Shaikh Raju @ Raju Jahangirdar vs The State Of Maharashtra
2023 Latest Caselaw 2805 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD
                      CRIMINAL APPEAL NO. 651 OF 2014

Syed Sarfaraz s/o. Abdul Kadar,
Age : 40 Years, Occ. Nil
R/o. Dargah dayra, Mukund Nagar,
Ahmednagar, Tq. & Dist. Ahmednagar.                   ...     APPELLANT

                       VERSUS

State of Maharashtra
Through the Chhawani Police Station,
Aurangabad, Dist. Aurangabad.                         ... RESPONDENT

                                   WITH
                      CRIMINAL APPEAL NO. 238 OF 2015
1.     Shaikh Ejaj @ Munna Jahagirdar
       Age : 37 Years, Occ. At present in Jail,

2.     Shaikh Javed @ Painter s/o Sk. Sheru
       Age : 34 Years, Occ. At present in Jail,

       Both R/o. Ahilyanagar, Ward No. 5,
       Newasa (kh), Tal. Newasa, Dist. Ahmedangar

3.     Muneer @ Munna Pathan
       Age : 38 Years, Occ. At present in Jail,
       R/o. Ahilyadevinagar, Ward No. 2,
       Bajrang Chowk, Dhangar-Vasti,
       Shrirampur, Dist. Ahmednagar.                   ...     APPELLANTS

                       VERSUS
State of Maharashtra
Through the Chawani Police Station,
Aurangabad, Dist. Aurangabad.                         ... RESPONDENT

                                   WITH
                      CRIMINAL APPEAL NO. 717 OF 2014

Shaikh Raju @ Raju Jahagirdar
Age : 46 Years, Occ. At present in Jail,
R/o. Ahilyanagar, Ward No. 5,



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         ::: Uploaded on - 23/03/2023             ::: Downloaded on - 24/03/2023 20:15:45 :::
 Newasa (kh), Tal. Newasa, Dist. Ahmedangar              ...     APPELLANT

                       VERSUS

State of Maharashtra
Through the Chawani Police Station,
Aurangabad, Dist. Aurangabad.                           ... RESPONDENT

                                   WITH
                      CRIMINAL APPEAL NO. 653 OF 2014

Shaikh Mushtaq Ahmed S/o Gulam Rasool,
Age : 38 Years, Occ. Nil,
R/o. Near Badi Masjid, Mukund Nagar,
Ahmednagar, Tq. & Dist. Ahmednagar.                     ...     APPELLANT

                       VERSUS

State of Maharashtra
Through the Chhawani Police Station,
Aurangabad, Dist. Aurangabad.                           ... RESPONDENT

Mr. H. D. Deshmukh, Advocate h/f Mr. N. S. Ghanekar, Advocate for the
appellant in Criminal Appeal Nos. 238 of 2015 and 717 of 2014
Mr. G. R. Syed, Advocate for the appellant in Criminal Appeal Nos. 651
of 2014 and 653 of 2014
Mr. P. G. Borade, APP for the respondent/State

                                    CORAM           :   R. G. AVACHAT &
                                                        R. M. JOSHI, JJ.

                                    RESERVED ON     :   20/12/2022
                                    PRONOUNCED ON   :   23/03/2023

JUDGMENT (PER- R. M. JOSHI, J.):-

1. Appellants/accused being aggrieved by the judgment and

order passed in Sessions Case No. 376 of 2011 convicting them for the

offences punishable under Sections 302, 120-B, 143, 147, 148 read with

Section 149 of the Indian Penal Code (for short 'IPC) and 3 read with 25

criappeal651.14.odt 2 of 44

of Indian Arms Act and sentencing them to suffer imprisonment for life

with fine have preferred these appeals under Section 374 of the Code of

Criminal Procedure (for short 'Cr.P.C.).

2. In nutshell the story of the prosecution can be recorded as

under:

(a) On 18/05/2011 Anna Lashkare, resident of Newasa along

with his wife (Pooja), three children and neighbouring boy (Manoj)

came to Aurangabad in his own car. When they reached near

Nagar Naka one car gave dash to the vehicle of Lashkare. Both

vehicles halted at about 100-150 meters from the place of the

said accident. Both drivers were engaged into altercation over the

said issue. At the said place two motorcycles came and 4-5

persons alighted there from. Two of them caught hold of Lashkare

and others fired bullets on him from close range. Lashkare fell

down in injured condition. His wife Pooja had sought help from the

bypassers and after some time one unknown person drove them

in car of Lashkare to Ghati Hospital. Lashkare was declared dead

by Doctor on being brought to the hospital. Pooja lodged the

report in respect of the said incident at about 9.15 pm and

pursuant to the said First Information Report bearing No. I-

130/2011 came to be registered at Chhavni Police Station,

criappeal651.14.odt 3 of 44

Aurangagad.

(b) The Investigation into the said crime commenced and

panchnama of spot as shown by Pooja was drawn. From the said

spot empty cartridges were seized. A mobile phone of the

assailants came into the hands of Pooja while she tried to catch

hold of him was seized by drawing panchnama. According to the

investigating agency the said mobile phone was found to be of

Munna Jahagirdar. Thereafter in the said direction investigation

was carried out. Investigating Officer got secret information about

the assailants having gone to Indore and hence he along with

panch witnesses went to Indore and accosted Munna and Javed.

During the interrogation it was revealed that the weapons of

assaults were concealed in the residential house of Sayyed

Sarfaraj at Ahmedangar. The Investigating Officer therefore went

to the house of Sarfaraj and in presence of panch witnesses two

fire arms were seized under the panchnama (Exhibit 166).

Motorcycle used in committing offence was also seized from his

residence (Panchnama Exhibit 166). Further investigation was

carried out and it was revealed to the Investigating Agency that

the murder of Lashkare was an out come of a conspiracy hatched

by Raju Jahagirdar accused No.1 with co-accused. In that direction

criappeal651.14.odt 4 of 44

investigation was done and statements of witnesses were recorded

who had claimed to have heard the conversation between the

accused persons giving an impression to them about there was a

conspiracy to kill Lashkare. Statement of the witnesses were also

recorded indicating that in the evening of the faithful day accused

Munna and Javed had altercation with Lashkare at petrol pump at

Khadka phata and they followed deceased's vehicle on Pulsar

motorcycle. During the course of investigation four accused

persons were put to identification parade and eye witnesses. Pooja

and Manoj identified accused Nos. 2 to 4 to be the assailants

involved in the actual assault. Investigating Officer has recovered

Nano motorcar which was allegedly used in the said incident by

which accident was caused and deceased was kept engaged at the

spot. Seized fire arms were sent for ballistic examination and the

report of the ballistic examination indicated that the bullets seized

from the dead body of Lashkare were fired from the seized fire

arms. After conclusion of the investigation, charge-sheet came to

be filed.

