Bombay High Court
Mohd. Yousuf S/O. Mohd Abdul Hak vs The State Of Maharashtra on 13 February, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:5124-DB
Cri.Appeal No.707/2028 with
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.707 OF 2018
Mohammad Navid s/o Mohammad Salim
Age 26 years, Occu. Business,
R/o Near Chunna Bhatti, Nanded
Taluka & District Nanded
(At present the appellant is in
Nashik Road Central Prison, Nashik,
Taluka and District Nashik ... APPELLANT
VERSUS
The State of Maharashtra
through the Police Station Officer,
Itwara Police Station,
Taluka & District Nanded
(Notice to the respondent to be
served through the Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. Joydeep Chatterji, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.698 OF 2018
Sk. Abdulla Sk. Abdul Samad,
Age 26 years, Occu. Labour,
R/o Near Khubha Masjid,
Degloor Naka, Nanded ... APPELLANT
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VERSUS
1) The State of Maharashtra
(Copy to be on the Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad)
2) Pralayasinh Rajkumarsinh Thakur,
Age 19 years, Occu. Business,
R/o Near Renuka Mata Mandir, Nanded
3) Shubham Sanjaysinh Thakur,
Age 24 years, Occu. Business,
R/o Near Renuka Mata Mandir,
Nanded ... RESPONDENTS
.......
Mr. Joydeep Chatterji, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.776 OF 2018
Mohammad Yousuf s/o Mohd. Abdul Hak,
Age 22 years, Occu. Business,
R/o Fateh Burju, Nanded
Taluka & District Nanded ... APPELLANT
VERSUS
The State of Maharashtra
(Copy to be on the Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. N.S. Ghanekar, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
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.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 15th January, 2025
Date of pronouncing judgment : 13th February, 2025
J U D G M E N T (PER : R.G. AVACHAT, J.) :
The challenge in these three appeals is to the
judgment dated 5/9/2018, passed by Additional Sessions
Judge-1, Nanded in Sessions Case, No.9/2015, whereunder
the appellants herein have been convicted and consequently
sentenced to various terms of imprisonments. The relevant
part of the order impugned herein reads thus :
01] The accused Nos.
01- Mohd. Yousuf s/o Mohd. Abdul Hak,
02- Mohammad Navid s/o Mohammad Salim,
03- Sk. Abdulla s/o Sk.Abdul Samad,
All r/o Nanded are convicted under section 235(2) of Cr.P.C. for the
offences punishable under section 302 r.w. section 34, 307 r.w.
section 34 of the Indian Penal Code and under section 4/25 of Arms
Act, arising out of crime No. 126/2014 registered with Police Station,
Itwara, Nanded.
02] Each accused Nos.1 to 3 are sentenced to suffer rigorous
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imprisonment for life each and pay fine of Rs. 5,000/ (Rs. Five
Thousand only) each in default they shall suffer further rigorous
imprisonment of six months for an offence punishable under section
302 r.w. section 34 of Indian Penal Code.
03] Each accused Nos.1 to 3 are sentenced to suffer rigorous
imprisonment for five years and pay fine of Rs. 5,000/( Rs. Five
Thousand only) each, in default they shall suffer further rigorous
imprisonment of six months for an offence punishable under section
307 r.w. section 34 of Indian Penal Code.
04] Each accused Nos. 1 to 3 are sentenced to suffer rigorous
imprisonment for one year and pay fine of Rs.1,000/- (Rs. One
Thousand only) each, in default they shall suffer further rigorous
imprisonment of one months for an offence punishable under section
4/25 of Arms Act, 1959.
05] All the sentences shall run consecutively.
06] The period of detention undergone by the accused during the
investigation, inquiry or trial shall be set of against the term of
imprisonment imposed on them, as per provisions of section 428 of
the Code of Criminal Procedure.
07] The accused Nos. 1 to 3 are acquitted under section 235(1) of
Cr.P.C. for an offence punishable under section 294 of Indian Penal
Code.
The appellants have, therefore, preferred these
appeals.
