1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL 51 OF 2008 1. Bandu @ Raghoji S/o.Piraji Saudagar, Age-22 years, Occu-Labour, 2. Maroti S/o.Tukaram Kamble, Age-20 years, Occu-Labour, 3. Gajanan S/o.Piraji Saudagar, Age-20 years, Occu-Labour, 4. Raju S/o.Shivaji Sable, Age-21 years, Occu-Labour, 5. Rama S/o. Hari Khandare, Age-20 years, Occu-Labour All are R/o.Basmat, Tal.Basmat, Dist. Hingoli APPELLANTS VERSUS State of Maharashtra, RESPONDENT Mr.S.C.Bora, learned counsel for the appellants. Mr.B.V.Wagh, learned A.P.P. for State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 21/09/2010 2 ORAL JUDGMENT : ((Per A.V.Potdar,J.) 1. The appellants have questioned the correctness of the judgment and order dated 22/01/2008 in Sessions Case No.13/2007, passed by the Additional Sessions Judge, Basmathnagar, by which the appellants are convicted for the offence punishable u/s. 302 r/w. 149 of The IPC, and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/- each and in default to suffer further RI for 3 months. Appellants are also convicted for the offence punishable u/s. 147 of The IPC, and sentenced to suffer RI for 6 months. Appellants are also convicted for the offence punishable u/s. 148 of The IPC, and sentenced to suffer RI for 1 year. All the substantive sentences were ordered to run concurrently. 2. Such of the facts as are necessary for the decision of this appeal, can be summarized as follows : a) On 17/07/2006, P.S.I. Kokate, attached to Basmathnagar Police Station, registered an offence vide CR No.153/2006 on the complaint (Exh.33) lodged by Shaikh Farookh Shaikh Rauf (P.W.No.1) against Balu Gaikwad, Bandu Gaikwad, 3 brothers of Balu Gaikwad and 5-6 unknown persons for the offence punishable u/s. 302 r/w. 149, 147, 148 of The IPC and u/s. 25 of The Indian Arms Act. P.W.No.7 Namdeo Laxman Vasudeo, attached to Basmathnagar Police Station had carried out the investigation in the said crime. During the investigation, on the same day, he visited the place of offence. Then he recorded supplementary statement of complainant. He recorded statement of certain witnesses. On 21/07/2006, the 3 appellants were arrested under the arrest panchnama (Exh.59 to Exh.63). At that time, the clothes (Article no.4 and 5) on the person of Bandu alias Raghoji Piraji Saudagar, appellant no.1 were seized under the seizure panchnama (Exh.45). Appellants and others while in custody, made disclosure statements in the presence of panch witnesses, which were recorded under the Memorandum (Exh.46 to Exh.52). Pursuant to the said memorandum gupti like sword (Article no.8) and stumps (Article no.9 to 14) were recovered at their instance which were seized under the second part of the said seizure memorandum. During investigation, seized articles were sent to C.A. Aurangabad with the forwarding memo (Exh.64). After receipt of C.A. report, (Exh.65), P.M. report about the autopsy of the deceased (Exh.55) injury certificate of complainant Shaikh Farookh Shaikh Rauf (Exh.70) were collected. Thereafter, further investigation was handed over to one P.I. Shere, who, on his transfer, handed over the further investigation to P.I.Sonwane. After completion of investigation, P.I.Sonwane filed charge sheet against the appellants and others before J.M.F.C. Basmathnagar. b) Out of the 8 accused, trial of Dadu Yadav Polkar and Rama Tukaram Kamble referred to the Juvenile Court, Parbhani while accused Shivdas Narayan was discharged by this Court vide order in Cri.Appl.No.2544/2007. c) In due course, after passing requisite committal order, trial against the appellants and discharged accused was committed to the 4 Court of Sessions, Basmathnagar. Additional Sessions Judge, Basmathnagar framed charge (Exh.7) against the appellants for the offence punishable u/s. 302 r/w. 149, 147, 148, and 109 of IPC to which the appellants pleaded not guilty and claimed to be tried. d) From the record received from the Lower Court, it appears that to substantiate the charge against the appellants, prosecution has examined in all 8 witnesses including 3 eye witnesses, 2 panch witnesses, 2 medical witnesses and Investigation Officer. Defence of the appellants is of total denial and their false implication in the present offence. It appears that the Lower Court has accepted the evidence of 3 eye witnesses including the evidence of complainant coupled with the medical evidence of P.W.No.6 Dr.Vaishali Marutrao Dhase and P.W.No.8 Dr.Kalpana Tahakare and pleased to convict the appellants for the offences as mentioned in para no.1 of this judgment. 