3. In order to bring home guilt of the accused, prosecution has

examined in all 38 witnesses. For the purpose of proving homicidal

death of deceased Dr. Zine (PW-31) was examined who categorically

criappeal651.14.odt 5 of 44

opined about cause of death due to multiple fire arms injuries. Ballistic

reports (Exhibit 217 and 218) support the said opinion of the Medical

Officer. The actual occurrence of incident is sought to be proved through

testimonies of Pooja (PW-9) and Manoj (PW-19). The testimonies of

Sudhir Mande (PW-27) panch witness for identification parade and

evidence of Datta Bharaskar, Executive Magistrate (PW-30) were also

relied upon, to establish conduct of identification parade. Ankush Jadhav

(PW-22), panch witness who had accompanied the Investigating Officer

to Indore deposed about the manner in which two accused persons were

accosted and while they were brought to Aurangabad, at there instance

how two fire arms and motorcycle were seized from the house of

accused Sarfaraj. On the point of conspiracy reliance was sought to be

placed on testimony of Mohan Kusalkar (PW-16), a tea vendor, who

claimed to have heard the conversation between the accused on

16/05/2011 wherein accused No.1 Raju had instructed co-accused to kill

Lashkare. In this regard witness Pardeshi (PW-15) also claimed to have

heard the conversation in Yashraj Hotel. Prosecution examined Advocate

Pathan (PW-12) who had accompanied accused No.1 Raju to Ajmer and

had found Raju to be disturbed and that he used to go away from them

while attending phone calls.

4.            Learned         counsel   for   the   appellants     amongst         other




criappeal651.14.odt                                                                6 of 44

contentions submitted that Trial Court has committed error in not

considering the fact that most of the witnesses examined by the

prosecution were either relatives of the deceased or the member of the

political party to which the deceased represented. It is further argued

that the admissions given by the Pooja indicate that there was no

dispute between accused No.1 and deceased in respect of the election of

Grampanchayat and that there is no evidence in order to show existence

of dispute on any other count. As far as testimony of eye witnesses is

concerned, it is submitted that the evidence is not free from doubt as

the their evidence about the previous incident is nothing but

improvement to the statements made during the course of investigation.

According to him the identification done by these witnesses is also

doubtful as the incident in question has occurred at around 8.00 pm at

the place where there was no provision for the light on the road. It is

submitted that the identification parade conducted by the Investigating

Agency of putting four persons at a time for identification provision is

contrary to the law. He relied upon judgment in case of Rajesh Govind

Jagesha Versus State of Maharashtra, (1999) 8 SCC 428,

Bollavaram Pedda Narsi Reddy and others Vs. State of A.P., AIR

1991 Supreme Court 1468 and Ravi @ Ravichandran V. State Rep.

By Inspector of Police, AIR 2007 Supreme Court 1729. On the

point of conspiracy it is submitted that the evidence of the witnesses is

criappeal651.14.odt 7 of 44

far from reliability as it is not probable that the conspiracy could be

hatched in such a manner as claimed and that witnesses are got up.

With regard to the testimony of Sachin Pardeshi (PW-15) who has

allegedly heard the conversation of the accused at Yashraj Hotel is

wholly unreliable taking into consideration cross-examination of the said

witness. He further drew attention of the Court to the evidence of

Advocate Pathan who has in no uncertain terms deposed about the

accused No.1 Raju visiting Ajmer regularly and at the relevant time also

he being there with the witness. Thus, according to him it is not the

case where the prosecution was able to prove the guilt of the accused

beyond shadow of reasonable doubt and hence the judgment of

conviction deserves interference. He placed reliance on the case of

Iqbal and Another Versus State of Uttar Pradesh, 2015(2)

Cr.C. 641 (SC) and Arjun Panditrao Khotkar Versus Kailash

Kushanrao Gorantyal and Ors in Civil Appeal Nos. 20825-20826

of 2017, to urge keeping electronic evidence out of consideration for

want of compliance of Section 65-B of Evidence Act.

5. On the other hand learned APP supported the impugned

judgment on the ground that the testimonies of eye witnesses are

consistent with regard to the occurrence of the incident and it is

sufficiently explained by them as to the situation at the spot which

criappeal651.14.odt 8 of 44

enabled them to see and identify the accused persons. With regard to

the identification parade it is submitted that such parade has importance

only during the course of investigation just to ensure that the

investigation proceeds in right direction. It is submitted that

identification by these witnesses of the assailants in the Court is the

substantive piece of evidence and the defence was unable to create any

doubt with regard to the said identification. It is further argued that

minor discrepancies in the testimonies of the witnesses is natural to

occur and the same cannot become a ground for discarding their

otherwise reliable version about the incident. About conspiracy it is

submitted that practically it is not possible to prove it by direct evidence

however in this case the prosecution was able to examine two witnesses

who have had occasion to listen to the conversation of the accused

which clearly indicates the conspiracy on the part of the accused to kill

Lashkare. He placed reliance on the judgment of the Hon'ble Apex Court

in case of Rakesh and another Versus State of U.P. and another in

Criminal Appeal No. 556 of 2021.

6. At the out set, we would like to deal with arguments that

most of witnesses were related to deceased and hence their testimonies

cannot be considered. Law on this point is fairly settled to say that the

testimonies of relatives or interested witnesses cannot be discarded on

criappeal651.14.odt 9 of 44

that sole ground but the Court is required to put itself on guard.

Reference can be made to the judgment of Hon'ble Apex Court in case

of Mohd. Rojali Ali and Others Versus State of Assam, Ministry of

Home Affairs Through Secretary, (2019) 19 SCC 567, it has held

that,

"13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well−settled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, Amit v. State of Uttar Pradesh, and Gangabhavani v. Rayapati Venkat Reddy. Recently, this difference was reiterated in Ganapathi v. State of T. N. in the following terms, by referring to the three−Judge bench decision in State of Rajasthan v. Kalki Ganapathi case, SCC p. 555 para

14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."

7. In the instant case perusal of the cross-examination of these

witnesses do not show that they had any enmic terms with accused

criappeal651.14.odt 10 of 44

persons or had any motive to falsely implicated them. However, in the

facts of the case the testimonies of such witnesses are closely

scrutinised. In the instant case Pooja (PW-9) is wife of deceased. She

however is a natural witness to the incident of assault as she was

present along with deceased in their car. There is no dispute about the

fact that deceased Lashkare was local leader of a political party. Kishor

Kachvah (PW-2), who acted as memorandum panch is corporator of said

political party. He testified about accused Javed Shaikh making

statement (Exhibit 84) and pursuant to the same, nano car was seized

(Panchnama Exhibit 85) from house of father-in-law of said accused.

