Bombay High Court
Roshan @ Chini Dannichand Thakur vs The State Of Maharashtra on 19 June, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:26005-DB
P.H. Jayani 901 APEAL1009.2014 and others.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1009 OF 2014
WITH
CRIMINAL APPLICATION NO. 498 OF 2019
IN
CRIMINAL APPEAL NO. 1009 OF 2014
Ramchandra @ Ram Mewalal Yadav
Age : 27 years, Occu : Material Supplier,
R/o. Room No.101, Sitaram Sadan,
Tulinj Road, Nallasopara (E),
(At present in the Nashik Central Jail) .... Appellant
v/s.
The State of Maharashtra
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane .... Respondent
WITH
INTERIM APPLICATION NO. 4978 OF 2024
IN
CRIMINAL APPEAL NO. 1009 OF 2014
Ramashankar Singh
Age : 67 years, Occ : Nil,
R/o. S/o. Ramkeshav Singh,
Guri Gauri, Gorry, Ghazipur,
Uttar Pradesh - 233223. .... Applicant/Intervenor
In the matter between :-
Ramchandra @ Ram Mewalal Yadav
Age : 27 years, Occu : Material Supplier,
R/o. Room No.101, Sitaram Sadan,
Tulinj Road, Nallasopara (E),
(At present in the Nashik Central Jail) .... Appellant
v/s.
The State of Maharashtra
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane .... Respondent
WITH
CRIMINAL APPEAL NO. 1015 OF 2014
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WITH
INTERIM APPLICATION NO. 1641 OF 2024
IN
CRIMINAL APPEAL NO. 1015 OF 2014
Roshan @ Chini Dannichand Thakur
Age : 25 years, Occupation : Transport Service,
R/o. A/4, Shrikunj, Gayatri Park,
Nalasopara (E).
(At present in the Nashik Central Jail) .... Appellant
v/s.
The State of Maharashtra
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane .... Respondent
WITH
INTERIM APPLICATION NO. 4979 OF 2024
IN
CRIMINAL APPEAL NO. 1015 OF 2014
Ramashankar Singh
Age : 67 years, Occ : Nil,
R/o. S/o. Ramkeshav Singh,
Guri Gauri, Gorry, Ghazipur,
Uttar Pradesh - 233223. .... Applicant/Intervenor
In the matter between :-
Roshan @ Chini Dannichand Thakur
Age : 25 years, Occupation : Transport Service,
R/o. A/4, Shrikunj, Gayatri Park,
Nalasopara (E).
(At present in the Nashik Central Jail) .... Appellant
v/s.
The State of Maharashtra
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane .... Respondent
WITH
CRIMINAL APPEAL NO. 1016 OF 2014
WITH
INTERIM APPLICATION NO. 731 OF 2024
IN
CRIMINAL APPEAL NO. 1016 OF 2014
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Rahim Rais Khan
Age : 25 years, Occcupation : Business,
R/o. E/13, Navjyoti Apartment,
Tulinj Road, Nalasopara (E),
(At present in the Nashik Central Jail) .... Appellant
v/s.
The State of Maharashtra
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane .... Respondent
WITH
INTERIM APPLICATION NO. 4800 OF 2024
IN
CRIMINAL APPEAL NO. 1016 OF 2014
Ramashankar Singh
Age : 67 years, Occ : Nil,
R/o. S/o. Ramkeshav Singh,
Guri Gauri, Gorry, Ghazipur,
Uttar Pradesh - 233223. .... Applicant/Intervenor
In the matter between :-
Rahim Rais Khan
Age : 25 years, Occcupation : Business,
R/o. E/13, Navjyoti Apartment,
Tulinj Road, Nalasopara (E),
(At present in the Nashik Central Jail) .... Appellant
v/s.
The State of Maharashtra
Through Police Inspector, Nalasopara
Police Station, Nalasopara, Dist. Thane .... Respondent
Dr. Yug Mohit Chaudhary a/w. Mr. Anush Shetty for the Appellant
in APEAL/1016/2014.
Mr. Sarthak Shetty a/w. Dnyanesh Bhatkhande and Mr. Sagar Thakur
i/b. Mr. Prakash Shetty for the Appellant in APEAL/1009/2014.
Mr. Pachpansingh Gusign a/w. Ms. Sheetal Pakhare for the Appellant in
APEAL/1015/2014.
Mr. Anil Galgali a/w. Mr. Bhavesh Magam for the Applicant in
IA/4978/2024, IA/4979/2024 and IA/4800/2024.
Mr. Avinash A. Naik, APP for the Respondent - State in
APEAL/1009/2014 and in APEAL/1015/2014.
Ms. Geeta Mulekar, APP for the Respondent - State in APEAL/1016/2014.
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P.H. Jayani 901 APEAL1009.2014 and others.doc
CORAM : SARANG V. KOTWAL AND
SHYAM C. CHANDAK, JJ.
DATED : 19th JUNE, 2025
ORAL JUDGMENT : (Per : Sarang V. Kotwal, J.) :-
. All these three Appeals are decided by this common Judgment
because they arise out of the same impugned Judgment and Order. For the
sake of convenience, the Appellants are referred to either by their names or
by their original status as the 'Accused' before the trial Court. The
Appellants faced the trial in Sessions Case No.66/2012 before the learned
Additional Sessions Judge, Vasai. The Appellant - Rahim Rais Khan was the
original Accused No.1. The Appellant - Roshan @ Chini Dannichand
Thakur was the original Accused No.2 and the Appellant - Ramchandra @
Ram Mewalal Yadav was the original Accused No.3. At the conclusion of the
trial, the Additional Sessions Judge, Vasai vide his Judgment and Order
dated 17/11/2014 passed in Sessions Case No.66/2012 convicted and
sentenced the Appellants as follows :-
(i) The Appellants were convicted for commission of the
offence punishable under Section 302 read with 34 of IPC and
were sentenced to suffer life imprisonment and to pay a fine of
Rs.1,000/- each and in default to suffer RI for six months.
(ii) The Appellant (Accused No.1) - Rahim Rais Khan was
separately convicted for commission of the offence punishable
P.H. Jayani 901 APEAL1009.2014 and others.doc
under Section 341 read with 34 of IPC and was sentenced to
suffer RI for one month and to pay a fine of Rs.200 and in
default to suffer RI for seven days.
(iii) The Accused No.1 - Rahim Rais Khan was convicted for
commission of the offence punishable under Section 341 read
with 34 of IPC and was sentenced to suffer RI for one month
and to pay a fine of Rs.200 and in default to suffer RI for seven
days. This separate head was provided for the offence against
the eye witnesses.
(iv) The Accused No.1-Rahim was convicted for commission
of the offence punishable under Section 323 read with 34 of
IPC and was sentenced to suffer RI for six months and to pay a
fine of Rs.500/- and in default to suffer RI for seven days.
(v) He was further convicted for commission of the offence
punishable under Section 504 read with 34 of IPC and was
sentenced to suffer RI for six months and to pay a fine of
Rs.300/- and in default to suffer RI for seven days.
(vi) He was further convicted for commission of offence
punishable under Section 506 read with 34 of IPC and was
sentenced to suffer RI for one month and to pay fine of Rs.300
and in default to suffer RI for seven days.
P.H. Jayani 901 APEAL1009.2014 and others.doc
All these convictions were recorded for commission of the
offences qua different eye witnesses who were present at the spot, except
the offence punishable under Section 302 read with 34 of IPC which was in
respect of the deceased Neeraj.
(vii) Accused Nos.2 and 3 were similarly convicted for
each of these offences.
(viii) In addition, the Accused No.2 - Roshan @ Chini
Dannichand Thakur and Accused No.3 - Ramchandra @ Ram
Mewalal Yadav were convicted for commission of offence
punishable under Section 324 read with 34 of IPC and were
sentenced to suffer RI for two years and to pay a fine of
Rs.500/- and in default to suffer RI for seven days.
These separate convictions and sentences were recorded for
commission of assault on the eye witnesses.
