Bombay High Court
Shekhar S/O. Prakash Ambulkar (In ... vs The State Of Maharashtra Thr. ... on 4 May, 2023
Bench: Vinay Joshi, Vrushali V. Joshi
1 appeal 25.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 25/2017
WITH
CRIMINAL APPEAL NO. 44/2017
WITH
CRIMINAL APPEAL NO. 66/2017
WITH
CRIMINAL APPEAL NO. 219/2017
WITH
CRIMINAL APPEAL NO. 42/2019
WITH
CRIMINAL APPEAL NO. 615/2017
*************
CRIMINAL APPEAL NO. 25/2017
Akash @ Bittu S/o Jaikumar Sarojkar,
Age 20 yrs., Occ. Labour,
R/o. Indira Nagar Zopadpatti,
behind Petrol Pump, Nagpur.
(In Jail)
APPELLANT
VERSUS
1. State of Maharashtra,
PSO Police Station Jaripatka,
(Nagpur).
RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. R. M. Daga, Advocate for appellant.
Mrs. Mayuri Deshmukh, APP for State.
WITH
CRIMINAL APPEAL NO. 44/2017
Kunal S/o Bharat Goswami,
Age 23 yrs., Occ. Labour,
R/o. Indira Nagar Zopadpati,
behind Petrol Pump,
Galli No.1, Nagpur.
(In Jail)
2 appeal 25.17.odt
APPELLANT
VERSUS
State of Maharashtra,
PSO Police Station Jaripatka,
(Nagpur).
RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. Y. B. Mandpe, Advocate for appellant.
Mrs. Mayuri Deshmukh, APP for State.
WITH
CRIMINAL APPEAL NO. 66/2017
Kamesh Ravindra Jambhulkar,
Aged 33 yrs., Occ. Labour,
R/o. Kaushalya Nagar, Nagpur.
(In Jail)
APPELLANT
VERSUS
State of Maharashtra,
(Through P.S.O. PS Jaripatka,
Dist. Nagpur)
RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. Mir Nagman Ali, Advocate for appellant.
Mrs. Mayuri Deshmukh, APP for State.
WITH
CRIMINAL APPEAL NO. 219/2017
Shekhar S/o. Prakash-Ambulkar,
Aged about 25 yrs., Occ. Labour,
R/o. Indira Nagar Zopadpatti,
behind Petrol Pump, Nagpur.
(In Jail)
3 appeal 25.17.odt
APPELLANT
VERSUS
State of Maharashtra,
Through Police Station Officer,
Police Station Jaripatka,
Nagpur.
RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. R. M. Daga, Advocate for appellant.
Mrs. Mayuri Deshmukh, APP for State.
WITH
CRIMINAL APPEAL NO. 42/2019
Sandesh @ Golu S/o Venu Naik,
Aged about 26 yrs., Occ. Labour,
R/o. Hudco Colony, LIG Quarter No.1,
Building No. 3/21, Nagpur.
(In Jail)
APPELLANT
VERSUS
State of Maharashtra,
Through P.S.O., PS Jaripatka,
Nagpur.
RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. Mir Nagman Ali, Advocate for appellant.
Mrs. Mayuri Deshmukh, APP for State.
WITH
CRIMINAL APPEAL NO. 615/2017
Smt. Jyoti Janardhan Kale,
Age___yrs., Occ.____,
R/o. C/o. Kishor Nimkar House,
Jaripatka Police Station,
Hudko Colony, behind Sai Mandir,
Nagpur.
(Victim, Mother of deceased)
4 appeal 25.17.odt
APPELLANT
VERSUS
1. State of Maharashtra,
Through Police Station Officer,
Police Station, Jaripatka, Nagpur.
(Original respondent)
2. Rajesh S/o Anthony Haritswami,
Age about 34 yrs., occ. Labour,
R/o. Sant Martin Nagar, Nagpur.
(Original accused No.1)
3. Shailesh S/o Vijay Mukherjee,
Aged about 30 yrs., Occ. Labour,
R/o. Kaushalya Nagar, Kukde
Layout, Nagpur.
(Original accused No.6.)
RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. Amit Kukday, Advocate (appointed) for appellant.
Mrs. Mayuri Deshmukh, APP for State.
Mr. Mir Nagman Ali for respondent No.2.
Mr. Ashwin Wasnik, Advocate for respondent No.3.
CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI JJ.
JUDGMENT RESERVED ON : 20.10.2022
JUDGMENT PRONOUNCED ON : 04.05.2023
JUDGMENT : (PER VINAY JOSHI, J.)
Heard.