Though this witness belongs to same political party of which deceased

was member but the testimony of the witness was subjected to cross

examination and nothing is elicited to disbelieve this version. Similarly,

Pratap Hande (PW-1) who is spot panch and has admitted himself to be

relative of deceased. He deposed about spot of incident being shown by

Pooja and recovery of soil mixed with blood, six empty cartridges etc.

under panchnama ( Exhibit 80). There is nothing on record to indicate

that this witness has not deposed truth. Tukaram Gunjal (PW-3) is also

related to deceased. He was panch witness to seizure of clothes of

deceased (Panchnama Exhibit 87). According to him shirt with bullet

shots and banian soaked with blood were seized in his presence.

Dattatraya Lashkare (PW-20) is cousin brother of deceased. His

criappeal651.14.odt 11 of 44

testimony as well as testimony of Pooja (PW-9) needs minute and

careful scrutiny but merely for the reason that they are related to

deceased, their testimonies cannot be discarded. Even evidence of

Mahesh Pandure (PW-11) cannot be discarded merely on ground that he

belongs to same political party, as his evidence on the point of receiving

information of accident from deceased and other evidence about

business and rivalry is supported by other evidence on record. We

therefore, do not find substance in the argument that the accused

deserves to be acquitted only for the reason that some of the witnesses

examined were related to deceased.

8. For the purpose of proving of offence punishable under

Section 302 of the IPC, at the first instance prosecution has to prove

that the deceased died homicidal death. In order to establish the same

prosecution examined Dr. Zine (PW-31) who has conducted autopsy on

the dead body of Lashkare. This witness was serving as Professor and

Head of the Department of Forensic Medicine, Government Medical

College (Ghati), Aurangabad. As per his testimony on 18/05/2011 dead

body was received at around 11.50 pm along with inquest panchnama.

He along with Dr. Verma, Dr. Tandale, Dr. Tasgaonkar and Dr. Wakde

carried out postmortem examination between 11.55 pm to 3.55 am on

19/05/2011. According to him as per the police inquest the history of

criappeal651.14.odt 12 of 44

assault with fire arm on 18/05/2011 around 20.30 hours was recorded.

It was also recorded that deceased was forwarded to Ghati hospital on

18/05/2011 at about 21.30 hours and was declared dead on admission.

On examination of the dead body autopsy surgeons noted following

surface injuries.

1. Entry wound of fire-arm of size 1 x 0.6 cms x cavity deep on right side of face, mandibular ramus, 5 cms from right angle of mouth, 8 cms below from the lateral end of right eye-brow, margins inverted, irregular with blood infiltration, oval shape, surrounded by rim of abrasion collar measuring 2 to 3 mm, greater width being on lower side with blackening of size 12 mm x 3 mm surrounding the central defect.

2. Entry wound of fire-arm of size 0.5x 0.5 cm x cavity deep on right side of face on mandibular condylar region, 9 cms from right angle of mouth, margins irregular inverted with blood infiltration, oval in shape, surrounded by rim of abrasion collar measuring 2 to 3 mm greater width being on anterior upward side, with blackening of 4 x 3 mm surrounding central defect.

3. Lacerated wound on right ear, tragus and pinna region, above lobule of 1.5 x 0.5 cm x tissue deep, margins irregular and blood infiltrated.

4. Entry wound of fire-arm of size 2 x 2 cm x tissue deep, on left maxillary region, 2.5 cm below eye, 1 cm lateral to left nostril, margins irregular, inverted with blood infiltration, oval in shape, surrounded by rim of abrasion collar, measuring 1 to 3 mm, greater width being superiorly with blackening of 7 x 3 mm surrounding central defect.

5. Exit wound of fire-arm of left upper chest, 4 cms below left collar bone, in mid-dlavicular line, 7 cms from mid-line of 1.5 x 0.5 cm size margins irregular, everted and blood infiltrated.

criappeal651.14.odt 13 of 44

6. Entry wound of firm arm of 1 x 0.5 cm x tissue deep on left anterior chest, lower part, 18.5 cms from left collar bone, 4 cms from mid-line, margins irregular, inverted with blood infiltration, circular in shape, surrounded by rim of abrasion collar measuring 2 mm width with blackening of 4 x 3 mm surrounding central defect.

7. Entry wound of fire-arm of 2 x 1 cms x tissue deep on right front of lower chest, 24 cms from shoulder and 13 cms from mid-line, margins irregular, inverted with blood infiltration circularly shaped surrounded by rim of abrasion collar of 2 mm width with blackening of 4 x 3 mm surrounding central defect.

8. Entry would of fire-arm of 1.3 x 1 cm x tissue deep on left fore-arm in lower 1/3rd part, anterior aspect, 7 cms from wrist, 22 cms from elbow joint, margins irregular, inverted with blood infiltration, oval in shape, surrounded by rim of abrasion collar measuring 2 to 3 mm, greater width being on inferior side with blackening of 4 x 3 mm surrounding central defect.

9. Entry wound of fire-arm of 1 x 0.5 cm x cavity deep on back on left side in middle part 6.5 cms from mide-line, 25 cms from acromion process, margins irregular, inverted with blood infiltration surrounded by rim of abrasion collar measuring 2 mm width circularly shaped with blackening of 3 x 2 mm surrounding central defect.

9. He further deposed about recovery of bullets from track Nos.

2, 5, 7 and 8 by blunt dissection by fingers. They also found following

corresponding internal injuries to the external injuries recorded in

postmortem notes which are as follows;

1) Under scalp contusion on left occipital region of size 5 x 4 cms, irregular pinkish in colour.

2) Under scalp contusion on right occipital region of size 5.5 x 4 cms, irregular pinkish in colour.

To the scalp :-

              i)       Circular defect of size 0.8 x 0.6 cm on left occipital




criappeal651.14.odt                                                            14 of 44

region corresponding to injury No. 11 in column No. 17 with evidence of punched in hole, on outer table and bevelled greater on inner table of skull.

ii) Circular defect of size 1 x 0.8 cms on right occipital region corresponding to injury No. 10 of column No. 17, with evidence of punched out opening on inner table and bevelled crater in outer table.

iii) Circular defect of size 0.8 x 0.6 cms at base of skull near left mastoid, punched out opening on inner table and bevelled crater on outer table.

iv) Circular defect of size 0.9 x 0.7 cm at middle cranial fossa, on right side, punched in hole on outer aspect and bevelled crater on inner table.

10. On examination of brain there was subarachnoid

haemorrahage on both hemispheres. Meninges were torn corresponding

to injury Nos. 10 and 11 in column No. 17. Perforation was present in

cerebellar region penetrating complete substance with evidence of blood

infiltration. On internal examination of Thorax, there was a perforating

injury to intercostal muscle. Left lung had perforating injury passing

through both lobes from posterior aspect of lower lobe to anterior

aspect of upper lobe with blood infiltration. He further deposed about

the recovery of bullets from various parts of body i.e. i) left infra-

scapular region of 1 x 0.6 cms size, ii) from left fore-arm of size 1 x 0.6

cm, iii) from right angle of mandible of 1 x 0.6 cms size, iv) from the

soft tissue beneath left mastoid process of size 1 x 0.6 cm with anterior

end deformed.