3. In this background, heard learned counsel for the appellants followed by the submissions of learned A.P.P. for respondent State. Before considering their submissions across the bar, it is useful to advert to the evidence of material witnesses examined before the Lower Court. 4. It transpired from the evidence of P.W.No.6 Dr.Vaishali Dhase that on 17/07/2006, she was attached to Rural Hospital, Basmathnagar. On that day, she had conducted autopsy on the 5 dead body of one Abed Sherif and prepared the post mortem notes which are at Exh.55. During the post mortem, she noticed following external and internal injuries : 1. Stab injury (penetrating incised) 2 x 1 x 10 cm, Ant. chest wall 5 cm. above left nipple penetrating lung and post wall wound of exit present on post chest wall 1.5 x 1 cm. 2. Stab (penetrating incised) Anterior chest wall right side 5 cm above right nipple 2 x 1 x 6 cm. 3. Stab injury - in between 11th and 12th rib interspace just lat. to midclavicular line 2 x 1 x 8 cm. 4. Stab injury - middle of epigastrium 1 x 0.5 x 8 cm 5. C.L.W. scalp right temporal region 3 x 2 x 1 cm. 6. Stab injury left arm medial aspect 2 injuries, 2 x 1 x 4 cm. 7. C.L.W. on right eyebrow 2 x 1 cm. 8. C.L.W. scalp - right temporal region 3 x 2 x 1 cm. 9. Thorax - Walls, ribs cartilages - 3 stab injuries 10. Thorax - Right lung - Incised penetrating wound upper lobe 11. Thorax - left lung - Incised penetrating wound upper lobe. 12. Abdomen Walls - Stab injury epigastrium. 13. Abdomen liver and gall bladder -Penetrating incised wound on right lobe. According to her, injuries mentioned in coloumn no.17(1)(2)(4)(6) are the stab injuries and can be possible due to (Article no.8) gupti, while remaining injuries are possible due to assault by weapon like stumps (Article no.9 to 14). According to her, internal injuries mentioned in coloumn no.20(1)(d) and (e) and injuries mentioned in 6 coloumn no.17 are sufficient to cause death in ordinary course of nature. In the post mortem, she has opined that probable cause of death is due to Hemorrhage shock due to multiple stab injuries to vital organs. The evidence given by the medical expert P.W.No.6 is not shakened in her cross examination. Then we have no hesitation to draw the conclusion that the death of deceased Abed Sharif is a homicidal death. 5. It has come in the evidence of P.W.No.1 Shaikh Farookh Shaikh Rauf, who is complainant as well as an injured eye witness that on 17/07/2006, he alongwith deceased Abed Sharif, Annu, Shaikh Rafiq, Sk.Nisar, (P.W. 3) Shaikh Sarwar and Shaikh Naseer (P.W.No.2) were playing football in the ground near Rajaram Talkies at Basmath at about 4.00 p.m. At that time, Balya, Bandya and his three brothers, and 5 other persons came there and told them to allow them to play there. Complainant and others told them that as they have come earlier, they will play first. Then those people went away. After some time, Balya, Bandya, his 3 brothers and other 5 persons came there armed with weapons. Complainant and others were playing football at that time. Due to kick to the football, the ball went outside the ground. Abed followed the ball to bring it back. At that time, Abed was assaulted by Balya with sword on his chest, by Bandya with gupti on his chest and stomach. 3 brothers of Bandu gave blows on his head, while other unknown persons also gave stump blows on his person. While assaulting Abed, they were shouting that they are going to finish him. Abed sustained bleeding 7 injuries due to assault. Abed collapsed on the ground. When the complainant tried to intervene, brothers of Bandu assaulted with stumps in their hand on his neck, palm and head. Thereafter, the assailants ran away from the spot. P.W.No.1 immediately informed about the incident to the father of Abed on cell phone. Complainant and Shaikh Nasir P.W.No.2 took injured abed on motor bike to Rural Hospital, Basmath. After examining Abed, Medical Officer declared him dead. Thereafter, complainant lodged the report in Basmath Police Station (Exh.33). P.W.No.1 Shaikh Farookh identified the person by name Balya, who is appellant no.1, who in Court gave his name as Raghoji Piraji Saudagar. P.W.No.1 also identified appellant no.4 by name Bandu, who in Court gave his name as Raju Shivaji Sable. P.W.No.1 identified these 2 appellants in the Court and deposed about the specific role played by them during the assault. He has stated in his cross examination that he is acquainted with appellant no.1, as