2. Total seven accused were tried for the offence punishable
under Section 302 read with Section 149, 143, 147, 148 of the Indian
Penal Code in Sessions Trial No. 223/2014. After full-fledged trial, the
5 appeal 25.17.odt
Trial Court has convicted accused No. 2 Sandesh @ Golu, accused No. 3
Kamesh, accused No. 4 Akash @ Bittu, accused No. 5 Kunal and accused
No. 7 Shekhar for the offence punishable under Section 302 read with
Sections 149, 143, 147, 148 of the Indian Penal Code whilst acquitted
accused No. 1 Rajesh and accused No. 6 Shailesh from all the charges.
The convicted accused have been sentenced to undergo imprisonment
for life along with fine, for the offence punishable under Section 302
read with Section 149 of the Indian Penal Code. They were separately
punished for the offence punishable under Sections 143, 147, 148 of the
Indian Penal Code. The Trial Court directed that all sentences shall run
concurrently. The judgment and order of conviction dated 07.01.2017
led convicted accused to file five separate appeals under Section 374 of
the Code of Criminal Procedure challenging the order of conviction.
Likewise, acquittal of accused Nos. 1 and 6 has been quashed by the
victim (mother of deceased) in Criminal Appeal No. 615/2017.
3. The prosecution case in brief is that the accused have formed
unlawful assembly and in pursuance of common object of the assembly,
committed murder of one Rupesh @ Pappu Kale by means of sharp
edged weapons on 14.01.2014 around 08.30 p.m. Crime was registered
at the instance of report lodged by PW-9 Avinay Ganwir on 14.01.2014
around 10.10 p.m. The informant stated that on 14.01.2014, around
08.30 p.m., he was with is friend PW-3 Pravin Bobate, at later's
6 appeal 25.17.odt
residence at Indira Nagar, Jaripatka, Nagpur. At the relevant time,
deceased Rupesh came and fell in front of the house of Pravin in
seriously injured condition. Deceased was followed by assailants who
again assaulted him. They were accompanied by four unknown
persons. The informant and his friend PW-3 Pravin came out of the
house, and saw that the assailants beat Rupesh by means of sharp edged
weapons and fled. The informant identified the assailants as accused
No. 4 Akash @ Bittu, accused No. 5 Kunal and accused No. 7 Shekhar.
The injured Rupesh sustained several bleeding injuries all over his body.
Immediately, informant and his friend Pravin, shifted injured Rupesh to
Mayo Hospital by auto-rickshaw. Thereafter, informant went to
concerned Jaripatka Police and lodged report. On the basis of said
report regarding commission of cognizable offence, the Police
registered Crime No. 24/2014 and carried investigation.
4. The Police visited the place of occurrence and drew
Panchanama of the scene of offence. Injured Rupesh succumbed to the
grave injuries on 16.01.2014. The Police have arrested accused.
Inquest Panchanama was drawn. Autopsy was conducted on the dead
body. Clothes of deceased and accused were seized. At the instance of
some of the accused, blood stained weapons and clothes were seized. All
seized articles and blood extracted from accused were sent for chemical
analysation. During the course of investigation, Test Identification ('TI)
7 appeal 25.17.odt
Parade was conducted. The statement of relevant witnesses have been
recorded. On completion of investigation, final report is filed.
5. The learned Trial Court has initially framed charges against six
accused on 17.03.2015. It was followed by framing charge against
accused No. 4 Akash @ Bittu on 22.06.2015. Accused have adjured the
guilt and put the prosecution to the task of establishing levelled charges
with requisite standard of proof. The defence of the accused is of total
denial and false implication. The defence has not led evidence.
6. The prosecution has examined as many as 15 witnesses to
bring home the guilt of accused. The prosecution also banks upon
several documents of which contextual reference is made. The learned
Trial Court believed the evidence put-forth against accused No. 2
Sandesh @ Golu, accused No. 3 Kamesh, accused No. 4 Akash @ Bittu,
accused No. 5 Kunal and accused No. 7 Shekhar and sentenced them
as aforesaid mentioned. However, the Trial Court held that the
prosecution remained unsuccessful in establishing the guilt against
accused No. 1 and 6 which led to their acquittal.
7. Heard Mr. Mir Nagman Ali, learned counsel for accused No. 2
Sandesh @ Golut and accused No. 3 Kamesh, Mr Daga, learned counsel
for accused No. 4 Akash @ Bittu, and accused No. 7 Shekhar, whilst
Mr. Mandpe, learned counsel for accused No. 5 Kunal. Heard the
8 appeal 25.17.odt
learned Additional Public Prosecutor Mrs. Mayuri Deshmukh for State as
well as Mr. Amit Kukday, learned counsel for informant in resistance to
the appeal against conviction, as well as in his appeal challenging the
order of acquittal of two accused. Written submissions as well as several
reported decisions filed by the parties have been considered.
8. The defence has not challenged the homicidal death of Rupesh
@ Pappu. We have gone through the evidence of PW-12 Dr. Tingare
who has conducted autopsy, along with postmortem examination report
(Exh. 108). It was revealed that deceased Rupesh sustained 27 external
injuries and 4 internal injuries as described in the postmortem report.
