1 [CASE NUMBER] IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPEAL NO.174/2015 [ENTITY] s/o Rampurkar [ENTITY], aged 35 years, Occ. Business, r/o Vaishali Nagar, Near Priyadarshani Hostel, Nagpur (At present in Central Prison, Nagpur) APPELLANT V E R S U S The [ENTITY], through MIDC Police Station, Nagpur. RESPONDENT Mr. [ENTITY], Advocate for appellant. Mr. [ENTITY], A.P.P. for respondent. AND CRIMINAL APPEAL NO.236/2015 [ENTITY] s/o Chandkhan [ENTITY], aged 26 years, Occ. Nil, r/o Gopal Nagar, Nagpur. (At present in Central Prison, Nagpur) APPELLANT V E R S U S The [ENTITY], through MIDC Police Station, Nagpur. RESPONDENT Mr. [ENTITY], Advocate for appellant. Mr. [ENTITY], A.P.P. for respondent. AND CRIMINAL APPEAL NO.263/2015 [ENTITY] s/o Shriram [ENTITY], aged 35 years, R/o Surendra Nagar, Nagpur (At present in Central Prison, Nagpur) APPELLANT V E R S U S The [ENTITY], through MIDC Police Station, Nagpur. RESPONDENT Uploaded on - 11/07/2017 Downloaded on - 13/07/2017 00:45:19 2 [CASE NUMBER] Mr. [ENTITY], Advocate for appellant. Mr. [ENTITY], A.P.P. for respondent. Coram - [ENTITY] & [ENTITY], JJ. Date of Reserving the Judgment : 05.05.2017 Date of Pronouncing the Judgment : 11.07.2017 ORAL JUDGMENT (Per : [ENTITY], J.)
1. These three appeals are decided by this common judgment since they arise out of the judgment and order of conviction passed by the learned Additional Sessions Judge-4, Nagpur dated 30.03.2015 in [CASE NUMBER].
2. These three appellants are convicted for the offence punishable under [SECTION] read with [SECTION] of the [ACT] and Court below directed that they should suffer imprisonment for life and to pay a fine of Rs.2,000/- by each of them and in default of payment of fine to suffer simple imprisonment for six months. They are also convicted for the offence punishable under [SECTION] of the [ACT] and on that count they are sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- by each of them, in default of payment of fine to suffer simple imprisonment for one month.
3 [CASE NUMBER]
3. [CASE NUMBER] is filed by appellant- [ENTITY], the original accused no.1, [CASE NUMBER] is filed by [ENTITY], original accused no.2 and [CASE NUMBER] is filed by [ENTITY], original accused no.3. In this judgment, these appellants will be referred to by their original positions.
4. [ENTITY] (PW13) was working as Police Sub Inspector at Police Station, M.I.D.C. Nagpur. On 16.01.2013 from 09.30 p.m. to 09.00 a.m. of 17.01.2013 he was on duty as Night Officer of the said Police Station. While he was on patrolling duty at about 1.30 a.m., he received a message by which it was informed that one murder is committed at [ENTITY], Wanadongri, Nagpur. On getting such information, he along with police staff reached to the spot. He noticed splash of blood on the spot. However, nobody was present at the spot. He made inquiry and from the said inquiry he came to know that the injured is taken to Lata Mangeshkar Hospital, Nagpur. He therefore immediately went to Lata Mangeshkar Hospital. There the doctors informed that one [ENTITY] is brought dead and [ENTITY] (PW8) is injured and he is receiving treatment. He recorded statement of [ENTITY] (PW8) which is at Exh.-68. On 4 [CASE NUMBER] the basis of the said report, he registered an offence against the accused persons vide [CASE NUMBER] for an offence punishable under [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] and under [SECTION] and [SECTION] of the [ACT]. The printed FIR is at Exh.-69. He also conducted inquest over the dead body of [ENTITY] vide inquest panchanama Exh.-45 in presence of panchas. Thereafter, he visited the spot of the occurrence and prepared the spot panchanama in presence of panchas, Exh.-34. From the spot of occurrence he seized simple as well as blood mixed soil, blood stained cement flooring, blood stained sand, blood stained metal. He sealed those articles on the spot itself. Thereafter, he handed over the investigation to PI [ENTITY] (PW12).