2) Heard Dr. Yug Chaudhary, learned Counsel for the Appellant in
APEAL/1016/2014; Mr. Sarthak Shetty, learned Counsel for the Appellant
in APEAL/1009/2014; Mr. Pachpansingh Gusign for Counsel the Appellant
in APEAL/1015/2014; Mr. Anil Galgali, learned Counsel for the
Applicant/Intervenor in IA/4978/2024, IA/4979/2024 and IA/4800/2024;
Mr. Avinash Naik and Ms. Geeta Mulekar, learned APPs for the Respondent-
State in APEAL/1009/2014, APEAL/1015/2014 and APEAL/1016/2014
respectively.
P.H. Jayani 901 APEAL1009.2014 and others.doc
3) The prosecution case is that, between the night of 15/04/2012
and 16/04/2012, out of a petty quarrel, the Accused No.1-Rahim
intercepted the car in which the deceased - Neeraj Singh was travelling
with his friends. The Accused No.1 along with the other two accused,
damaged the car. They assaulted Neeraj's friends with sticks and caused
assault on the deceased with a broken beer bottle and a knife. Neeraj's
friends took him first to Alliance Hospital and then on the advice of the
Doctor present in the hospital, to a speciality hospital i.e., Orbit Hospital.
It is the case of the prosecution that, a Police Officer recorded
Neeraj's statement in Orbit hospital in the morning of 16/04/2012 based on
which the FIR was registered. The Accused No.1-Rahim was arrested on
18/04/2012. The other two accused were arrested on 20/04/2012. The
statements of the eye witnesses were recorded, spot panchanama was
conducted. He was shifted to another hospital in Mumbai. He succumbed
to his injuries while undergoing treatment in the evening of 16/04/2012.
4) The investigation was carried out. The clothes of the accused
were seized. The beer bottle was seized at the instance of the Accused No.1-
Rahim and the knife was seized at the instance of Accused No.2 - Roshan
@ Chini. The Articles were sent for CA examination. After the investigation
was concluded, the charge-sheet was filed and the case was committed to
the Court of Session.
5) During trial, the prosecution examined 16 witnesses. The main
P.H. Jayani 901 APEAL1009.2014 and others.doc
witnesses were the three eye witnesses who had allegedly accompanied the
deceased when the incident took place. The prosecution also examined
PHC - Nathuram Hate attached to Kashimira Police Station who had
recorded the dying declaration. There is medical evidence in the form of
the Doctor who had conducted the Post Mortem examination, the Doctor
who had medically examined the deceased at the time of recording of his
dying declaration and the Doctor who had treated him in Orbit Hospital.
There is evidence in the form of panchas for various panchanamas
including the spot panchanama and the recovery panchanama. A Finger
Print Expert was examined to show that the finger print on the recovered
beer bottle was that of Accused No.1-Rahim. The defence of the Appellants
was of total denial and false implication.
6) The learned Judge believed the evidence of the eye witnesses
and the evidence of dying declaration. Based on these reasons, the learned
Judge convicted and sentenced the Appellants as mentioned above.
Evidence of the Eye Witnesses :-
7) The main evidence in this case is in the form of direct evidence
of the eye witnesses. PW1 - Hiren Yadnic was the first eye witness. He has
deposed as follows :-
The deceased Neeraj Singh was his friend. He was a resident
of Nalasopara. On 15/04/2012, at around 11:30 p.m., PW1, Neeraj and
few other friends including PW2 - Piyush Shah and PW3 - Loyoid Nazarin
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had gone to play a box cricket match at Taki Road. After the match was
over, the deceased and those three eye witnesses were together. The match
got over at around 12:30 a.m. in the night. They went to Hotel Prabhat on
the highway. They travelled in the Santro Car of Neeraj. They had their
dinner in that hotel. They were in that hotel upto 02:00 a.m. The Accused
No.1 - Rahim was their friend. They met him at the gate of Hotel Prabhat.
The Accused No.1-Rahim started abusing Neeraj and asked him to play
Teen Patti. Neeraj refused and reminded him that, they could instead play
the game of arm wrestling. Neeraj reminded him that the Accused No.1 -
Rahim had lost in the past. Rahim got annoyed and caught Neeraj's shirt.
It was torn. Neeraj asked Rahim to pay for the shirt. Rahim got annoyed
further and started quarreling. Neeraj's friends separated them. Rahim then
made a phone call to someone and told him that he was being assaulted by
ten persons and sought their help. Since PW1, Neeraj and others did not
want to aggravate the situation, they decided to go home. Accordingly, they
started to go away from Prabhat Hotel. PW1 was driving the car. Neeraj
was sitting next to him. The other two friends were sitting in the back.
When they reached Goraipada in front of Joya Hospital, the Accused No.1 -
Rahim came in his car and intercepted Neeraj's car. The Accused Nos.2 and
3 came on a motorcycle at the spot. They were accompanied by one more
accused - Sandeep who was absconding during the trial. The Accused Nos.2
and 3 were on the same bike. The Accused No.1 - Rahim got down from
P.H. Jayani 901 APEAL1009.2014 and others.doc
his car. He jumped on the bonnet of Neeraj's car and kicked the windscreen
causing crack in the windscreen. He then got down and started beating
PW1 with fist blows. His friends joined him. The Accused No.3 -
Ramchandra and Sandeep started assaulting PW1 with a bamboo. Loyoid
and Piyush i.e., PW3 and PW2 were assaulted by Sandeep and Ramchandra
with bamboo. The Accused No.1 - Rahim and Accused No.2 - Roshan @
Chini went near Neeraj. They were having a broken bottle and a knife in
their hands, respectively. They assaulted Neeraj with those weapons.
PW1's specific case is that Neeraj was assaulted in his abdomen
and on his neck. At that time, Neeraj was still sitting inside the car. They
pulled Neeraj out of the car and then Accused No.2 - Roshan @ Chini
assaulted him on the neck and near his shoulder with the knife. According
to PW1, he could not intervene as Sandeep and Ramchandra were
assaulting him. He saw Neeraj running towards a lane next to Joya
Hospital. The Accused then beat and abused the PW1, PW2 and PW3 and
then left the spot. All of these witnesses then went in the direction where
Neeraj had run away. They found him sitting in front of the door of one
house. He was bleeding. Thereafter, his friends took him to Alliance
Hospital in a rickshaw. They informed Neeraj's mother who came to the
hospital. The Doctors examined Neeraj and told them that there was no
facility of CT Scan at Alliance Hospital and therefore, advised them to take
Neeraj to Orbit Hospital at Mira Road. He was taken there. Neeraj's father
P.H. Jayani 901 APEAL1009.2014 and others.doc
came to Orbit Hospital. The Doctor advised surgery. For that purpose,
Neeraj was taken to Asian Heart Hospital at Bandra. However, Neeraj
succumbed to his injuries before the surgery could be performed. PW1
identified all the accused before the Court. According to him, he knew the
accused much before the incident. He identified the broken bottle and
knife in the Court. He identified the wooden sticks.
In his cross-examination, PW1 admitted that Tulinj Police
Chowky was at a distance of five minutes walk from Alliance Hospital. Joya
Hospital is five kms away from Alliance Hospital. One Kumar Kakade came
to Alliance Hospital after they had reached there. He came there within ten
to twenty minutes. He was a social worker. He enquired about the incident.
According to PW1, they narrated the incident to him and that he did not
call the police. Kakade is not examined by the prosecution. PW1 admitted
that he did not inform the Doctor about the place of the assault, the name
of the assailants and the weapons. He deposed that they took Neeraj to
Orbit Hospital from Alliance Hospital and that, they left Alliance Hospital at
about 04:30 a.m. The Doctor in Alliance Hospital informed them that
Neeraj's general condition was bad. He denied the suggestion that Neeraj
was drowsy when he was taken to Alliance Hospital. They reached Orbit
Hospital at about 06:00 a.m. He admitted that his name and signature were
not taken in Orbit Hospital. He also admitted that at the time of admission
in Orbit Hospital, Neeraj was breathless. He further admitted that he did
P.H. Jayani 901 APEAL1009.2014 and others.doc
not inform anybody in the Orbit Hospital about the place of the offence, the
names of the assailants and the weapon of assault. Neeraj's cousin - Sadho
and mother - Usha were present in the Orbit Hospital at the time of his
admission. He was immediately taken to ICU. After he was admitted, the
Doctor informed them that Neeraj was serious and surgery was advised. He
categorically deposed that he did not meet any police officer either in
Alliance Hospital or Orbit Hospital. He was there in Orbit Hospital upto
07:30 p.m. He did not contact the Police during that time. The place of
incident was on the main road connecting Nalasopara to the highway. The
incident lasted for about 4-5 minutes. During that period, he did not raise
any shouts. The rickshaw driver did ask them about the incident. PW1 did
not disclose the names of the assailants to the rickshaw driver. He could
not give details of that rickshaw. While travelling in the rickshaw, he had
supported Neeraj. PW2 - Piyush was sitting on the other side. Neeraj was
bleeding. His entire body was smeared with blood. He admitted that his
clothes as well as PW2's clothes were stained with blood. He was wearing
the same clothes till he left Orbit Hospital at 07:30 p.m. He did not inform
any Doctor about the injuries suffered by him due to the assault with sticks.