Most of the injuries were on the vital part of the body, caused by sharp
edged weapons. The cause of death is opined as "left side hemothorax
due to stab injury to left lung associated with the head injury". The
defence has not challenged the evidence of the Medical Officer or the
postmortem report. From the very nature of incise and chop wounds on
the vital part of the body, it is evident that Rupesh met with homicidal
death. At least there is uniformity amongst all about the homicidal
death of Rupesh which is prerequisite to establish the charges.
9. It is the prosecution case that all accused in furtherance of that
common object, assailed Rupesh by means of sharp edged weapons and
done him to death. The incident is in two parts. Initially assailant threw
9 appeal 25.17.odt
chill powder at the face of deceased and started to assault. Deceased
some how escaped and came running up till the house of PW-3 Pravin.
The assailant chased him and again inflicted blows by sharp weapons at
said place. The prosecution evidence consists of eye-witnesses, TI
Parade, seizure of articles at the instance of accused, rather the said
material led the Trial Court to convict the aforesaid accused. The main
thrust of the prosecution is on the evidence of eye-witnesses i.e. PW-1
Shimon (Exh. 52), PW-3, Pravin (Exh.57), PW-7 Meena (Exh.84), PW-9
Avinay (Exh.88) and PW-14 Abhay (Exh.114). Needless to say that if
the ocular evidence is found to be fully reliable, trustworthy and
unimpeachable then the corroborative evidence looses its significance.
10. Crime was registered at the instance of report lodged by PW-9
Avinay Ganvir. It is his evidence that on 14.01.2014 around 08.30 p.m.,
he was at his friend's house (Pravin) at Indirangar Zopadpatti. He saw
that Rupesh Kale (deceased) came in injured condition and fell in front
of the house of Pravin. The assailants followed him. He has identified
three of them who are accused No. 4 Akash @ Bittu, accused No. 5
Kunal and accused No. 7 Shekhar. The rest of the assailants were
unknown, but he was in a position to identify them. He saw that the
assailants beat Rupesh by means of weapons and fled. By noting serious
bleeding injuries all over the body of Rupesh, with the help of other, he
took Rupesh along with Pravin to Mayo Hospital. He immediately went
10 appeal 25.17.odt
to the Police Station and lodged report (Exh.89). The witness has
identified accused No. 2 Sandesh, accused no. 4 Akash @ Bittu, accused
No. 5 Kunal and accused No. 7 Shekhar. His evidence also consists of
the process of prior TI Parade to which we are coming after a short-
while.
11. The prosecution has examined PW-3 Pravin who is another
eye-witness named in the First Information Report ('FIR'). It is his
evidence that on the date of occurrence, he was at his house with PW-9
Avinay (informant). He heard the noise as ' wachwa whachwa'. Hence,
he came out of the house with Avinay. He saw in the light that Rupesh
was coming towards his house followed by the assailants, particularly he
deposed that accused No. 5 Kunal and accused No. 7 Shekhar assaulted
him by means of weapons like a knife. He stated that accused No. 2
Sandesh @ Golu and accused No. 4 Akash @ Bittu also beat Rupesh by
means of fist blows and kicks. He saw that at the relevant time, accused
No. 2 Sandesh @ Golu also assaulted deceased by means of sword.
12. The prosecution laid evidence of PW-1 Shimon who has
witnessed the earlier incident. He stated that at the relevant time,
programme of Shir-khurma was arranged in the vicinity. He sat with
deceased Rupesh and some other. Arround 08.00 to 08.30 p.m. accused
No. 5 Kunal and accused No. 7 Shekhar arrived at said place. Accused
No. 5 Kunal threw chilly powder in the eyes of Rupesh. Later, both of
11 appeal 25.17.odt
them took out knife and started to stab Rupesh. He saw that accused
No. 2 Sandesh @ Golu and accused No. 4 Akash @ Bittu also
accompanied them with armes.
13. The next reliance is on the evidence of PW-7 Meena who has
arranged the programme of Shir-khurma. It is her evidence that at the
relevant time, deceased Rupesh was sat with some other in street light
near house of Sultan. At that time, accused No. 5 Kunal came and
picked up quarrel with deceased Rupesh. She saw that accused No. 5
Kunal was holding knife whilst his companions were holding sword. All
of them started to beat Rupesh. Particularly accused No. 5 Kunal
assaulted deceased by means of knife and others by sword. Though the
prosecution also led evidence of her husband PW-14 Abhay, however his
statement was recorded after 15 days from the occurrence. He has
equally stated that at the relevant time, accused No. 5 Kunal threw
chilly powder in the eyes of Rupesh and assaulted him by means of
knife. Accused No. 2 Golu assaulted him by sword and rest by fist
blows, kicks and stones.
