deposition of the informant and other witnesses are contradictory.
If the trial Court had acquitted accused nos. 2, 3 and 7 on the
same set of facts and evidence, how the present appellants could
be convicted on the basis of same facts and evidence? Mr. Joshi
would argue, that P.W. 1-Narsingh Chavan is an interested witness
whose conduct is highly objectionable as he did not make any
attempt to intervene when the deceased, who were admittedly his
friends, were being assaulted brutally by means of dangerous
weapons like swords. The counsel would also question the
authenticity of the testimony of P.W.2-Harjitsingh Barda who,
according to him, is a got up witness. The learned counsel for the
appellants also took us through the evidence of Doctors who had
conducted autopsy on corpse of both the deceased vis-a-vis the
report of the Medical Officer who had an occasion to first examine
both the deceased, who were brought to the casualty. As such,
Mr. Joshi would urge to acquit the appellants of the offence for
which they have been convicted. Mr. K. B. Katake, the learned
Counsel, who appeared on behalf of the original accused no. 5 -
Amol Khalage, also spoke in tune with Mr. Joshi.
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15. Per contra, the learned APP Ms. Shinde strongly
advocated the impugned Judgment and Order of conviction
rendered by an Additional Sessions Judge, Pune. She would argue
that the prosecution had not only proved the complicity of the
appellants in the commission of the offence but also, the medical
evidence as well as the discovery of weapons, established beyond
doubt the complicity of these appellants in the offence of
committing murder of deceased Ketan and Siddiq.
16. Obviously, the first question which needs to be
answered is, as to whether both the deceased Ketan and Siddiq
died homicidal death?
17. P.W. 12-Dr. Abhijeet Dhondiraj Lokhande was attached
to Y.C.M. Hospital, Pimpri as a Casualty Medical Officer. On
01.03.2010, at about 09:50 p.m., Siddiq Ismail Arkate (for short
'deceased Siddiq') and Ketan Manik Bansode (for short 'deceased
Ketan') were brought to the hospital around 09:50 to 09:55 pm.
He had personally examined both the injured. After examination
of deceased Siddiq, he noticed following three injuries:
[i] CLW over left gluteal region ad-measuring 3 cm x 1 cm.
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[ii] CLW on left occipito parietal region 3 cm x 1 cm.
[iii] Incised wound on right forearm 5 cm x 1 cm.
18. After examination of deceased Siddiq, he was referred
to surgery department for performing surgery. However, according
to this witness, he came to know that Siddiq had died. The OPD
papers are proved at Exhibit 131. He categorically testified that
the injuries mentioned in Exh. 131 could have been caused by a
sword, which was shown to him in the box.
19. After examination of deceased Ketan, he found that he
was normal when he was brought to the hospital. He noticed
following three injuries on his person :
[i] CLW on left side of back, 2 cm x 1 cm x 1 cm.
[ii] CLW on left side of back upper side,2 cm x 1 cm x 1 cm.
[iii] Abrasion over right arm.
20. Accordingly, he prepared the OPD papers which are at
Exh. 131. He opined that the CLW injuries on the person of Ketan
could be caused by the blunt portion of the sword and injury no. 3
which is an incised wound can be caused by sharp edged weapon.
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21. A very interesting thing has been surfaced during his
cross-examination. He testified that both the patients were
conscious and well oriented when they were brought to the
casualty. Both of them had given history of road traffic accident.
P.W.12-Dr. Abhijeet Lokhande has categorically opined in his
medical papers that the cause of injury was road traffic accident.
According to him, injuries on the person of deceased Siddiq were
simple in nature which could have been caused due to an accident.
However, he had not referred in the case papers about the cause of
injury which could be due to a sharp edged weapon. According to
this witness, deceased Ketan was brought by his relative namely
Sijoy Thomas. The deceased Ketan was also conscious and well
oriented. He too had given the history of road traffic accident.
Thus, a very first Doctor who examined both the deceased first in
time, has categorically testified that both the deceased themselves
had stated the cause of injury as road traffic accident and had not
whispered anything about the alleged attack by the assailants by
means of swords and stones. The prosecution has failed to clear
this anomaly which would indeed go to it's root and render it's
case unworthy of acceptance. Be that as it may.
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22. P.W. 13 - Dr. Prakash Dnyanoba Rokade conducted
autopsy on the dead body of deceased Ketan on 05.03.2010. He
noticed the following injuries : -
[i] Stiched wound seen over the abdomen mid line below
the xiphisternum extending lower downwards upto
infraumbilical region of size 22 cms with intact 15
black linen sutures vertical.
[ii] Stiched wounds (intercostal drain) seen over the left
mid axillary line in between 4-5th intercostal space of
size 3 cms with intact 2 stiches.
[iii] 4 cms below and downs wards in between 6-7
intercostal space of size 2 cms with intact stiches with
extract vasation of blood subcutaneous tissue redish
brown around oblique.