2. The facts, in brief, giving rise to present appeals
are as follows :
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The incident took place by 10.30 p.m. on 5/10/2014
near Renuka Mata Mandir, Chirag Galli, Nanded. Those were
the days of "Navratri Celebrations". The appellants (trio) on
one motorbike, No.MH-22-G-2250 emerged from the lane by
the side of the temple. Appellant Yousuf was said to be riding
the motorbike. The two others were riding pillion. They
abused the persons standing on the road. The rider of the
motorbike raced the accelerator. Appellants assaulted Pawan
(deceased) first with a Khanjar. Nareshsinh (informant),
Bholasinh (P.W.6), Shubham (P.W.4), Pralaysinh (P.W.3)
rushed towards Pawan. Ajay Kaushik came from his residence
on hearing commotion. He too was assaulted. When these
four intervened, the appellants assaulted all of them with sharp
weapons. Persons from the vicinity started gathering. The
appellants, therefore, took to their heels, leaving behind the
motorbike. All the six injured were first rushed to Government
Hospital, Nanded. Then they were shifted to private hospitals
at Nanded itself. Two of them namely, Bholasinh and
Shubham were admitted to hospital at Secunderabad for better
treatment. Ajaysinh and Pawan succumbed to the injuries.
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3. A police official (Sadashiv Dhakne P.W.17) rushed
to Aadhar Hospital. The Medical Officer there examined
Nareshsinh and certified him to be conscious oriented to make
a statement. He then recorded Nareshsinh's statement-cum-
F.I.R. (Exh.60). Based on the F.I.R. (Exh.60), a crime bearing
C.R. No.126/2014 was registered at Itwara Police Station,
Nanded for offences punishable under Sections 302, 307, 294
read with Section 34 of the Indian Penal Code and Sections
4/25 of the Arms Act. Crime scene panchanama (Exh.62) was
drawn. The appellants were arrested. All the three appellants
made disclosure statements, pursuant to which the weapons
used in commission of the crime and clothes on their person
which were concealed, were recovered. Clothes on the person
of the deceased and injured were also seized. Mortal remains
of both the deceased were subjected to inquest and autopsy.
Blood samples of the appellants and that of the injured and
deceased were obtained. All the seized articles were sent to
Forensic Science Laboratory (FSL), Aurangabad. Statements
of persons acquainted with the facts and circumstances of the
case were recorded. Upon completion of the investigation, the
appellants were proceeded against by filing a charge sheet.
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4. The Trial Court framed the Charge (Exh.44). The
appellants pleaded not guilty. Their defence was of false
implication.
5. To bring home the charge, the prosecution
examined 21 witnesses and adduced in evidence certain
documents. On appreciation of the evidence in the case, the
Trial Court passed the order impugned herein.
6. Heard. Learned Advocates for the appellants
would submit that there was delay of 8 hours in lodging of the
F.I.R. The delay has not been explained. Medical evidence
and testimonies of some of the witnesses indicate that the
informant and two other injured were conscious oriented. Still
they did not relate the names of the assailants to anyone. The
injured and the deceased were rushed to the hospital by their
relatives/ family members and friends. In medical papers, the
history was given as, "assault by somebody". It was also
reported to the Medical Officer that, the scuffle took place. The
learned Advocates would further submit that, the appellants did
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not know or have acquaintance with the victims. Statements of
other victims have been recorded 5 days after the incident.
They gave names of the appellants on the basis of information
received from others. According to the learned Advocates, the
investigating officer ought to have resorted to test identification
parade. He did nothing in that regard. Our attention was
adverted to some C.A. reports to indicate that alcohol was
detected in the blood of the deceased Ajaysinh. The learned
Advocates would mean to say that, all the injured and
deceased belong to Rajput community. The crime scene was
located in the vicinity whereat most of the population belongs
to Rajputs. One of the victims admitted that Rajputs keep
knives with them. He would further submit that a fight took
place amongst the victims themselves, resulting into two
deaths and injuries to others. We were taken through the
evidence of each and every witness and their cross-
examination. Omissions in their statements, amounting to
material contradictions, which are said to have been duly
proved, have also been brought to our notice. Learned
Advocates have relied on the following set of authorities to
ultimately urge for allowing the appeals :-
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(1) Kanan and Ors. Vs. State of Kerala [AIR 1979 SC 1127 ]
(2) Ramesh Vs. State of Karnataka
MANU/SC/1312/2009 : 2009(1) SCALE 131
(3) Babu Sahebagouda Rudragoundar & ors. Vs. State of
Karnataka [ AIR 2024 SC 2252 ]
(4) State of Maharashtra Vs. Ashok Suresh Laxman Babar
& ors. [2021] 3 MhLJ (Cri.) 585
7. Learned A.P.P. would, on the other hand, submit
that, it was a gruesome incident. Two innocent persons lost
their lives. Four suffered bid on their lives. The prosecution
examined the witnesses who were injured in the incident.
They have no reason to falsely implicate the appellants,
sparing the real culprits. The evidence of injured eye
witnesses stand on higher pedestal. According to him, the
relations were first engaged in securing best of the treatment.