appellant no.1 is working as a driver with his master employer, and get acquainted with appellant no.4 for about one month prior to the incident as appellant no.1 and appellant no.4 are residing in the same lane. He has admitted that he is not aware about the family members of appellant no.1, particularly the brothers of appellant no.1. He know appellant no.1 and 4 by name Bandu Gaikwad and Balu Gaikwad, and these names were given by them to him. He further admits that other than these 2 appellants, he is not acquainted with other accused by their names nor he knew their residence. He has also admitted that he has not given names of 8 these appellants to the Police. Omission to that effect is brought on record that the brothers of Bandu assaulted him with the stumps. According to him, within 2 to 4 days, after the incident, identification parade was conducted in the Police Station, where the accused were shown to him. P.W.NO.1 admitted that in the early hours, quarrel took place between deceased Abed and appellant no.4, which was pacified by him. But he denied the portion marked A, B and C in his complaint as well as his statement recorded u/s. 164 of The Cr.P.C. by J.M.F.C. Basmath during the investigation. He came to know about the complete names of the culprits after 4-5 days of the incident. On minute perusal of testimony of this witness, we are of the view that even though all the appellants were armed with weapons, they were not identified by the witness at the time of lodging of the complaint as well as in the Court when his evidence was recorded on oath. He has given specific role of 2 persons only i.e. of appellant no. 1 and appellant no.4 in his evidence, which is not shakened in his cross examination. 6. P.W.No.2 is Syed Naseer Syed Basheer. It transpired from his evidence that on the day of incident, quarrel took place between deceased Abed and accused Bandu alias Raghoji Piraji Saudagar in the cemetery near Rajaram Talkies, Basmath on account of playing cards. He and one Shaikh Farookh pacified the quarrel. This incident occurred in the morning session of that day. He has further 9 stated that in the evening, around 4.00 p.m. to 4.30 p.m., he alongwith deceased Abed, Syed Nisar, Shaikh Farookh (P.W.No.1), Shaikh Sarwar, Shaikh Rafiq, Shaikh Anwar were playing in the ground near Rajaram Talkies. At that time, some of them were playing football, while some of them were playing cards. At that time, appellants came in the ground armed with weapons. First appellant came with gupti in his hand and gave blow on the chest of deceased while appellant Gajanan gave stump blow on the head of the deceased, and then the deceased collapsed on the ground. Thereafter, remaining appellants assaulted Abed with the stumps in their hand. He has further stated that at that time, P.W.No.1 Shaikh Farookh tried to rescue Abed, but he was also assaulted by the appellants with the help of stumps in their hand. As Abed collapsed on the ground, appellants/assailants ran away from the spot. Then he himself and P.W.No.1 Shaikh Farookh took the injured to the Rural Hospital, Basmath. He identified the appellants by their names with the role played by them during the incident. It transpired in his cross examination that he know the appellants since one year prior to the incident occurred on 17/07/2006, as they are the resident of Somwar Peth and he is residing at the near distance from their residence. It further transpired in his cross examination that in the morning around 8.30 to 8.45 a.m., he was called in the playground by Abed. When he reached at the spot, deceased, appellant Bandu and some 7-8 persons were already present there. Those 7-8 persons were 10 unknown to him. P.W.No.1 Shaikh Farookh later on came there. Deceased and appellant no.1 were playing cards game locally known as "rami". He noticed that some quarrel took place between deceased and appellant no.1, which was pacified by him and P.W.No.1 Shaikh Farookh. He has further stated as usual that in the evening, he went to play football around 4 to 4.30 p.m. in the ground. Some persons were playing cards at the distance of some 10 to 12 feet from the playground. The witnesses alongwith Shaikh Nisar (P.W.No.3) were playing cards. Omissions are brought on record in his evidence like all were playing cards (Portion marked A). The weapon carried by the first appellant was in its case scabbard. He and others noticed that other than the first appellant, other appellants were approaching the play-ground, holding