The prosecution case briefly stated is as under :(i) That Mahendra Mehta, then aged about 30 years, was residing with his parents, wife Surabhi and a year old son Amit in Flat No.309, Ravi Kiran Building, Carter Road No.3, Borivali (E), Mumbai.He was one of the partners in Riddhi Jewellers situated at 285/305, Krishna Niwas, Office No.22/A, URS 4 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 5 CrAppeal 415.10.Gr.doc Zaveri Bazar.PW 3 Rakesh Jain, his brother Manojkumar Jain and Vimal Mehta, brother of Mahendra Mehta, were the other partners of Riddhi Jewellers.PW 1 Mukesh Mehta, brother of Mahendra Mehta, was residing intervening 6-7 buildings from Ravi Kiran building, Borivali (E), Mumbai where Mahendra Mehta was residing with his family and parents.::: Downloaded on - 24/04/2015 00:00:34 :::(ii) On 21/03/2007 morning, Mahendra Mehta was to travel to Gujarat.At about 4.30 a.m., PW 3 Rakesh Jain returned to Bombay from Baroda.He went to the house of Mahendra Mehta in Ravi Kiran building.PW 3 Rakesh delivered two samples of gold to Mahendra.Those samples were to be taken to Gujarat by Mahendra.That time, Rakesh also handed over a mobile phone to Mahendra which was being used by them in Gujarat.At 5.30 a.m., PW 3 Rakesh went to Ganesh temple which was situated in the compound of the same building.Rakesh was one of the partners of Riddhi Jewellers.According to him on 21/03/2007 at around 4.30 a.m., he returned to Bombay from Baroda and straight way went to the house of Mahendra Mehta as Mahendra was to go to Gujarat at around 6.30 a.m. on the same day.Rakesh URS 16 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 17 CrAppeal 415.10.Gr.doc handed over two samples of gold to Mahendra and a cell phone which was being used for transaction in Gujarat.After handing over gold samples, Rakesh left the house of Mahendra at around 5.30 a.m. and went to Ganesh temple situated in the compound of Ravi Kiran building.On his way to temple, PW 3 Rakesh saw a lady and a man at the gate of the building.He proceeded ahead.He then saw two motorbikes near Saibaba temple.Two persons were sitting on each motor bike.Thereafter PW 3 Rakesh reached his residence.::: Downloaded on - 24/04/2015 00:00:34 :::At 6.30 a.m., Rakesh received phone call from Vimal Mehta informing him that some persons attempted to snatch away the bag and assaulted Mahendra.He was also informed that Mahendra was being carried to Bhagwati Hospital by PW 1 Mukesh and his father Devichand.On receiving information, PW 3 Rakesh went to Bhagwati Hospital.Medical Officer declared Mahendra as dead.SEO Ismail Khan conducted the identification parade.During identification parade, PW 3 Rakesh identified accused no.1 James and accused no.5 Rakesh Bachchawat.ig PW 3 Rakesh misidentified accused no.4 Shabbir who was not in the TIP.(iii) It is further stated by PW 3 Rakesh that on the same day i.e. on 08/05/2007, he was taken to Byculla prison.During TIP conducted in Byculla prison, he identified accused no.6 Swapnali as the same lady to whom he saw at the gate of Ravi Kiran building.Thereafter on 05/06/2007, TIP was held at Arthur Road jail.In that TIP, PW 3 Rakesh identified accused no.7 Vishal as the person sitting on motorbike.He stated that victim did not leave the bag.Thus, we do not find any reason to disbelieve their evidence on incident.(xi) So far as TIP is concerned, it is a matter of record that the eye witnesses have mis-identified some of the accused as discussed above.PW 4 Mahesh identified accused no.3 Raju @ Dheknya on 05/06/2007 during the TIP.(xii) The star witness on TIP is PW 17 SEO Ismail Khan.He stated that PI Darekar called him at Crime Branch office, Dahisar, and requested to hold identification parade in Crime No.11/2007 of Crime Branch.Accordingly letter was issued to him.It is stated by PW 17 SEO Khan that in the TIP held on 08/05/2007, Sukhdeo Shinde and Nagesh Jangam were the two panch witnesses.ASI Deshmane introduced PW 17 SEO Khan to Jailor.The identifying witnesses i.e. PW 3 Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shah were made to sit in a separate room.This TIP was in respect to accused no.1 John, accused no.2 Vishal and accused no.5 Rakesh Bachchawat.PW 17 SEO Khan selected 18 dummies.Out of 18, he