All the injured were, therefore, shifted to 2-3 hospitals at
Nanded. Even two of them were admitted to hospital at
Secunderabad. M.L.C. was first received at the concerned
Police Station very late. Immediately thereafter the police
officer rushed to Aadhar Hospital and recorded the F.I.R. As
such, there was no delay at all.
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8. According to learned A.P.P., the incident was such
that the injured would not be in a position to watch and
recollect each and every aspect with minute details. Some
minor inconsistencies were bound to occur in their evidence.
The same do not go to the root of the matter. He would further
submit that, on arrest of the appellants, they made disclosure
statements, pursuant to which the weapons wielded by them
came to be recovered along with their blood stained clothes.
Our attention was adverted to the C.A. reports, indicating
human blood to have been noticed on the weapons. The
weapons were shown to the Medical Officers. They confirmed
that injuries on the person of the deceased and injured were
possible by those weapons. The learned A.P.P. too placed on
record his written notes of arguments and relied on the
following set of authorities :
(1) Balu Sudam Khalde & anr. Vs. The State of Maharashtra
2023 LiveLaw (SC) 279
(2) Govardhan & anr. Vs. State of Chhatisgarh
(Criminal Appeal No.116/2011, decided on 9/1/2025)
(3) Criminal Reference No.14/2019 with Criminal Appeal
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No.10771/2019 [ Ramjag Bind s/o Ramshankar Bind
Vs. State of Madhya Pradesh
9. Considered the submissions advanced. Perused
the judgment impugned herein. Let us advert to the evidence
on record and appreciate the same.
Admittedly, the incident took place by 10.30 p.m. on
5/10/2014 near Renuka Mata Mandir, Chirag Galli, Nanded.
It was one of the days in "Navratri Festival". Necessarily,
devotees in number were there. The main road was in the
nearby. It was a crowded place, so to say. Three persons
(appellants) on one motorbike (No. MH-22-G-2250) emerged
from the lane by the side of the temple. They abused those
standing on the road as they wanted them to make way for
them. The motorbike rider was said to have accelerated the
accelerator. One of the injured, therefore, questioned him as
he was enraged thereby. The trio (appellants) indulged in
indiscriminate assaults with sharp weapons. Six persons were
their victims. Two of them, namely Ajay and Pawan lost their
lives.
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10. The post mortem report (Exh.88) proved Ajaysinsh
to have died of shock due to stab injury to his liver. P.W.9 Dr.
Maroti noticed following two injuries on the person of Ajay :
(1) Stitched wound present over right subcostal margin
obliquely placed situated 11 cm. below right nipple and 9
cm. lateral to midline, on opening of stitches stab injury
of size 2.2 cm. x 1 cm. x cavity deep, directed
backwards, medially and slightly upwards, on
approximation of margins, length of injury 2.5 cm., both
margins sharp and both angles acute, blood oozing out
through the injury.
(2) Contusion present over left cuibital fossa on flexar
aspect of size 4 x 2 cm., obliquely placed, brownish
in colour.
11. The post mortem report (Exh.94) indicates
Pawansinh died of stab injury to his left lung and heart.
Column No.17 of the post mortem report indicates 8 injuries
were noticed on his person by P.W.11 Dr. Santosh, who
conducted autopsy. He found following injuries on the dead
body of Pawansinh :-
(1) Sutured wound present over front of left side of chest in
4th inter-costal space at anterior axiliary line situated 2
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cm. from nipple, vertical of size 2 cm. in length with 2
sutures in situ. On removal of sutures margins were
clean cut, reddish with both angles acute of size 1.7 cm.
x 0.5 cm. x cavity deep with blood oozing out. It was
directed medially backward and upward, cutting through
skin, subcutaneous tissues, muscles of anterior chest
wall, forth inter-costal muscles, cutting lower margin of
4th rib, parietal pleura, piercing through and through
lower part of upper lobe of left lung, pericardium, then
pierces up to two third of left ventricle near spetum.
(2) Sutured horizontal wound with one suture at anterior part
of size 2 cm. x 0.5 cm. x cavity deep, margins clean cut,
reddish placed at mid axiliary line, left lateral side of
chest in 4th inter-costal space.
(3) Healing super-facial wound present on front of left thigh
of size 29 cm. x 13 cm. with hypo pigmonted patches at
places and granulation at middle medial part of size 3 x 2
cm. with evidence of intermittent normal skin suggestive
of skin graft Donar site.
(4) Healing wound with depressed area present over left
dorsum foot and ankle of size 15 cm. x 12 cm. extending
up to lateral border of dorsum with exfoliation.
(5) Healed hypo pigmented areas over dorsum of left foot
near third, forth and fifth toe involved in of size 5 x 4 cm.
