Bombay High Court
Brayan Ibrahim Keneath Bastiyan vs The State Of Maharashtra, Thr. Police ... on 30 November, 2023
Author: Vinay Joshi
Bench: Vinay Joshi
2023:BHC-NAG:17345-DB
Judgment apeal 735.19+2
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 359/2021
WITH
CRIMINAL APPEAL NO. 735/2019
WITH
CRIMINAL APPEAL NO. 152/2020
***********
CRIMINAL APPEAL NO. 359/2021
Brayan @ Ebrahim Keneath Bastiyan,
Aged about 25 yrs., Occ. Driver,
Presently in Jail (on furlough leave
since 07.05.2021), R/o. Martin Nagar,
E-Block, Nagpur.
... APPELLANT
(On furlough leave
since 07.05.2021)
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station, Gittikhadan,
Nagpur, Dist. Nagpur.
... RESPONDENT
---------------------------------
Mr. Shashi Bhushan Wahane, Advocate for appellant
Mr. S. S. Doifode, APP for respondent.
----------------------------------
Judgment apeal 735.19+2
2
WITH
CRIMINAL APPEAL NO. 735/2019
Sachin @ Anna Palti Danial Gabrel,
Aged about 26 yrs., Occ. Labour,
R/o. Martin Nagar, Nagpur.
... APPELLANT
(In Jail)
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station, Gittikhadan,
Nagpur, Dist. Nagpur.
... RESPONDENT
---------------------------------
Mr. R.M. Patwardhan, Advocate for appellant
Mr. S. S. Doifode, APP for respondent.
----------------------------------
WITH
CRIMINAL APPEAL NO. 152/2020
Ashish @ Maddy s/o Virendra Rathod,
Aged about 34 yrs., Occ. Driver,
R/o. Swalambi Nagar, Nagpur.
... APPELLANT
(In Jail)
VERSUS
State of Maharashtra,
through P.S.O., Gittikhadan,
Nagpur.
... RESPONDENT
Judgment apeal 735.19+2
3
---------------------------------
Mr. A. S. Mardikar, Sr. Advocate with Mr. S. Joshi, Advocate for
appellant.
Mr. S. S. Doifode, APP for respondent.
----------------------------------
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES JJ.
JUDGMENT RESERVED ON : 07.09.2023
JUDGMENT PRONOUNCED ON : 30.11.2023
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
The Judgment and order of conviction dated 17.09.2019
in Sessions Trial No. 430/2015 led three appeals raising the similar
challenge to the impugned judgment and order, whereby all the
appellants have been convicted for the offences punishable under
Section 302 read with Section 149 and Sections 143, 147, 148 of the
Indian Penal Code. All appellants have been sentenced to undergo
imprisonment for life, along with fine under different counts.
Gruesome murder of one Mohit Martin Peter dated 26.06.2015 led
the Police to investigate, and file charge-sheet against several
accused. Some of the accused were initially arrested whilst others
after some interval. Resultantly, it led three trials vide Sessions Trial
Judgment apeal 735.19+2
No.430/2015 against accused Nos. 1 to 11, Sessions Trial No.
220/2017 against accused Shubham s/o. Gautam Shendre and
Sessions Trail No. 366/2017 Mahendra @ Taklya s/o Mansing
Sonone. The Trial Court vide impugned common judgment and
order dated 17.09.2019 disposed of all three trials by convicting five
accused of principal trial in Sessions Trial No. 430/2015. For the
sake of convenience, we have noted that accused No.1 James @
Tambi Kelmant @ Bablu Gabrel, accused No.2 Brayan @ Ebrahim
Keneath Bastiyan, accused No. 4 Sachin @ Anna Palti Danial Gabrel
and accused No.5 Ashish @ Maddy s/o Virendra Rathod have been
convicted whilst rest were acquitted by the learned Trial Judge.