asked 12 dummies to stand in a line.He took care to see that place of identification parade was not visible to outsiders and particularly to the identifying witnesses.Initially accused no.1 James and accused no.2 Vishal were called.They were given idea of conducting identification parade.Accused were given a choice to select their own place, change the clothes if they desired and take the position in the line as per their wish.Accused declined to URS 23 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 24 CrAppeal 415.10.Gr.doc change the clothes.Thereafter panch witness Sukhdeo was sent to bring identifying witness PW 3 Rakesh Jain.PW 3 Rakesh identified accused James and Vishal by touching them with finger.(xiii) Another panch was sent to call PW 6 Mitesh Shah.He was asked to identify the culprits.PW 6 Mitesh identified accused James and Vishal by touching their bodies.The proceedings were accordingly recorded by PW 17 SEO Khan.The same procedure was followed in respect to the third identifying witness PW 4 Mahesh Vyas.He too identified accused James and Vishal.Memorandum of TIP was drawn.(xiv) In the process of identification, PW 17 SEO Khan selected six dummies.Accused no.5 Rakesh Bachchawat was then called.He was identified by PW 3 Rakesh Jain during TIP.Memorandum of identification was drawn by SEO URS 24 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 25 CrAppeal 415.10.Gr.doc Khan.Witness identified article 9 - Jeans Pant, article 10 - Banyan and article 11 - Mobile hand set.He could not identify accused Jambo before the URS 34 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 35 CrAppeal 415.10.Gr.doc Court.PW-23 - P.I. Darekar identified him in the dock.It is pertinent to note that accused No.1 Jambo was acquainted with accused No.6 Swapnali.PW-14 - Radheshyam Amrutlal Bind was running a Mechanic Shop of repairing motor bikes.He stated that motor bike bearing No. MH-02/HA-1715 was sold by him to accused No.2 Vishal Chauhan for Rs. 20,000/-.He identified accused No. 2 - Vishal Chauhan in the dock.::: Downloaded on - 24/04/2015 00:00:34 :::JUDGMENT (PER SMT.I. K. JAIN, J,) :-By the said Judgment and Order, the trial Court convicted the Appellants/original accused nos.1 to 7 under Section 396 read with 34 of the Indian Penal Code and sentenced each of them to life imprisonment and fine of Rs.10,000/- (Rupees Ten Thousand Only); in default R.I. for two years.For the sake of convenience, we shall refer the Respondents as accused as they were referred before the trial Court.(iii) At around 6.00 a.m., Mahendra left the house and walked down to catch train for Surat which was scheduled at URS 5 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 6 CrAppeal 415.10.Gr.doc 6.30 a.m. On the way, at some distance from his house in front of Jain Milk Dairy, four persons came on two motorcycles and snatched the bag which was being carried by Mahendra.Mahendra resisted the same, so those persons assaulted Mahendra by means of choppers over the head and wrist.That time, one male and one female were loitering at the gate of Ravi Kiran building.After assault, assailants ran away on the motorcycles.Mahendra was severely injured and lying in a pool of blood.PW 3 Mukesh, elder brother of Mahendra, was informed about the incident.He rushed to the spot.Devichand, father of Mahendra, also came to know and he too came to the spot.They shifted Mahendra to Bhagwati Hospital.Medical Officer at Bhagwati Hospital declared Mahendra dead at around 7.45 a.m. Matter was reported to Kasturba Marg Police Station.::: Downloaded on - 24/04/2015 00:00:34 :::He received a telephonic message at around 7.05 a.m. on 21/03/2007 that Mahendra was admitted to hospital as MLC URS 6 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 7 CrAppeal 415.10.Gr.doc case.He communicated information to PI Dalvi and proceeded to hospital.Mahendra was admitted in ICU.He was not in a condition to give statement.On the death of Mahendra at 7.45 a.m., PSI Mandavkar recorded report of Mukesh.He returned to police station and registered C.R.No.55 of 2007 under Sections 393, 397 and 302 of IPC.::: Downloaded on - 24/04/2015 00:00:34 :::It appears that ADR entry no.22/2007 was also registered on the basis of report lodged by