1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1523/2003 1] Pankaj Arun Patil,Adult, Residing at Jeevan Jyot Building, Room No.3,1st Floor,Nane Pada, Mulund (E) ,Mumbai 400 061 2] Sudhir Krishna Mhatre, Krishna Mhatre House, Nane Pada, Mulund (E), Mumbai -400 081.. ... ..... APPELLANTS VS. STATE OF MAHARASHTRA ... ..... RESPONDENTS (At the instance of Mulund Police Station,Mumbai) Mr.Sudeep Pasbola with Mr.Rajendra Sorankar , for appellants Mr.H.J.Dedhia,APP for State WITH CRIMINAL APPEAL NO.1524/2003 1] Harish Dhanaji Mhatre ,Adult, Occ.-, Residing at - Appellant Vs. The State of Maharashtra, (At the instance of Mulund Police Station) Respondent Mr.Sudeep Pasbola i/b Mr.Rajendra Sorankar for the appellant Ms.Kantharia ,APP for State 2 CORAM: SMT.RANJANA DESAI & MRS.MRIDULA BHATKAR,JJ. RESERVED ON : 6th JANUARY,2010. PRONOUNCED ON : 12th March, 2010. J U D G M E N T ( Mrs.Mridula Bhatkar, J.) . Appellant in Appeal no. 1524/2003 Harish Mhatre is accused no.1.Appellants Pankaj Patil and Sudhir Mhatre in Appeal no. 1523/2003 are accused nos.3 and 4 respectively .These two appeals are preferred against the judgment and order dated 5/12/2003 passed by learned Sessions Judge ,Mumbai holding all the appellants/accused guilty for the offence punishable under sections 302 r/w section 34,452,and 324 r/w 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.1000/- i/d to suffer R.I.for one month for the offence punishable under section 302 r/w 34 of the Indian Penal Code to suffer R.I.for six months and to pay fine of Rs.1000/- i/d to suffer R.I.for one month for the offence punishable u/s 452 r/w 34 of the Indian Penal Code. Appellant / accused Harish Dhanaji Mhatre is held guilty of the offence punishable u/s 324 of the Indian Penal Code with the above offences and 3 sentenced to suffer R.I.for one month and to pay fine of Rs. 1,000/- i/d to suffer R.I.for seven days. 2] The incident of assault and murder had taken place in the early morning between 2.20 to 2.45 a.m. on 2/3/1999 On the previous evening there was a quarrel between one Bandya who was the resident of the locality of deceased Shashikant , accused persons and their friends in respect of toppling of the water container. The accused and the group of persons left the locality of the deceased after giving threats and on the night intervening 2nd and 3rd March, 1999 at around 2.20 a.m. the appellants/accused alongwith other 10 to 15 persons armed with stumps and empty beer bottles arrived at the house of the complainant who is the mother of the deceased and they asked whereabouts of Bandya and his house. The complainant led them to the house of Bandya . However, as Bandya was not found , the group of assailants alongwith weapons came to the house of the complainant. They broke open the door and assaulted her son Shashikant and other son Deepak with stumps , hands and fist blows. They also manhandled the complainant. Thereafter 4 the assailants left the house of the complainant and went away. The complainant noticed her son Shashikant lying unconscious. So with the help of her neighbours, Shashikant was taken to the hospital and unfortunately Shashikant succumbed to the injuries on the same day. 3] The police registered offence on the same day under sections 302, 452, etc.r/w section 34 of the Indian Penal Code and arrested ten accused persons including the appellants for the said offence. The trial ended in acquittal of seven accused and appellants who are originally numbered as accused nos.1,3 and 4 were held guilty for the offence punishable under sections 302 and 452 r/w 34 of the Indian Penal Code. 4] Learned counsel Mr.Pasbola appearing for the appellants submitted that the prosecution has examined three witnesses . However, their evidence is not sufficient and reliable to sustain the conviction. He has submitted that no test identification parade was conducted during the investigation by police and the complainant, mother of the 5 deceased, did not know the names of the accused persons at the time of giving the first information report. Yet the names of the accused are appearing in the first information report. Learned counsel has submitted that the complainant has specifically stated in her evidence that she was not aware of the name of the appellants and other accused. If it was so then the fact of appearance of the names in the first information report ,Exh.15, compels one to accept