2. The State has neither challenged the acquittal of accused
Nos. 1, 2, 4 and 5 for remaining charges, nor challenged the clean
acquittal of rest of the accused from the levelled charges. Though in
all four accused have been convicted, however accused No.1 Tambi
has not called in question his conviction by filing appeal. Accused
No.4 Sachin filed Criminal Appeal No. 735/2019, accused No. 5
Ashish filed Criminal Appeal No. 152/2020 whilst accused No. 2
Brayan challenged his conviction vide Criminal Appeal No.
Judgment apeal 735.19+2
359/2021. Thus, these appeals pertain to the extent of legality and
sustainability of the conviction of accused No.2 Brayan, accused No.
4 Sachin and accused No.5 Ashish.
3. Heard Mr. Mardikar, senior counsel for accused No.5
Ashish, Mr. Wahane, learned counsel for accused No.2 Brayan and
Mr. Patwardhan, learned counsel for accused No.4 Sachin. Mr.
Doifode, learned Additional Public Prosecutor (APP) has defended
the conviction by making exhaustive submission. Perused the entire
record and proceeding, as well as gone through the reported
decisions cited by the parties.
4. At the instance of First Information Report ('FIR') (Exh.
112) dated 26.06.2015, the Police of Gittikhadan Police Station,
Nagpur, Dist. Nagpur registered offence vide Crime No. 305/2015,
and carried the investigation. Informant Mikhil Maichel Francis (PW-
1) is the eye-witness to the occurrence. The informant along with his
cousin deceased Mohit Peter was indulging into business of supply of
building material from the office situated on the ground floor of
Jagdamba Heights, Mankapur, Nagpur under the name and style
Judgment apeal 735.19+2
"Marline Building Material Supplier." PW-1, Mikhil was residing on
the upper floor in the same building. On 26.06.2015, as usual
informant Mikhil has opened the office around 10.00 a.m. Deceased
Mohit arrieved in to the office. After sometime, Sheikh Taj Sheikh
Gaffur Badshah (PW-12) also came to the office. While all three
were seated in the office, around 01.30 p.m. about 10 to 12 persons
barged in the office armed with sharp edged weapon like sword,
knife, big axe (Farsa) etc. Some of the assailants were known to the
informant Mikhil, who were accused No.1 James @ Tambi Kelmant
@ Bablu Gabrel, accused No.2 Brayan @ Ebrahim Keneath
Bastiyan, accused No.4 Sachin @ Anna Palti Danial Gabrel and
accused No.5 Ashish @ Maddy s/o Virendra Rathod.
5. Initially accused No.1 Tambi threw chilly powder in the
eyes of Mohit, whilst accused No.2 Brayan, accused No.4 Sachin and
accused No.5 Ashish started assaulting Mohit by means of dangerous
weapons. Accused No.1 Tambi was holding sword, accused No.2
Brayan was armed with Farsa, accused No.4 Sachin was holding
knife whilst accused No.5 Ashish was holding big size knife. All of
them repeatedly dealt blows to Mohit in which, he fell down. They
Judgment apeal 735.19+2
have continuously assaulted at the hands, legs, stomach, face, head
of Mohit by sharp weapons. Informant Mikhil tried to intervene,
however accused No.4 Sachin by means of knife and accused No.1
Tambi by sword attacked on him. While accused No.4 Sachin was
assaulting, his knife was broken and fell down. In the said deadly
assault, Mohit sustained sever bleeding injuries all over the body,
PW-12 Sheikh Taj immediately went and brought PW-2 Mithun who
was younger brother of deceased Mohit. Both of them shifted Mohit
in injured condition to the Mayo Hospital, where Mohit was declared
dead.
6. The informant stated that the assailants also snatched
his gold chain and caused damage to the belongings. The informant
stated that accused No.1 Tambi was doing illicit liquor business for
which one month preceding to the incident, the Police took action
against him. Accused No.1 Tambi was carrying impression that
deceased Mohit and PW-2 Mithun made a complaint to the Police
and for said reason, they had quarrel before one month. According
to the informant, out of said grudge, deadly assault was made.