Mukesh.Investigation was set into motion.During investigation, it was revealed that accused no.7 Vishal Jain was serving in Sejal Jewellers.He was knowing Mahendra Mehta.This information was passed on by accused no.7 Vishal to accused no.5 Rakesh who, with the help of accused nos.1 to 4 and 6, executed the plan to rob Mahendra.It was also revealed that on 21/03/2007 when Mahendra was on the way, accused nos.1 to 4 snatched away the bag which was being carried by Mahendra and URS 7 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 8 CrAppeal 415.10.Gr.doc when Mahendra resisted, they assaulted him and caused his death.Then accused were arrested.On completion of investigation, charge-sheet came to be filed.::: Downloaded on - 24/04/2015 00:00:34 :::In due course, case was committed to the Court of Sessions.The Appellants/accused pleaded not guilty to the charge and claimed to be tried.Their defence was of total denial and false implication.On going through the evidence of 26 witnesses examined in the case, the learned Additional Sessions Judge convicted and sentenced the Appellants as stated in para 1 above.Hence these Appeals.We have heard the learned Advocates for the Appellants and the learned APP for State.After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the Judgment delivered by the learned Additional URS 8 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 9 CrAppeal 415.10.Gr.doc Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that on facts prosecution succeeded but for want of proper compliance of Section 313 of the Code of Criminal Procedure, trial vitiates and judgment and order of conviction and sentence needs to be quashed and set aside.::: Downloaded on - 24/04/2015 00:00:34 :::The fact of homicidal death is seriously in dispute.As such, exclusive burden lies on the prosecution to not only overrule the possibility of natural, accidental or suicidal death but also to prove homicidal death beyond reasonable doubt by reliable and convincing evidence.To establish the factum of homicidal death, prosecution has relied upon -(i) Inquest panchanama,(ii) Medical evidence and(iii) Circumstantial evidence.(i) Inquest panchanama -Accused have not disputed genuineness of inquest URS 9 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 10 CrAppeal 415.10.Gr.doc panchanama (Exh.52).It was drawn on 21/03/2007 between 8.40 to 9.30 hours at Bhagwati Hospital dead house, Borivali (West).It can be seen from the panchanama that several injuries were noticed on the head, forehead, right hand, right wrist and right arm.These injuries clearly indicate that the death in question was unnatural.::: Downloaded on - 24/04/2015 00:00:34 :::(ii) Medical evidence -After inquest panchanama was drawn, dead body was sent for post-mortem examination.PW 13 Dr.On 21/03/2007, Dr.Sanap received the dead body of Mahendra Devichand Mehta through Kasturba Marg Police Station for post-mortem.On the same day he conducted post-mortem between 1.30 p.m. and 2.30 p.m. He noticed the following external injuries on the dead body -i) Incised wounds over left hand, index finger 1 st phalgnx posteriorly, size 4cm X 2 cm X bone URS 10 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 11 CrAppeal 415.10.Gr.doc deep, over ring finger, size 2cm X 2cm X 1cm, over wrist, size 4cm X 3cm X bone deep and over thumb, size 3cm X 1cm X bone deep.::: Downloaded on - 24/04/2015 00:00:34 :::ii) Incised wound over left arm size 7cm X 6cm X muscle deep.iii) Incised wound over scalp, forehead 3cm X 1cm X 1cm and 5.3cm X 1cm X bone deep and over occipital area 3cm X 1cm X bone deep.iv) Incised wound over right shoulder 3cm X 1cm X muscle deep, over right arm 6cm X 2cm X muscle deep, over right wrist 7cm X 3cm X muscle deep and 6cm X 3cm X bone deep, over right dorsam of hand, thumb cut completely of SBC, size 6.3cm X 5cm X bone deep.On internal examination, Dr.Sanap noticed the following injuries -::: Downloaded on - 24/04/2015 00:00:34 :::According to PW 13 Dr.Sanap, all the injuries were ante-mortem and caused by sharp and hard cutting object like chopper, sword, etc. The probable cause of death opined by PW 13 Dr.Sanap was haemorrhage and shock due to multiple injuries.PW 13 Dr.Sanap opined that it was an unnatural death.Post-mortem