[iv] incised wound circular right lumbar region antriorly of
2 cms diameter for drain noted.
[v] Stiched wound seen over the left inferior angle of
scapula over the back of size 2 cms with intact 2
stiches vertically oblique.
[vi] Incised wound seen over the left loin region of back 4
cms below injury no. 5 of size 2 cms x 0.5 cms with
lossened stitch vertically oblique margins clear spindle
shaped.
[vii] Multiple contusions seen all over the left and right
sided scapular region of the back, thoracic diffuse of
variable sizes of 5 cms to 20 cms brownish black in
colour.
[viii] Contusion left ear upper pinna and margins of size 4
cms x 0.5 cms brownish black in colour.
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The injuries mentioned in column no. 17 are antemortem
in nature. Injuries No. 1 to 4 are surgical wounds.
Injuries No. 5 and 6 are caused by sharp object. Injuries
No. 7 and 8 are caused by hard and blunt object. Age of
injuries No. 5 to 8 are more than 48 hours.
On dissection meninges intact tense raised above the
surface, brain firm edematous with contusion left frontal
region anterior aspect of size 4 cms x 1 cm.
As regards Thorax - on dissection, on exploration of
stiched wound injuries no. 2 and 3 under the left sided
axillalry line margins of wound clean cut with
hemarragic area round.
Pleura - posteriorly contused with left sided intercostal
drain incised wound noted clear cut margins noted
obliquely.
Larynx, Tracea and Bronchi - Blood stained frooth noted.
Right lung - it was partly collapsed, pale pinkish upper
lobes with lower lbes firm and darck blush cutsection
hearmorragic with edematous frooth noted firm to
spongy at places cutsection congestion with edematous
frooth noted.
Left lung - it was partly collapsed pinkish upper lobes
with lower lobes firm and dark bluish cutsection
heamorragic with edematous frooth noted firm to spongy
at places cutsection congestion with edematous frooth
noted with blood in the cavity of about 150 cc.
Heart - Externally areas of petechial heamorragic areas
noted. The left and right ventricle aspect cutsection right
side dark blood with clots noted left side empty.
Abdomen - On exploration of the injury no. 1 & 6 rectus
and midline muscle and peritoneum found sutured with
adhesions of viscera with drain adjacent wound right
lumbar region noted.
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Peritoneum - stiched with surrounding reddish and
inflamed.
Cavity - Edematous blood stained fluid noted.
Stomach blood with mucosa congestion noted.
Small intestline and its contents - resection anatomosis
of jejunum with contused & heamorragice intestines with
adhesions to the adjacent visceral organs noted.
Large intestline and its contents - contused and
hearmorragic and adhesions posteriorly.
Liver - Pale, slugh with adhesions right lobe, congested.
Pancreas - Heamorragic body of pancreas with adhesions
noted.
Spleen - pale, slate grey in colur adhesions posteriorly
and medially with congestion at places.
Kidneys - Firm, pale cutsection congested.
Organs of genration - edematous flud seen under the
scrotal skin rest normal tissue.
23. According to P.W. 13 - Dr. Rokade, the probable cause
of death was 'intra abdominal operative surgery (resection
anastomosis of the jejeunum) with blunt trauma upper back and
chest'. He further testified that after receipt of histopathological
examination and report of Chemical Analyzer, he had given the
final cause of death as "septicemia in a case of Intra-abdominal
operative surgery". Accordingly, he issued the post-mortem notes
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which are proved at Exhibit 139. The final cause of death is at
Exhibit 140. This witness categorically deposed that the injuries
mentioned in column no. 17 of the autopsy report are possible
with the weapon before the court, meaning thereby, a 'sword'. He
further admits that the injury nos. 1 to 4 in column no. 17 are
surgical wounds. The injuries no. 5 and 6 in column no. 17
externally appeared to be simple injuries. According to this
witness, if a patient is diabetic then it can cause septicemia. As
such, the evidence of this witness though prima facie seems to be
not very clear as to whether the death of Ketan was homicidal or
due to the pre-existing ailments and subsequent septicemia, yet we
may for the time being accept that deceased Ketan died a
homicidal death. However, further evidence of P.W.14 - Dr.
Ms.Dakshayani Satish Nirahale, who conducted surgery on the
person of deceased Ketan, falsifies that there was a direct nexus
between the alleged injuries caused in the assault vis-a-vis the
cause of death of the deceased.
24. The sum and substance of the evidence of P. W. 14 -
Dr. Dakshayani Nirahale is that she is a Professor and qualified as
M.S. (General Surgery). At the relevant time, she was attached to
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D.Y. Patil Hospital. On 04.03.2010, Ketan was brought with a
history of pain in the abdomen. On examination, she found that
his pulse was very low and feeble. The rate was increased. His
blood pressure was low. After investigation, it revealed that the
patient had a blood clot in left plural cavity and in the abdomen
there was hollow viscus perforation. After discussion with the
relatives of the patient, he was operated in order to drain out the
intercostal blood for left hemothorax and exploratory laparotomy
for perforative peritonitis. Her evidence further reveals that the
patient was in critical condition and, therefore, exploratory
laparotomy was done under general anesthesia. Patient was kept
on ventilator in surgical ICU. His health started deteriorating and
was put on all supportive management. On 05.03.2010, in the
morning at about 10:15 am, patient did not respond to any
stimuli, pulse was not recordable and BP was not recordable, ECG
was taken. No cardiac activity recorded. The pupils were dilated
and fixed. He was, therefore, declared dead.