Significantly, he has further deposed that he met the police for the first time
in the evening of 17/04/2012 and he narrated the incident to the Police for
the first time on that day. According to him, the statements of the other
two eye witnesses were recorded on 18/04/2012. At about 03:15 a.m. in
P.H. Jayani 901 APEAL1009.2014 and others.doc
the night of the incident, he had gone to the house of Neeraj and had
informed his mother about the incident and had brought her to Alliance
Hospital. According to him, he himself had sustained five to six blows of
bamboo in the assault. The blows were forceful. He went to the Doctor for
the first time on 18/04/2012 but he did not remember name of the Doctor.
He stated that the Muddemal Article i.e., the knife was shown to him and
he knew that a chopper is bigger in length than a knife.
Importantly, this witness was asked questions about important
omissions of facts which he has not mentioned in his police statement but
had deposed about them before the Court. He could not explain as to why
these facts were not mentioned in his police statement. All these omissions
are important and he could not assign any reason as to why he had not
mentioned those facts in his police statement. Those omissions were as
follows :-
(a) It was not mentioned that accused-Rahim was holding a
black coloured broken bottle and the accused-Chini was
holding a knife like weapon.
(b) It was not mentioned in his police statement that Neeraj
was assaulted with a knife like weapon on his neck and
abdomen.
(c) It was not mentioned in his police statement that Neeraj
was pulled from the car and the accused Chini assaulted him
on his head and shoulder with a knife like weapon.
P.H. Jayani 901 APEAL1009.2014 and others.doc
(d) It was not mentioned in his statement that Ram and
Sandeep assaulted him with bamboo and therefore he could
not come out of the car.
(e) He could not explain as to why his police statement did
not mention the fact that Neeraj was sitting in front of door of
one house.
PW1 has further deposed in his cross-examination that he was
given a letter dated 12/07/2012 for attending the Test Identification Parade
on 13/07/2012. He had shown his willingness to attend that Test
Identification Parade but he never went for the Test Identification Parade.
He has not explained as to why he did not attend the Test Identification
Parade. The prosecution evidence does not show that any Test Identification
Parade was actually held. He further admitted that on 17/04/2012, he was
called by the Police to the spot of incident in the morning. He denied the
suggestion that at the time of incident, Neeraj was alone in the car and he
himself as well as the other two eye witnesses were not with him. He
deposed that his brother - Sameer was already admitted in Alliance
Hospital when Neeraj was brought to Alliance Hospital. He admitted that
they did not seek any help from the house where Neeraj was sitting after
the assault. He further stated that they did not take Neeraj to Joya Hospital
which was very near to the spot because, according to him, there was no
facility in that hospital. A suggestion was given to him on behalf of the
Accused No.3 that there was a dispute during the cricket match and to
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cover up the incident, one Kakade had actively participated in covering the
true facts.
8) PW2 - Piyush Shah is the second eye witness. He has narrated
the incident exactly in the same manner as narrated by PW1 right from the
time when they had gone to play the cricket match. He has deposed that
after the match, they went to Prabhat Hotel. They had their dinner. Then,
there was a quarrel between Neeraj and the Accused No.1. He has
described the quarrel in the same manner. He then described about the
incident of intercepting their car and the accused assaulting them.
Regarding the actual assault, he deposed that the accused - Ramchandra,
Roshan and Sandeep started beating them with bamboo. Rahim and Chini
were assaulting Neeraj. Rahim was having a broken bottle in his hand and
Chini was having a knife. Neeraj was assaulted on his chest. He was then
pulled from his car and was assaulted on his neck. He was also assaulted on
the right shoulder and abdomen. Thereafter, Neeraj ran towards the lane
near the road of Joya Hospital. The accused abused these witnesses and
went away. According to him, PW1 and PW3 alongwith himself then went
where Neeraj was lying in front of one house. He was bleeding. Neeraj told
them that he had removed a piece of glass from his abdomen. He requested
them to take him away from that place. He was taken to Alliance Hospital
in a rickshaw. PW2 has narrated about taking him to Alliance Hospital and
then to Orbit Hospital. After one hour of admitting Neeraj to Orbit Hospital,
P.H. Jayani 901 APEAL1009.2014 and others.doc
PW2 himself and PW3 - Loyoid went home. At about 09:00 p.m., they came
to know that Neeraj had succumbed to his injuries.
In the cross-examination, he deposed that there were about 12
to 15 customers when the incident occurred at Prabhat Hotel. It lasted for
about 10-12 minutes. At the time of the incident, he had received two
blows of bamboo on right arm and leg. He did not approach any Doctor for
his own injuries. He admitted that the Doctors had informed them that
Neeraj's health was critical. He could not explain as to why his police
statement did not mention that Neeraj was assaulted with a knife. He could
not explain why he had described the assault with a chopper in his police
statement. That particular portion was a contradictory statement to his
version of assault by a knife. When Neeraj was taken to the hospital in a
rickshaw, according to PW2 he had pressed the lower part of abdomen of
Neeraj. He further deposed that the clothes of all the three witnesses i.e.,
PW1, PW2 and PW3 were stained with blood while taking Neeraj to the
hospital. He could not give the details of the rickshaw and its driver. The
same suggestions about Kumar Kakade was given to him but he deposed
that he did not meet Kumar Kakade at Alliance Hospital. He met Sadho
Singh i.e., Neeraj's cousin at about 03:15 a.m. to 03:30 a.m. in Alliance
Hospital. Sadho came to the hospital after Neeraj was admitted in the
hospital. According to PW2, it would be incorrect to say that Sadho had
admitted Neeraj in Alliance Hospital. Sadho had made enquiry with them
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as to who had assaulted Neeraj and with what weapon. PW2 had disclosed
the names of the Appellants to Sadho. He further admitted that Kashimira
Police Station was situated just across the road opposite the Orbit Hospital.
He could not explain as to why he left Orbit Hospital though at that time,
Neeraj was in critical condition. He reached his house at about 07:50 a.m.
His statement was recorded by the police on 18/04/2012 at 05:00 p.m. It
was recorded in the Police Chowky. He admitted that for the first time on
18/04/2012, he narrated the incident to the police. On 12/07/2012, he
received the message to attend the Test Identification Parade at Thane
Central Prison that was to be held on 13/07/2012 but he did not attend it.
He could not explain as to why certain facts were not mentioned in his
police statement. He could not explain as to why it was not mentioned in
his police station that accused-Rahim was having a broken bottle and
accused - Chini was having a knife in his hand. He could not explain why
it was not mentioned that Neeraj was first assaulted on his chest and
thereafter he was pulled from the car and was assaulted on his neck. His
police statement did not mention that Neeraj had sustained injuries on his
right shoulder and abdomen. He could not explain as to why he had not
stated before the police that Neeraj was lying in front of that particular
house. He had not given his blood stained clothes to the police. The police
did not ask for the same. He had washed his clothes on the same day. They
were kept in his house. He admitted that Joya Hospital was the nearest
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hospital from the spot of the incident. He admitted that Neeraj would have
got the earliest treatment if he was taken to Joya Hospital. There were four
more hospitals on the way from Joya Hospital to Alliance Hospital.