report was proved at Exh.59A.Sanap stated that such injuries could be possible by assault with weapon like chopper and spear (Arts.1 and 2).In this connection, it was vehemently contended by Mr. Chitnis, learned Senior Advocate for Appellants, that deceased met with an accidental death.Referring to the nature of injuries stated by PW 13 Dr.Mr. Chitnis pointed that ADR entry was deliberately suppressed as the death was due to accident.He submitted that had ADR entry been produced, the truth would have come to the light.In view of the submissions advanced on behalf of the Appellants, relevant ADR entry No.22/2007 was called by URS 12 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 13 CrAppeal 415.10.Gr.doc us and verified.The learned APP has produced its true copy on record which shows the history of homicidal death and not an accidental death, as submitted by the learned Senior Advocate for Appellants.::: Downloaded on - 24/04/2015 00:00:34 :::On ADR, evidence of PW 19 PSI Chandrakant Mandavkar is important.On 21/03/2007, he received a telephonic message at around 7.05 a.m. that Mahendra was admitted to the hospital for treatment and it was a MLC case.He communicated the information to PW 22 PI Dalvi and proceeded to the hospital.He found Mahendra in ICU undergoing treatment.He stated that Mahendra was not in a condition to make statement and expired at 7.45 a.m. His brother PW 1 Mukesh was in the hospital.PSI Mandavkar inquired from Mukesh.On inquiry, he recorded the report (Exh.47) as per the say of Mukesh.In view of the evidence of PW 19 PSI Mandavkar and true copy of ADR entry No.22/2007 which came to be URS 13 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 14 CrAppeal 415.10.Gr.doc verified from the original register, we do not find merit in the contention raised by the learned Senior Advocate for the Appellants that the death in question was an accidental death.::: Downloaded on - 24/04/2015 00:00:34 :::Further it is significant to note that before the trial Court, factum of homicidal death was not seriously in dispute.The defence set up in cross-examination of PW-13 Dr.Sanap was that injuries which were found during post-mortem could be caused by fall from any height on hard and blunt object.It indicates that there is no consistency in the defence raised by the accused.On the other hand, we find overwhelming evidence in the form of inquest panchanama, post-mortem report supported by testimony of PW 13 Dr.Sanap which exclusively tilts in favour of homicidal death overruling the complete possibility of natural, accidental or suicidal death.We, therefore, do not find any reason to take a view different then taken by the trial Court on the mode and cause of death of Mahendra Mehta.::: Downloaded on - 24/04/2015 00:00:34 :::(iii) Circumstantial evidence -In addition to uncontroverted inquest panchanama (Exh.52), post-mortem report (Exh.59A) and Cause of Death Certificate (Exh.83), prosecution has placed strong reliance on the following circumstances -Oral dying declaration to PW 1 Mukesh.(D) Discovery of the incriminating articles.circumstances would be necessary at an appropriate stage.Suffice it to state that prosecution could establish the above circumstances through the evidence of PW1 Mukesh Mehta, PW3 Rakesh Jain, PW4 Mahesh Vyas, PW6 Mitesh Shah, PW8, Kishor Nikam, PW11 Manoj Shah, PW-14 Radheshyam Bind, PW15 Sultan Siddhiqui, PW16 Sandeep Jain, PW17 Ismail Khan, PW18 Sanjay Jain, PW20 Ankush Chavan, PW22 PI URS 15 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 16 CrAppeal 415.10.Gr.doc Raghunath Dalvi, PW23 PI Sunil Darekar and PW26 PI Ramakant Pimple.These circumstances too indicate that the death in question was a homicidal death.::: Downloaded on - 24/04/2015 00:00:34 :::To prove the authorship of the accused and to attribute the specific role to each of them in commission of act also prosecution relied upon the aforesaid circumstances.After two days, PW 3 Rakesh had been to Dahisar Police Station and informed police that he saw a lady and a man at the gate of Ravi Kiran building and also two persons each on two URS 17 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 18 CrAppeal 415.10.Gr.doc motor bikes.::: Downloaded on - 24/04/2015 00:00:34 :::(ii) On 08/05/2007, PW 3 Rakesh was called at Thane prison for identification parade.