(6) Abrasion present over dorsum of left great toe, second
and third toe of sizes 2x1.5 cm., 3x1 cm., 1x1 cm.,
reddish.
(7) Abrasion present over medial left great toe of size 2x1
cm. reddish.
(8) Intravenous puncture marks present over both cutital
fossa.
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12. The injury certificate of informant Nareshsinh
(P.W.1) indicate stab injury to right lumber region, measuring
4x6 cm. It was caused by sharp weapon, it was fresh and
grievous in nature.
The injuries sustained by Shubham are :-
1) Stab wound over left side of chest wall at mid axillary
lined at second to third inter- costal space of size 1 x 1 x
cavity deep.
2) Stab wound over right arm medial just above the right
elbow of size 1 x 1 x muscle deep
The injuries sustained by Bholasinh are :-
1) Stab injury over left side of chest wall at second to third
inter-costal space near to mid axillary lined.
2) Stab wound over right arm at medial aspect of size 1 x 1
x muscle deep.
13. The aforesaid are the facts not in dispute. We,
therefore, need not to advert to the evidence of the Medical
Officers in much extenso. Wherever necessary, a reference to
their evidence would be made.
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14. As such, it is a case wherein two deaths occurred
and 4 persons suffered injuries, grievous in nature. The
injuries might have proved fatal. The question is, whether the
appellants are the authors of the crimes they were charged
with.
15. The incident took place by 10.30 p.m. on one of the
days of "Navratri festival". Nearby the crime scene, there was
Renuka Mata Temple. The scene of offence was located in a
populated area. According to the injured eye witnesses, the
appellants came on one motorbike from a lane adjacent to the
temple. It is true that there is a little bit variance as to what
triggered the incident. According to two of the injured eye
witnesses, the motorbike rider abused them in filthy language
as they were standing at the middle of the road and the
motorbike rider (appellant) wanted to have a clear way. The
second version is that, the motorbike rider raced the
accelerator and therefore, one of the injured questioned him. A
petty quarrel ensued thereupon resulting into the incident.
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16. Let us now advert to the evidence of injured eye
witnesses. The F.I.R. (Exh.60) was recorded by P.W.17
Sadashiv in Aadhar Hospital, Nanded by 6.15 a.m. on
6/10/2014. As such, there was a delay of 8 hours in recording
of the F.I.R. The informant (P.W.1 Nareshsinh) testified that he
would run a wooden switch board cutting shop. He along with
his friends Bholasinh (P.W.6), Pawan (deceased) were talking
inter-se. It was 10.30 p.m. Three persons emerged on
motorbike from the lane behind the temple. The motorbike
borne the registration number - MH-22/G-2250. The trio
started abusing them - "Hato Na Tumhari Maa Ki Chut" Pawan
went to a hand-pump (public water tap). The one who was
riding the motorbike, (appellant Yousuf) assaulted Pawansinh
with dagger. Pawansinh fell thereby. He along with Bholasinh
and Shubham therefore rushed towards Pawansinh. On
hearing commotion, Ajay (deceased) came on the spot. The
one who was riding the motorbike assaulted Ajay with a
dagger. Ajay too fell down. The others assaulted the
informant and others with knives. Bholasinh and Shubham
suffered injuries to their left chest. He suffered injury to his
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right side of waist. People gathered. The assailants
thereupon ran away, leaving behind the motorbike.
17. P.W.1 Nareshsinh further testified that, the
appellant Yousuf was riding the motorbike. Appellants Navid
and Abdulla were riding pillion. The people gathered first took
them to Government Hospital. Then they were rushed to
Aadhar Hospital. Bholasinh and Shubham were shifted to
Secunderabad for further treatment. He further testified that,
on the following day, the police came to the hospital and
recorded his statement-cum-F.I.R. (Exh.60). He referred to the
same and identified his signature thereon. His evidence
further disclosed that, he had sported faint pink colour shirt and
chocolate colour Jeans Pant while the incident took place. He
was shown the knife and those clothes. He identified the
same.
18. P.W.1 Nareshsinh was subjected to a searching
cross-examination. He testified that, people belonging to
Rajput community reside in Chirag Galli and Gadipura at
Nanded. All the injured belonged to Rajput community. He
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admitted that, the community members keep knives with them.
The distance between the Government Hospital and the crime
scene was 3-4 Kms. He admitted that, Vazirabad Police
Station was on way to the hospital, while Itwara Police Station
was at a distance of half or one Km. from the crime scene.