14. The defence has strongly criticized the evidence of eye-
witnesses. The learned counsel appearing for the accused would submit
that, delay in recording statements of witnesses is fatal to the
prosecution. In this regard, reliance is placed on the decision of this
12 appeal 25.17.odt
Court in case of Laxman Bapurao Ghaiwane Vs. The State of
Maharashtra, 2012 ALL MR (Cri) 3605, wherein it is observed that delay
in recording statement despite of ample opportunity to the Investigating
Officer to record the statement makes it doubtful. In the said decision
itself, it has been observed that delay in recording statement of
witnesses in all cases is not necessarily fatal, but it depends upon the
facts and circumstances of each case. It is submitted that the witnesses
were very much available, the Police went on and often to the place of
occurrence, however there is delay in recording statements. We are not
ready to accept the submission as regards to the eye-witnesses except
the statement of PW-14 Abhay which is recorded after considerable
delay. Pertinent to note that PW-9 Avinay in the FIR lodged on the very
day has specifically named accused No. 4 Akash @ Bittu, accused No. 5
Kunal and accused No. 7 Shekhar with unknown assailants. Though the
incident took place on 14.01.2014, however Pravin died on 16.01.2014
which assumes significance. Moreover, eye-witnesses stood the test of
credibility during cross-examination. We are mindful that the people
would react in different ways after looking horrifying incident, therefore
only on account of some delay, their evidence cannot be jettisoned
unless a reasonable doubt is created.
15. The learned APP responded by stating that the conduct of eye-
witnesses in not disclosing incident in proximity cannot be unnatural.
13 appeal 25.17.odt
For this purpose, reliance is placed on the decision of this Court in case
of Raju Maruti Dhumal & anr. Vs. The State of Maharashtra, 2015 ALL
MR (Cri) 2636 and Rammi alias Rameshwar Vs. State of M.P., with
another matter, (1999) 8 SCC 649. No doubt, the conduct of a person
who witnessed the murderous attack varies from person to person.
There is no universal rule of law stating in which manner the witness
behaves after watching occurrence. Therefore, non discloser of incident
immediately to the Police is not a sure criteria for discarding the
testimony of eye-witness if otherwise found credibile.
16. Mr. Daga, learned counsel appearing for the accused relied on
the decision of this Court in case of Mohamed Kasam Shamshuddin
Shaikh & anr. Vs. State of Maharashtra, 2007 ALL MR (Cri) 659 to
contend that there is difference between "may be" and "must be".
Certainly, the word "may" speak about a mere probability whilst the
word "must" connotes a certainty. We are aware about the well settled
principle of high standard of proof required in criminal cases. We have
examined the material by wearing said lens.
17. Though the defence has criticized the evidence of eye-
witnesses on account of close relationship, it is settled position of law
that merely on the criteria of close relations, the evidence of eye-
witnesses cannot be discarded. In this regard, learned APP relied on the
14 appeal 25.17.odt
decision of the Supreme Court in case of Waman and Ors. Vs. State of
Maharashtra, AIR 2011 SC 3327, wherein it is observed that the
evidence of related witness can be relied, if their testimony found to be
convincing and trustworthy. Concededly, the evidence of these
witnesses requires to pass a strict scrutiny. The prudence requires to
scan their evidence from every angel to pass the test of reliability. We
are unable to find any glaring circumstance which could take front seat
for discarding their ocular evidence.
18. Evidence of PW-9 Avinay is specifically about the participation
of accused No. 4 Akash @ Bittu, accused No. 5 Kunal and accused No. 7
Shekhar. PW-3 Pravin at whose doorstep the second part occurred, has
stated about the role of accused No. 2 Sandesh @ Golu, accused No.
Akash @ Bittu, accused No. 5 Kunal and accused No. 7 Shekhar.
Particularly, he deposed about the assault by means of knife by accused
No. 5 Kunal and accused No. 7 Shekhar. He also spoke that accused No.
2 Sandesh @ Bittu was armed with sword at the relevant time. PW-1
Shimon who is another eye-witness is in agreement with the role played
by the accused No. 5 Kunal and accused No. 7 Shekhar in assaulting
deceased by means of knife. He has also seen accused No. 2 Sandesh @
Golu and accused No. 4 Akash @ Bittu participating in the assault. PW-
7 Meena has stated about the assault by accused No. 5 Kunal by means
of knife. The testimony of these eye-witnesses has passed the test of
15 appeal 25.17.odt
reliability.