25. The evidence, however, reveals that during
investigation it was noticed that the kidney functions were
deranged. The patient was in septicemia which was explained to
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his relatives.
26. Certain vital admissions given in cross-examination
would definitely brush aside the case of the prosecution that the
death of deceased Ketan was homicidal. P.W. 14 - Dr. Ms.
Dakshayani Nirahale admits that deceased Ketan was chronic
smoker and addicted to alcohol. When he was examined by this
witness, she found that there were infections and septicemia. She
admits that any impact on chest or abdomen may lead to
haemorrhage. If such impact is in a road traffic accident, then it
may lead to haemorrhage. According to this witness, in case of
accumulation of blood in plura as has been occurred in this case, it
may lead to hypertension and the patient may have breathlessness,
pain in chest, decrease of oxygen level in blood. If the blood
accumulation goes on increasing, lungs may collapse. This can be
one of the contributory factor affecting general condition of the
patient.
27. Thus, the two important witnesses who are experts in
their fields and had no axe to grind against the deceased, had
categorically opined that it would be very difficult to construe that
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the deceased died a homicidal death. The death due to injuries
sustained in a road traffic accident cannot be ruled out. The final
cause of death certificate of deceased Ketan is proved at Exhibit
140.
28. So far as deceased Siddiq is concerned, P.W.11-Dr.
Subhas Madne testified that he conducted autopsy on the person
of the deceased Siddiq on 02.03.2010 between 6.15 and 07.15 am.
He noticed the following external injuries.
"(i) Sutured wound over occipital part of skull. It was
obliquely directed 4 cms in length and 2 stiches.
(ii) sutured wound on the left side of buttock posterior aspect.
It was obliquely directed and 3 cms in length with one
stich.
(iii) incised wound on right forearm, flexor aspect and was
obliquely directed, 7 cms 2 cms in dimension and skin
deep.
The above injuries were antemortem in nature.
4. On dissection, he found the following injury.
(i) Sutured contused occipital skull, with correspond to
injury No. 1 of col. no. 17. There was no any fracture
detected to skull. Dura was intact. Cerebellum and brain
stain were congested. Pontine haemotama was present.
. Accordingly, he issued Autopsy Report, which is at
Exhibit 122.
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29. P.W.11 - Dr. Subhas Madne testified that after receiving
the reports of histopathological examination and Chemical
Analyzer, he issued the final cause of death certificate. According
to him, the cause of death is 'death due to head injury'. However,
he further clarified that injury nos. 1 and 2 mentioned in column
no. 17 cannot be caused by the type of weapon which was shown
to him i.e. sword. However, he opined that it was a homicidal
death.
30. Let us say that this was a homicidal death caused due
to the sword like weapon, however, it will have to be seen whether
the appellants were the authors of those injuries and whether the
prosecution has established beyond doubt that it was none other
than these four appellants who had a direct nexus in the assault
and resultant death of deceased Siddiq?
31. Before going to that, it would be interesting to go
through the cross-examination of P.W.11 - Dr. Subhas Madne. He
admits that he cannot categorically opine whether injuries no. 1
and 2 mentioned in column no. 17 of the post-mortem report can
be caused by a muddemal article nos. 19 and 20 i.e. swords, which
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were shown to him. However, he admits that the injury no. 3 i.e.
the incised wound on right forearm adm. 7 cm x 2 cm can be
caused by swords. He testified that there was a doubt whether the
deceased had consumed liquor/alcohol and, therefore, his blood
was sent for chemical analysis. Since the mucosa was congested,
he testified that there was a possibility of consumption of alcohol
before death. He further admits that he cannot opine whether the
injuries described in the post-mortem report could be said to be
fatal in nature and were sufficient to cause death in ordinary
course of nature. According to this witness, at the time of issuing
autopsy notes as well as final cause of death certificate, he did not
opine that the injuries in column no. 17 are possible by blunt and
sharp side of the weapons which were referred to him when he
was in the witness box. He further corroborated the testimony of
earlier Medical Officer that in view of the OPD case papers, there
was a history of road traffic accident. Injury like CLW and incised
wound on the person of Siddiq could have been caused in the road
traffic accident. This witness had been cross-examined extensively
by the defence on the aspect of injuries mentioned in column no.
17 vis-a-vis the weapon alleged to have been used in causing those
injuries. He categorically admits that injury nos. 1, 2 and 3 were
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not fatal as at the time of admission of the patient, he was
conscious and well oriented.