Whereas the distance between the spot of the incident and
Aadhar Hospital was about 6-7 Kms. He was confronted with
his F.I.R. which was silent to record that Pawansinh had gone
towards hand-pump. It has also not been recorded therein that
the person riding the motorbike assaulted Pawan with dagger.
The F.I.R. is also silent to record what kind and colour of
clothes the informant was clad in. In our view, this omission is
not a material one so as to constitute contradiction so as to
disbelieve P.W.1 Nareshsinh on this aspect only. He denied
the suggestion that the incident was a fall-out of quarrel inter-
se the victim and the deceased. He admitted that there was a
Police Chowki near Habib Talkies. It was on main road. All the
injured were in the Government Hospital for about 30 minutes.
The doctor had examined him there. He did not disclose the
incident to the doctor or anyone else. People were visiting the
hospital. He did not see police official among them. He and
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other injured were shifted to Aadhar Hospital. He was in ICU.
He did not disclose the incident to doctor at Aadhar Hospital.
He admitted that, one Sagarsinh had accompanied the
persons who took them to the Government Hospital and then
to Aadhar Hospital. He admitted to have not disclosed the
incident to anyone else until the police arrived at Aadhar
Hospital. He denied the suggestion that the police on their
own recorded the names of the appellants in the F.I.R.
19. P.W.17 Sadashiv, (Police Officer) testified that he
was serving with Itwara Police Station as P.S.I. on the fateful
night. P.S.I. Gite passed on the information to the Police
Station Officer (P.S.O.) that a quarrel took place near Renuka
Mata Temple. He along with police officials namely Kankale
and Sonaskar besides other staff went to Gadipura. P.I.
Kankale directed him to record statements of injured. He,
therefore, went to Government Hospital, Nanded and then
other hospital wherein the injured were rushed. According to
him, the doctors there told him that the injured were not in a
position to give statement. He, therefore, could not record
statement of any of the injured. He further testified that, doctor
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at Aadhar Hospital certified P.W.1 Nareshsinh to be conscious
to make a statement. He, therefore, recorded the statement-
cum-F.I.R. (Exh.60) as narrated by P.W.1 Nareshsinh. He then
returned to the Police Station and registered the crime. An
entry in the station diary was also made. He referred to the
same.
20. During the cross-examination, P.W.17 admitted
that, he did not give information to the Police Station that
doctor at Aadhar Hospital certified Nareshsinh to be conscious.
He denied that Nareshsinh was unconscious until 6.45 a.m.
This was in response to a question put on behalf of appellant
Yousuf. He admitted that, in the station diary entries, which
were made before registration of the crime, neither the names
nor the description of the appellants were reflected. He also
admitted that there is no station diary entry indicating injured
Pralayasinh, Bholasinh and Shubham were unconscious. He
admitted that, the same is the case about P.W.1 Nareshsinh.
He admitted that, he was unaware of the names and
description of the appellants until 6.30 in the morning. He
denied that the names of the appellants were incorporated in
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the F.I.R. in consultation with higher-ups and to avoid wrath of
public. He admitted that, Nareshsinh did not state that he
knew appellants Navid and Abdulla since prior to the incident.
According to him, MLC was received to the Police Station by
4.15 a.m.
21. P.W.20 Dinesh was serving as Assistant Police
Inspector with Itwara Police Station. It is disclosed in his
evidence that he had received information that some incident
had taken place in Gadipura area. He, therefore, went there.
It was a few minutes past 12.00 midnight. He noticed one
motorbike was lying there. He learnt that the injured were
shifted to Government Hospital. He, therefore, rushed to
Government Hospital. A lame excuse has been offered by
this witness for not interacting with the injured.
According to him, since there was crowd in the precinct of
the hospital, he did not make enquiry with injured
(victims). Even though he was directed by the Police
Inspector, he returned to the Police Station without
recording anyone's statement. It was he who seized the
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motorbike, cap and handkerchief from the crime scene. He
also collected blood spots for analysis.
22. In the cross-examination, he testified that, he learnt
at the crime scene and even at the hospital as well that there
was scuffle, "Names of assailants were not disclosed to me."
He tried to cover up lapse in his duty to lodge the report on his
own, by stating that he did not get detailed account of the
incident, so he did not lodge the report. When he paid visit to
the crime scene, street lights were glowing. He gave a vital
admission to the effect that the PSO had received information
that the assailants were unknown.
23. P.W.13 Dr. Sanjay Kadam was the Medical Officer
at Aadhar Hospital. He had treated P.W.1 Nareshsinh. During
his cross-examination, he admitted that 3 injured were referred
to his hospital from Yashoda Hospital. Nareshsinh was
conscious. He, however, did not disclose history of assault.