Judgment apeal 735.19+2
7. Injured Mohit was declared dead on admission at Mayo
Hospital. Informant Mikhil was treated at Mayo Hospital by Dr. Nitin
Alaspurkar (PW-14). The informant was taken to the Police Station
where his report was registered by PW-19 API Ms. Rupali Bawankar.
The Police rushed to the place of occurrence and drew panchanama
of the scene of occurrence. Few articles and bloodstains were
collected from the spot. On the same day in between 5.10 p.m. to
7.20 p.m. Postmortem was carried on dead body by PW-11 Dr.
Sachin Giri. Medical Officer has noted total 79 injuries on the
person of deceased which were mentioned in column No. 17 of
postmortem report. (Exh. 164). The cause of death was as
"Haemorrhage and shock due to injuries sustained". The Medical
Officer has opined that external injuries 1 to 27, 32, 34, 38 and 42
mentioned in column No. 17 along with its internal damage
mentioned in column Nos. 19 and 20 are sufficient in the ordinary
course of nature to cause death.
8. Time to time, several accused were arrested.
Bloodstained clothes and Weapons used in the commission of crime
were seized at the instance of some of the accused. During course of
Judgment apeal 735.19+2
the investigation Investigating Officer Avadhesh Tripati PW-27 has
recorded statement of various witnesses. Seized articles were sent
for chemical analysation and DNA profile. Since some of the accused
were unknown to the witnesses, test identification parade was
conducted in which some of the assailants were identified. On
completion of the investigation, final report have been filed.
9. In order to establish the guilt of accused, the
prosecution has examined as many as 27 witnesses. The prosecution
evidence mainly consists of eye-witnesses, panch witnesses, medical
officers and Police personnel. Besides that, the prosecution also
banks upon several documents like FIR, spot panchanama, inquest
panchanama, postmortem report, seizure memo, chemical analysers
report etc. On the basis of said oral and documentary evidence, the
prosecution endevoured to bring home the guilt of the accused. As
noted above, the Trial Court has recorded conviction against accused
No.1 Tambi, accused No.2 Brayan, accused No. 4 Sachin and accused
No.5 Ashish only. At the cost of repetition, we may say that accused
No.1 Tambi has not challenged the order of conviction.
Judgment apeal 735.19+2
10. Though the prosecution case rests on the direct as well
as circumstantial evidence, the main emphasis is led on the evidence
of eye-witnesses namely PW-1 Mikhil (Exh.111) who is informant,
PW-2 Mithun (Exh.123) who is brother of deceased, and PW-12
Sheikh Taj (Exh.180) who was present at the time of occurrence. PW-
1 Mikhil and PW-2 Mithun supported the prosecution case, whilst
PW-12 Sheikh Taj remained back footed in the Court. He has not only
denied the participation of convicted accused, but tried to shield
them by giving some favourable admissions.
11. Since the prosecution mainly relied on the direct
evidence, circumstantial evidence takes back seat. We have carefully
examined the evidence of these two important prosecution witnesses
and considered the criticism made by the defence touching to the
credibility of their evidence. We have considered their evidence on
the background facts of the case.
12. Deceased Mohit was a business partner of PW-1 Mikhil.
Both were doing business of supply of construction material from the
said office. It is the evidence of PW-1 Mikhil that on the day of
Judgment apeal 735.19+2
incident, he along with deceased Mohit and PW-12 Sheikh Taj were
seated in the office discussing the business affair. Around 01.30
p.m., 10 to 12 young boys entered in to the office who were holding
deadly weapons. PW-1 Mikhil has identified some of them who were
accused No.1 Tambi, accused No.2 Brayan, accused No.4 Sachin and
accused No.5 Ashish. Informant Mikhil stated that those assailants
were friend of his elder brother, that is why he was knowing them.