11.           It     is    further      testified    before   the   Court      that      before




criappeal651.14.odt                                                                     15 of 44

commencing postmortem examination x-ray of the body was taken and

it was submitted to Ballistic Expert through police. The bullets recovered

and the skin surrounding the injuries were also recovered and were sent

for ballistic examination and preserved for chemical analysis.

12. He opined that the cause of death was shock and

haemorrahage due to multiple fire arm injuries. Accordingly,

postmortem report (Exhibit 215) was prepared.

13. Dr. Zine after going through viscera report and ballistic

examination report issued certificate regarding final cause of death

(Exhibit 218) to state that "shock and haemorrahage due to multiple fire

arm injuries". From the postmortem findings he was of the opinion that

the death might have occurred within four hours of commencement of

the postmortem. This supports case of prosecution about assault on

deceased at around 8 pm. He further opined that all the injuries

mentioned in the postmortem report are collectively sufficient to cause

death in ordinary course of nature. Injuries Nos. 1, 2, 4, 5, 6, 7, 9 to 11

and the corresponding internal injuries are sufficient individually to

cause death of person. He further stated on perusing the weapons i.e.

pistol (Articles 16 and 17) that the injuries mentioned in the

postmortem report are possible with these weapons. Though Medical

Officer was thoroughly cross-examined by the defence, the opinion of

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the Medical Officer about final cause of death is not disturbed in any

manner. Apart from the medical evidence there is evidence of eye

witnesses Pooja (PW-9) and Manoj (PW-19) who have categorically

deposed about occurrence of the incident in which bullets were shot at

the deceased from fire arms. Moreover, PW 5- Anant Jagtap (inquest

panch) has testified about the injuries noted while conducting inquest

panchnama (Exhibit 92) on the dead body of Lashkare. The ocular

evidence of eye witnesses coupled with testimony of inquest panch and

Medical Officer is sufficient to hold that deceased Lashkare died due to

bullets fired at him by fire arms. Prosecution therefore was able to prove

that deceased died homicidal death.

14. The prosecution claims that the incident of assault on the

deceased has occurred in presence of his wife Pooja (PW-9) and Manoj

(PW-19), a boy of 16 years' age, who was accompanying deceased and

his wife and children in the car at the relevant time. Pooja (PW-9)

deposed about her love marriage with deceased and also narrated the

business activities and political background of the deceased. She also

stated about rivalry between deceased and accused No.1 Raju who was

the active member of different political party. According to her accused

No.1 Raju wanted to contest election of Sarpanch about six years back

and deceased fielded and supported another candidate and got him

criappeal651.14.odt 17 of 44

elected which became main cause of the dispute between accused No.1

and deceased. With regard to the incident dated 18/05/2011 she stated

about the deceased having been to Shrirampur Court to attend criminal

case and while he was returning back to Newasa was suspected to have

been followed. At about 5 pm Lashkare decided to go to Aurangabad

with his family and asked Manoj to accompany them to take care of the

children. She deposed about they having been to Khadka Phata petrol

pump where altercations took place between deceased and two persons.

She has further narrated that on the way to Aurangabad near Nagar

Naka circle one car gave dash from the back side to the car of the

deceased and witness and there occurred quarrel between deceased and

the driver of the said car. She further stated about deceased being kept

engaged in the said quarrel and in the meantime two motorcycles came

and the riders had word with the deceased. She further stated that

thereafter about 4 to 5 persons came on motorcycles and when the

deceased was boarding car 3 to 4 persons caught hold of him and

others fired bullets at the deceased from the pistols. She also stated

that after causing assault on the deceased the assailants ran away and

she caught hold of one of the assailants. The said assailant, however,

fled away but his mobile phone came into her hand. She stated about

the said persons appeared Muslims from their attire. As regards the

subsequent occurrences she claimed that initially no one came to help

criappeal651.14.odt 18 of 44

her however afterwords with the help of one unknown person deceased

was taken to Ghati hospital at around 9 to 9.15 pm where he was

declared dead. She lodged report (Exhibit 102) about the incident to the

police. On the next day at about 7 am she took police to the spot of the

incident wherein empty cartridges were found. The mobile phone of one

of the assailant which came into her hand was seized by the police

under panchnama. She identified accused No.1- Shaikh Raju @ Raju

Jahagirdar, accused No.2 - Shaikh Ejaj @ Munna Jahagirdar, accused

No.3 Shaikh Javed @ Painter s/o Sk. Sheru, accused No. 4 - Muneer @

Munna Pathan before the Trial Court.

15. This witness was extensively cross examined by the defence

wherein it is sought to be brought on record that deceased was not

eligible to contest the election for having three children. Defence has

further brought on record the omission and improvements in her

testimony as compared to the statement recorded by the police during

the course of investigation. Discrepancy about make of car involved in

accident is brought on record. Challenge is also made to identification of

accused in the identification parade. She was further cross-examined on

the point of incident, availability of light, incident of Khadka phata and

omissions in her statement.

16. Along with deceased and Pooja, Manoj (PW-19) was in the

criappeal651.14.odt 19 of 44

car, who was accompanying them to take care of the children. The

witness was aged about 14 years at the time of occurrence of the

incident. Manoj specifically deposed about he frequently going with

deceased to look after his children and on 18/05/2011 too he went

along with them. Manoj claimed to have occupied the seat besides

deceased/driver of the car. He also narrated the incident occurred at

Khadka Phata and claimed that two persons came thereon pulsar

motorcycle and stared at the deceased and due to which there was

abusing and altercations exchanged between them. He deposed about a

Nano car giving dash to the car of the deceased and involvement of

driver of the said car in a quarrel with deceased. This witness too was

called for the identification parade of the accused and he identified three

accused persons.

17. During the cross-examination it is accepted by the witness

that assailants were not known to him and he was in the state of a

shock due to the occurrence of the incident. He further accepted that

the incident occurred so fast giving little time to him to understand the

things happening in front of him. With regard to the conducting of

identification parade it was suggested to him that a day prior to the

incident the police constable had given him letter for remaining present

during the parade he denied to have met Pooja on that day. Omission is

criappeal651.14.odt 20 of 44

also sought to be brought on record with regard to the incident occurred

had petrol pump at Khadka Phata, being not reflected in the statement

during the investigation.