32. Having considered the over all evidence of medical
experts, it is quite apparent that deceased Ketan did not die a
homicidal death, much less, a homicide alleged to have been
committed by the appellants which would be discerned from other
evidence on the record. However, the death of Siddiq could have
been a homicidal one, of course coupled with several other factors
as already discussed herein above.
33. Turning to the star witness of the prosecution and the
first informant P.W. 1 - Narsingh Chavan to ascertain, whether his
evidence can be accepted as a truthful version of entire incident
and whether implicit reliance can be placed upon his testimony?
34. Indubitably, P.W.1 - Narsingh was a friend of both
deceased Ketan and Siddiq. According to him, on 01.03.2010,
around 07:00 p.m., he accompanied deceased Siddiq and Ketan to
the Chinese cart of one Mr. Ravi. It was a day of Holi festival. The
trio had decided to have some snacks at the Chinese food centre of
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one Mr. Ravi. They went there together and placed an order.
However, at 08:30 p.m., when they were about to start eating the
snacks, 7 to 8 persons suddenly came over there and started
kicking the tables and throwing the plates. When deceased Ketan
asked those persons about their conduct, they picked up quarrel
with Ketan. Owner of the Chinese cart, namely Ravi intervened
and the boys left the spot. After sometime, all of them returned,
however, at this time four of them were armed with swords. They
started beating Ketan on his chest with stones. They gave blow on
the back of deceased Ketan. When deceased Siddiq went for the
rescue of Ketan, he too was assaulted by means of swords over his
head, hand and hips. Rest of the assailants were beating Siddiq
and Ketan with fist blows. The evidence further reveals that one
Harjitsingh also came for the rescue of the Siddiq and Ketan, who
was sitting on the another table. In the melee, Harjitsingh too
sustained injuries to his hand when he tried to rescue Ketan and
Siddiq. Thereafter, all of them ran away. Admittedly, P.W.1-
Narsingh Chavan already knew accused Ganesh Jadhav. He did
not know rest of the accused. His evidence further reveals that
thereafter he took both Siddiq and Ketan to Mayur Hospital and
thereafter to the YCM Hospital. According to this witness, there
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was no facility of Intensive Care Unit (ICU) at YCM Hospital and,
therefore, Siddiq was taken to Birla Hospital. However, he was
declared dead on the gate of Birla Hospital. He was again brought
back to YCM Hospital. This witness thereafter went to Dehu Road
Police Station to lodge a report at about 01:30 a.m. The FIR is
proved at Exhibit 62 dated 02.03.2010. P.W.1-Narsingh admits
that the printed proforma of the FIR does not bear his signature.
His evidence further reveals that on the following day he was
called by the police at the spot of the incident from where a
footwear of the deceased Siddiq Akarte was seized and the
Investigating Officer had drawn a spot panchanama, etc.
35. There are several reasons to disbelieve the testimony of
this witness on certain vital aspects, for, his conduct as well as
some of his admissions in cross renders his testimony doubtful.
Before adverting to the very lengthy and elaborated cross-
examination, we would like to mention that the learned trial Court
had not controlled the cross-examination and permitted the
defence to put several irrelevant and inadmissible questions
thereby unnecessarily wasting the valuable time of the court. A
trial Judge is not simply a recording machine but he should have
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over all control over the cross-examination, albeit keeping in mind
the right of the defence to cross-examine the witnesses within the
four corners of law of evidence. Be that as it may.
36. As already stated, P.W.1-Narsingh cannot be said to be
a wholly truthful witness. The first and foremost aspect which
would render the testimony of P.W.1-Narsingh unacceptable as,
according to him, the accused were not armed with weapons when
they first arrived at the scene. However, he did not state this
material fact in his complaint. He even did not state that the
accused again returned back with weapons in their hands. He
admits that four of the accused were armed with swords and
started assaulting deceased Ketan. He further admits that he was
sitting in the opposite direction of deceased Ketan and deceased
Siddiq was sitting by the side of Ketan. As already discussed in the
evidence of the medical experts, it is apparent that there are very
few injuries on the person of both the deceased which rules out
the possibility of they having been assaulted by four persons armed
with swords by each of them, indiscriminately. Except accused
Ganesh Jadhav, P.W.1-Narsingh did not state in particular as to
which accused had dealt blows on the person of deceased Ketan
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and Siddiq. He also testified that one of the accused had beaten
deceased Ketan with stone. No doubt, it is difficult to describe in
minute details about the blows alleged to have been inflicted upon
the deceased by each of the accused, nevertheless, the conduct of
this witness to remain a silent spectator itself renders his testimony
doubtful and so also about his presence on the spot. He called
brother of deceased Siddiq, namely, Javed by his mobile phone
bearing no. 9921030720 only after the assault and escape of the
assailants. The prosecution has not examined the said Javed,
brother of deceased Siddiq, in order to substantiate the fact as to
whether he was, in fact, called by P.W. 1-Narsingh, who would
have corroborated the fact that P.W.1-Narsingh was present on the
spot. By not examining the said Javed, adverse inference can be
drawn against the prosecution for suppressing this material
evidence. The Investigating Officer could have obtained CDR of
Cell No. 9921030720 of P.W.1-Narsingh as well as tower location
to establish the facts that, in fact, he did call Javed and his location
was at the Chinese Food Cart. No such efforts appeared to have
been taken.