(iv) On 25/06/2007, TIP was held in Arthur Road prison in respect to accused no.4 Shabbir.PW 3 Rakesh could not URS 18 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 19 CrAppeal 415.10.Gr.doc identify accused no.4 Shabbir in TIP and mis-identified accused no.3 Raju @ Dheknya during the parade.::: Downloaded on - 24/04/2015 00:00:34 :::(v) From the entire evidence of PW 3 Rakesh, it is apparent that he had seen accused nos.5 and 6 at the gate of Ravi Kiran building and accused no.1 sitting on the motorbike.(vi) The next eye witness examined by the prosecution is PW 4 Mahesh Vyas.He used to go to Jain Milk Dairy early in the morning for bringing milk.He stated that on 21/03/2007 at about 6.00 a.m., he was returning home after purchasing milk.Near Maru General Store, he heard shouts.He looked to the direction of shouts and saw four persons snatching away a bag from the hands of one person.He stated that the person holding the bag was resisting.According to PW 4 Mahesh, out of four persons, two assaulted the person with sharp edged weapons and remaining two caught hold the victim.He saw two motorbikes parked to the left side of place of incident.He URS 19 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 20 CrAppeal 415.10.Gr.doc stated that after assault, assailants ran away with their motorbikes in the Southern direction.However in the Court, he identified accused no.5 Rakesh Bachchawat holding the victim and accused no.2 Vishal assaulting the victim.So far as accused no.3 Raju @ Dheknya is concerned, PW 4 Mahesh identified him in the TIP as well as in Court.However in the TIP conducted on 25/06/2007, PW 4 Mahesh identified accused no.4 Shabbir, he could not name the accused in Court.In respect to accused no.2 Vishal and accused no.3 Raju @ Dheknya, his evidence is consistent.::: Downloaded on - 24/04/2015 00:00:34 :::(vii) Another eye witness is PW6 Mitesh Shah, who was going to National Park for morning walk.When he reached the main road, he heard shouts "Bachao, Bachao".PW 6 Mitesh turned back and saw two persons holding the victim and two snatching bag from the victim.The assailants assaulted the URS 20 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 21 CrAppeal 415.10.Gr.doc victim with sharp edged weapons.After assault, all four went away on two motorbikes parked near the place of incident.::: Downloaded on - 24/04/2015 00:00:34 :::Thereafter PW 6 Mitesh went near the victim lying in pool of blood.After two days, he informed Dahisar police about the incident.(viii) In the TIP held on 08/05/2007, PW 6 Mitesh identified accused no.1 James, on 25/06/2007 he identified accused no.4 Shabbir during TIP.(ix) The evidence of PW 3 Rakesh, PW 4 Mahesh and PW 6 Mitesh is assailed by the defence on several grounds.Those are -(i) Vimal Mehta who informed PW 3 Rakesh, not examined.(ii) PW 4 Mahesh Vyas introduced a new story that injured person went to Jain Milk Dairy and made phone call to his house.(iii) Delay in recording statements of these witnesses not explained.In support, reliance is placed on Lahu Kamlakar Patil and Another V/s.State of Maharashtra1(iv) Their evidence on identification of the accused is confusing, concocted and forged.1 (2013) 6 Supreme Court Cases 417 URS 21 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 22 CrAppeal 415.10.Gr.doc::: Downloaded on - 24/04/2015 00:00:34 :::(v) The testimonies of PW 3 Rakesh, PW 4 Mahesh and PW 6 Mitesh are not consistent and cannot be relied.(x) On going through the entire evidence of PW 3 Rakesh, PW 4 Mahesh and PW 6 Mitesh, it can be seen that their evidence in respect to manner of occurrence of incident is cogent and consistent.Except a minor contradiction in the evidence of PW 6 Mitesh, nothing substantial could be elicited in the piercing cross-examination of the eye witnesses.::: Downloaded on - 24/04/2015 00:00:34 :::The proceedings were noted by PW 17 SEO Khan.Then PW 3 Rakesh was sent to different room.::: Downloaded on - 24/04/2015 00:00:34 :::Then dummies, accused and panchanama of TIP were handed over to the Investigating Officer.::: Downloaded on - 24/04/2015 00:00:34 :::(xv) On the same day, PW 17 SEO Khan conducted identification parade in Arthur Road prison.In the parade, PW 3 Rakesh Jain identified accused no.6 Swapnali as the lady standing at the gate of Ravi Kiran building.Its separate memorandum was drawn by PW 17 SEO Khan.