18. Testimonies of eye witnesses are sought to be challenged

predominantly on three counts i.e. improvements in their evidence

before the Court doubtful, identification of the accused as assailants and

identification parade. According to these witnesses the incident has

occurred at around 8 pm on 18/05/2011. They have specifically stated

about availability of sufficient light at the spot. The said fact is

challenged by the defence contending that the spot panchnama does

not disclose any street light at the spot. In this regard it would be

material to take into consideration the circumstances appearing from

the evidence on record. The evidence clearly indicates that near Nagar

Naka there was a dash between the car of the deceased and another car

and both the vehicles went ahead to stop at the distance of about 100 ft

from the place of accident. There is further evidence to indicate that

there was altercation between deceased and the driver of the vehicle

and that for substantial time all concerns were present at the spot. This

certainly must have given time to witness to become used to the light.

There is no dispute that the place where the incident of assault has

occurred is busy road. These witnesses have categorically deposed

criappeal651.14.odt 21 of 44

about availability of light as well as their ability to identify the assailant

in the headlight of the vehicles passing by. It is further evident from

record that both witnesses had seen the occurrence of the incident from

a very close distance as the deceased was standing just beside car

which was occupied by them. The witnesses therefore were placed in

such a close position that it was easily possible for them to see the

assailants who had fired bullet at the deceased from a very close range.

There is medical and scientific evidence to that effect which indicates

that the bullets hit to the deceased, from close range. The material

circumstances on record therefore clearly are indicative of the fact that

the witnesses were so close to the deceased and the assailants that it

was possible for them to know the features of the assailants and to

recollect them not only at the time of identification parade but also at

the time of the identification before the Court.

19. As far as omission of these witnesses to state incident of

Khadka phata to the police during investigation is concerned, every

omission does not become a reason to discard evidence of witness. One

cannot ignore the situation faced by Pooja and Manoj who was only age

of 14 years. Non making of statement about this incident, does not

make its occurrence impossible. Particularly in view of evidence of Amol

Shirsath (PW-24). He deposed about having acquaintance with accused

criappeal651.14.odt 22 of 44

Munna as well as deceased Lashkare. According to him on 18/05/2011

at 6.30 pm accused No.2 and 4 i.e. Munna and Munir came to the petrol

pump on black color pulsar motorcycle and there occurred incident of

altercations between then and deceased. Like other witnesses is

testimony is sought to be challenged on the ground that the statement

of this witness was recorded belatedly i.e. on 25/05/2011. This witness

was not eye witness to the actual incident of assault and that in each

and every case recording of statement belatedly will not be sufficient to

discard the testimony of the witness. There is nothing on record to

indicate that this witness was anyway related to the deceased or was in

enimical terms with accused for deposing falsely against them.

20. Thus, there is positive evidence on record to indicate

occurrence of said incident and hence merely because Pooja and Manoj,

have failed to narrate the same to police, we find no reason to discard

their testimonies. The other evidence, such as testimony of Sachin

Kadam (PW-6), shows that car of deceased was damaged, supporting

the case of causing of accident before actual incident of assault.

Similarly, error committed by witnesses to identify another car involved

in accident as 'Indica Car' instead 'Nano Car' would not be enough to

hold that no accident occurred at spot prior to incident of assault.

criappeal651.14.odt 23 of 44

21. At this stage it would be relevant to take note of the

testimonies of Datta Baraskar (PW-30) Naib Tahasildar who conducted

identification parade and Sudhir Mande (PW-27) who acted as panch

witness during the said parade. As per testimony of Sudhir (PW-27) he

was present as panch witness during the conducting of identification

parade at Harsool jail and the Tahasildar had asked the Jail authority to

change four to five person who were brought amongst 20 dummies to

conduct the identification parade. Similar is the evidence of Tahasildar.

Both these witnesses stated about 20 persons being called as dummy

person for the purpose of conducting identification parade and four

accused persons were put to the parade out of which three accused i.e.

accused Nos. 2, 3 and 4 were identified by both witnesses. Cross-

examination of these two witnesses aims at challenging the validity of

the identification parade, more particularly on the ground of non

compliance of rules of parade and possibility of accused being already

shown to witnesses.

22. It is settled position of law that the evidence of the

witnesses and identification of the accused in the Court is a substantive

piece of evidence and the identification parade is only confirmatory/

corroborative to the identification before the Court. It is held by the

Hon'ble Apex Court in case of State Of Andhra Pradesh vs K.

criappeal651.14.odt 24 of 44

Venkata Reddy & Others, 1976 AIR SC 2207, that the importance

of identification parade is during the course of investigation which

confirms the Investigating Agency that the investigation is being

proceeded in right direction. Section 54A of Code of Criminal Procedure

provides for identification of person arrested. According to this provision

where a person is arrested on a charge of committing an offence and his

identification by any other person or persons is considered necessary for

the purpose of investigation of such offence, the Court, having

jurisdiction may, on the request of the officer in charge of a police

station, direct the person so arrested to subject himself to identification

by any person or persons in such manner as the Court may deem fit. A

perusal of this provision clearly shows that this is enabling provision

to the investigation agency to put the arrested person for identification

in order to make itself sure about arrest of right person. The said

provision clearly indicates about the identification of such person being

necessary for the purpose of investigation of the crime. In the light of

the aforesaid provision and in view of the settled position of law by the

judgments of the Hon'ble Apex Court, even non conducting of the

identification parade per se is not sufficient to discard the identification

of the accused in the Court. In the instant case as discussed above the

circumstances in which the incident in question has occurred is clearly

indicative of the fact that the witnesses had sufficient opportunity to see

criappeal651.14.odt 25 of 44

the assailants and their identification in the Court is substantive piece of

evidence. Merely because certain irregularities were committed by the

authority while conducting identification parade, by itself, no benefit can

be extended to the accused and this does not a become ground for the

acquittal of the accused. It would be relevant to take into consideration

observations of Hon'ble Apex Court in case of State of Maharashtra

Vs. Suresh, Criminal Appeal No. 1092-1093 of 1998, wherein it is

observed that,

"The last reasoning of the Division Bench is based on a criticism of the modes adopted by the Executive Magistrate who held the test identification parade. The aforesaid criticism was based on the evidence of two witnesses who said that the accused were taken on foot from police station to the place where the parade was conducted and that their faces were not covered during such transit.

Ext 17 is the minutes of the test identification parade conducted by the Magistrate who himself was examined as PW-2. It contains the details of the steps adopted by him. Seven other persons were kept ready in the room and the witnesses were kept in another room from where they could not see the suspect Thereupon the suspect was brought from the lock up with the help of two respectable persons and all precautions were taken that the witnesses could not see the suspect during such transit. Then the suspect was permitted to stand anywhere among the 7 persons. It was thereafter that the witnesses were brought with the help of the same respectable persons and the witnesses were then asked to identify the person whom they saw on the crucial day. If potholes were to be ferreted out from the proceedings of the magistrates holding such parades possibly no test identification parade can escape from one or two

criappeal651.14.odt 26 of 44

lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes; The object of conducting test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved.