5. The police got the knowledge while recording the statement Exh.-68 that the assailants ran away from the spot in white Indigo Manza car bearing registration No.MH-31/BN-3120. Therefore, the said information was also transmitted to various police stations.
6. [ENTITY] (PW15) on 17.01.2013 was working as Police Inspector at Police Station, Wardha. On the said day, he was on night patrolling duty. He received wireless message that 5 [CASE NUMBER] accused persons are fleeing in one white Indigo Manza car bearing registration No.MH-31/BN-3120. That time, [ENTITY] was at Gopuri chowk, Wardha. He noticed the said vehicle proceeding towards Deoli from Nagpur. He chased the said vehicle and informed about the said vehicle to Deoli Mobile, Sewagaram Mobile and Police Control Room, Wardha. The said vehicle was intercepted near village Sonegaon Abadi. On inquiry, the persons sitting disclosed their identity as [ENTITY], [ENTITY] and [ENTITY]. They were brought to Police Station, Wardha and the said information was also given to the Control Room, Wardha. [ENTITY] took the entry in the station diary at Exh.-127. Thereafter he called two panchas and prepared the seizure panchanama of the articles seized from the said vehicle, Exh.-38. He handed over the accused persons to [ENTITY] from MIDC Police Station, Nagpur at 12.00 in the noon at Wardha along with seized muddemal and sent them to Nagpur.
7. [ENTITY] (PW12) was Police Inspector of Police Station, MIDC, Nagpur. On 17.01.2013, night officer PSI [ENTITY] informed him about the occurrence of murder in front of [ENTITY], Wanadongri. He also informed PI [ENTITY] that one dead and one injured are taken to Lata Mangeshkar Hospital.
6 [CASE NUMBER] Therefore, he went there. He noticed that the treatment was also going on the injured person.
He took investigation of [CASE NUMBER] to himself. [ENTITY] brought the accused from Wardha to Police Station, MIDC, Nagpur. [ENTITY] also produced the documents of Police Station, Wardha, weapons and Indigo Manza vehicle used in the crime. He seized those articles in presence of panchas under
seizure memo Exh.100. The arrest panchanama of accused persons are at Exh.-101 to 103. he also recorded the statement of witnesses.
On 18.01.2003, he seized the blood stained clothes of [ENTITY] in presence of panchas under the seizure memo Exh.-73 so also under the seizure memo Exh.-109 seized the clothes of deceased [ENTITY].
While in custody, on 20.01.2013, accused no.1 [ENTITY] gave his memorandum statement thereby he agreed to show the place where the knife was hidden. His memorandum statement is at Exh.-71. Accordingly, police party along with accused no.1-[ENTITY] reached to the spot where he produced knife from the bushes. It was seized under seizure panchanama Exh.-72.
7 [CASE NUMBER] He also seized blood sample and hair sample of the complainant-[ENTITY] under seizure memo Exh.-118 so also the officials of the Forensic Laboratory seized the blood stained vehicle and the said were seized under seizure panchanama Exh.-74. All the seized articles were sent to the Forensic Laboratory for chemical analysis. Further investigation was carried by Police Inspector [ENTITY] (PW14).
On [SECTION].02.2013, [ENTITY] (PW14) received the case papers of [CASE NUMBER] for investigation. During investigation, he gave requisition to Medical Officer for query about the injury sustained by the first informant-injured vide Exh.-
55. He also seized marriage invitation card of [ENTITY] under seizure panchanama Exh.-44. He also collected Wireless Log Book by issuing letters to Police Control Room, Nagpur and Superintendent of Police Wardha, those are at Exhs.121 and 122. He also gave requisition to Police Station, Hingna for preparation of map Exh.-1[SECTION] and after investigation, he filed charge-sheet in the court of law.
8. The learned Additional Sessions Judge, Nagpur framed the charge against all the accused persons for the offence punishable under [SECTION] read with [SECTION] of the [ACT] for 8 [CASE NUMBER] committing murder of [ENTITY] so also for the offence punishable under [SECTION] of the [ACT] for making murderous assault on the person of the first informant [ENTITY] (PW8). Also, charge for an offence punishable under [SECTION] and [SECTION] of the [ACT] was also framed.