stumps in their hand, but shown his ignorance as to whether they were returning after playing cricket. He has also shown his ignorance about the fact that the football went outside the ground. He has admitted that he and his friends did not shout or gave alarm after they saw first appellant gave blow of gupti on the chest of deceased. He has admitted that he has not informed about the incident to anybody immediately on cell phone. He has also admitted that he has not informed about the incident to the Doctor, who had examined Deceased Abed. His statement was recorded by the Police on the next day of the incident. One fact is reflected in the cross examination of this witness that he is having criminal background. 7. P.W.No.3 is Syed Nisar Sayyed Gaffar. He reproduced the 11 evidence given by P.W.No.2 with the addition that he followed P.W.No. 1 and 2 to Rural Hospital, where the deceased was taken. In his cross examination, omissions are proved that all the boys were playing cards there. Some 8-10 boys were present there, to whom he know by face and not by their names. He had further admitted that even though the deceased was shouting for help, except P.W.No.1, nobody tried to save him. He has further stated that even though after assault, accused ran away from the spot, nobody tried to chase them. He had admitted that even though he reached in the hospital, he did not inform about the incident to anybody even though a mob of 400-500 persons gathered in the hospital. His statement was recorded by the police on the next day. It is also brought on record that in one riot case, he was taken in custody on the next day of the incident. 8. We have heard learned counsels in the backdrop of this evidence. Learned counsel appearing for the appellants urged across the bar that the genesis behind the incident is not proved as the incident was reported by the complainant in his complaint as well as in his evidence before Court that the incident occurred when the request of the appellants was denied by the group of deceased and his associates, while it transpired from the evidence of P.W.No.2 and 3 that the alleged incident is the result of the incident occurred in the morning about the quarrel on the basis of playing of cards in between deceased and first appellant. It also require to be considered 12 that it transpired from the cross examination of P.W.No.1 that these omissions stand proved from the portion marked A, B, and C in the complaint as well as statement of the first witness recorded u/s. 164 of The cr.P.C. by J.M.F.C. Basmath, which fact is corroborated from the facts came on record during the cross examination of P.W.No.2 and 3 that on the day of incident, in the early morning, quarrel took place between deceased and first appellant which was pacified by P.W.No.1 and P.W.No.2. It is also urged that from the evidence of P.W.No.1, the complainant, it reveals that other than appellant no.1 and 4, the remaining appellants were unknown to the first witness, which fact also transpired from the complaint lodged by him in Basmath Police Station, on the basis of which offence was registered against Balya, Bandu, brothers of Bandu and some unknown persons. In this situation, it is necessary to conduct the test identification parade for the just identification of the assailants, who assaulted Abed Sharif, which resulted in his death. It is also urged that considering the evidence given by P.W.No.1, P.W.No.2 and P.W.No.3, who are also projected as an eye witness to the incident, there is no consistency in their evidence about the identification of the appellants as well as the role played by them. Considering the motive as projected in the oral evidence of P.W.No.1 and in the oral evidence of P.W.No.2 and 3, it is not clear that whether the assault on the deceased is offshoot of the incident occurred in the morning sessions, or the offshoot of the incident occurred at the spur of moment for not allowing the appellants and their group to play cricket at the playground. According to him, in absence of any proof 13 to establish that there was an unlawful assembly, then their shall not be any common object of that unlawful assembly to commit the crime. In that case, individual liability can be saddled on individual person on account of specific role played by him which was found established with the cogent evidence on record, which transpired from the cross examination of P.W.No.2. No doubt, it was denied that at the time of incident, some of the assailants/persons were returning after playing the cricket and having the cricket stumps in their hand which were used as the weapon to assault the deceased. According to him, considering the inconsistency in the oral evidence of P.W.No.1,2 and 3, it is to be held that prosecution has failed to establish that there was any unlawful assembly armed with weapons, of which there was a common object to commit the murder of Abed. In the premise, prayed to allow the appeal in toto and to acquit all the appellants from the charges, for which they were convicted by the Lower Court. 