37. P.W. 1-Narsingh testified that he along with Javed took
both the accused first to Mayur Hospital and thereafter to YCM
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hospital. Surprisingly, though both the deceased were profusely
bleeding, there is no drop of blood or stains seen on the clothes of
this witness. He admits that his clothes were not stained with
blood nor did the police seize his clothes. On the aspect as to
whether he really accompanied the deceased to the hospital, there
is also a contradiction in the sense that according to PW.12-Dr.
Abhijeet Lokhande, one Sijoy Thomas had brought both the
deceased Ketan and Siddiq to the hospital and not by P.W.1-
Narsingh. P.W.12 - Dr. Abhijeet Lokhande has no reason to falsely
depose as regards the person who had brought both the deceased
to the hospital. It would necessarily mean that this witness either
is lying on that aspect or he did not accompany both the deceased
to the hospital along with Javed. The prosecution even did not
examine the said Sijoy Thomas, who would have been the best
witness to depose whether he had brought both the deceased to
the hospital. It is pertinent to note that the person by name Sijoy
Thomas, who is said to have taken both the deceased to the YCM
hospital, was not examined by the prosecution even though he also
acted as a panch witness to the inquest panchanama of the
deceased Siddiq. Why his evidence has been withheld by the
prosecution? An adverse inference under Section 114(g) of the
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Evidence Act is required to be drawn against the prosecution.
According to P.W.1 - Narsingh, along with Javed and one Atish
Bhalsing both the deceased were taken to YCM hospital. Except
this witness, no one had whispered about the presence of one
Atish Bhalsing nor the prosecution examined the said Mr. Atish
Bhalsing. P.W.1-Narsingh admits that he did not remember
whether he had correctly told his name to the police as Narsingh
Ramlal Chavan at YCM hospital. It is difficult to believe this
witness as to how a person would not tell his correct name. P.W.1-
Narsingh categorically admits that there is police booth in Y.C.M.
hospital. If he had carried deceased Siddiq and Ketan to the
hospital after the alleged assault, why his name has not been
entered in the register maintained at the police booth or even for
that matter, in the casualty of Y.C.M. hospital? It sounds incredible
that the police personnel present in the police booth as well as the
casualty Medical Officer failed to obtain the signature of P.W.1-
Narsingh or record his name as a person bringing the deceased in
the hospital for the first time after the incident. He also feigned
ignorance as to whether the Doctor at Y.C.M. hospital had
enquired with deceased Siddiq and Ketan as to how they sustained
injuries. This necessarily means that he did not carry deceased
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Siddiq and Ketan to the hospital but, perhaps it was the said Sijoy
Thomas as, it has been unequivocally testified by P.W.12 -
Dr.Abhijeet Lokhande. This also creates a doubt about the
authenticity of his testimony.
38. A useful reliance has been placed upon an authority of
the Supreme Court in the case of Bhimapa Chandappa Hosamani
and others Versus State of Karnataka reported in (2006) 11 SCC
323, on the aspect of evidentiary value of a solitary witness. Here
in the case in hand, P.W.1 - Narsingh is the solitary witness of the
prosecution. Though P.W.2 - Harjitsingh was also examined,
however, he could not identify any of the accused during trial. So,
practically P.W.1 - Narsingh is the only eye-witness. It has been
held by the Supreme Court that though conviction can be based on
a sole testimony of single witness but, while doing so, the court
must be satisfied that his testimony is of such a sterling quality
that the court finds it safe to base a conviction solely on that.
Credibility of such a witness is to be tested by reference to the
quality of his evidence, which must be free from any blemish or
suspicion. It also must impress the court as wholly truthful. It
should also appear to be natural and so convincing that the court
has no hesitation in recording a conviction solely on that basis.
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39. Viewed from this angle, by no stretch of imagination,
testimony of P.W.1-Narsingh is of such a sterling nature which can
be relied upon. In view of material inconsistencies, contradictions
and the falsity of his evidence of carrying the deceased to the
hospital would not render his testimony natural. The ratio is,
therefore, can be made applicable in the given set of facts. To rely
upon the testimony of this witness would tantamout to miscarriage
of criminal justice. If Ravi - the Chinese Cart owner was the first
person to pacify the quarrel amongst the assailants, he also could
have been the best witness not only to confirm the identification of
the appellants as well as the rest of the accused but also to testify
about the alleged assault. Non-examination of Ravi would also hit
the prosecution story very badly. Adverse inference in that regard
is also required to be drawn against the prosecution as to why his
evidence was withheld. It is not the case of the prosecution that
presence of Ravi could not have been procured during trial.