9) PW3 - Loyoid Nazarin was the third eye witness. He has also
described the incident in the same manner as described by the other two
eye witnesses. He had described about the incident at Prabhat Hotel and
then the actual incident of the fatal assault. He has deposed that Accused
No.1 - Rahim and Accused No.2 - Chini assaulted Neeraj with a bottle and
a chopper like knife. Neeraj ran away in the lane of Joya Hospital. Then
they went near Neeraj. He told them that he had removed a piece of glass
from his abdomen. They took him to Alliance Hospital in a rickshaw and
then to Orbit Hospital. At about 06:00 a.m. to 07:00 a.m., he came back to
his house from the hospital. In the evening, he came to know that Neeraj
had succumbed to his injuries. He identified the accused-Ram who was
present in the Court. The other accused were not present in the Court. He
identified the weapons i.e., the beer bottle and the knife.
In his cross-examination, he deposed that his statement was
recorded by the police on 18/04/2012 in the evening. Before that, he did
not disclose the incident to anyone else. He was in the Orbit Hospital for
about half an hour. They had reached there at about 05:45 a.m. The
distance between Alliance Hospital and Orbit Hospital is about forty-five
minutes to one hour on a motorcycle. They started at about 04:30 a.m.
P.H. Jayani 901 APEAL1009.2014 and others.doc
from Alliance Hospital. They were in that hospital for about an hour. He
deposed that according to him, there was an injury on the left side of the
lower part of abdomen of Neeraj. He could not depose anything about the
injuries caused by glass bottle. The injury by knife was caused on the chest.
According to him, Neeraj had sustained 8-10 injuries. He himself had
received 3-4 blows of bamboo on his hand and leg. After that, certain
omissions were put to him from his police statement. He could not explain
as to why his police statement did not mention that after assaulting Hiren,
Rahim came to the side of Neeraj and assaulted him with a beer bottle.
According to him, the blows of bamboo were given to him forcefully. He
admitted that Tulinj Police Chowky is situated at the distance of five
kilometers walk from Alliance Hospital. He did not feel like informing about
the incident in the said Police Chowky. He could not explain as to why he
did not go for Test Identification Parade even after receiving the letter.
Evidence of Dying Declaration :-
10) The prosecution has relied on the evidence of the dying
declaration which was treated as the FIR. In that context, the prosecution
has examined PW12 PHC - Nathuram Hate and PW-13 Dr. Vinodkumar
Jaiswal who had permitted recording of the dying declaration.
11) PHC - Hate has stated that at the relevant time, he was
attached to Kashimira Police Station as Police Head Constable. On
16/04/2012 at about 07:30 a.m., he received a memo from Orbit Hospital
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regarding admission of one patient. The name of the patient was Neeraj
Singh. PW-12 visited the hospital at 08:00 a.m. Neeraj was admitted in
ICU. PW12 made inquiries with the Doctor and asked him whether the
patient was conscious and was in a position to give a statement. The Doctor
informed that the patient was conscious and his statement could be
recorded. PW12 then made inquiry with the patient and recorded his
statement in PW12's own handwriting. PW12 has deposed that it was
recorded as per the say of the patient. According to him, the statement was
recorded in the presence of the Doctor. It was read over to the patient after
it was recorded. His signature was obtained on it. PW12 also signed the
statement and then the signature of Doctor was obtained on it. That
particular statement was produced on record at Exhibit - 77. It was
produced before the PSO and on the basis of that statement, the FIR was
registered. The records show that it was registered by zero number. PW12
then addressed a letter to Nalasopara Police Station for registration of the
FIR and for further action.
In his cross-examination, he deposed that Kashimira Police
Station is 10 minutes walking distance from Orbit Hospital. He went to the
hospital on his motorcycle and took about five minutes to reach there. He
produced the memo receipt of the hospital but it was marked as Article 'X'
as it was not proved properly. It was not given an exhibit number at that
stage. He had not made any entry in the Station Diary when he had left the
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police station for recording Neeraj's statement. When he went to the
hospital, he did not make any inquiry as to who was the Doctor incharge
under whom the patient was treated. The Doctor with whom he made
inquiries informed him that, since one hour the patient was in a serious
condition but he denied the suggestion that at that time the patient was
having an oxygen mask. He admitted that there was one injury on the neck
and two injuries on the left side of the chest. He asked several questions to
the patient but he did not take note of those questions. He did not take any
note that the Doctor had given the opinion that the patient was conscious
and was in a position to make a statement and the statement was recorded
in the presence of the Doctor. According to PW12, it took about 30-45
minutes for recording the statement but he had not recorded the timing on
that statement. He could not explain as to why he did not mention the
timing. PW12 reached back to the police station at about 09:00 a.m. He
accepted that there was correction in the timing mentioned in the second
paragraph of Exhibit - 77 but no initial was made on that correction. He
further admitted that he did not meet anybody in Orbit Hospital who
claimed to have seen the incident of assault. Patient's mother was in the
hospital. She did not tell PW12 regarding the names of the assailants and
the names of the witnesses. He could not state as to in whose handwriting
the FIR was written. He further admitted that endorsement of the Doctor
on the statement was obtained after the writing was over. He denied the
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suggestion that between 08:00 to 08:45 a.m., Neeraj was not in the hospital
and was in a serious condition.
12) Exhibit-77 is the dying declaration of Neeraj which runs into
three pages. It purportedly bears Neeraj's signature. There is no timing
mentioned on that dying declaration. The FIR was lodged at Kashimira
Police Station at 01:05 p.m. on 16/04/2012 as mentioned therein. It bears
the endorsement of Dr. Vinod Jaiswal. He had put his signature for Dr.
Sandip Patil.
The statement starts with Neeraj's full description i.e. name,
occupation, details of his address and two mobile phone numbers. The
statement then mentions that he was residing with his parents and was
studying a Diploma course. Then he had described that they had attended
the cricket match on 15/04/2012 at 23:30 hours. The overwriting referred
to in the cross-examination of PW12, is in respect of this time of 23:30
hours. A perusal of that time shows that the time is apparently changed
from 21:30 hours to 23:30 hours. Then, he had described that PW1, PW2,
PW3 and he himself had gone to Prabhat Hotel in his Santro Car for dinner.
At 01:30 a.m., the Accused No.1 met him outside the hotel. He was under
the influence of liquor. He started abusing Neeraj who also abused the
Accused No.1 - Rahim. Neeraj and others then were returning home. They
were intercepted by the Accused No.1 in his Swift Car. He then described
the incident of assault. The Accused No.1 - Rahim had assaulted Neeraj
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with a chopper on his chest and on his right hand. Accused No.2 - Chini
assaulted him on his throat with a chopper. The other accused Ram and
Sandeep were assaulting the witnesses with bamboo. The incident had
taken place at 02:30 a.m. on Santosh Bhuvan Road. There was no reference
to an assault by a broken beer bottle. The bottle is not referred anywhere in
the entire statement. The weapon was mentioned as chopper.
13) PW13 - Dr. Vinod Jaiswal is another important witness in
respect of this dying declaration. He deposed that he was working with
Orbit Hospital as RMO. Neeraj Singh was admitted in that hospital on
16/04/2012 at about 07:00 a.m. He further deposed that he attended the
duty at around 08:30 a.m. to 09:00 a.m. and after that, he examined the
patient in ICU. According to him, the patient was conscious at that time. As
soon as he joined the duty, two police officers came to ICU and inquired
with him about the condition of the patient. He told them that they could
record the statement of the patient. The police officers recorded Neeraj
Singh's statement and at that time, he was present near the patient.
According to him, the statement was recorded in his presence. After the
recording was over, he made his endorsement on the statement that the
patient was conscious and was able to give the statement. He identified his
endorsement and stated that it was in his own handwriting.
In the cross-examination, he admitted that he could not give
the exact time at which he reported for duty on that day. He further
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admitted that he had seen the medical treatment papers of Neeraj Singh
before he entered the witness box. From the record, General Surgeon - Dr.