He was specific to state that, Nareshsinh was conscious from
6 October to 11 October and when he was discharged, he was
quite healthy. The injury certificate of P.W.1 Nareshsinh is at
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Exh.109. It indicates he suffered grievous injury to his right
lumber region 4 x 6 cm.
24. In our view, the testimony of P.W.1 Nareshsinh
alone is vital (very important) to drive home the charge. The
other injured namely, P.W.3 Pralayasinh faltered in the cross-
examination while the others two gave their statements on
10th/ 12th i.e. 5 days after the incident even though they were
conscious oriented from the time of assault until their
discharge from the hospital. True, two of them were shifted to
Secunderabad. Their statements were recorded 3 days after
their discharge from the hospital and when they had already
been to Nanded. We have every reason to observe that these
2 injured, P.W.4 Shubham and P.W.6 Bholasinh might have
given names of the assailants in their statements since by that
time the appellants were arrested and everything was in public
domain.
25. Let us advert to other evidence. P.W.2 Tolesinh is
a witness to the crime scene panchanama (Exh.62). Based on
his evidence, the crime scene panchanama has been admitted
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in evidence. The learned A.P.P. took us through the same so
as to bring on record topography at and around the crime
scene. There is no dispute in that regard. The learned A.P.P.
would submit that, the sketch attached to the crime scene
panchanama corroborates the situation at the crime scene.
When there is no quarrel about the same, we find no much
importance thereto.
26. P.W.3 Pralayasinh is another injured eye witness.
Although he testified almost on the lines of the examination-in-
chief of P.W.1 Nareshsinh, his replies to the questions put to
him during cross-examination lead us to not rely on his
evidence. We, therefore, directly refer to his cross-
examination, wherein he admitted that he did not know the
appellants prior to the incident. He had not given the police
description of the assailants. No test identification parade was
held. He admitted to have seen the appellants for the first time
before the Court. He went on to admit that he did not see who
assaulted whom. He was frightened. He did not know who
brought him to the hospital. He went on to admit that, he told
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 25 ::
the doctor that he was not knowing the assailants. He came to
know about the assailants from the people of his vicinity.
27. The next injured witness is P.W.4 Shubham. He
testified that, he was in the company of Bholasinh (P.W.6),
Pawan (deceased) and P.W.1 Nareshsinh at the shop of
Bholasinh. Three persons came on motorbike from behind the
temple. They stopped the motorbike near the hand-pump.
The rider of the motorbike raised the accelerator. They,
therefore, questioned him. Thereupon, the trio, armed with
knives, started assaulting them. They first assaulted
Bholasinh. Then Pawan was assaulted. On hearing
commotion, Ajaysinh arrived. The assailants then assaulted
Ajay and Pralayasinh.
28. P.W.4 Shubham further testified that, he knew
appellant Yousuf as he used to visit Bholasinh's shop. He
gave the names of the appellants. He also gave the motorbike
number, that was left behind by the appellants. The police
recorded his statement on 10 October and seized the clothes
on his person, stained with blood, on 12 October.
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 26 ::
29. During his cross-examination, he admitted to have
not given full name of appellant Navid and place of his
residence, to police. He even did not state to have known
Navid before the incident. He admitted that, he was conscious
from 6 October to 9 October, but was not able to speak on 6
and 7. He admitted to have not disclosed the doctor names of
assailants. He came to Nanded on 9 October i.e. on third/
fourth day of the incident. Till his police statement was
recorded, he did not disclose the names of the assailants to
anyone. He even admitted that, he was conscious for two
hours next after the incident. During that period, police did not
record his statement. He even could not state full name of
appellant Abdulla Builder.
30. P.W.6 Bholasinh gave his evidence in examination-
in-chief almost on the lines of the evidence of P.W.1
Nareshsinh and P.W.4 Shubham. He testified that, appellant
Yousuf assaulted on his ribs with a knife. He claimed to have
known Yousuf as he would visit his shop. According to him,
Navid and Abdulla Builder had accompanied Yousuf on the
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 27 ::
motorbike. He testified that, as his condition was serious, he
was shifted to Hyderabad. He was discharged from the
hospital on 9th, while his statement was recorded on 10th.
31. During his cross-examination, he admitted to have
not stated the police that appellant Yousuf assaulted him with
knife. He was confronted with matter portion marked "A" in his
statement. According to him, he has not stated the same to
the police. He denied to have suffered injuries during inter-se
scuffle as they had consumed liquor. He testified to have
informed Manojsinh about the incident while he was being
taken to the hospital. According to him, Manojsinh had arrived
on the spot within 10 minutes. His police statement is silent to
record that he knew Navid before the incident. During his stay
at Hospital in Secunderabad, he did not inform the Medical
Officers there names of the assailants. He admitted that, for
the first time on 10 October he disclosed the names of Navid
and Abdulla Builder.