40. There is one more glaring aspect. P.W.1-Narsingh
admits that there is a whitener put on his signature on the FIR.
Prosecution has not clarified as to why there was a whitener put
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over the signature of P.W.1-Narsingh. It is the defence of the
accused/appellants that the FIR was antedated and, therefore,
there was interpolation over it which renders the prosecution case
doubtful. He admits that his clothes were not stained with blood
while taking Siddiq and Ketan to the hospital. Interestingly, at one
place during cross-examination, P.W.1-Narsingh testified that he
tried to intervene in the quarrel, however, he did not receive a
single scratch nor he was assaulted by anyone in the said episode.
This is something strange which no sane man will believe. If more
than four persons were assaulting the deceased in which even
P.W.2-Harjitsingh sustained injuries, how come this witness
escaped from receiving a single scratch on his person and why the
assailants had spared him?
41. The aforesaid factors indeed reduces the probative
value of the evidence of P.W.1-Narsingh and also creates a
reasonable doubt as to whether he was present on the spot. P.W.1-
Narsingh claims that he knew P.W.2-Harjitsingh for several years,
however, P.W.2-Harjitsingh is silent whether P.W.1-Narsingh was
present on the spot of the incident. The conduct of P.W.1 is highly
unnatural. If P.W.1-Narsing already knew Ganesh Jadhav, then
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why the prosecution had conducted a Test Identification Parade
(for short "TI Parade") qua accused Ganesh Jadhav by asking P.W.1
to identify the assailants. The TI Parade itself appears to be a farce
and nothing else. It is because accused Ganesh Jadhav was
arrested on 02.03.2010, accused Riyaz was arrested on 03.03.2010
and accused Chandrabhan was arrested on 06.03.2010. It
necessarily means that all these accused were in custody of the
police. The TI parade was held on 01.07.2010 i.e. almost after
four months. There is no plausible explanation given by the
prosecution for such an inordinate delay in conducting the alleged
TI parade. The incident had occurred during night hours on the
occasion of Holi festival. The learned counsel for the appellants
has, therefore, rightly relied on a judgment in the case of Hari
Nath And Anr. Vs State of U.P. reported in (1988) 1 SCC 14. The
ratio laid down by the Hon'ble Apex Court that the evidentiary
value of TI parade is only corroborative in nature. It is only for the
purpose to ensure that the investigation is being conducted in the
right direction. For admissibility of such evidence, the accused
should be unknown to the prosecution witness before the TI
parade is conducted. It is also observed that TI parade should be
held with reasonable promptitude after the occurrence. Here is
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the case where the prime accused was already known to P.W.1-
Narsingh and, therefore, the TI parade was just a farce. As regards
rest of the accused, there is no explanation by the prosecution for
such a long delay and, therefore, that itself renders the prosecution
case unworthy of credit. The evidence on that aspect is unreliable.
42. P.W.1-Narsingh, in his evidence, admits that he had
been to Yerwada Central Prison for TI parade on 05.05.2010,
however, on that day TI parade was not held nor there is any
explanation tendered by the prosecution. Had there been a TI
parade just within 3-4 days of the incident, there would have been
some substance in the same. From letter Exhibit 169, dated
03.05.2010, produced by the prosecution, it appears that the TI
parade was to be held on 04.05.2010. If it was so, why the parade
was not conducted either on 04.05.2010 or 05.05.2010? It seems
that the prosecution has tried to suppress genesis of the crime as
well as evidence as regards the identification of the real assailants.
There is no evidence that before conducting the TI parade there
was no occasion for any of the identifying witnesses to see the
suspects. The prosecution did not examine Executive Magistrate
who alleged to have conducted the TI parade. That also is the
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reason to discard the evidence as regards the TI parade. The
Investigating Officer (P.W.18 - P.I. Gokave) was not the proper
witness to prove the memorandum of TI parade. P.W.1-Narsingh
identified accused Jaiswar and appellant Amol Khalage as the
persons assaulting the deceased with swords. However, no sword
came to be recovered at the instance of appellant - Amol Khalage.
A sword is alleged to have been recovered at the instance of
acquitted accused Sagar Potbhare. Sagar was not identified by
P.W.1-Narsingh. Thus, evidence of P.W.1-Narsingh is shaky,
unbelievable and unacceptable on the vital aspect of identification
of present appellants.
43. The learned counsel has placed reliance on a judgment
of the Division Bench of the Bombay High Court in the case of
Prakash @ Buddha Ramchandra Shinde vs The State of
Maharashtra (Criminal Appeal No. 753 of 2014 and two other
connected appeals), wherein it has been observed in paragraph
nos. 16 and 17 that non-examination of the Special Executive
Magistrate, who had conducted the TI parade, would be fatal to
the prosecution case.