13. On the actual occurrence, Mikhil deposed that initially
accused No.1 Tambi threw chilly powder in the eyes of deceased
Mohit. Accused No.1 assaulted Mohit at his head by means of sword.
The remaining started to assault Mohit by the weapons they carried.
Particularly he deposed that accused No.2 Brayan assaulted Mohit by
means of big axe, accused No.4 Sachin assaulted by means of small
knife whilst accused No.5 Ashish by means of big axe. He stated that
accused No.1 was saying that "I am Don, I am Don". Mohit was
shouting loudly, while, he was assaulted at his head, stomach and all
over the body. Mohit fell on the ground (floor). PW-1 Mikhil tried to
intervene, but accused No.4 Sachin assaulted him by knife and
accused No.1 Tambi by sword. He deposed that accused No. 4
Judgment apeal 735.19+2
Sachin stuck his knife on the table, on which its handle was broken
and fell down. The assailants snatched gold chain of Mikhil and
decamped. Later on, PW-12 Sheikh Taj called brother of deceased
Mithun (PW-2) and both shifted injured Mohit to the Mayo Hospital,
where he was declared dead on admission.
14. Contextually, we prefer to deal with the evidence of
another eye-witness namely PW-2 Mithun who was real brother of
deceased Mohit. It is his evidence that he knows accused No. 1
Tambi and accused No.2 Brayan as they were residing in his locality.
Accused No.4 Sachin was brother of accused No.1 Tambi who was
also residing in said locality. On the point of actual occurrence, he
deposed that on 26.06.2015 around 11.00 a.m., deceased Mohit left
the house for office by his motorbike. Around 01.00 to 1.45 p.m.
PW-12 Sheikh Taj hurriedly came to his house and asked to
accompany him to the office. PW-12 Sheikh Taj was in frighten
condition. He disclosed that accused No.1 Tambi and accused No.2
Brayan were assaulting Mohit and they were accompanied by their
associates armed with deadly weapons. Immediately PW-2 Mithun
rushed to the spot by riding a motorbike. When he reached near the
Judgment apeal 735.19+2
office (place of occurrence), he saw accused No.1 Tambi, accused
No.2 Brayan, accused No.4 Sachin and accused No.5 Ashish while
fleeing with big weapons. Then he entered into the office and saw
that blood was splashed everywhere. Mohit had sustained injuries
all over the body, and was profusely bleeding. Mohit was shifted to
the Mayo Hospital by car of one Mr. Shahu.
15. Evidence of these two eye-witnesses has been criticized
by defence by every possible mode. Particularly, evidence of PW-2
Mithun was questioned on the ground of improbability. It is argued
that as per evidence of PW-2 Mithun, he has not witnessed the actual
occurrence. His evidence is only to the extent of seeing accused No.1
Tambi, accused No.2 Brayan, accused No.4 Sachin and accused No.5
Ashish while fleeing from the spot. Moreover, it is argued that as per
prosecution case itself, after assault, PW-12 Sheikh Taj went to the
house of PW-2 Mithun which was at some distance. Therefore, it was
not possible that, till his return the assailants remained on the spot
itself.
Judgment apeal 735.19+2
16. Moreover, it is argued that as per case of PW-2 Mithun,
he has lifted injured Mohit while carrying to the Mayo Hospital.
Therefore, non-finding of bloodstains on his clothes improbablises his
presence on the spot. True, bloodstained clothes of Mithun have not
been seized.