9. While opposing these submissions, learned A.P.P. has supported the reasoning recorded by the Trial Court while convicting the appellants. 10. It is observed by the Apex Court in the matter of Kanan and others Versus State of Kerla, reported in AIR 1979, SC 1127, = 1979 (3) SCC 319 that 'where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to 14 test his powers of observations. The idea of holding T.I. parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.' 11. As stated earlier, while considering the evidence of P.W.No.6 Dr.Vaishali Dhase, we have concluded that there is no hesitation in our mind to conclude and hold that death of deceased Abed is homicidal death. The place where the incident occurred is a playground. Then the next question arose, who is responsible for this death. It transpired from the evidence of P.W.No.1 that appellant no.1 gave blow of Gupti on the chest of deceased Abed. Evidence of P.W.No.2 and 3 is consistent on this point. From the injuries noticed on the body of deceased, and as it is opined by P.W.No.6 Dr.Vaishali that out of 7 injuries, injury no.1 to 4 and 6 are stab injuries and caused due to weapons like gupti (Article no.8) before the Lower Court, while the injuries no.5 and 7 are possible due to assault by hard and blunt object like stump article 9 to 14 before the Lower Court. Evidence of P.W.No.1,2 and 3 even though inconsistent on other points, but is consistent on the point that the stab injury found on the person of the deceased were caused by appellant no.1 with the weapon in his hand, which they identified before the Court. At that same time, the assault was by the group, armed with gupti and stumps which according to P.W.No.1 comprising of appellant no.1 and 15 4 while the others are unknown persons, But according to P.W.No.2 and 3, they have given specific role played by other appellants also. There is inconsistency in oral evidence of P.W.No.2 and 3 about the involvement of the 2 other juvenile accused, whose trial was referred to the Juvenile Court. Their involvement found place in the oral evidence of P.W.No.2, but their presence is silent in the evidence of P.W.No.3. Thus the false implication of appellant no.2,3,5 and 6 in the present offence can not be rulled out as it is rightly pointed out by the counsel for the appellants that possibility of their implication on the ground of earlier incident of quarrel took place in the morning sessions, can not be rulled out. As there is variance in between the role played by them in the oral evidence before the Lower Court of P.W.No.1, 2 and 3, we are inclined to give benefit of doubt about their involvement in the offence about their identification as identified by P.W.No.2 and 3 is doubtful. Thus it is an attack by the members of an unlawful assembly, for their common object to commit the murder of deceased Abed, appellant no.1 and 4 are identified by all as the assailants who caused the injuries alongwith other unknown persons, which resulted in the death of deceased Abed and it stands proved from the evidence on record, while the involvement of appellant no.2,3, 5 and 6 is doubtful, hence benefit of doubt ought to be given to them. In the result, we have to allow the appeal partly so far as appellant no.2, 3, 5 and 6 are concerned, but the appeal of appellant no.1 and 4 ought to fail. In view of this, we propose to dispose of the appeal with following order - This appeal is partly allowed. The conviction and sentence of 16 original accused no.2 Maroti, accused no.3 Gajanan, accused no.5 Rama is hereby quashed and set aside and they are acquitted of the offences with which they were charged and convicted. Fine, if paid by them, be refunded to them. Their bail bonds stand cancelled. Appeal filed by the original accused no.1 Bandu @ Raghoji and accused no.4 Raju is dismissed confirming their conviction and sentence. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/AUGUST 2010/cri.appeal 51-08