"16. In the substantive evidence, both the witnesses have not
deposed before the Court in respect of the contents of Exh.
115. It is admitted position that the actual assailants were
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unknown to P.W. 2 Swapnil, the complainant. In view of
this, it is the case of the prosecution that test identification
parade was conducted in which the complainant had
identified the actual assailants and driver of the
motorcycle. It would therefore be incumbent upon the
prosecution to establish that P.W. 2 had indeed identified
the accused persons. It is pertinent to note that the
prosecution has not examined Special Executive Magistrate
who had conducted test identification parade, but instead
has examined P.W. 9 Pandit Rokade and P.W. 3 Suresh Bhat.
17. The Prosecution has examined P.W. 9 Pandit Rokade as a
panch for test identification parade conducted in the office
of the Tahasildar. No reason is assigned by the prosecution
for not examining Special Executive Magistrate who had
conducted test identification parade. According to P.W. 9,
P.W. 2 Swapnil had identified Prakash Shinde accused No.
1. Test identification parade is marked at Exh. 124. It is
elicited in the cross-examination that the first room of the
Tahasildar office is used by Mr. Padole, P.I. of Crime Branch
i.e. Investigating Officer in the present case and the second
part is in the use of police station and third part is in the
use of Tahasildar. It is pertinent to note that there is
categorical admission of P.W. 9 that the people who were
invited to act as dummies were standing in a row when he
had gone to bring the accused. The witness P.W. 2 was
already present when the dummies arrived. It was
therefore, easy for the witness to identify the accused who
was purportedly brought under a veil since the witness has
already seen the dummies. In fact, the topography of the
office would show that the office of the Tahasildar is
adjacent to the police station and there was single entry. It
is stated in the cross-examination that two witnesses had
arrived for participating in test identification parade. It is
not true to suggest that five witnesses had arrived for
participating in the parade."
44. P.W.2-Harjitsing Charansing Barda is a chance witness.
On the day of incident, he was present at the Chinese food centre.
He noticed the assailants mounting attacks upon deceased Ketan
and Siddiq. According to him, there were 7 to 8 boys who had a
scuffle amongst themselves. He does not say that they assaulted
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deceased Ketan and Siddiq or quarreled with them. The owner of
the Chinese centre pacified the quarrel and the boys left the stall.
However, they returned again with four of them armed with
swords. One of the boys had dealt a blow of sword on the person
of a boy sitting over there. The colleagues of that person were also
being assaulted who tried to save him. This witness also attempted
to rescue the injured out of humanity but sustained injury to the
finger of his left hand by means of a sword. According to him,
both the injured were lying over there and thereafter the assailants
escaped from the spot. Later on, this witness came to know that
one of the injured namely Siddiq was brother of one Javed. It is
pertinent to note, as already stated, the prosecution has not
examined the said Javed for the reasons best known to it.
According to P.W.2 - Harjitsing Barda, it was Javed who had
carried both the injured to Y.C.M. hospital and not P.W.1-Narsingh
Chavan, who claims that he had shifted the injured to the hospital,
however, P.W.12-Dr. Abhijeet Lokhande falsified both these
witnesses by stating that one Sijoy Thomas had brought the
injured to the hospital. These aspects indeed go to the root of the
prosecution case.
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45. Unfortunately, P.W.2-Harjitsing could not identify any
of the assailants during the trial and, therefore, his evidence is of
hardly any assistance in establishing the identity of the assailants.
In his cross-examination, P.W.2-Harjitsing admits that when he
reached the stall he did not see the quarrel between those boys but
what he noticed was that the chairs and plates were scattered. It
appears that he had witnessed the second assault by means of
weapons but, he is not in a position to identify any of the
assailants. The evidence of this witness is, therefore, hardly of any
assistance to the prosecution to prove that those were appellants
and none other who had assaulted the deceased.
46. It is needless to go into the evidence as regards
discovery of swords and clothes under Section 27 of the Evidence
Act qua appellants-Ganesh and Chandrabhan for the simple reason
that the evidence does not even remotely connect the appellants
with the crime in question. There is no CA report on record
indicating as to whether the blood over the swords which alleged
to have been recovered was of deceased Ketan or deceased Siddiq.
Even the medical evidence, as already discussed herein above,
does not completely rule out the possibility of the injuries due to a
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road traffic accident. It could either be a case of homicidal death
or road traffic accident. The prosecution, cannot take diametrically
opposite stand, for, that would destroy it's case. The prosecution
has relied upon the evidence of Doctors who said its a case of road
traffic accident and also took a stand that it is a case of assault
resulting into homicidal deaths. Entire edifice of the prosecution
case has been collapsed due to such stand.