(xvi) At the time of second parade held on 05/06/2007, accused Raju @ Dheknya Thakre was subjected to identification parade.Shaku Qureshi and Ramsagar were the panch witnesses.PW 17 SEO Khan stated that 3 identifying witnesses Rakesh Jain, Mahesh Vyas and Mitesh Shah were called at Arthur Road prison.He selected six dummies.Accused no.3 Raju stood in between dummy nos.3 and 4 as per his wish.Then identifying witnesses were called one by one.They identified accused no.3 Raju in the identification parade.Memorandum of identification parade (Exh.90) was accordingly drawn.::: Downloaded on - 24/04/2015 00:00:34 :::same procedure as followed in the earlier parades, this identification parade was held.Identifying witnesses PW 3 Rakesh Jain, PW 4 Mahesh Vyas and PW 6 Mitesh Shah identified accused no.4 Shabbir @ Khadda in the TIP.There is no reason to disbelieve the same.There was no animosity between identifying witnesses, SEO who conducted TIPs on one hand and the accused on the other.In our view, the evidence of eye witnesses and PW 17 SEO Khan inspires confidence and clearly establishes the manner of incident of assault on Mahendra and the role played by each of the accused in occurrence of incident.::: Downloaded on - 24/04/2015 00:00:34 :::(C) Oral dying declaration to PW 1 Mukesh -To prove oral dying declaration, prosecution examined PW-1 Mukesh Mehta.He is the real brother of deceased Mahendra.It is stated by Mukesh that on 21.3.2007, in the morning at around 6.30 a.m. when he was sleeping in the house, his wife Mamta received a phone call of Veena Mehta, wife of his real brother Vimal Mehta asking her to send Mukesh immediately as Mahendra met with an accident.Therefore, his wife woke him up and informed the message of Veena.Immediately, Mukesh rushed to the house of Mahendra.On the way,he saw Mahendra lying in URS 27 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 28 CrAppeal 415.10.Gr.doc injured condition on the road near his house.At the same time, his father arrived there.Mukesh inquired from Mahendra what had happened.On that, Mahendra told him that four persons arrived on two motor bikes.They were snatching his bag and he resisted the same.Those persons then assaulted him.When Mukesh asked him about identity of those four persons Mahendra told that they were unknown to him.Thereafter, Mahendra fell semi-unconscious and he was taken to Bhagwati Hospital in a rickshaw.He was declared as dead by Medical Officer.Mukesh proved Exh. 47 report lodged by him after Mahendra was declared dead.::: Downloaded on - 24/04/2015 00:00:34 :::On going through the evidence of Mukesh, it is apparent that Mahendra did not name accused persons.From the evidence of Mukesh, at the most it can be said that Mahendra met with homicidal death.So far as authorship of the accused to cause death of Mahendra is concerned, evidence of Mukesh is not helpful to the prosecution as deceased had not implicated the appellants/accused in the commission of alleged act.(D) Discovery of incriminating articles -::: Downloaded on - 24/04/2015 00:00:34 :::On discovery under Section 27 of the Evidence Act the learned Senior Counsel for accused Nos. 1,3 and 4 relied upon Prabhoo V/s.State of Uttar Pradesh2 in which it has been held that -The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery.According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammad.He did give evidence about the production of blood stained articles from his house by the appellant.The witness said that the appellant produced the articles from a tub on the eastern side of the house.The witness did not, however, say that the appellant made any statements relating to the recovery.Wali Mohammad was not examined at all.This witness said that a little before the recovery the Sub- Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them.These statements to which Dobi Baksh (PW 3) deposed were not admissible in evidence.::: Downloaded on - 24/04/2015 00:00:34 :::Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovery may be URS 30 