Sandip Patil had examined the patient at 07:30 a.m. on that day and had
advised C.T. scan of neck, chest and abdomen promptly. PW13 further
admitted that he himself was not incharge of the patient. He could not tell
at what time the patient was taken out of the hospital for conducting C.T.
scan. He admitted that when he examined the patient, he found him in a
critical condition. He could not tell which questions were asked by the
police to the patient. He could not tell what answers were given by the
patient. He admitted that in the medical papers, his name appeared in the
entry made at 10:00 a.m. and it did not appear anytime prior to that. There
was another Dr. Vinod Pal attached to that hospital and in the entry at
10:00 a.m., no surname was mentioned after the name 'Vinod'. According
to him, the recording of statement was over within 15-20 minutes. He did
not remember the time at which he made the endorsement. He agreed that
taking the patient for C.T. scan would be the priority than recording of the
statement of the patient. He denied the suggestion that the patient was not
in a condition to speak.
Medical Evidence :-
14) The medical evidence in this case is also important.
15) PW8 - Dr. Akhilesh Mishra was attached to Alliance Hospital.
He was the first Doctor who had treated Neeraj Singh. He has deposed that
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on his examination, he found that Neeraj's general condition was very poor.
His pulse was not palpable. The blood pressure was not recorded. The
patient was drowsy but arousable. He was occasionally obeying verbal
command. He was moving all his four limbs. There was reduced air entry
on the left side of the chest lower aspect. There was guarding of abdomen.
He found four stab injuries on the chest. Stitches were given to the patient.
There was one CLW over the neck anteriorly measuring 0.5 x 1 cm. His
blood pressure was not recorded. Intravenous injection was given. Painkiller
was given. Once he was stabilised, he was referred to Higher Center for
further management. At the time of transfer, the patient was conscious. He
was kept on oxygen. He produced the medical certificate at Exhibit - 66.
When we perused the record of this case, the number 'Exhibit-
66' was scored off, but that statement is on record because there was
duplication of Exhibit-66. In that certificate, there was a mention of three
stab injuries on the chest and one incised wound on the deltoid region.
There was no reference to the neck injury. The history also does not
mention the names of the assailants and other details. Significantly, the
certificate mentions that he was brought to Alliance Hospital by Sadho
Singh who was the cousin of Neeraj Singh. It is not mentioned that any of
the witnesses i.e. PW1, PW2 or PW3 had brought Neeraj Singh to the
hospital.
In the cross-examination, PW8 accepted that the patient was
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brought to the hospital by his cousin Sadho Singh. He was admitted at
04:30 a.m. on 16/04/2012. He reiterated that the patient was brought to
the hospital in a serious condition. He accepted that there was no mention
of any injury on the neck in Exhibit-66. He did not notice any injury on the
abdomen. He has further admitted that if trachea and larynx are punctured,
then a person would not be in a position to speak. The patient was
transferred to a higher hospital at 05:30 a.m. The record did not show that
the police were intimated about this patient. According to him, Alliance
Hospital was the biggest private hospital in Nalasopara.
16) PW11 - Dr. Sandip Patil had treated Neeraj Singh in Orbit
Hospital. He has deposed that he was a General Surgeon. At 07:15 a.m. on
16/04/2012, Neeraj Singh was admitted to Orbit Hospital. He was
transferred from Alliance Hospital. At that time, the patient was conscious.
He then described four injures on the chest and also the incised wound on
the neck approximately 2 cm in size. There was no bleeding. He has further
deposed that he had advised C.T. scan of the chest and abdomen. There was
blood in the chest cavity. Emergency surgery was planned. The patient was
shifted to operation theatre for undergoing surgery at 12:00 p.m. but he
developed sudden cardiac arrest and hence, the surgery was postponed and
the patient was shifted to ICU. He was put on ventilatory support. The
patient's relative insisted to transfer him to Asian Heart Hospital and
accordingly, he was shifted to Asian Heart Hospital at 07:30 p.m. in cardiac
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ambulance. The injuries were grievous and life threatening. He produced
the medical papers on record which are marked at Exhibit-75.
He admitted that the entry made at 07:00 a.m. did not show
any abdominal injury. The patient was admitted in a critical condition. At
08:00 a.m., another RMO - Dr. Vinod Pal attended the patient. Even at that
time, the patient's condition was critical. There was pain on deep
inspiration because of laborious breathing. It was due to reduced air entry
to the left side of the chest. The patient was admitted to the hospital by his
brother - Sadho. He was accompanied by Neeraj Singh's mother. The names
of the assailants and weapons were not disclosed to the hospital authority.
At 10:00 a.m., the general condition of the patient was poor. At 11:00
a.m., he personally explained Neeraj's condition to the relatives regarding
the high risk. By 11:00 a.m., he decided that the patient needed abdominal
surgery. From the CT scan, it was revealed that the patient had suffered
internal hemorrhages. There was no facility of CT scan in Orbit Hospital
and therefore, he was taken out of the hospital for CT scan of the neck,
chest and abdomen as per his advise. The CT scan report was made
available at 11:00 a.m. For each of these parts, separate CT scan was
required and it required approximately one hour for CT scan of each part of
the body. The CT scan center was situated at about 10-15 minutes driving
distance from their hospital. Before 11:00 a.m., atleast for one and a half
hour, the patient was out of the hospital for CT scan. He volunteered that it
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took one hour for carrying out CT scan of the entire body. At 08:00 a.m.
itself, the gravity of the stab injury was informed to the relatives of the
patient. At 12:00 p.m., he was suffering with heavy difficulties and his
condition continued to be critical. He had to be kept on oxygen. From 12:00
p.m. onwards, the patient was unconscious till he was transferred to Asian
Heart Hospital. He admitted that in case of neck injury, the patient may not
be in a position to speak.
The medical papers at Exhibit-75 show the serious condition of
the patient right from his entry. At 10:00 a.m., there is mention of Dr. Vinod
but prior to that, there is mention of Dr. Vinod Pal who had seen the
patient. There is no reference to Dr. Vinod Jaiswal. The endorsement at
11:00 a.m. in the medical papers show that the patient's relatives were
explained the serious condition of the patient. After that, it was mentioned
that it was a very high risk condition. In short, the medical papers show
that Neeraj Singh was in critical condition and it was explained to his
relatives.
17) PW15 - Dr. Rajesh Dere had conducted the Post Mortem
examination. He mentioned that there were nine injuries. There were five
injuries on the chest which were sutured. There was stab injury of size 2.5
cm x 1 cm x 4 cm deep over anterior aspect of neck at level below laryngeal
cartilage placed horizontally with clean cutting edges and directed upwards
and backwards. There was linear abrasion on the right lumbar region and
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there were two incised wounds of the length 4 cm and 5 cm on the right
forearm. On the internal examination, he noticed blood in plura cavity,
puncture wound corresponding to the neck injury and corresponding
internal damage because of the other injuries. The cause of death was
haemorrhagic shock following multiple stab injuries.
The Post Mortem notes show that the neck dissection revealed
that there was haematoma in the muscle of neck corresponding to that stab
injury to the neck. According to him, the knife and the broken bottle shown
from the Muddemal articles could have caused those injuries.
In the cross-examination, he admitted that there was puncture
noticed on larynx and trachea. The depth of the injury was 4 cm.
18) The other corroborative pieces of evidence are in the nature of
spot pancha, recovery pancha, Finger Print Expert and the Investigating
Officer.
19) PW4 - Ashok Singh was examined as a pancha for spot
panchanama. He was also a pancha for recovery of clothes of the Accused
No.2. He produced the spot panchanama on record at Exhibit - 42.
According to him, PW1 - Hiren had shown that spot. Significantly, the spot
panchanama also mentions that the spot was shown by PW1 - Hiren. The
spot panchanama was conducted between 07:00 a.m. to 07:15 a.m. on
17/04/2012. Very importantly, the spot panchanama describes the entire
incident with names of the Accused. Of course, this particular description in
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the spot panchanama of the incident is not admissible, but the significance
lies in the fact that according to the prosecution case, PW1 was present at
the spot at 07:00 a.m. on 17/04/2012 and he had shown the spot to the
police. Inspite of that, his statement was not recorded. In fact, the
deposition of PW1 shows that it was recorded in the evening on
17/04/2012.
PW4 was also a pancha for seizure of clothes and footwear of
the deceased.
On 22/04/2012, in his presence, the Accused No.3 -
Ramchandra Yadav had shown the spot where his motorcycle was parked. It
was seized. Then, the Accused No.3 took the pancha and the police officer
to his house. This witness has further stated that he was waiting on the
ground floor. The police and Accused No.3 climbed upto the Accused No.3's
house and came with his clothes. He therefore could not describe what had
transpired in the Accused No.3's house. That panchanama is produced on
record at Exhibit - 44.