23. Even, perusal of judgments cited supra on behalf of

Appellants, indicate that looking in to the totality of evidence in those

cases, benefit of doubt is given to accused for want of conduct of

identification parade properly. In our considered view having regard to

nature of evidence and established facts and circumstances on record,

appellants are not entitled to get any benefit of doubt.

24. According to Pooja she had shown the spot of the incident

on 19/05/2011 at around 7 am and at that time Pratap Hande (PW-1)

acted as panch witness. He also stated about the spot being shown by

Pooja, wife of the deceased. At the spot blood was found and six empty

cartridges, one charra and soil with blood were seized under panchnama

(Exhibit 80).

25. Testimony of Tukaram Gunjal (PW-3) indicates that the

criappeal651.14.odt 27 of 44

clothes of the deceased seized under panchnama (Exhibit 87) and the

shirt of the deceased was showing bullets holes and his banian was

soaked in blood. This witness though is relative of the deceased, his

evidence deserves acceptance that as in the facts of the case when a

person was shot at with bullets, there would be holes in the clothes as

well as there would be profuse bleeding. We therefore find no reason to

discard his testimony merely on the ground that he was related to the

deceased. Similar is the case with inquest panchnama (Exhibit 92),

Anant Jagtap (PW-5) testified about inquest on the dead body be

conducted in his presence and that the injuries found on the person

were recorded in the panchnama. The car of the deceased, bearing

registration No. MH-04 PW 3863 was seized under the panchnama

(Exhibit 94). The panchnama indicates that there was damaged to the

front side and rear side of the said car. Evidence of Sachin Kadam (PW-

6) is sufficient to establish the said fact. This corroborates the evidence

of Pooja and Manoj who had stated about occurrence of the accident

involving the car of the deceased and another car.

26. Apart from the fact that the accused persons were identified

by the eye witnesses, there is other evidence led by the prosecution in

order to connect them to the crime along with the co-accused. The

present case is the one wherein it is alleged by the prosecution that

criappeal651.14.odt 28 of 44

there was conspiracy hatched for committing murder of deceased

Lashkare. Section 120 A of the IPC provides that the elements of

criminal conspiracy are that there is an object to be accomplished

pursuant to an agreement between two or more persons and

achievement thereof with cooperation. Needless to say that in a rare

case the direct evidence is available to prove conspiracy. A conspiracy

can be proved either by direct or circumstantial evidence or by both.

The circumstances may be expressed or even implied. What the

prosecution is required to show is the meeting mind and consensus

between the accused persons to achieve unlawful purpose. The entire

evidence therefore needs to be considered and its cumulative effect

would determine as to whether the prosecution was able to prove the

conspiracy or not.

27. At this stage it would be fruitful to refer to judgment of

Hon'ble Apex Court in case of Esher Singh Versus State of A.P.,

(2004) 11 SCC 585, wherein it is held that,

"41. As noted above, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in

criappeal651.14.odt 29 of 44

Section 120-B read with the proviso to sub-section (2) of Section 120-A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trappings of the provisions contained in section 120-B (See:

Suresh Chandra Bahri v. State of Bihar.)

42. Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence."

28. It is claimed by the prosecution that there was a rivalry

business as well as political between accused No.1 Raju and deceased

Lashkare. In this regard evidence of Pooja (PW-9), Mahesh Pandure

(PW-11), Nitin Mirpagar (PW-13), Ashok Nipunge (PW-14) and Dattatray

Lashkare (PW-20) is relied upon. These witnesses deposed about the

political rivalry of deceased as well accused No.1 Raju. From their

testimony it is brought on record that during the election of Sarpanch

and Deputy Sarpanch there was tussle between two political rival

parties, represented by accused No.1 and deceased. Accused No.1 does

not dispute his involvement in the politics so also there is no challenge

criappeal651.14.odt 30 of 44

to the fact that deceased Lashkare was also member of a political party

and was active in the local politics. Apart from this there is evidence on

record to show that both were involved in same business as they were

having clubs/gambling dens. Evidence also indicates that there were

disputes between them over the issue of tearing of the flex of each

other. Thus, there is ample evidence on record to show that deceased

and accused No.1 were rivals and there existed disputes between them.

On the other hand we do not find any individual disputes between

deceased and other accused.

29. Mohan Kusalkar (PW-16), who has tea canteen at Newasa

phata, used to supply tea regularly to office and club of Raju (Accused

No.1). On 16/05/2011, he received order of 7 to 8 teas from Raju,

through his servant. At about 4.00 to 4.30 pm witness saw Raju present

in his office with Muuna, Munir and 2-3 unknown persons. He further

narrated to have heard conversation between them to kill Anna

Lashkare by firing. It is also stated that Raju told them that he will go to

Ajmer and on returning he will pay them money. It is stated that Javed

came there in 10-15 minutes. It is further deposed that Raju told Javed

that two country made pistols are given to his brother. Witness claims

that he was frightened and once thought to inform this to Anna

Lashkare. He however disclosed this to Raosaheb Lahare, who asked to

criappeal651.14.odt 31 of 44

keep mum.

30. In cross-examination he admitted knowing Laskare. He also

admitted that his father-in-law is uncle of Lashkare. In further cross-

examination witness was able to give some identifications near office of

accused No.1. It is suggested to him that after hearing talk he felt that

all are joking. He also claimed that talk between accused was not in low

voice, which is contrary to his statement under Section 161 CrPC. He

denied suggestion that talk inside office of accused is not audible from

outside. Perusal of entire cross-examination though show certain

omissions but by and large his testimony about hearing of conversation

of accused is not shattered. There is nothing brought on record to

indicate that this witness has any reason or enmity to falsely depose

against them. As far as non intimation of the incident to police or even

to Anna Lashkare, cogent explanation has been provided.

31. There is further support to the testimony of this witness

from evidence of Raosaheb Lahare (PW-18). He stated about Mohan

(PW-16) informing him the witnessing the talk between accused to kill

Lashkare. He advised Mohan not to disclose this to anyone as both Raju

and Lashkare are politicians and witnesses are poor persons. There

cannot be a straight jacket formula, as to how one may react in such

situation. Having regard to the status of Mohan and in view of the

criappeal651.14.odt 32 of 44

fact that accused No.1 and Anna were in politics, there is no reason to

discard the explanation provided by these witnesses for non disclosure

of incident to anyone.

32. Prosecution has further examined Sachin Pardeshi (PW-15)

who had heard conversation at Yashraj hotel. According to him on

17/05/2011 he had been to the said hotel and heard conversation of

four persons who were discussing about planning for eliminating the

deceased Lashkare. He narrated the words he heard from the said

conservation. He also identified Accused Munna and Munir. He also

explained that since he was frightened, this incident was not disclosed

to anyone immediately. His testimony is sought to be challenged on

ground that he had no Jeep of his own at relevant time. The topography

of Kalakendra and Hotel was pointed out to say that witness could not

have heard any conversation from urinal. There is nothing to show that

the witness is having any enmity with accused or any reason to falsely

implicate them in this crime.