17. Though it is the prosecution case that the house of
Mithun was at short distance but the submission made by defence
carries substance. As per the prosecution case, when the incident
was over PW-12 Sheikh Taj left the place by motorbike towards the
house of PW-2 Mithun. He has informed to PW-2 Mithun about the
occurrence and then both of them came back to the place of
occurrence by riding on motorbike. It is not the prosecution case that
house of PW-2 Mithun was in very close proximity. Rather use of
motorbike itself indicates that there was some distance. Thus,
certainly period of 10 to 15 minutes would have been taken by them
to return to the spot. There is every possibility that before their
arrival, assailants have decamped. Considering the said material
aspects coupled with non-seizure of his bloodstains clothes raises
Judgment apeal 735.19+2
serious doubt about his presence. Therefore, it is risky to rely on his
words particularly when he was closely related to the deceased.
18. In the result, the entire thrust of the prosecution remains
on the evidence of PW-1 Mikhil who is informant and eye-witness to
the occurrence. We have carefully examined his entire evidence. He
was residing at upper floor in the same building, rather it is admitted
by the defence during cross-examination. It is not disputed that PW-
1 Mikhil was carrying business activities with deceased Mohit from
the same office. Thus, there is nothing to suspect about the presence
of Mikhil in the office at the relevant time, rather his presence at his
own office with business partner was quit a natural which cannot be
doubted at all.
19. PW-1 Mikhil has given a detail account of the entire
episode. He has specifically stated about the arms held by each of
the convicted accused along with their particular role. It is not
challenged that the convicted accused were known to the informant
Mikhil. It requires to be noted that Mikhil has also sustained the
injuries in the same occurrence. In this regard, the prosecution has
Judgment apeal 735.19+2
examined PW-14 Dr. Nitin who has examined Mikhil in Mayo
Hospital on the same day. Contextually, we have gone through the
evidence of PW-14 Dr. Nitin. It has come in his evidence that on the
very day around 09.30 p.m. he has examined PW-1 Mikhil and found
fresh injuries on his person. The prosecution has produced Medico
Legal case paper (Exh. 190) which strongly corroborates that Doctor
found incise wound on upper 1/3rd part of left scapula along with
one abrasion. Medico Legal Certificate (Exh. 192) also discloses that
PW-1 Mikhil sustained incise wound of left scapula. It was fresh
injury caused by sharp and point object. The defence tried to bring
on record certain inconsistencies like absence of history, overwriting
in the case paper etc. However, there is no reason to doubt the
evidence of PW-14 Dr. Nitin, who is independent witness. The minor
inconsistencies are insignificat. More particularly, his evidence is
strongly supported by case paper as well as Medico Legal Certificate.
Medical evidence strongly corroborates the evidence of witness about
his presence.
20. It has been argued that PW-1 Mikhil has not specified
the nature of weapon and injuries. However, one has to remember
Judgment apeal 735.19+2
that in his presence his partner was murdered mercilessly. The
assault was so gruesome that total 79 incise/chop wounds were
found on the person of deceased. In the circumstances, one has to
understand his state of mind and therefore, some inconsistencies
about the nature of weapon, the manner of attack is of no
significance. Rather minor inconsistencies are bound to occur as
witness must have been terribly frightened. Broadly, his evidence
about sustaining fresh bleeding injuries supported by the medical
evidence gives assurance about his presence on the spot. Though his
bloodstained clothes have not been seized, however on the
background that he has sustained injuries in the same occurrence, his
presence was quite probable. Minor lapses on the part of
Investigating Agency would not weaken the prosecution case to the
extent of discarding his reliable testimony.
21. The learned counsel appearing for defence took us
through the evidence of PW-12 Sheikh Taj who was present at the
time of occurrence. It is argued that admissions given by PW-12
Sheikh Taj falsifies the presence of PW-1 Mikhil. Our attention has
been invited to his evidence where in chief-examination itself he
Judgment apeal 735.19+2
stated that after assailants left the spot, he went to call Mikhil.