20) PW5 - Rohan Dhurve was a pancha in whose presence the
Accused No.1 produced his clothes from his house. That panchanama is
produced on record at Exhibit - 52.
In the cross-examination, he admitted that the door of Accused
No.1's house was open and there were other rooms on that floor and that
anybody could have entered that house. He did not notice any blood stains
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on the clothes.
21) PW6 - Hitesh Tandel was a pancha in whose presence the
Accused No.2 - Roshan Thakur @ Chini had produced his clothes which he
was allegedly wearing at the time of the incident. This panchanama was
conducted on 22/04/2012. The motorcycle was also shown and it was
seized. The clothes were produced from his room. The clothes as well as a
knife was kept in a plastic bag under a showcase. The weapon was also
seized. That panchanama was produced on record at Exhibit - 55. He
could not depose as to whether anybody was present in the house. He
admitted that anybody could have entered the house. He did not
particularly look at the articles for presence of blood stains. The Article -
the weapon in his house was a kitchen knife. That panchanama is
produced on record at Exhibit - 54.
22) PW7 - Santosh Bangera was a pancha in whose presence
allegedly the Accused No.1 - Rahim had produced a broken glass bottle on
24/04/2012. That panchanama is produced on record at Exhibit - 59. The
Acused No.1 took the panchas and the police near Santosh Bhuvan. He led
them to the garbage lying in that lane in search for the broken bottle.
According to him, the police took the bottle with the help of a handkerchief.
It was a brown coloured bottle stained with blood. On 30/04/2012, he
again attended the police station and on this occasion, in his presence, the
Finger Print Expert lifted finger prints from that bottle. That panchanama is
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produced on record at Exhibit - 61. On 27/04/2012, in his presence, a
Swift Car was seized. He admitted that the garbage was lying in an open
place and anybody could have seen the bottle lying in the garbage. No seal
was put on the bottle at the time of its seizure. The box was not in a sealed
condition when the finger prints were lifted from the glass bottle. The
panchanama itself mentions that the accused himself had taken out the
glass bottle. The panchanama does not mention that the police picked up
the glass bottle. It is specifically mentioned that the Accused No.1 took out
the glass bottle from that garbage. In that case, the finger prints on that
bottle loses all its significance.
23) PW16 - Anil Arabat was examined as the Finger Print Expert.
He had lifted the finger prints on 30/04/2012 from that broken glass bottle
in Nalasopara Police Station. He developed one chance print in presence of
the I.O. On 28/06/2012, he received a finger print slip of the Accused No.1
- Rahim from Nalasopara Police Station. He compared the finger prints
and according to him, the finger print of the left middle finger of the
Accused No.1 - Rahim matched with the finger print on the bottle.
24) PW9 - Jatin Patil was a pancha in whose presence the Accused
No.3 - Ramchandra produced bamboos on 24/04/2012. That panchanama
is produced on record at Exhibit - 67. The bamboos were produced in front
of Hindustan Water Supply Shop from a dustbin but there was no mention
of dustbin in the panchanama itself. He admitted that it was an open place
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and he could easily see the bamboos when they went near the garbage bin.
That panchanama is produced on record at Exhibit - 68.
25) PW10 - Amol Ghag had taken photographs of the spot and of
the Santro Car.
26) PW14 - API Dinesh Tayde was the Investigating Officer. He was
attached to Nalasopara Police Station. He investigated the offence
registered vide C.R.No.I-278/2012. It was transferred to Nalasopara Police
Station from Kashimira Police Station under '0' number. He deposed that
by the time he received the investigation, it was dark. Therefore, though he
visited the spot, he did not prepare the panchanama and one constable was
deployed at the spot. He then went to the address of the injured who was
by then shifted to Asian Heart Hospital. His friends were at his residence.
PW14 took information from them about the incident. Next day morning,
he went to the spot and conducted the spot panchanama. He went to the
lane in front of that spot where the injured had sat on the verandah. It was
house of one Keshav Hadale. However, he did not notice any stains of blood
on that verandah. On inquiry with the residents, one Yamunabai told him
that she had seen the blood and she had cleaned the verandah. He then
mentioned that the spot was shown by PW1. The Accused No.1 - Rahim
was arrested on 18/04/2012 in the evening. PW14 deposed about various
recovery panchanamas. He produced the C.A. certificate on record. The
Accused - Sandeep was still absconding.
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In the cross-examination, he admitted that by end of the day
on 16/04/2012, he had come to know that there were eye witnesses to the
incident. At 06:50 p.m. on 16/04/2012, he had gone through the FIR and
at that time, he knew the names of PW1, PW2 and PW3 who had seen the
incident. He admitted that statement of PW1-Hiren was recorded on
17/04/2012. The statements of PW2 - Piyush and PW3 - Loyoid were
recorded on 18/04/2012. He had not asked these witnesses as to why they
had not given their statements earlier. He further deposed that he was
aware that the Test Identification Parade was to be conducted when the
accused were unknown and that he had sought permission from JMFC,
Vasai on 05/07/2012 to conduct the Test Identification Parade of the
accused and the permission was granted. The Test Identification Parade was
arranged at Thane Central Jail on 13/07/2012 and he had given notice to
PW1, PW2 and PW3 on 12/07/2012 for attending the Test Identification
Parade but he did not further explain as to why the Test Identification
Parade was not held. He had not received any communication from these
witnesses that they would be unable to attend the Test Identification
Parade. He admitted that he could see from the statements and the dying
declaration that there was material discrepancy in respect of the weapon of
assault and that there was no reference to a beer bottle in the dying
declaration. The rickshaw driver who had taken the deceased from the spot
to the Alliance Hospital could not be found. According to him, his inquiry
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did not reveal that the three witnesses had their clothes smeared with blood
while taking the deceased to the hospital. Those witnesses did not offer
their clothes for seizure. He further stated that since there were no visible
injuries on these witnesses, they were not referred for medical examination.
He admitted that when the clothes of the accused were seized, he did not
notice blood stains. He did not notice blood stains on the knife. He
admitted that the recoveries were made from open places. He admitted that
broken bottles are normally found in the garbage. There was no mention in
the panchanama that the bottle was kept in the brown box. He then proved
the omissions from the evidence of the eye witnesses PW1, PW2 and PW3
which were referred to hereinabove while discussing their evidence.
27) The C.A. report was produced on record at Exhibit - 83 and the
results show that clothes of the deceased had human blood of 'B' Group.
However, the clothes of the accused show presence of human blood but the
blood group was inconclusive. The knife, bamboos and the broken bottle
show presence of human blood but the blood group was inconclusive.
This is the entire evidence led by the prosecution.
28) Dr. Yug Chaudhary, learned Counsel for the Appellant - Rahim
(Accused No.1) made the following submissions :-
(i) The evidence of the eye witnesses is totally
unreliable. It is full of contradictions and omissions. Their
evidence is contrary to the description of the incident
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mentioned in the dying declaration.
(ii) The statements of the eye witnesses are recorded
much belatedly. PW1's statement was recorded by the police in
the evening on 17/04/2012 and the statements of the other
two eye witnesses i.e., PW2 and PW3 were recorded on
18/04/2012. No explanation is offered for the same. Their
conduct is unnatural.
(iii) According to the prosecution case, PW1 was
present at the spot on 17/04/2012 in the morning at 07:00
o'clock where he showed the spot of incident at the time of
conducting the spot panchanama and yet, his statement was
not recorded at that time. The police waited till the evening to
record his statement. This clearly shows that they are shown as
witnesses as an afterthought and they have concocted a story.
(iv) Their presence is nowhere mentioned in the
admission record of either of the hospitals i.e., Alliance
Hospital and Orbit Hospital.
(v) If they were knowing that their friend Neeraj
Singh's health condition was critical, then they would not have
left him in Orbit Hospital in the morning. They made no
attempt whatsoever to help him after that in shifting Neeraj to
Asian Heart Hospital or even asking after his health.