In order to bring home the guilt of the accused persons, the prosecution has examined in all 15 witnesses and also relied on various documents proved during the course of trial. After appreciating the prosecution case, the learned Judge of the Court below was of the view that the prosecution has successfully proved its case against all the appellants and therefore passed the order of conviction and sentence as observed in the opening paragraph of the judgment.
9. We have heard Mr. [ENTITY], learned counsel for accused no.1, Mr. [ENTITY], learned counsel for accused no.2, Mr. [ENTITY], learned counsel for accused no.3 and Mr. [ENTITY], learned A.P.P. for the respondent-State.
According to the learned counsel for the appellants, except the evidence of [ENTITY] (PW8), all the independent witnesses had turned hostile and thus the only version that is available on record is an interested version. Therefore, according 9 [CASE NUMBER] to them, it is unsafe to record conviction and to uphold the same on the basis of the said interested version.
All the learned counsel also pointed out certain irregularities committed by the investigating officer during the course of investigation. They submitted that the benefit of irregularities has to be extended in favour of the accused persons.
Further, it is their submission that the role attributed in the FIR Exh.-68 against the accused persons and the role attributed in the substantive evidence is materially different. According to them, that shows that the first informant is not a trustworthy witness and therefore they be acquitted. The learned counsel Mr. [ENTITY] placed reliance on the following judgments and submitted that [ENTITY] cannot be convicted with the aid of [SECTION] of the [ACT] since the prosecution has failed to prove that he shared common intention with other accused persons.
1) [ENTITY] .vs. The [ENTITY];
AIR 1975 SC 1026
2) [ENTITY] & Ors. .vs. [ENTITY];
(1999) 8 SCC 555.
3) [ENTITY] .vs. [ENTITY]. 4) [ENTITY] .vs. [ENTITY]; AIR 2001 SC 1929. 10 [CASE NUMBER] 5) [ENTITY] .vs. [ENTITY]; 2006 ALL MR (Cri) 2640 (SC) 6) [ENTITY] .vs. [ENTITY]; 2014 (1) Crimes 244 (SC) 7) [ENTITY] .vs. The [ENTITY]; 2016 ALL MR (Cri) 1824 8) Kiran Ashok [ENTITY] .vs. The [ENTITY]; 2014 ALL MR (Cri) 3850.
Mr. [ENTITY], learned counsel for the accused no.3-[ENTITY] relied on the judgment in the case of Lalchand Cheddilal Yadav vs [ENTITY]; 2000 ALL MR (Cri) 1485 to submit that the possibility of spreading the blood on the seized articles at the hands of of the investigating officer is not clearly ruled out.
Mr. [ENTITY], the learned counsel for the accused-[ENTITY] submitted that since the name of accused is mentioned only as "[ENTITY]" in the FIR, though it was obligatory on the part of the investigating officer to hold and conduct test identification parade, the same is not done and therefore in his submission, the prosecution has failed to prove the presence of [ENTITY] on the spot itself. He also submitted that the prosecution has not given any explanation as to how he sent six weapons to the doctor under Exh.-66 when only 3 accused are tried for the offence. He 11 [CASE NUMBER] submitted that Exh.-53 shows that the victim was trapped when two groups fought in the marriage. He submitted that the investigation is not properly conducted and therefore the benefit should be extended in favour of the appellant. The learned counsel also invited our attention that the Court below has used the chemical analyzer's report against the accused persons for convicting them. However, when the accused persons were examined by the court below under [SECTION] of [ACT] the said incriminating material was not pointed out to them and no explanation was sought from the accused persons. Therefore, they submitted that the said piece of evidence is require to be kept aside while deciding the present appeal.
Mr. [ENTITY], the learned A.P.P. vehemently submitted that the learned Judge of the Court below has correctly evaluated the prosecution evidence. He submitted that merely because the other witnesses turned hostile but when [ENTITY] (PW8) vividly described the attack on the deceased [ENTITY], merely because he is an interested witness, his evidence cannot be discarded since there is due corroboration to his version. He therefore submitted that the appeal is liable to be dismissed.