32. P.W.10 Manojsinh, to whom P.W.6 Bholasinh claim
to have related about the incident, testified that, Bholasinh had
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 28 ::
told him the name of motorbike rider and was further informed
that the pillion riders were friends of Yousuf (Accused No.1).
33. The conduct of P.W.10 Manojsinh in not lodging the
F.I.R. or disclosing what he learnt from the injured eye witness
soon after the incident goes a long way to disbelieve his
evidence. He was present at Government Hospital while
police had come there. He testified that, two unknown persons
were in the company of Yousuf. Admittedly, Manojsinh did not
claim to be an eye witness.
34. P.W.15 Dr. Avinash was a Medical officer on duty at
Dr. Shankarrao Chavan Medical College and Hospital,
Nanded. He testified that, by 11.55 p.m., 6 injured (including 2
deceased) were brought to the hospital by their relatives. He
gave their names. He examined all of them. He tendered in
evidence medical papers of all of them (Exhs.119 to 124).
35. In the cross-examination, he admitted that history
of "assault by somebody" was recorded in the medical papers.
According to him, except Ajay and Pawan (deceased), all other
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
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injured were conscious. He was specific to state that,
Pralayasinh (P.W.3) was conscious and oriented. He (P.W.15)
immediately informed Vazirabad Police Station. P.W.1
Nareshsinh (informant) too was conscious. He admitted that
history was given by P.W.1 Nareshsinh (informant) as
"assault by somebody". He admitted that, P.W.1 Nareshsinh
did not give names of assailants. Bholasinh too was conscious.
36. P.W.14 Dr. Anand was the Medical Officer attached
to Yashoda Hospital, Nanded. He attended Pralayasinh.
According to him, the history was given by relatives. The
history was - "Scuffle at Gadipura". According to him,
Pralayasinh (P.W.3) was conscious oriented. The history was,
"assault by somebody".
37. The aforesaid was the material evidence in the
case. The appreciation thereof lead us to conclude that, three
persons who were not known to the injured had come on one
motorbike and they assaulted the six persons named above
indiscriminately. True, two of the six injured namely Ajay and
Pawan died. They had suffered multiple injuries. Both of them
Cri.Appeal No.707/2028 with
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were not in a position to speak. All the six injured were first
rushed to Dr. Shankarrao Chavan Medical College and
Hospital. P.W.15 Dr. Avinash attended them. The injured were
there for half an hour. The four injured who had been
examined as prosecution witnesses, were conscious
throughout. In spite of the same and the fact that the police
officials had rushed to the crime scene, and the said hospital
as well, still no attempt was made by police officials to record
statement of any of the injured. The police officials appear to
have consciously allowed the time to pass until they could
know the names of the assailants/ appellants. In our view, the
names of the appellants might have come to the knowledge of
the police on the enquiry based on the motorbike that was
found at the crime scene.
38. P.W.16 Mohd. Saleem was the owner of the
motorbike. He was examined as a prosecution witness. He
testified that, by 9.30 p.m., he gave his motorbike to Navid
(According to the prosecution, one of the appellants herein).
He further testified that, after a while, he received a phone call
of Navid. He, therefore, went to Itwara Police Station. Navid
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
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was present there. He told that, his motorbike has been taken
away from him at a place of Renuka Mata Temple. He further
testified that, Navid before the Court was not that Navid to
whom he had given the motorbike. The learned A.P.P.,
therefore, cross-examined him, but nothing fruitful has come
on record.
39. As stated above, all the four injured namely P.W.1
Nareshsinh, P.W.3 Pralayasinh, P.W.4 Shubham and P.W.6
Bholasinh were conscious and oriented at all the three
hospitals whereto they were shifted one after the other. Still,
the F.I.R. was recorded 8 hours after the incident. In case of
Ganesh Bhavan Patel & anr. Vs. State of Maharashtra,
(1978) 4 SCC 371, the Apex Court observed in paragraphs
No.15 and 18 as follows :-
"15. As noted by the trial Court, one unusual
feature which projects its shadow on the evidence
of PWs Welji, Pramila and Kuvarbai and casts a
serious doubt about their being eye witnesses of
the occurrence, is the undue delay on the part of
the investigating officer in recording their
statements. Although these witnesses were or
could be available for examination when the
investigating officer visited the scene of
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698/2018 & 776/2018
:: 32 ::
occurrence or soon thereafter, their statements
under Section (6), Cr.P.C. were recorded on the
following day. Welji (P.W.3) was examined at 8
a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at
1 p.m. Delay of a few hours, simpliciter, in
recording the statements of eye-witnesses may not,
be itself, amount to a serious infirmity in the
prosecution case. But it may assume such a
character if there are concomitant circumstances to
suggest that the investigator was deliberately
marking time with a view to decide about the
shape to be given to the case and the eye-witnesses
to be introduced. A catena of circumstances which
lend such significance to this delay, exists in the
instant case.