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(vi) According to them, they had helped Neeraj Singh
to be taken to Alliance Hospital first from the spot and at that
time, they had supported him in the rickshaw. The evidence
shows that their clothes were smeared with blood but they had
not produced their clothes during the investigation and there is
no corroboration to their evidence that they were present at
the spot.
(vii) All of them have stated that they were assaulted
forcefully with bamboo sticks but there is no medical evidence
supporting this part of their evidence showing injuries suffered
by them because of assault with bamboo sticks.
(viii) Curiously, they were called for Test Identification
Parade. If the witnesses knew the assailants and if they had
even given their names in the police statements, then there was
absolutely no reason as to why the police had arranged to
conduct the Test Identification Parade. Even then, neither of
these witnesses cared to remain present at Thane Central Jail.
(ix) The blood stained clothes of these witnesses were
not seized.
(x) There is no independent corroboration to the
evidence of these witnesses in respect of their presence at any
of the spots. It was possible for the investigating agency to
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have produced the evidence of the employees of Prabhat Hotel
or even the spot where the deceased had taken shelter after the
assault but none of these witnesses was examined.
(xi) Very significantly, the prosecution has not
examined the mother and cousin of the deceased who were
present in the hospitals. The record shows that the deceased
was admitted to Alliance Hospital and Orbit Hospital by his
cousin - Sadho Singh. Therefore, he was an important witness
who could have provided the link between the incident and the
admission of the deceased in the hospital but he is not
examined. No explanation is offered as to why these two
witnesses were not examined.
(xii) The evidence of dying declaration is extremely
doubtful. The medical evidence shows that the larynx and
trachea of the victim were punctured and therefore, it was
impossible for Neeraj to have uttered any word. The dying
declaration runs into three pages. Dr. Chaudhary submitted
that the reliability of a dying declaration given by a patient in a
critical condition relies on the brevity of the dying declaration.
In this case, the detailed version including the detailed address,
two telephone numbers, background etc. belies the fact that
the deceased himself could have given that dying declaration
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particularly when the medical evidence shows that he was in a
critical condition and he lost consciousness within a couple of
hours thereafter. Even the timing of recording of the dying
declaration does not match. The name of the Doctor who had
given the endorsements on the dying declaration, is not
mentioned in the medical papers.
(xiii) The Police Head Constable who had recorded the
dying declaration, had reached the hospital at 8 o'clock
whereas the Doctor himself i.e., Dr. Vinod Jaiswal had reached
the hospital subsequently.
(xiv) According to PHC - Hate, the recording of dying
declaration took atleast 45 minutes whereas Dr. Jaiswal has
stated that it was over within 15 minutes.
(xv) Though Dr. Jaiswal claims to be present at the
time of recording of the evidence, he has not deposed as to
what the deceased had told the police. He has not referred to
his statement at all. He could not tell as to what were the
questions put by PHC - Hate to this witness.
As far as the recovery evidence is concerned, the
evidence shows and it is even admitted by the witnesses and
the Investigating Officer that the recoveries were either from
open spaces accessible to all where the articles could be easily
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seen. They were not even concealed. The clothes of the
Accused No.1 were taken from his house which was open and
anybody could have entered that house.
In any case, the C.A. reports are inconclusive in
respect of the blood group of the blood found on these articles.
Therefore, there is no connecting evidence of these articles
with the incident.
The Finger Print Expert's opinion loses all its
significance in the background of the fact that the panchanama
mentions that the Accused No.1 himself had taken out the
bottle from the open space. Therefore, it was but natural that
his finger prints would appear on that bottle. The procedure of
lifting the finger prints is not beyond doubt because the
evidence of the expert witness and the Investigating Officer
shows that the bottle was not properly sealed and it was not
kept properly in a sealed box. In any case, the dying
declaration makes no reference to any broken beer bottle.
29) Dr. Chaudhary, learned Counsel relied on the judgment of the
Hon'ble Supreme Court in the case of Sohan and another v/s. State of
Haryana and others with Rajinder and others v/s. State of Harayana1 and in
the case of State of Punjab v/s. Harbans Singh and another 2, in support of
1 (2001) 3 SCC 620
2 (2003) 11 SCC 203
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his contentions that absence of seizure of blood stained clothes of the
witnesses in the facts of this case, operates against the prosecution case.
30) Shri. Pachpansingh Gusign, learned Counsel appearing for the
Appellant (Accused No.2) adopted the arguments advanced by
Dr. Chaudhary.
31) Shri. Sarthak Shetty, learned Counsel for the Appellant
(Accused No.3) adopted the arguments of Dr. Chaudhary and added that
there was discrepancy in the eye witnesses' evidence as far as the role of the
Accused No.3 is concerned. He submitted that the autorickshaw driver was
not examined and it was not difficult to locate that particular rickshaw
driver. The labels on the sticks did not mention the signature of the
panchas. The recovery was made from the open space.
32) We also heard Mr. Anil Galgali, learned Counsel for the
Intervenor and the learned APPs Shri. Naik and Ms. Mulekar opposing the
submissions made by the learned Counsel for the Appellants. They
submitted that the incident took place in three stages. The first one was
outside Prabhat Hotel. The second one was at the spot where the Car was
intercepted and the third one was when the deceased was assaulted and
when he had run to a nearby lane. These three stages are consistently
described by the eye witnesses and are also reflected in the dying
declaration. The depositions of the eye witnesses coupled with the dying
declaration, are consistent and barring a few minor contradictions which do
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not go to the root of the matter, all this evidence is consistent. It is
supported by the recovery of weapons and the C.A. reports. The medical
evidence shows the injuries suffered by the deceased and it corroborates the
ocular version of the witnesses and also that of the dying declaration. There
is supporting evidence of finger print found on the broken beer bottle. The
omissions referred to by Dr. Chaudhary are minor in nature and they do not
amount to contradiction in the evidence of these witnesses. The learned
Judge has rightly considered all these aspects and has rightly recorded the
conviction. The delay in recording the statements of the eye witnesses is not
fatal to the prosecution. It was not necessary to have seized the clothes of
the witnesses.
33) Learned counsel for the Intervenor submitted that though the
larynx was punctured, it was possible for the deceased to have given his
declaration by whispering without involving the larynx.
34) We have considered these submissions.
35) The main evidence in this case is that of the eye witnesses and
the dying declaration. We have discussed this evidence in detail in the
earlier paragraphs. As far as PW1 is concerned, he is an important witness.
He was present right from the beginning of the incident till the deceased
was taken to the hospital. Therefore, his version is very important.
According to the prosecution case, his name was disclosed in the dying
declaration itself and therefore, the Investigating Officer was aware of
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PW1's name on 16/04/2012 itself. The record shows that the spot was
shown by this witness - PW1 which is mentioned in the spot panchanama
conducted at 07:00 a.m. on 17/04/2012. The entire evidence is described
in the spot panchanama. That means, according to the prosecution case,
PW1 was available to the police on 17/04/2012 in the morning at 07:00
a.m. Therefore, that was the time when the Investigating Officer should
have immediately recorded his statement because immediate disclosure
from the available witness assumes greater significance. This was not done
and his statement was recorded belatedly at about 05:00 p.m. in the
evening. No explanation whatsoever is offered for this.
The defence has brought out certain omissions of the fact
which PW1 had not mentioned in his police statement. We have referred to
those omissions in the earlier part of this Judgment. He had not mentioned
in his police statement that the accused - Ramchandra and Sandeep had
started beating him with bamboo. He had not mentioned that the Accused
No.1 - Rahim and Accused No.2 - Chini were holding a bottle and a knife
and he had not specifically mentioned in his statement that they assaulted
Neeraj with a knife like thing on his neck and abdomen. All these omissions
are important because it is not clearly brought out by the prosecution as
what exactly was the murder weapon. The dying declaration does not make
any reference to any broken beer bottle. At some places, according to the
witnesses, the murder weapon was a chopper and not knife. The dying
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declaration also refers to a chopper. All these are material discrepancies and
contradictions.
36) PW2's evidence also suffers from important omissions. His
police statement did not mention that initially Neeraj was assaulted on his
chest and thereafter, he was removed from his Car and then he was
assaulted on his neck.