19. The evidence of these eye-witnesses is consistent as regards to
the role played by accused No. 2 Sandesh @ Golu, accused No. 4 Akash
@ Bittu, accused No. 5 Kunal and accused No. 7 Shekhar. As regards to
accused No. 3 Kamesh is concerned, PW-3 Pravin has only stated about
his participation by means of stone and has identified accused No. 3
Kamesh in the Court. Though the other eye-witnesses have not stated
the role of Kamesh, however we would see whether evidence against
him led by PW-3 Pravin is supported by any corroborative material. As
regards to the rest, the evidence is consistent about their participation in
assault by means of sharp edged weapons.
20. The next limb of prosecution evidence is of identification of
assailants in prior TI Parade. In this regard, the prosecution has relied
on the evidence of PW-10 Kambre (Special Judicial Magistrate) coupled
with evidence of PW-4 Rahul who is Panch to the TI Parade. The
defence has strongly criticized the evidence of prior TI Parade for non-
compliance of procedural aspect and some other lapses. Mr. Ali the
learned counsel by placing reliance on the decision of this Court in case
of Dharmendra s/o. Laxman Sahare Vs. The State of Maharashtra, 2014
ALL MR (Cri) 3196 would submit that the TI Parade held in defective
manner against guidelines cannot form the basis for conviction. On the
16 appeal 25.17.odt
similar line, Mr. Daga, learned counsel relied on the decision of the
Supreme Court in case of Dana Yadav Alias Dahu and others Vs. State
of Bihar, (2002) 7 SCC 295, wherein the use and purpose of prior TI
Parade is explained. In this regard, the learned APP also relied on the
decision of the Supreme Court in case of D. K. Rajendran and Ors. etc.
Vs. State of T.N., AIR 2010 SC 3718, wherein the worth of TI Parade has
been explained. It is well settled that TI Parades are held ordinarily for
the purpose of enabling the Investigating Agency to see that the
investigation is on right track. The substantive evidence of witnesses is
his statement in the Court, but the purpose of TI Parade is to test the
evidence. The witnesses regarding the accused who are strangers
generally requires corroboration which should be in the form of prior TI
Parade. If witnesses identify accused in the Court first time, as a rule of
prudence it requires corroboration from the prior TI Parade.
21. Basically, the very concept of TI Parade is based on the fact
that assailants are unknown to the victim or witnesses. In that case,
only TI Parade carries importance otherwise it is useless exercise. In
case at hand, all seven accused were put on prior TI Parade. We fail to
understand that most of the accused are known to the witnesses still the
Investigating Officer proceeded in putting them all in the TI Parade. We
can understand that TI Parade is held about the unknown assailants who
had accompanied to the named one. With the said prologue, we have
17 appeal 25.17.odt
examined the evidence of TI Parades which was conducted on
19.02.2014 in the Central Jail. It was conducted in four rounds. The
first round consists of TI Parade of accused No. 2 Sandesh @ Golu and
accused No. 7 Shekhar, second round about accused No. 3 Kamesh and
accused No. 6 Shailesh (acquitted), third round about accused No.4
Akash @ Bittu and accused No. 5 Kunal whilst the last fourth round
about accused No. 1 Rajesh (acquitted).
22. PW-1 Shimon, PW-7 Meena and PW-9 Avinay who are the eye-
witnesses were summoned in TI Parade to identify the assailants. We
have reverted to the evidence of PW-9 Avinay who is informant. He has
specifically stated in the evidence that he saw accused No.4 Akash @
Bittu and accused No. 5 Kunal and accused No. 7 Shekhar at the time of
incident which he reported within few hours to the Police. Since he has
stated the names of assailants, the TI Parade to that extent is
meaningless.
23. PW-1 Shimon was called for TI Parade who has also stated
names of some of the assailants i.e. accused No. 5 Kunal, accused No. 7
Shekhar, accused No. 2 Sandesh @ Golu and accused No. 4 Akash @
Bittu. Thus, assailants were known to these witnesses. There was no
requirement in law to seek corroboration from the exercise of
conducting TI parade. Likewise, PW-7 Meena has also stated the name
18 appeal 25.17.odt
of Kunal in her statement itself.
24. Apart from that, we have meticulously gone through the
evidence of PW-10 Kambre (Special Judicial Magistrate) along with the
evidence of PW-1 Shimon, PW-7 Meena and PW-9 Avinay who
participated in the identification process. It emerges in the first round
of TI Parade that accused No. 2 Sandesh @ Golu and accused No. 7
Shekhar were made to stand amongst 12 dummy persons. PW-9 Avinay
has identified both of them in the first round of identification process.
PW-7 Meena has identified accused No. 7 Shekhar whilst PW-1 Shimon
identified both of them. Contextually, we have gone through the
evidence of PW-4 Rahul (panch) who has corroborated the evidence to
that extent.