12 [CASE NUMBER]
10. The submission of the learned counsel for the appellant on the point of statement under [SECTION] of [ACT] was made after hearing them extensively. We have also noticed that the notes of the chemical analyzers report were not brought to the notice of the accused persons at the time of their examination under [SECTION] [ACT] though the said piece of evidence was pressed into service by the learned Judge of the Court below while recording their conviction.
11. During the discussion, we have noticed that the incriminating material was not brought to the notice of the accused persons. We therefore passed the appropriate orders calling upon the accused persons before us for recording their further examination under [SECTION] [ACT] and accordingly their further statements were recorded on 04.05.2017. Again an opportunity of hearing was given to all the learned counsel and accordingly after their further arguments, on 05.05.2017 the case was closed for judgment.
12. Dr. [ENTITY] (PW5), who was on duty in casualty department of Lata Mangeshkar Hospital, Nagpur on 17.01.2013, examined both; the deceased [ENTITY] and [ENTITY] (PW8).
13 [CASE NUMBER] When [ENTITY] was brought to him in the hospital, he was in dead condition. He noticed following injuries on the person of the deceased:
(1) Sharp cut of 5X2 cm over forehead.
(2) Clean sharp cut wound of size 2 X 0.5 cm over right upper eyelid.
(3) Clear sharp cut wound of size 3 X 0.5 cm. over left cheek.
(4) Sharp cut wound of size 10X2 cm. running across the face which was from medial canthus of right eye extending till left zygomatic eminus. (5) Stab wound of 4 X 3 cm over right side of thorax just above costal margin.
He also examined [ENTITY] (PW8) and he noticed the following injuries:
(1) Sharp cut of size 8 X 3 cm over left fronto parital region. (2) Stab wound of size 5 X 3 cm over right arm
which was muscle deep, defused ooze of blood was present.
(3) Stab wound of size 4 X 3 cm over back of left side of chest continuous fresh bleeding was present. (4) Stab injury over right iliac fossa of size 2 X 2 cm.
His evidence shows that the cut wounds of the injured were sutured by surgeon and he was admitted as an injured patient. He proved the injury certificate of injured Exh.-54. The 14 [CASE NUMBER] injuries noticed on the person of [ENTITY] (PW8) are grievous one and they were on the vital parts.
13. The post mortem on the body of deceased [ENTITY] was done by Dr. [ENTITY] (PW7). He proved the post mortem report Exh.-65. As per the post mortem report, he noticed following injuries:
"1. Incised wound present over forehead of size 6 cm X 0.5 cm. X bone deep, vertically oblique, on either side of midline, with upper and placed 9 cm above medical 1/3rd part of right eyebrow and lever and placed 4 cm above medial 1/3rd part of left eyebrow.
2. Incised wound present just below lateral half of right eyebrow at size 3.5 cm X 0.2 cm X muscle deep horizontal.
3. Incised wound present over left forehead of size 2.5 cm X 0.2 cm X subcutaneous tissue deep, vertical with lower and merging with middle 1/3rd part of left eyebrow.
4. Incised wound present over left zygomatic region and adjacent area of cheek of size 3.5 cm X 0.2 cm X subcutaneous tissue deep vertically oblique.
5. Incised wound present over left side of face, involving left side of nose and left cheek of size 10 cm X 0.5 cm X muscle deep with tailing of 3 cm towards angle of left jaw.
15 [CASE NUMBER]
6. Stab wound present over right hypochondrium in anterior axillary line of size 2.5 cm X 0.5 cm X cavity deep, vertically oblique, margins sharp both ends sharp, directed medially, downward and straight.
7. Stab wound present over right buttock over outer and upper quadrant of size 3 cm X 0.3 cm. X muscle deep, horizontal margins clean cut, both ends sharp, directed forward, slightly downward and straight.
8. Abrasion present over posterior aspect of left elbow of size 0.5 cm X 0.5 cm red.
Age of injures : Fresh.
Probable Weapon:
1. Incised wounds possible by sharp cutting weapon
2. Stab wounds possible by pointed sharp cutting weapon"
The cause of death as per the autopsy surgeon was "Hemorrhage and shock due to stab injury to abdomen."