Moreover, during cross-examination, he admits that Mikhil sustained
injuries at his leg due to fall from staircase. On that basis, it is
argued that the presence of PW-1 Mikhil was doubtful since he
arrived on the spot after assailants leaving the place and the injuries
were by fall. We are not acceding such tactics adopted by the
defence. Already this witness has exposed his hostility by departing
from his previous statement. Whatever stated by the witness who
has leaned to the defence cannot be considered, as already he has
lost the credibility. The defence cannot muster strength on such
tricky admissions obtained through the hostile witness.
22. Learned senior counsel appearing for defence has
criticized the reasoning of the Trial Court by submitting that the Trial
Court has failed in error in considering the statement of PW-1 Mikhil
recorded under Section 164 of the Code of Criminal Procedure
('Code'). True, the Trial Court has considered the statement of
witness, however that was a small bit of the reasoning. PW-1 Mikhil
has not stated the occurrence in detail in his statement recorded by
the Magistrate in terms of Section 164 of the Code. However, it
Judgment apeal 735.19+2
requires to be noted that his statement was recorded by the
Magistrate after gap of few months. Though he has not stated the
incident in detail, however he was specific on the point that accused
No.1 Tambi, accused No.2 Brayan, accused No.4 Sachin and accused
No. 5 Ashish assaulted Mohit by means of deadly weapons. Thus, the
core evidence on the point of actual role of convicted accused has not
been shattered which rather corroborates oral testimony. Besides
that, it is a matter of appreciation that on the same day within few
hours FIR was registered narrating the detail account of the role
played by each accused which assumes significance. Always law
prefers quick lodgement of FIR which eliminates the chances of
concoction, therefore submission in that regard is not worthy of
acceptance.
23. Learned defence counsel would submit that the incident
as narrated by PW-1 Mikhil itself is improbable. In this regard, our
attention has been invited to the panchanama of the scene of
offence. Admittedly, the place of incident is a small office-room
measuring 10 x 20 ft. which was divided into two rooms by glass
partition. It has been argued that offence was too small and due to
Judgment apeal 735.19+2
false ceiling, its height was reduced. Moreover, two luxory chairs,
one table, computer and two other chairs have been kept in the small
room. In this regard, it is argued that it is highly impossible that 10
to 12 persons would enter into such small room full of furniture and
would attack by long weapons. On mere assumption and speculation,
the direct evidence cannot be discarded. The witness never says that
all 10 to 12 persons have entered into inner compartment. Some of
the assailants might have stayed at outer portion. It is not necessary
that each one shall simultaneously attack. When the injured Mohit
was lying on the floor, it was easy for the culprit to attack by leaning
towards him. We cannot visualise the manner of actual attack for
which there can be no set patern. In the circumstances, on the basis
of mere hypothesis and some equation, the direct credible evidence
of PW-1 Mikhil (injured) cannot be discarded.
24. Mr. Patwardhan, learned counsel appearing for the
accused No.4 Sachin would submit that site plan does not show the
place where the eye-witness was sitting and thus, it materially affects
the credibility of evidence. In support of said contention, reliance is
placed on the decision of the Supreme Court in case of Pratap Singh
Judgment apeal 735.19+2
and another Vs. State of M.P, (2005) 13 SC 624. In the said decision,
it has been observed that the site plan was not prepared at the
instance of eye-witness depicting place from where the witnesses
have seen the occurrence. The said case is distinguishable on facts.
In the said case, the incident took place on the river bank. The eye-
witness claimed to have seen the incident from the distance of 50 ft.
from a mound. In the circumstances, it has been observed that the
site plan does not disclose the existence of mound where from the
witness has allegedly saw the occurrence. In such circumstances,
adverse inference was drawn against the prosecution. In case at
hand, the entire occurrence was in a small cabin measuring 10 x 10
ft. only. Site plan was already prepared showing the place where the
belongings were kept. Having regard to the small size of place of
occurrence, non-mentioning of the exact place where witness was
present makes no difference. Therefore, being distinct fact, above
decision would not assist the defence in any manner.