25. In second round, accused No.3 Kamesh and accused No. 6
Shailesh (acquitted) were put in the TI Parade. PW-9 has identified
accused No. 6 Shailesh whilst PW-1 Shimon identified accused No. 3
Kamesh only. PW-7 Meena has not identified any one of them. At this
juncture, we may note that the participation of accused No. 3 Kamesh
was stated by PW-3 Pravin only which got corroboration from the
identification of Kamesh by PW-9 Avinay which is supported by panch
witnesses. Thus, caching the thread of relevancy, we may express that
the presence of accused No. 3 Kamesh is also established.
19 appeal 25.17.odt
26. The third round of TI parade pertains to accused No. 4 Akash
@ Bittu and accused No. 5 Kunal. All three witnesses i.e. PW-1 Shimon,
PW-7 Meena and PW-9 Avinay identified them correctly. As a matter of
fact, these witnesses have already stated name of Kunal as an assailant
in the Police statement. Therefore, as regards to accused No. 5 Kunal is
concerned, the said exercise was in-fact unwarranted. Identification of
accused No.4 Akash @ Bittu by PW-7 Meena carries significance since he
was unknown to her. In fourth round of litigation, accused No. 1 Rajesh
was placed amongst 7 dummies, however, none of the witness has
identified him. He is acquitted by the Trial Court. To summarize the
position, these three witnesses have identified accused No. 2 Sandesh @
Golu, accused No. 3 Kamesh, accused No. 4 Akash @ Bittu, accused No.
5 Kunal and accused No. 7 Shekhar in the prior TI parade.
27. While criticizing the procedural aspect, it has been submitted
that in first three rounds of parade, two accused were made to stand in
one parade which is improper. We do not find any legal force in said
submission since Chapter I Rule 16(g) of the criminal manual permits to
hold identification of two suspects in one parade provided that 12
dummies shall be used. It is argued that same dummies have been used
for most of the rounds of TI Parade. True, most of the dummies are
same, but in some parades, the dummies have been changed which is
evident from the TI Parade Panchanama (Exh. 53). It is argued that the
20 appeal 25.17.odt
dummies were of different complexion. We do not find supporting
material on said count. TI Parade was conducted by PW-10 Kambre in
presence of two panch witnesses.
28. We have minutely examined TI Parade Panchanama prepared
in the handwriting. The said panchanama bears the reference about
the precaution taken by the holder of parade. It is stated that while
conducting TI Parade, precaution was taken that no Police Officer shall
be allowed to enter, witnesses shall not be allowed to see the suspects
by making necessary arrangement. All the time, choice was given to the
suspects to choose their position in row and change the clothes. It also
reveals from Panchanama that sometime the suspects have changed
their position. The evidence of TI Parade was supported by PW-4 Rahul
who is panch witness. On fact, we see that TI Parade was conducted in
proper manner by taking due care. Therefore, the evidence on this
count to the extent of unknown assailants corroborates the identification
of accused first time made in the Court. Contextually, we may refer that
PW-1 Shimon has identified accused No.2 Sandesh @ Golu, accused No.
5 Kunal and accused No. 7 Shekhar in the Court. PW-9 Avinay has
identified accused No. 2 Sandesh @ Golu, accused No. 4 Akash @ Bittu,
accused No. 5 Kunal and accused No. 7 Shekhar in the Court. Thus, the
evidence of eye-witnesses about the presence of accused No. 2 Sandesh
@ Golu, accused No. 3 Kamesh, accused No. 4 Akash @ Bittu, accused
21 appeal 25.17.odt
No. 5 Kunal and accused No. 7 Shekhar stated by eye-witnesses gains
assurance from the evidence of prior TI Parade to the extent of unknown
assailants for some of the witnesses.
29. It takes us to the aspect of seizure of incriminating articles.
The prosecution has examined PW-2 Tushar, in whose presence accused
No. 2 Sandesh @ Golu expressed his willingness to show the place
where he has concealed the sword used in commission of crime.
Accordingly, the Police have prepared memorandum panchanama
(Exh.55). Accused No.2 Sandesh @ Golu led the Police team to one
Kaccha Road and took out a sword which was concealed in thorny
bushes. There were blood stains on the sword which was seized by the
Police vide panchanama (Exh.56). Likewise, prosecution has examined
PW-6 Mahendra, in whose presence, accused No. 5 Kunal expressed his
willingness to produce the knife. Accordingly, memorandum
panchanama (Exh.76) was drawn. At the instance of accused No.5
Kunal, the Police seized knife as well as clothes from his house which
were seized under Panchanama (Exh.77) on 23.01.2014. The seized
articles were deposited in Malkhana and latter sent for chemical
analysation on 01.04.2014. Expert report has been received on
23.05.2014.
22 appeal 25.17.odt
30. The defence has challenged the evidence of seizure on various
counts. It is submitted that the knife was seized from open place, which
creates reasonable doubt. In this regard, the prosecution has relied on
the decision of the Supreme Court in case of Yakub Abdul Razak Memon
Vs. State of Maharashtra thr. CBI Bombay, with connected cases, (2013)
13 SCC 1 to contend that even if the recovery is made from open or
accessible place, however if weapon was hidden, then the recovery
cannot be held doubtful.