33. Testimonies of these two witnesses are also challenged by

the defence on the ground that their statements were recorded

belatedly and that the evidence is not probable. Non recording of

statement of the witnesses immediately after the occurrence of the

incident per say is not sufficient to discard their evidence. It depends on

criappeal651.14.odt 33 of 44

facts and circumstances of the case as to call a statement as belated

one. In a given case, non recording of the statement of an eye witness

even within few ours of the incident may become ground for not

accepting their testimony whereas in certain cases recording of

statement after substantial time also will not be enough to discard

evidence of such witness. It is pertinent to note that these witnesses are

not the eye witnesses to the incident in order to enable the police to

record their statement in short period of time. Needless to say that in

case of conspiracy there would not be any surface material to enable the

investigating agency to lay hand on the same. Time is certainly required

to unearth the conspiracy. Similarly, the facts and circumstances

involved in the case such as status of witness, influence of accused

persons also cannot be ignored. These witnesses have stated about the

mustering no courage to disclose the conversation heard to anyone.

Having regard to the fact that the deceased as well as accused No.1

where active in the local politics at Newasa, their silence appears natural

and it would not be sufficient to discard their testimony since otherwise

it inspires confidence.

34. Testimony of Mohan (PW-16) is also challenged stating that

it is impossible that there could be conversation between the persons

who are from Muslim community in Marathi language and that the

criappeal651.14.odt 34 of 44

the conspiracy would not be hatched in such a manner that it is made

known to the public. Appellants are trying to propound a theory that

there is inherent incredibility in the evidence. It is matter of common

knowledge that in the rural area of Maharashtra irrespective of the

communities, Marathi language is used for conversation. Secondly, the

conversations are said to have been done in premises and office owned

by accused. These are places where the possibility of presence of

witnesses cannot be totally ruled out. Moreover, in every evidence some

or other discrepancy would definitely occur. Moreover, there is nothing

on record to indicate that these witnesses had any interest in securing

conviction against accused owing to previous enmity. In our view such

reasoning cannot be considered as proposition of human conduct. There

cannot be presumption that accused could not have spoken in Marathi

or in any particular tone/pitch of voice etc.

35. There is also evidence on record to suggest that the death

of Lashkare was not instantaneous or arisen out of incident of

accident between cars, when Sushil Dhaije (PW-17) narrates the

manner in which Lashkare was followed on the date of incident,

while they were coming back to Newasa after attending Court at

Shrirampur.

36. It is not only that there are witnesses who have heard the

criappeal651.14.odt 35 of 44

conversation indicating the conspiracy to kill deceased but other

circumstances brought on record are also sufficient to demonstrate that

there was prior planning and that the incident in question has not

occurred in the spur of movement. Prosecution was able to prove that

the pulsar motorcycle was used by the assailants to come to the spot of

the incident. The evidence of Ganesh Kumbhar (PW-29) shows that he is

the owner of pulsar motorcycle bearing registration No. MH-20 AG-3791

(changed as MH-20 AG 3791) with chassis No. MD2JDTDZZSCL61007.

The said motorcycle was stolen and he had lodged report in respect of

the theft of the said motorcycle. The very motorcycle was used in crime

by putting different registration number plate. Panchanama of seizure of

said motorcycle (Exhibit 166) proves that the stolen motorcycle with

same chassis number was used by accused. The said fact indicates that

there was a preparation prior to the incident of killing of deceased as

care was taken to ensure that the vehicle used in the crime is not

connected to accused. The said motorcycle is seized at the instance of

accused No.2 Munna Jagirdar and accused No.3 Munir Pathan.

37. Ankush Jadhav (PW-22), Panch witness has categorically

deposed about having gone to Indore with police and as to manner in

which to both accused persons were taken in custody. He also deposed

about the accused disclosing to the police about keeping the fire arms

criappeal651.14.odt 36 of 44

as well as the motorcycle in the house of co-accused Sarfaraj. They took

police to the house of Sarfaraj from where the two fire arms and pulsar

motorcycle were seized. This testimony of the witness not only brings

on record the evidence showing preparation before committing the

offence but it also indicates the involvement of co-accused Sarfaraj in

the commission of the said crime. In case of criminal conspiracy there

need not be physical participation in assault nor there could be any

evidence about the actual communication between all the accused

persons, if the circumstances brought on record through evidence

indicate the involvement of the accused, such conspiracy can be

established and all conspirators would be liable for the punishment for

crime.

38. Apart from the seizure of two pistols under panchnama

(Exhibit 166), prosecution was able to bring further material evidence

on record to connect these fire arms with the crime in question. Dr. Zine

(PW-31) categorically deposed about death of the deceased being

caused due to multiple fire arm injuries and he had also opined about

possibility of causing of those injuries with fire arms (Articles 16 and

17). There is further support to this evidence through the testimony of

ballistic expert Sudhakar Ramteke (PW-36) and report (Exhibit 217 and

218). His testimony coupled with said ballistic report conclusively proves

criappeal651.14.odt 37 of 44

that the injuries caused to the deceased and the bullets recovered from

the dead body were fired from these two seized fire arms. Thus, there is

sufficient evidence led by prosecution to connect these two fire arms

with killing of deceased which was seized, at the instance of co-accused

from the house of accused Sarfaraj to further establish their nexus with

the crime in question.

39. The prosecution has also placed reliance upon evidence of

Devidas Khaire (PW-33) and Sadanand Mukte (PW-34), who worked at

Toll naka and have sought to prove the extract of record showing car of

the deceased is being followed by the Nano car which was involved in

the accident. Perusal of the evidence of these witnesses shows that

though they have relied upon electronic evidence however it is not

supported with certificate under Section 65-B of the Evidence Act. In

view of in the judgment in case of Arjun Kotkar Vs. State of

Maharashtra (supra) wherein Hon'ble Apex Court has held that

evidence in absence of certificate under Section 65-B cannot be

considered, we are of the view that the said electronic evidence needs

to be kept out of consideration. We however, wish to add that even

ignorance of this evidence would not become sufficient ground to acquit

accused, in view of other material evidence available on record.

40. Accused No.1 Raju has taken a defence that he has no

criappeal651.14.odt 38 of 44

concern with the incident in question and that he had been to Ajmer

along with Riyajkhan Pathan (PW-12) and Mira Sahib Shaikh (PW-23).