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 31 CrAppeal 415.10.Gr.doc proved.In Pulukuri Kotayya v. King Emperor the Privy Council considered the true interpretation of Section 27 and said :::: Downloaded on - 24/04/2015 00:00:34 :::::: Downloaded on - 24/04/2015 00:00:34 :::On going through the evidence of PW-8 Kishor Nikam, it can be seen that he was called by Police Officer Darekar to act as a Panch.Accused No.4 Shabbir was in police custody that time.It is stated by PW-8 Kishor that accused Shabbir made a statement to discover chopper and pant, which was thrown by him near Naigaon.The statement of Shabbir was accordingly recorded.It is further stated by PW-8 Kishor that after memorandum was drawn, Shabbir led them to Naigaon.He discovered a pant and chopper which were lying between the trees.He proved memorandum and recovery panchanama accordingly.Nothing substantial could be elicited in the cross-23, Investigating Officer - Sunil Darekar.On 12.6.2007, he voluntarily gave a memorandum URS 32 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 33 CrAppeal 415.10.Gr.doc in the presence of Panch witnesses to discover chopper and pant.He stated that chopper and pant were recovered at the instance of Shabbir near a field at Naigaon.::: Downloaded on - 24/04/2015 00:00:34 :::Memorandum and Panchanama exhibits 69 and 70 are duly proved by the Investigating Officer and Panch Witnesses.There is no reason to disbelieve their testimonies.Trial Court has properly appreciated the evidence on discovery and there is no reason for us to interfere with the same.So far as accused No.3 Raju @ Dheknya is concerned, evidence of PW-18 will have to be looked into.One Police Officer requested him to act as Panch.So he accompanied the Officer to Police Station.Accused Raju gave memorandum in his presence to discover a chopper and a pant.It is stated by PW-18 Sanjay that after memorandum, accused Raju discovered chopper and clothes in their presence.None of the accused persons except accused No.3 cross-examined this witness.Nothing otherwise could be brought by accused No.3 in the cross-examination to discard the URS 33 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 34 CrAppeal 415.10.Gr.doc testimony of Panch Witness Sanjay.His evidence is fully corroborated by PW-23 PI Darekar.We are, therefore, not inclined to take a view different than one taken by the trial court in this regard.::: Downloaded on - 24/04/2015 00:00:34 :::(E) Recovery of clothes at the instance of accused no.1 from the flat of accused no.6 -On 28.4.2007, he was called at Unit No XII of DCB, CID.Accordingly, he went there.He stated that one person in custody of police gave his name as Jambo.He made a statement to discover his Shirt, Banyan, Pant and a Mobile.According to PW-11 Manoj, after memorandum, Jambo led them in a jeep to a flat in Udisha Apartment, Room No. 501, owned by accused No.6 - Swapnali.A person by name Sharad Mahadik was present there.Jambo made discovery of Jeans Pant, Banyan and a Mobile Phone of Nokia Company.These articles were seized and Seizure Panchanama Exhibit 78 was drawn.No plausible explanation was given by accused No.1 Jambo and accused No.6 Swapnali in respect of recovery of clothes from the house of accused No.6 - Swapnali.This is the most clinching circumstance against accused No.1 Jambo and accused No.6 Swapnali.We find no reason to disbelieve the same.::: Downloaded on - 24/04/2015 00:00:34 :::(F) Recovery of motor bikes -This motor bike was recovered at the instance of accused No.2 Vishal Chauhan.In this connection, PW-20 ASI Ankush Chavan stated that on 24.4.2007, the abovesaid motor bike was recovered at the instance of accused Vishal Chauhan.::: Downloaded on - 24/04/2015 00:00:34 :::Another motor bike bearing No. MH-01/HA-802 was sold by PW-15 Sultan Siddiqui, who runs a Shop "City Motors".PW-15 deals in sales and purchases of old motor bikes.He identified accused No.1 Jambo in the dock.This motor bike was recovered at the instance of accused by PW-22 P.I.Raghunath Dalvi.Memorandum Exhibit 108 given by accused No.1 to discover the said motor bike and discovery panchanama of the motor bike Exhibit 109 are proved by PW-22 - P.I. Raghunath Dalvi.Accused No.1 Jambo and accused No.2 Vishal Chauhan could