47. It is apparent from the record that the seized
muddemal was sent to the Chemical Analyzer, belatedly, on
29.03.2010. No explanation has been given by the prosecution as
to why such an inordinate delay had caused. There is no evidence
that the muddemal remained with the Police Malkhana in a
properly sealed condition and it reached to the office of the
Chemical Analyzer in a sealed condition. The appellants have
placed reliance on a judgment in the case of Ramdas Baban Marne
v. State of Maharashtra reported in AIROnline 2020 Bom 3063. In
the said judgment by giving reference of a decision of this Court in
the case of Deoraj Deju Suvarna v. State of Maharashtra reported
in 1994 Cri LJ 3602, it is held that not only should the prosecution
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adduce evidence that after seizure, the articles were sealed but
should also lead link evidence to the effect that till being sent to
the Chemical Analyzer, they were kept throughout in a sealed
condition. This is done to eliminate the suspicion that blood might
not have been put on the articles subsequent to the recovery and
prior to being sent to the Chemical Analyst. The ratio is squarely
applicable herein.
48. The Chemical Analyzer's reports are not at all useful
for the prosecution as the blood groups on the entire muddemal
was termed as 'inconclusive'. Thus, the prosecution evidence
insofar as it relates to the alleged recoveries and alleged seizures,
does not support it's case. No sword came to be recovered at the
instance of appellant - Riyaz, either under Section 27 or under any
other panchanama.
49. There is one more reason to disbelieve the prosecution
on the count that deceased Ketan died a homicidal death. Apart
from the medical evidence discussed herein above, prosecution has
examined P.W.10-Chetan Manik Bansode who is the real brother of
deceased Ketan. His evidence is of hearsay nature, in the sense, he
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was not an eye-witness. He testified about what had been narrated
to him by P.W.1-Narsingh. He testified that the deceased Ketan was
discharged on the next day morning. However, he had again
suffered pains and, therefore, he was brought back to the hospital
on the same day. He was again discharged on 02.03.2010 at 07:00
am. The police came to their house and recorded his statement.
On 04.03.2010, Ketan again started feeling pains and, therefore,
cousin of P.W.10-Chetan Bansode admitted Ketan in the D. Y. Patil
hospital. However, on 05.03.2010, he died at 10:15 a.m. The
statement so recorded by the police on 02.03.2010 cannot be said
to be an oral dying declaration as it is hit by Section 32(1) of the
Evidence Act. It is not the case of the prosecution that the said
statement was recorded when Ketan was in expectation of death.
It is the settled position of law that an oral dying declaration is
inherently a weak piece of evidence and hence, implicit reliance
cannot be placed upon the same. This Court has held about the
same in a judgment delivered in the case of Ramdas Baban Marne
(supra). Paragraph nos. 31 and 32 is extracted herein below.
"31. No doubt that a conviction can be recorded on the basis of
the oral dyng declaration provided, it is truthful and inspires
confidence of the Court. In the present case, corroboration
would be necessary after taking into consideration the nature
of the injuries, coupled with the fact as to whether the
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injured was conscious and fit to make a statement of P.W.2,
when she reached there.
32. Learned Counsel for the appellant has placed reliance upon
the Judgment of this Court in the case of Milind Ramchandra
Gharat reported in 2015 (1) Bom. C. R. (Cri.) 724. However,
in the said case, the scribe of the dying declaration had not
written the exact words in which the deceased had narrated
the incident. The contents of the dying declaration were not
proved and therefore, in the facts of that case, the Court has
held that -
'Apart from that, an oral dying declaration is
primarily a weak piece of evidence and unless the
Court finds that implicit reliance can be placed on
the evidence relating to oral dying declaration, no
conviction can be based on the oral dying
declaration.'"
50. Admittedly, deceased Ketan had died four days after
the alleged statement made to P.W.10-Chetan Bansode. Meanwhile
he was discharged thrice from the hospital. If the Investigating
Officer had a reasonable apprehension that the condition of
deceased Ketan was so precarious that he could succumb to the
injuries, why the Investigating Officer did not make any attempt to
summon Executive Magistrate for recording the dying declaration
of deceased Ketan?
51. The learned trial Court has not only committed errors
in law and fact but also misinterpreted the evidence of the
prosecution witnesses and reached an erroneous conclusion that
the prosecution has proved the case beyond all reasonable doubts.
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The impugned Judgment is full of surmises and conjectures. It is
the settled principle of Criminal Jurisprudence that the prosecution
must stand and fall on it's own legs. It cannot derive any
assistance from the defence in proving the guilt beyond reasonable
doubt. The impugned Judgment and Order, therefore, warrants
interference in appeal. Consequently, following order is expedient.
ORDER
[i] Criminal Appeals are allowed.
[ii] The impugned Judgment and Order dated 02.12.2015
passed by the learned Addl. Sessions Judge, Pune, is
quashed and set aside.
[iii] The appellants are acquitted of the offences with which
they were charged.
[iv] Their bail bonds stand cancelled.
[v] Fine amount, if paid, be refunded to the appellants.
[vi] The order as regards disposal of the muddemal
property, is maintained.
[ PRITHVIRAJ K. CHAVAN ] [ SMT. SADHANA S. JADHAV ]
JUDGE JUDGE
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