Both these witnesses deposed about having gone to Ajmer on

16/05/2011. Mira Sahib Shaikh (PW-23) deposed that on 18/05/2011 at

8.45 pm he received call from his son giving information about the

incident involving firing of bullets on deceased Anna Lashkare. Advocate

Riyajkhan Pathan also stated about they going together to Ajmer. He

however has deposed that Raju used to receive phone calls frequently

and that he used to go to a distance to talk on the phone. In the

statement of this accused recorded under Section 313 he simply denies

the evidence of this witness however does not offer any explanation as

to the reason for which he used to go away from them to talk on the

phone. This becomes additional circumstance against accused No.1.

41. Pooja (PW-9) has categorically deposed about she trying to

catch hold of one of the assailants who though ultimately ran away from

the spot but his mobile phone came into her hands. The said mobile

phone was seized under panchnama (Exhibit 100). It is argued on

behalf the defence that even after the time of the incident there is

receipt of the phone calls on the said mobile phone and which according

to defence indicates that the said phone has no nexus with the incident

in question. Similarly it is argued that the mobile phone was not seized

criappeal651.14.odt 39 of 44

immediately. It is pertinent to note that Pooja had witnessed the

incident of assault on her husband who died instantly. She was

accompanying by 14 years old boy and small children. She could not get

immediate assistant except that one unknown person drove them to

Ghati hospital. After the deceased being declared dead she lodged

report to the police and therefore in this situation it is not impossible

that the mobile phone is not seized immediately. Pertinently the mobile

phone came to be seized much before the arrest of any of the accused

persons. The evidence on record indicates the mobile phone belonged to

accused No.2 Munna. Evidence of Riyzakhan Pathan also indicates that

accused No.1 had received a phone call from the police officer

intimating him that the mobile phone of accused No.2 i.e. brother of

accused No.1 was found at the spot. Thus, there is more than sufficient

material on record to hold that at the time of the assault Pooja

attempted to stop one of the assailants and his mobile phone got into

her hand. The formal seizure of the said mobile phone after few hours is

not sufficient to discard the said evidence. Prosecution has also led

evidence of Chetan Patil (PW-35) and Ravi Pardeshi (PW-38), Nodal

Officers, to corroborate its claim of use of mobile phones and its

connection with accused.

42. Accused No. 6-Shaikh Mushtaq Ahmed has been identified

criappeal651.14.odt 40 of 44

by Pooja (PW-9) before the Trial Court. She claims that this accused had

caught hold of deceased Lashkare. Though she could not name him but

identified him as one of the person involved in the actual assault caused

on Lashkare. Learned Trial Court relying upon this evidence has

convicted accused.

43. Manoj (PW-19) another eye witness has identified before the

Court accused Shaikh Javed, accused Munna and Muneer Pathan, but he

does not identify accused No.6. Thus, according to him except three

accused no one else was involved in the actual assault. It is not in

dispute that this accused was not put to identification parade and no

explanation is forthcoming from prosecution for the same. Thus, except

for the identification of this accused by Pooja that too for the first time

before the Court since he was not put for identification parade during

the course of investigation, there is no other evidence to connect him

with this crime. Undoubtedly, this evidence is a weak piece of evidence

to convict him.

44. Further, there no identification of this accused by other

witnesses in particular Mohan (PW-16) and Pardeshi (PW-15) who had

heard a conversation in respect of the conspiracy to kill deceased

Lashkare. Thus, as far as this accused is concerned, there is no

criappeal651.14.odt 41 of 44

corroboration to the evidence of his identification by Pooja for the first

time in the Court. His participation in actual assault has not been proved

beyond shadow of reasonable doubt. Similarly, there is no material

evidence on record to indicate his participation in the conspiracy. It is

settled law that the guilt of the accused needs to be established beyond

reasonable doubt and we find evidence of Pooja insufficient in absence

of further corroboration to be safe to conclude guilt of this accused. He,

therefore, deserves to be acquitted by extending benefit of doubt.

45. In our considered view, evidence led by prosecution

conclusively, proves that accused Nos. 2, 3 and 4 were involved in

actual assault on Lashkare. They are duly identified as assailants and

further evidence of seizure of mobile phone of accused No.2 at the spot

leaves no room for doubt about their participation in catching hold of

Lashkare and firing gun shots at him. Prosecution was further able to

establish that the incident in question did not occur at spur of moment

but there was planning and it was result of conspiracy hatched to kill

deceased. We do not find any reason to discard evidence led by

prosecution which shows that there was theft of motorcycle for its use in

committing crime, deceased was followed for whole day, incident at

Khadka phata, petrol pump, accused Nos. 2 and 3 following deceased's

car, accident of cars and deceased being kept engaged at spot, arrival of

criappeal651.14.odt 42 of 44

assailants on motorcycle and firing gun shots at Lashkare. These events

on the date of incident were preceded by meeting between accused and

conspiracy hatched to eliminate Lashkare. Mere, absence of accused

Nos. 1 and 5 at the spot, does not absolve them from crime as actual

overt act of each accused is not contemplated to prove offence

punishable under Section 120-B IPC.

43. In view of above discussions, following order is passed:

ORDER

(i) Criminal Appeal Nos. 651 of 2014, 238 of 2015 and 717 of 2014 stand dismissed.

(ii) Criminal Appeal No. 653 of 2014 stands allowed.

(ii) The impugned judgment of conviction and order of sentence against accused No.6-Shaikh Mushtaq Ahmed S/o Gulam Rasool dated 10/10/2014 passed by learned Addl. Sessions Judge, Aurangabad, in Sessions Case No. 376 of 2011 for the offences punishable under Sections 302 read with Section 149, 120-B, 143, 147, 148 of the Indian Penal Code and 3 read with 25 of Indian Arms Act, is set aside.

(iii) Accused No. 6- Shaikh Mushtaq Ahmed S/o Gulam Rasool is hereby acquitted of the offences punishable under Sections 302 read with Section 149, 120-B, 143, 147, 148 of the Indian Penal Code and 3 read with 25 of Indian Arms Act. He be released forthwith, if not required in any other case.

criappeal651.14.odt                                                         43 of 44




       (iv)     Fine amount deposited by the accused No. 6-Shaikh Mustaq
               s/o Gulam Rasool, if any, be refunded to him.


      (v)      Accused No.1-Shaikh Raju @ Raju Jahagirdar who is

enlarged on bail during pendency of appeal, is directed to surrender before Trial Court forthwith to undergo remaining sentence.

(R. M. JOSHI, J.) (R. G. AVACHAT, J.)

1. Learned counsel for the appellant in Criminal Appeal No. 717 of 2014 seeks four weeks time for surrender of the appellant before the Trial Court.

2. In order to consider the request for surrender, no case is made out as to the compelling circumstances to grant time for surrender. The copy of the judgment is ready. In absence of making out any case for extension of time to surrender, request stands rejected.

(R. M. JOSHI, J.)                                (R. G. AVACHAT, J.)




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