14. From the evidence of Dr. [ENTITY] (PW5), Dr. [ENTITY] (PW7) and from the post mortem report Exh.-65, it is clear that the deceased [ENTITY] met with homicidal death.
So also from the evidence of Dr. [ENTITY] (PW5) and injury certificate Exh.-54, it is established that [ENTITY] suffered grievous injuries.
16 [CASE NUMBER] As per the prosecution, the accused persons are responsible for death of [ENTITY] and for injuries on the person of [ENTITY].
15. [ENTITY] (PW8) set the criminal law into motion. On the basis of the said report, a crime was registered as [CASE NUMBER] with Police Station, MIDC Nagpur. Printed FIR is at Exh.-69.
The report discloses that there was a marriage of sister of his friend [ENTITY]. The said marriage was to be performed at [ENTITY], Wanadongri on 16.01.2013. This particular statement in the FIR and the evidence in that behalf by [ENTITY] (PW8) is duly corroborated by Exh.-44, the seizure memo under which the Invitation Card is seized by the Investigating Officer from [ENTITY] showing that there was a marriage of his sister on 16.01.2003.
As per the FIR, the first informant who is the friend of the deceased [ENTITY] attended the same. As per the evidence, [ENTITY] (PW8), he, the deceased [ENTITY] and the accused persons also attended the marriage ceremony. His evidence further shows that the deceased asked the accused [ENTITY] as to whether he will provide liquor and the said request was accepted 17 [CASE NUMBER] by the accused [ENTITY] and thereafter he called his vehicle [ENTITY] and in the said, 7-8 persons including the accused persons went to the beer-bar. [ENTITY] (PW2) though, he was declared as hostile, he has accepted the existence of Beer-bar near [ENTITY].
16. The evidence of [ENTITY] (PW8) further shows that after consuming the liquor a verbal duel took place in between the deceased and the accused [ENTITY]. That time, accused [ENTITY] and [ENTITY] also started abusing him. The said verbal duel was pacified by [ENTITY] and others.
It is further the evidence of [ENTITY] that at about 12.30 p.m. in the night, they went to marriage hall. In the bar some amount of the bill was paid by accused [ENTITY] while some was paid by complainant [ENTITY]. It is further the evidence of [ENTITY] that he and the deceased [ENTITY] went inside for taking their meals. In between 1.30 to 1.50 p.m. after taking meals when others came outside the hall, that time all three accused persons were standing outside the hall and they picked up quarrel with the deceased and when [ENTITY] tried to intervene in the said duel, all the accused started abusing him by saying that, "lkys rq fcp es er cksy" As per the evidence, thereafter accused-[ENTITY] taken out a sharp [ENTITY] and 18 [CASE NUMBER] accused [ENTITY] taken out a knife. The accused [ENTITY] gave [ENTITY] blow on the abdomen of [ENTITY], the deceased and accused [ENTITY] gave blow of knife on the forehead and nose of the deceased [ENTITY], resulting into the falling of [ENTITY] on the ground and when [ENTITY] tried to intervene, the accused [ENTITY] gave a forcible push to him. Thereafter when [ENTITY] stood, the accused-[ENTITY] gave blow of knife on the left side head, right arm, abdomen and back. [ENTITY] started shouting for help and hearing that shout his other friends [ENTITY] (PW2) and [ENTITY] (PW6) who were taking meals, came for his help. After their arrival, all the accused persons ran away in their vehicle.
17. According to the submission of the learned counsel for the appellants, the evidence of this prosecution witness [ENTITY] is not reliable in view of material discrepancy in respect of the assault as mentioned in the FIR Exh.-68 in and his substantive evidence. They pointed out that in the FIR it is stated that the accused [ENTITY] and accused [ENTITY] assaulted by sharp weapon on the deceased and [ENTITY] assaulted on the first informant.
Merely because there are some discrepancy in the FIR and in the substantive evidence, we are not accepting the submission of the learned counsel for the appellant that for that 19 [CASE NUMBER] reason the testimony of [ENTITY] should be discarded. It is not that the names of the present appellants were not finding place in Exh.-68.