37) PW3 accepted that his police statement does not mention that
the accused were from his locality and therefore, he knew them. He could
not explain as to why he did not go for the Test Identification Parade. He
also accepted that Tulinj Police Chowky was five minutes walking distance
from Alliance Hospital and he had gone there to collect his bike yet, he did
not inform the police about this incident. This conduct is unnatural.
The record of these hospitals do not mention anywhere that
the patient was brought to the hospital by either of these witnesses. This is
very significant.
In this context, in the facts of this case, their evidence could
have been corroborated by various factors. Importantly, the prosecution
could have easily produced their blood stained clothes because according to
PW1 and PW2, the clothes of all these witnesses were stained with blood.
PW3 had stated that he had not supported the deceased and therefore there
was no blood on his clothes. This particular deposition is rather
unbelievable. All the three eye witnesses were together and they had
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travelled together to take the deceased to the hospital. Therefore, it was not
possible that there would be no blood stains on the clothes of PW3. In any
case, the other two eye witnesses have admitted that the clothes of all of
them were stained with blood but the clothes were not seized and there is
no explanation offered. The blood stained clothes of these eye witnesses
would have corroborated their presence at the time of the incident, atleast
in the facts of the present case. Dr. Chaudhary relied on the judgments of
Harbans Singh and Sohan and another as mentioned earlier. The relevant
paragraph from Harbans Singh (supra) is paragraph 9 which reads thus :-
" 9. It is the prosecution case itself that Darshan Singh who was
one of the witnesses to the incident who also helped PWs 4 and 11
to carry the injured to the hospital and remained with them almost
right through has not been examined by the prosecution. The
explanation given is that he has been won over by the accused. But
then it is also to be noted that there were many neighbours also who
came to the place of incident but none of them have been examined
as witnesses leaving only PWs 4 and 11 as the sole eye-witnesses in
this case. Further it is to be noticed that these two witnesses along
with Darshan Singh carried both the injured persons in the vehicle
and thereafter helped in carrying the injured persons to the Primary
Health Centre but no blood stained clothes were recovered from the
possession of these witnesses which also throws considerable doubt
about the presence of these witnesses at the time of incident. PW-11
though says that there was a little bloodstain on his cloth, he washed
the same in the hospital which explanation, in our opinion, is highly
artificial. "
38) The relevant paragraph and observations in Sohan and another
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(supra) is paragraph 28 which reads thus :-
" We may add that the prosecution case entirely rested on the sole
evidence of PW-7, who was not only interested being the cousin of
the deceased and was inimical too to the accused in view of the civil
litigation referred to above. It was unsafe to act on his evidence
without any corroboration. Although there were material witnesses
available to corroborate, their non-examination or withholding their
evidence was a serious lacuna in the prosecution case. Non-
examination of another eye-witness, Sumer, whose name was
mentioned in the FIR and who had witnessed the occurrence
according to PW-7, was also fatal. PW-7 stated that he himself, his
brother Dani Ram and his cousin Tara Chand went to the place of
occurrence and lifted Daya Nand to his house and their clothes got
bloodstained. The bloodstained clothes were neither produced nor
seized. Failure to do so raises a serious doubt as to the version of
PW-7. Dani Ram and Tara Chand were also not examined. PW-7
stated that immediately after the occurrence he ran towards his
house; in front of his house Dani Ram and Tara Chand were sitting,
he informed them and narrated about the incident and thereafter all
three of them went to the place of occurrence and brought the
deceased Daya Nand to his house. If only Dani Ram and Tara Chand
were examined they would have corroborated the evidence of PW-7.
This again shakes the prosecution case. The High Court disbelieved
the recovery of both weapons and clothes In all cases recovery by
itself may not be material. But in this case in the absence of
corroboration to the evidence of PW-7, the recovery aspect assumed
importance. The civil litigation was started in 1982; the suit was
decreed in favour of Sohan, accused no. 1 in 1993; the appeal filed
by the deceased and PW-7 was pending on the date of occurrence;
there was no immediate provocation or cause for committing the
offence on 11.2.1985. "
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In the facts of the present case, this is an important lacunae in
the prosecution case. In this particular case, since we do not find that the
evidence of the eye witnesses is reliable, therefore, in particular in the facts
of this case, this lacunae assumes importance.
39) The prosecution could have easily led evidence in respect of
the customers or atleast the employees of Prabhat Hotel where the
deceased and PW1, PW2 and PW3 had taken dinner. This was important
because the incident started from there as the Accused No.1 - Rahim had
picked up a quarrel with the deceased outside Prabhat Hotel but the
prosecution case is silent in that behalf. Similarly, nobody from the house
where the deceased had taken shelter, was examined. No blood was found
on the verandah of that house. The prosecution has also not examined the
cousin of the deceased - Sadho Singh and his mother. They were important
witnesses because the deceased was admitted to the hospital by Sadho
Singh. He was the best person to have given his evidence in respect of the
admission of the deceased to the hospital and the knowledge of the incident
if he had gathered it from the eye witnesses.
40) The corroborative piece of evidence in respect of recovery of
weapons and clothes also does not help the prosecution case, because as
discussed earlier, the recoveries were from open and accessible places or
from the houses which were accessible to others. In any case, there was no
linking evidence because the blood group was not established. The finding
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of finger prints on the beer bottle has lost its significance because the
panchanama itself mentions that the Accused No.1 had taken out the glass
bottle from the garbage. This would mean that the Accused No.1 - Rahim
was made to handle the bottle and therefore it was obvious that his finger
prints would appear on that bottle. Thus, we find there is absolutely no
corroborative evidence to support the version of the eye witnesses.
41) The only other important feature in this case is recording of the
dying declaration. We have perused the dying declaration and we find that
it was highly improbable that a dying man in this case, who was in critical
condition, could have given such a detailed and lengthy dying declaration.
The medical evidence as discussed earlier, showed that his larynx and
trachea were punctured and the Doctors have admitted that in such a case,
it is not possible for a patient to speak. Therefore, it is unbelievable that he
could have given this dying declaration. There is a discrepancy between
the evidence of PHC - Hate who had recorded the dying declaration and Dr.
Jaiswal who had endorsed that the patient was in a position to give that
dying declaration. The timings do not match. Dr. Vinod Jaiswal's presence is
nowhere mentioned in the medical papers. His endorsement was given after
the dying declaration was recorded. Though he claims to have remained
present throughout the recording of the dying declaration, he could not
depose as to what was narrated by the deceased to the police. This throws
doubt on the veracity of the recording of the dying declaration.
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42) Dr. Sandip Patil has deposed that in the morning on
16/04/2012 at 07:30 a.m. itself, the patient was advised to be taken for CT
scan and some significant period was necessary for conducting the CT scan.
It was also a priority because he was to be operated urgently. Therefore, it
is also difficult to believe that in between taking him for CT scan, the police
would insist on recording the dying declaration and the Doctor would
permit him. It is also on record that, the injured was taken for CT scan
outside the Orbit Hospital and then he was brought back. This also adds to
the discrepancy in the time.
43) All these factors show that it is not safe to hold that the dying
declaration was properly recorded as per the version given by the deceased
himself. Significantly, within a very short time, he was put on the ventilator
and oxygen mask. He even had lost his consciousness. From then onwards,
his health deteriorated to the point that he succumbed to his injuries.
44) Thus, we find that the evidence of the eye witnesses is
extremely doubtful. The recording of dying declaration is even more
doubtful. There is no corroborative piece of evidence supporting the direct
evidence which was necessary in this particular case because of the poor
quality of evidence of the eye witnesses. As a result, benefit of doubt must
be given to the accused and they deserve to be acquitted. Hence, the
following Order :-
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(a) The Criminal Appeal Nos.1009/2014, 1015/2014
and 1016/2014 are allowed.
(b) The impugned Judgment and Order dated 17 th
November, 2014 passed by the learned Additional Sessions
Judge, Vasai in Sessions Case No.66/2012 convicting and
sentencing the Appellants, is set-aside.
(c) The Appellants are in custody. They shall be
released forthwith, if not required in any other case.
(d) Before being released, the Appellants shall execute
a P.R. Bond in the sum of Rs.25,000/- each for their appearance
under Section 481 of the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023, in case an Appeal is preferred.
45) With the disposal of the Appeals, all the companion
Applications are also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
PREETI
HEERO
JAYANI