31. According to the defence, accused No. 5, Kunal was arrested
on 16.01.2014 whilst alleged discloser and consequential recovery of
knife was made after seven days i.e. on 23.01.2014, hence it is doubtful.
In this regard, defence relied on the decision of this Court in case of
Bhalchandra Namdeo Shinde Vs. State of Maharashtra, 2003 ALL MR
(Cri) 1149, wherein on account of delay in making discloser while in
Police custody, the discloser is held to be doubtful.
32. Moreover, it is argued that the prosecution has not adduced
evidence of sealing weapon, clothes and about its safe custody. It is
evident that the seized articles were lying in Malkhana till 01.04.2014,
when they were forwarded for chemical analysation. Moreover,
analysation report is sent on 17.05.2014. In absence of evidence of
sealing of seizer of articles, it is doubtful. In this regard reliance is
23 appeal 25.17.odt
placed on the decision of this Court in case of Lalchand Cheddilal Yadav
Vs. State of Maharashtra, 2000 ALL MR (Cri) 1485. True, we do not
find any material in panchanama stating that the articles were sealed
at the time of seizure. On the background of absence of evidence on
sealing, it is worthwhile to note that the seized articles were lying at
Malkhana for near-about three months and therefore, the chances of
tampering cannot be ruled out. We agree with the submission made by
the defence in this regard and are not inclined to rely on the said
material.
33. On the point of seizure, it is argued that the incident occurred
on 14.01.2014 whilst after two to three days, accused No. 3 Kamesh was
arrested with blood stained clothes. According to defence, it is hardly
possible to wear the same blood stained clothes by accused for some
days. To substantiate said contention, reliance is placed on the decision
of this Court in case of Sadashiv Basappa Madgyal Vs. The State of
Maharashtra, 2019 ALL MR (Cri) 5038 and Sallauddin @ Bablu
Nizamuddin Shaikh Vs. The State of Maharashtra, 2017 ALL MR (Cri)
982. However, in above part, we have already shown our reluctance to
accept the evidence of seizure and consequential report of chemical
analyser.
24 appeal 25.17.odt
34. The learned counsel appearing for the appellants would
submit that the evidence of eye-witnesses in particular PW-3 Pravin and
PW-9 Avinay is doubtful for the reason that though they allegedly
shifted injured to the Hospital, their clothes having blood stains were
not seized. In this regard, defence relied on the decision of the Supreme
Court in case of State of Rajasthan Vs. Teja Singh and others, 2001 ALL
MR (Cri) 994. In the said decision the evidence of eye-witnesses was
held to be doubtful for one of the reason that even though they lifted
body of deceased, the Investigating Officer failed to recover the clothes
of the witnesses. In-fact, the said conclusion was drawn on various
factual aspects of the case. On the other hand, the learned APP by
placing reliance on the decision of the Supreme Court in case of Harpal
Singh Vs. State of Haryana, AIR 1997 SCC 2914 would submit that non-
seizure of blood stained clothes of witnesses is omission of the
Investigating Agency, but it cannot be a reason for jettisoning the
testimony of eye-witnesses. True, the lapses of the Investigating Officer
if not fatal, cannot be used to reject the evidence of eye-witnesses which
otherwise inspires full confidence. At the cost of repetition, we may say
that the evidence of eye-witnesses as detailed above remained intact and
found to be reliable and trustworthy.
35. It is argued that while lodging FIR, the informant has not
disclosed the nature/kind of weapon. On perusal of FIR (Exh.89), it is
25 appeal 25.17.odt
seen that the informant has stated that the deceased was assaulted by
means of weapons. Though particular kind of weapon has not been
described, however FIR bears a clear reference that weapons were used
in commission of crime. IN catena of decisions, it has been held that FIR
is not an encyclopedia. Moreover, FIR speaks about use of weapon,
therefore, there is no substance in said contention.
36. It is submitted that as per prosecution case, initially accused
No. 5 Kunal thrown chilly powder at the face of deceased, but no chilly
powder was recovered from the place of occurrence. For this purpose,
we have been taken through the panchanama of the scene of offence.
We see no reason to discard the entire evidence on the said sole ground.
It depends upon the volume of chilly powder used in the commission of
crime and time period of carrying spot panchanama. Obviously, if a
little quantity of chilly powder was used, naturally by flow of wind or
for other reasons, it is not possible to find the same while drawing
panchanama. Therefore, the said submission does not confine us to any
extent. Likewise the case of non-finding of chilly powder on the clothes
of deceased.