It is the further submission of the counsel for the accused persons that the other prosecution witnesses who were examined by the prosecution and who are the eye witnesses have turned hostile and therefore the conviction cannot be based on the sole testimony of [ENTITY] (PW8) who is an interested one.
18. It is a trite law that the evidence of witnesses cannot be discarded merely on the ground that he is a related witness or sole witness, if otherwise the same is found to be believable. It is the duty of the court to be more careful in the matter of scrutiny of evidence of such witnesses and if on such scrutiny it is noticed that the evidence of sole witness is worth credence, the same should not be discarded merely on the ground that he is an interested witness.
As observed above in the preceding paras of the judgment, Dr. [ENTITY] noticed serious and grievous injuries on the person of [ENTITY] (PW8). The injuries on the person of [ENTITY] lend credence to his testimony that he was attacked by accused persons when he tried to save his friend, the deceased [ENTITY].
20 [CASE NUMBER]
19. Learned counsel for the appellants submitted that [ENTITY] (PW8) is a tutored witness. To fortify their contentions, our attention was invited to paragraph 3 of his deposition in examination in chief, which reads thus:
"3. Thereafter [ENTITY] and [ENTITY] called the vehicle and shifted [ENTITY] to Lata Mangeshkar Hospital and I also followed them on my motorcycle. There doctor gave me treatment. On my inquiry, Medical officer told me that [ENTITY] was dead."
They submitted that though this prosecution witness is giving the exact registration number of Manza car in the report Exh.-68 and in his evidence, he does not know the registration number of his motor bike by which he went to the hospital after incident which is brought on record in his cross-examination.
20. Though, at the first blush, this submission appears to be very attractive, after careful perusal of the entire record and the evidence of this prosecution witness in vernacular, we have noticed that paragraph 3 in his English version evidence is not correctly recorded. In his Marathi evidence, [ENTITY] (PW8) has stated as under:
21 [CASE NUMBER] "R;k uraj izfni eagr o fot; Mgkds ;kauh xkMh cksykoqu vt; dMqyk yrk eaxs'kdj gkWLihVy ;sFks usys o R;kapk ekxksekxp eh eksVkjlk;dyus gkWLihVye/;s xsyks "
(Emphasis supplied) Thus from Marathi version of the evidence it is clear that these prosecution witnesses did not reach to the hospital on his own motorcycle. Therefore, if he is not remembering the number of the motorcycle that by itself is not sufficient to cast doubt on his testimony. Further, in the FIR itself, the first informant disclosed the make of the vehicle and its registration number. He has also stated in the FIR that registration number was gathered by him from [ENTITY] (PW2) at the spot itself.
Though [ENTITY] (PW2) has turned hostile, he has established the presence of [ENTITY] (PW8) along with the deceased [ENTITY] for marriage and to that extent, he is supporting the prosecution. Thus even this witness establishes the presence of [ENTITY] with the deceased [ENTITY].
21. According to the learned counsel for the appellants, they are falsely implicated in this crime by the MIDC Police Station authorities. They submitted that after discharge from the hospital on 19.01.2013, [ENTITY] (PW8) never went to the police station.
They also invited our attention to the deposition of [ENTITY] 22 [CASE NUMBER] (PW13) to show that the FIR register, station diary and Malkhana register are important registers in the police station and those registers cannot be moved outside the police station. They invited our attention to the printed FIR Exh.-69 to point out that even on the printed FIR the signature of [ENTITY] (PW8) is appearing. They therefore submitted that they are falsely implicated in the crime.
Merely because signature of [ENTITY] is appearing on the printed FIR, that by itself is not sufficient to jump to the conclusion that the accused persons are innocent and they are falsely implicated in the crime. At the most, it appears that it is an irregularity committed by police officer but for such irregularities committed during the course of investigation by the Investigating Officer are not sufficient to deny justice with the victim. Therefore, the submission in that behalf made by the learned counsel for the accused persons are rejected.