not elicit anything adverse in the cross-examination of these witnesses.According to prosecution, deceased Mahendra Mehta was known to accused No. 7 - Vishal Jain.On 19.3.2007, PW-16 - Sandip Jain alongwith Mahendra Mehta had been to Zaveri Bazar, Mumbai for purchasing gold chain.At around 4.00 p.m. when they were proceeding to Zaveri URS 36 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 37 CrAppeal 415.10.Gr.doc Bazar, accused No.7 Vishal Jain met them near the shop where he was working.It is alleged that accused No.7 - Vishal Jain passed on this information to accused No.5 Rakesh Bacchawat, who then, with the help of other accused planned to rob Mahendra and accordingly, the plan was executed on 21.3.2007 when Mahendra was proceeding towards railway-station to catch the train.::: Downloaded on - 24/04/2015 00:00:34 :::The trial court has relied upon the confessional statement of Vishal Jain recorded by learned Magistrate Mr. Agrawal.It is apparent from confessional statement Exhibit 106 that the same is exculpatory.Accused Vishal Jain does not implicate him in the entire confession made before URS 37 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 38 CrAppeal 415.10.Gr.doc PW-21 Mr. Agrawal.::: Downloaded on - 24/04/2015 00:00:34 :::There is no evidence to show that he passed on the information to accused No.5 Rakesh Bacchawat.In the absence of such link, we find that evidence against accused No.7 is not sufficient to convict him.::: Downloaded on - 24/04/2015 00:00:34 :::Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.In this case, such evidence is lacking and hence the appellants cannot be held liable for the individual act of A-16."4 (1989) 3 Supreme Court Cases 605 URS 39 of 60 ::: Downloaded on - 24/04/2015 00:00:34 ::: 40 CrAppeal 415.10.Gr.doc::: Downloaded on - 24/04/2015 00:00:34 :::In the light of the above, on facts, in fact, URS 45 of 60 ::: Downloaded on - 24/04/2015 00:00:35 ::: 46 CrAppeal 415.10.Gr.doc conviction of accused Nos. 1 to 6 was required to be maintained.We could notice that 66 identical questions were put to each of the accused by the learned Additional Sessions Judge though entirely different incriminating circumstances against each of them were brought on record.It is pertinent to note that role played by accused Nos. 5,6 and 7 even according to prosecution was limited, as accused Nos. 5 and 6 were guarding at the gate of the building and accused No.7 passed on the information to accused No.5, who, executed the plan.The statements under Section 313 of the Code URS 58 of 60 ::: Downloaded on - 24/04/2015 00:00:35 ::: 59 CrAppeal 415.10.Gr.doc were recorded just by cut-copy-paste.Most of the questions put to each of the accused were irrelevant and misleading.::: Downloaded on - 24/04/2015 00:00:35 :::The accused have demonstrated from the questions put to them that serious prejudice has occasioned to them as statements were recorded in the total disregard of the provisions of Section 313 of the Cr.P.C. In this premise we are not inclined to order retrial from the stage at which provisions of Section 313 of the Cr.P.C. were not complied with.In the result, appeals succeed.Accordingly, we pass the following order :-[a] The impugned judgment and order of conviction and sentence in Sessions Case No. 642 of 2007, passed by the learned Additional Sessions Judge, Greater Bombay, is hereby quashed and set aside ;[b] The accused are acquitted of the offence punishable under Section 396 read with Section 34 of the Indian Penal Code.[c] Accused Nos.1 to 5 and 7 who are in jail shall be released forthwith, if not otherwise required in any URS 59 of 60 ::: Downloaded on - 24/04/2015 00:00:35 ::: 60 CrAppeal 415.10.Gr.doc other case.::: Downloaded on - 24/04/2015 00:00:35 :::[e] Registry to communicate this order to the accused in jail through the concerned jail authorities.[f] We quantify fees to be paid by the High Court Legal Services Committee to the appointed Advocate Mr. A.V. Bedekar at Rs. 5000/-.[SMT.I.K. JAIN, J] [SMT.V.K.TAHILRAMANI,J] grt/-::: Downloaded on - 24/04/2015 00:00:35 :::

Cited provisions: Section 34 in The Indian Penal Code; Section 149 in The Indian Penal Code; Section 397 in The Indian Penal Code; Section 302 in The Indian Penal Code