25. Mr. Patwardhan, learned counsel relied on the decision
of the Supreme Court in case of State of Rajasthan Vs. Mahaveer and
ors., AIR 1998 SC 1752 to contend that the presence of eye-witness is
Judgment apeal 735.19+2
highly improbable. In the said case, the assailants have barged into
the house of one Babu where they shot dead three persons. It is the
prosecution case that the assailants had searched the house and shot
dead the deceased. The eye-witnesses claimed that they were also in
the house from where they have seen the occurrence. In the
situation, it has been observed that the presence of eye-witnesses was
doubtful as their residence was elsewhere. As per the prosecution,
the house was searched by assailants and thus, it was found
improbable that the assailants have not noticed the wintess. In such
peculiar facts, those eye-witnesses have been discarded. In case at
hand, deceased Mohit was only targeted by the assailants. It is not
the case of the prosecution that PW-1 Mikhil was hiding somewhere
rather the presence of Mikhil on the spot was quit natural as he was
business partner of deceased Mohit and was residing upstair. Thus,
no assistance could be derived from the above decision for the
benefit of accused.
26. The evidence of first informant Mikhil itself exposes the
motive behind the commission of crime. It assumes significance
because within few hours, of the occurrence motive has been also
Judgment apeal 735.19+2
stated in the FIR. It is not denied that accused No.1 Tambi was
indulging into liquor business and the Police took action against him.
PW-1 Mikhil has specifically stated that one month preceding to the
occurrence, there was quarrel in between them. It is argued that the
earlier quarrel was not in proximity. Rivalry may be from long and
the reflection may be after few months by looking an opportunity.
The variety of factors are to be looked into as it is not a rule that the
retaliation must be within specific time frame. Though motive is not
a sine quo non to establish the crime, herein the prosecution
succeeded in establishing motive which lends assurance to the
prosecution case. Besides that the immediate lodging of FIR is an
additional feature to fix the assailants. Though it has been argued
that the station diary's initial entry has not been produced, however
that does not carry much substance as the FIR was lodged within few
hours. As per FIR, the information was reached to the Police at 2.10
p.m. whilst crime was registered at 3.45 p.m. meaning thereby
within two hours from the occurrence.
27. The prosecution has also relied on seizure of
bloodstained clothes, weapons and chemical analyser's report. The
Judgment apeal 735.19+2
Trial Court has not relied on the said material. We note that there
are certain discrepancies in establishing the sealing, seizure, safe
custody and chain of custody, hence the chances of tampering cannot
be ruled out. Therefore, we are also not inclined to rely on the said
evidence. We do not feel it necessary to deal with the evidence of
test identification parade as the concerned unknown assailants have
already been acquitted.
28. Evidence of PW-1 Mikhil an injured eye-witness is
cogent, reliable and inspires full confidence of the Court. There is no
difficulty in basing conviction on the sole testimony of his ocular
evidence which is trustworthy and fully reliable.
29. On re-appreciation of entire material, we are of the
considered opinion that the prosecution has firmly establishes that
accused No.2 Brayan, accused No.4 Sachin and accused No.5 Ashish
have participated in the deadly assault which took life of Mohit. We
have not considered the case of accused No.1 Tambi as he has not
filed appeal. It is very disturbing to note that there were 79 injuries
on the person of deceased. Most of the injuries were incise or chop
Judgment apeal 735.19+2
wounds obviously caused by deadly weapon. The intention behind
causing such injury is loud and clear, rather there can be no other
possibility than to hold that the intention was to cause death in all
circumstances. The Trial Court has dealt all the aspects in
appropriate manner rather the Trial Court has dealt with all the
arguments in convenience manner. In substance, on careful scrutiny,
we hold that the prosecution has duly established the guilt of accused
No.2 Brayan, accused No.4 Sachin and accused No.5 Ashish with
certainty. The impugned judgment is well reasoned which calls no
interference.
30. In view of above, all appeals stand dismissed.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 19/12/2023 13:13:11