22. It is also the submission of the learned counsel for the appellant that the articles were seized on 17.01.2013 and the said were deposited on 21.02.2013. They therefore submitted that the CA reports cannot be pressed into service for upholding their conviction. They invited our attention to cross-examination of [ENTITY] (PW13). The relevant portion of which, the learned counsel 23 [CASE NUMBER] for the accused persons relied reads thus:
"As per the spot panchanama (Exh.-34), the articles lying on the spot were seized on 17.01.2013 and the same were deposited in Malkhana on 21.02.2013."
Thus, the articles were seized on 17.02.2013 which were seized from the spot and those later on were deposited in Malkhana on 21.02.2013. Exh.-34 shows that following articles were seized from the spot.
(i) Blood mixed cement flooring, (ii) simple cement flooring, (iii) Blood mixed boulders small and big, (iv) Blood collected on the cotton swab, (v) another sample of blood collected from cotton swab.
Exh.-34 shows that all aforesaid articles were sealed on the spot itself. Exh.-34 is duly proved by [ENTITY] (PW1), the panch witness.
23. [ENTITY] (PW3) has proved Exh.-38, panchanama in respect of personal search and the vehicle. The evidence of [ENTITY] (PW15) shows that after interception of car at Sonegaon Abadi village the said car and the persons travelling in the said car was brought to the Police Station, Wardha and in presence of [ENTITY], they and the vehicle was searched. Exh.-38 shows that the accused persons disclosed their 24 [CASE NUMBER] identity. [ENTITY] also noticed the blood stains not only on the clothes of the accused persons but also in the vehicle. A [ENTITY] was also seized from the vehicle itself. The said panchanama was drawn on 17.01.2013 at 7 O'clock and it was finished at 9 O'clock. According to the learned counsel, another panchanama is drawn by the Investigating Officer, [ENTITY] at Exh.-100. They also invited our attention to Exh.-34 and Exh.-100 and submitted that the same is identical in all respect.
24. Exh.-34 was drawn at Wardha. Thereafter [ENTITY] brought the accused persons along with the vehicle at M.I.D.C. Police Station, Nagpur. Handing over of the accused and the seized muddemal articles to [ENTITY] is duly proved and corroborated by [ENTITY] (PW15). Exh.-100 in the last paragraph reads thus:
"ojhy iapukek dkjokbZ iksyhl LVs'ku o/kkZ 'kgj ;sFks iapukE;kizek.ks lkfgR; rkC;kr ?ksmu lgk-iks-fufj{kd ds- vkj- tSLoky iks-LVs- ,e- vk;-Mh-lh- ;kauh iks-LVs- yk gtj dsY;kus ueqn iapkle{k tIr dj.;kr vkys-
tIrh iapukek dkjokbZ fnukad 17@1@2013 ps 16-10 ok- lq: d:u 17-40 ok- iw.kZ dj.;kr vkyh "
[SECTION] [CASE NUMBER] Thus Exh.-100 is not fresh seizure panchanama. By virtue of Exh.-100, it is only stated that all the articles and other things which are mentioned in Exh.-34 are seized at MIDC Police Station, Nagpur. Vide Exh.-112 on 23.03.2013 all the seized articles were sent to the CA. In the cross-examination of the Investigating Officer [ENTITY], it is brought on record that on the day of seizure, the muddemal was deposited in Malkhana. Thus, the articles which were seized under Exh.-100 were deposited in Malkahna immediately, which rules out the possibility of tampering as suggested by the learned counsel for the accused. Since, all the articles were seized and sealed on the spot itself, as it can be seen from Exh.-100, the reliance placed by the learned counsel on Lalchand Cheddilal Yadav vs. [ENTITY]; 2000 ALL MR Cri. 1485, is completely misplaced.
[SECTION]. As per Exh.-112, a requisition to CA, the Investigating Officer has sent all the articles for chemical analysis. The CA reports are also placed on record.
As per the Exh.-32, blood group of deceased [ENTITY] is determined as "A". Blood group of injured [ENTITY] is determined as "B". Blood group of accused [ENTITY] and [ENTITY] could not be determined however blood group of [ENTITY] is determined as "A".
26 [CASE NUMBER] The clothes of accused [ENTITY] namely half shirt, full pant and baniyan, were found to be stained with blood having group "A".