18. In this connection, the second circumstance,
which enhances the potentiality of this delay as a
factor undermining the prosecution case, is the
order of priority or sequence in which the
investigating officer recorded the statements of
witnesses. Normally, in a case where the
commission of the crime is alleged to have been
seen by witnesses who are easily available, a
prudent investigator would give to the examination
of such witnesses precedence over the evidence of
other witnesses.. . . . ."
40. One need not spell importance of prompt lodging of
F.I.R. The informant has to explain the delay in lodging the
F.I.R. When a very serious incident took place and police
rushed to the crime scene and hospital as well immediately
and more so injured were conscious oriented, no attempt was
made to record their statements at the earliest point of time.
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 33 ::
On the contrary, the history recorded in all the medical papers
is either "scuffle" or "assault by someone".
41. We have perused the authorities relied on by
learned A.P.P. A criminal case has to be decided on the facts
and circumstances appearing therein. Law of precedent can
hardly apply in criminal cases since no two criminal cases
could be similar on facts. We agree with the learned A.P.P's.
submission based on the authorities relied on that delay in
recording statements of witnesses may not be fatal. Moreover,
when gruesome incident has occurred, the injured may not be
in a frame of mind to recollect everything. Minor
inconsistencies inter-se the evidence of eye witnesses are
bound to occur. At the cost of repetition, and with utmost
respect, we observe that the findings and observations made
in the authorities relied on were based on factual matrix
appearing therein. Judicial utterances are made in the setting
of facts of each case.
42. On appreciation of the evidence in the case, we
find the injured witnesses including the informant were not in
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 34 ::
the know of the identity of the appellants. The informant, in the
cross-examination, testified that, he did not understand
Marathi. It was specifically suggested to him that the police
incorporated the names of the appellants in the F.I.R. In our
view, 8 hours time might have been availed by the prosecution
agency to realize or to come to know names of the assailants
and thereafter only statement-cum-F.I.R. of P.W.1 Nareshsinh
has been recorded at 6.15 a.m. in the morning. While he was
conscious oriented, since the incident onwards. Other three
injured too were conscious oriented.
43. When eye witness account becomes unreliable, the
circumstantial evidence in the nature of seizure of blood
stained clothes and weapons would be of little consequence to
corroborate the prosecution case. Accepting the prosecution
case as it is, that the three appellants gave disclosure
statements in presence of panchas and pursuant thereto three
knives were seized, clothes on their person at the time of
incident were also seized under the panchanama, the C.A.
Reports (Exhs.172 to 181) suggest the clothes to have been
stained with blood and one of the knives too had blood stains,
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
:: 35 ::
it is not known as to why the investigating officer kept all these
articles with the S.D.P.O. up to 31 October and then sent to
FSL. This fact has not been explained. It was specifically
suggested to the investigating officer that the said clothes were
tampered with during this period. The seized articles were not
in muddemal room, but said to have been in the cupboard of
the S.D.P.O. So has been testified by P.W.21 Ramdas
Shrimangle. We, therefore, do not propose to lay much
emphasis on the circumstantial evidence in the nature of C.A.
reports, recovery of weapons and blood stained clothes,
besides the opinion given by the Medical Officer that the
injuries might have been caused with the seized weapons.
44. For all the aforesaid reasons, we are not at one
with the findings recorded by the Trial Court. In the result, the
appeals succeed. Hence the order :
ORDER
(i) All the Criminal Appeals are allowed.
Cri.Appeal No.707/2028 with
698/2018 & 776/2018
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(ii) The impugned order of conviction and sentence dated
5/9/2018, passed by Additional Sessions Judge-1, Nanded in
Sessions Case, No.9/2015 is hereby set aside. The appellants
are acquitted of the offences punishable under Sections 302
read with Section 34, 307 read with Section 34 of the Indian
Penal Code and Section 4/25 of the Arms Act.
(iii) The appellants be set at liberty forthwith if not required in
any other case. Fine amount, if paid, be refunded to them.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