37. The defence has doubted the very presence of eye-witnesses by
stating that initial intimation regarding the incident (Exh.91) does not
bear the reference of names of assailants. We have gone through the
26 appeal 25.17.odt
said report named as "Meyo Suchana", by which intimation was given
by Police regarding admission of injured in the hospital within few hours
from the occurrence. It says that PW-9 Avinay has accompanied the
injured and accordingly, on duty Police of Hospital gave intimation
about admission of patient. True, the said intimation does not bear the
names of assailants, however according to us it is not a decisive factor,
since it was a mere intimation given by Police about admission of
injured into the hospital. The same cannot be treated as a statement of
informant since there was only reference that informant Avinay has
accompanied the injured. Therefore, said submission does not hold any
water.
38. It reveals that the alleged incident took place around 08.30
p.m. on 14.01.2014 whilst FIR was lodged around 10.10 p.m. on the
very day. Though the defence has named it as delay in lodgement of
FIR, by placing reliance on the decision of this Court in case of Raju s/o.
Durgaparasad Gupta & Ors. Vs. State of Maharashtra, 2017 ALL MR
(Cri) 798, however, we do not consider it as a delay. On the facts, it
reveals that there was a deadly assault on the person of deceased who
was admitted in the hospital and then within two hours, FIR has been
lodged with specific names. Though inordinate delay in lodging of FIR
is matter of suspicion, however in case at hand, there was rather quick
27 appeal 25.17.odt
lodgement of FIR which has eliminated the chances of false implication.
39. Though the informant in his appeal seeks for conviction of
accused No.1 Rajesh and accused No. 6 Shailesh, we do not find
convincing evidence about their presence. The learned counsel
appearing for informant has attracted our attention to the aspect that
blood of 'A' group was found on the clothes of accused No.1 Rajesh
which was blood group of deceased, however none of the eye-witnesses
stated about the presence of accused No.1 Rajesh as well as he was not
identified in the TI Parade by either of the witness. Besides that in
above part, we hold that the evidence of seizure is not worthy of credit.
Therefore, the submission about complicity of accused No.1 Rajesh is
unacceptable. It is also argued, there was enmity between accused No.6
Shailesh and deceased. PW-4 Rahul (panch) stated that PW-9 Avinay
has identified accused No.6 Shailesh. However, we have gone through
the evidence of PW-9 Avinay who has not stated that he has identified
accused No.6 Shailesh. Besides that none of the witness has identified
accused No.6 Shailesh nor his name was stated, therefore, reasonable
doubt belongs to him. We are not convinced about the complexity of
accused No.1 Rajesh and accused No.6 Shailesh.
40. The learned counsel appearing for accused No.4 Akash @ Bittu
would submit that mere presence of Akash @ Bittu is not sufficient to
28 appeal 25.17.odt
fasten the liability. It is submitted that the allegation of assault are
against accused No.5 Kunal and accused No.7 Shekhar. Thus, the role
assigned to accused No.4 Akash @ Bittu is at the most of beating by fist
blows and kicks. By placing reliance on the decision of this Court in
case of Shrirang Namdeo Chandanshive & ors. Vs. The State of
Maharashtra, 2016 ALL MR (Cri) 3804, it is argued that mere presence
is not enough to fasten the vicarious liability by invoking the provision
of Section 149 of the Indian Penal Code. The facts of said case were
quit distinct. In said case, deceased went to the field after hearing
noise, where the assailants were cutting trees. In the quarrel, some of
the assailants used axe whilest other gave kicks and fist blows. The said
occurrence was at the spur of moment and therefore, in given facts, it
was observed that mere participation in the form of giving fist blows
and kicks does not attract the common object. The case in hand is quit
distinct, all accused have formed unlawful assembly. They have carried
deadly weapons and assaulted deceased. Some how deceased escaped
and started to run, but the assailants followed and again beat him. The
said course of conduct is sufficient to infer the common object of the
assembly of eliminating the deceased. Therefore, the above submission
is of no avail.
41. For the reasons stated above, we are satisfied that the order of
conviction of accused No. 2 Sandesh @ Golu, accused No.3 Kamesh,
29 appeal 25.17.odt
accused No.4 Akash @ Bittu, accused No.5 Kunal and accused No.7
Shekhar recorded by the Trial Court is based on sound reasons. The
prosecution has adduced reliable evidence as regards to the complexity
of convicted accused, therefore, the appeals filed by the accused calls
for no interference. Likewise, we do not see any perversity committed
by the Trial Court while acquitting accused No.1 Rajesh and accused
No. 6 Shailesh. In this regard, the law is fairly well settled that merely
another view is possible, the order of acquittal cannot be reverted. In
view of that appeal filed by Mrs. Jyoti Janardhan Kale (victim's mother)
also deserves to be dismissed.
42. In view of above, we dismiss all appeals.
43. Fees to the Mr. Amit Kukday, learned appointed advocate be
paid as per rules.
(MRS.VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Gohane