Clothes of accused [ENTITY] were also found stained with blood having blood group "A". Even his jeans pant is also having blood of both the blood groups "A" and "B". Further on the footwear of this accused, human blood was noticed.
Insofar as accused [ENTITY] is concerned, the blood was noticed on his full pant having groups "A" and "B".
When this CA report was brought to their notice during their examination under [SECTION] of the [ACT] before this Court, they failed to give any explanation about the existence of blood having blood group "A" and "B" on their clothes as per the CA report Exh.-27.
The CA report Exh.-27 further shows that the articles which were collected from the spot of incident i.e. near [ENTITY], they were stained with blood of group "A". The weapon [ENTITY] was also found stained with blood of group "A" so also knife which was recovered at the behest of accused [ENTITY] on his memorandum statement recorded under [SECTION] of the [ACT] as per Exh.-77 and recovery [ENTITY] Exh.-72 was also having blood group "A".
27 [CASE NUMBER]
26. Before sending to the CA, the weapons were also sent to Dr.[ENTITY], (PW7) for query under requisition Exh.-
65. His report is at Exh.-66. As per the said report, the weapon [ENTITY] is a dangerous weapon. The blood stains were noticed at the time of its examination and the injuries as mentioned in column no. 17 at post mortem report Exh.-65 are possible by the said weapon. Similarly, the weapon knife, according to the autopsy surgeon was a dangerous weapon and it was stained with blood, the injuries mentioned in column no.17 are possible by the said weapon.
26. On a minute scrutiny of evidence of [ENTITY] (PW8), we are of the view that his evidence is trustworthy and it inspires confidence. It is not the case of the accused person that there was any reason for this prosecution witness to implicate them falsely. Merely because [ENTITY] was friendly with the deceased, in our view, does not reduce his position to an interested witness especially when he also suffered grievous injuries.
True it is that the other two eye witnesses [ENTITY] (PW2) and [ENTITY] (PW6) have turned hostile. The evidence of [ENTITY] clearly shows that the injured [ENTITY] was in 28 [CASE NUMBER] the company of deceased [ENTITY]. He also admitted before declaring him hostile that [ENTITY] was taken to the hospital on motorcycle.
By catena of decisions, the Hon'ble Supreme Court has ruled the legal position in respect of the testimony of solitary eye witness. The Apex Court has ruled that in order to base conviction upon the testimony of such solitary eye witness, it must of a nature which inspires confidence of the Court. While looking into such evidence the Apex Court always advocates the rule of caution and such a corroboration from the other evidence and even in absence of corroboration, if the testimony of single eye witness inspires confidence then the conviction can be based merely upon it.
28. No doubt true in the substantive evidence [ENTITY] (PW8) does not attribute that the accused [ENTITY] has dealt any knife or sword blow. However, his evidence clearly shows that the accused [ENTITY] forcibly stopped [ENTITY] when he tried to save the deceased [ENTITY]. He was pushed down by the accused [ENTITY]. Further, the fact that [ENTITY] was present on the spot, is also proved by the scientific evidence. The murderous assault on two persons was made in his presence by his two friends still he did not try to stop them this factor shows that he also shared the 29 [CASE NUMBER] common intention with his friends, the remaining two accused. Further, from the evidence of [ENTITY] (PW8) it is clear that right from the beginning, accused [ENTITY] was in the company of the remaining accused persons. He was also present in the beer bar where initial altercations have taken place. Further, the clinching evidence of [ENTITY] (PW8) shows that the accused [ENTITY] was present with the remaining accused in front of [ENTITY] when [ENTITY] and deceased stepped outside [ENTITY] after finishing their meals. In our view, the above facts show that [ENTITY] shared common intention with [ENTITY] and [ENTITY] and therefore he was rightly convicted by the Court below by taking the aid of [SECTION] of the [ACT].
On reappreciation of the entire prosecution case, we are of the firm view that for homicidal death of [ENTITY] and for murderous assault on [ENTITY] the accused persons are responsible. They are responsible for death of [ENTITY] and causing grievous injuries to [ENTITY]. Consequently, we see no merit in the present appeals. The same are therefore dismissed.
([ENTITY], J.) ([ENTITY], J.) kahale