the theory of the defence that the accused were arrested first by the police and after their arrest so called first information report was reduced into writing by the police. Learned counsel Mr.Pasbola has argued that it creates doubt about the presence of the accused at the time of the incident and the authenticity of their identification by the complainant. Learned counsel has further submitted that besides P.W.1, prosecution witness no.3, neighbour of the deceased and prosecution witness no.7 ,her son, are the eye witnesses . However, both of them did not know the names of the accused at the time of the incident and there was no test identification parade. Moreover, the statement of prosecution witness no.7 ,though he is real brother of the deceased, was 6 recorded on 11/6/1999 i.e.nearly after three months. Learned counsel has contended that all the three witnesses have not attributed consistently specific role to accused nos.1,3 & 4 . In this context learned counsel took us to the evidence of medical officer i.e. prosecution witness no.9 who has certified cause of death as head injury. Learned counsel has submitted that there are number of discrepancies in the evidence of eye witnesses and considering the station diary entry Exh.14 there are discrepancies in time of recording of statement and arrest of the accused persons.Learned counsel has further submitted that the learned Judge has grossly erred in appreciating the evidence on the point of identification of the appellants as the assailants and has also failed to appreciate that the report of the chemical analyser in fact does not take the prosecution case any further. Learned Sessions Judge has committed error in relying on such shaky and insufficient evidence and convicted the accused. 5] Learned A.P.P. has opposed this appeal and has submitted that learned Judge has taken correct approach in 7 convicting the accused . Injury no.4 was caused by stump/ article no.4 and injury no.4 is corresponding with internal injury which is sufficient to cause death in the ordinary course. The presence of eye witness is natural and that is fully established . The evidence of two eye witnesses , P.W.1 and P.W.7 cannot be rejected. Therefore, the judgment of the Sessions Court is to be confirmed. 6] After going through the evidence and the impugned judgment and on hearing learned defence counsel and learned A.P.P. we put certain queries to the learned A.P.P. as to why the test identification parade was not conducted ? why the statement of prosecution witness no.7 who claims to be an eye witness and real brother of the deceased was recorded after three months ? Learned A.P.P. could not give any answer to these questions. The cause of the death of the deceased Shashikant was head injury. Prosecution witness nos.1 ,3,and 7 are the eye witnesses .Injury no.4 i.e. head injury as per the evidence of P.W.9,medical officer, is fatal . However , injury no.4 was caused by whom is a crucial question, especially when there are many assailants. On this 8 point all the three eye witnesses gave different versions. Learned counsel Mr.Pasbola has pointed out that P.W. 1 ,Kaushalya, has deposed in her examination in chief that accused no.3 hit on the head of the deceased with stump and accused no.4 hit bottle on the head of the deceased. Appellant/accused no.1 hit the stump on the back of the deceased .P.W.3 Madhukar Shettye made a general statement that the assailants hit Shashikant with stumps and bottles. However, in the examination in chief he did not say specifically about the presence of accused no.1,3 & 4 and did not attribute specific role to them . P.W.7 Deepak Gaikwad, brother of Shashikant , deposed that appellant / accused no.1 hit his brother with stump. However, he did not depose that the appellants/accused no.1 and 3 hit on the head of the deceased . He further has deposed that accused no.4 hit his brother with bottle on his head. Learned defence counsel submitted that the evidence of the eye witnesses is not consistent on the point of the actual attack and the injury caused by appellant/accused no.1 to the deceased .Thus, the case of the prosecution on the point of the incident and the actual attack and the role played by the appellants/accused 9 no.1,3 and 4 appears neither coherent nor clear. 7] P.W. 1 , mother of deceased Shashikant, is the eye witness . She gave complaint immediately after the incident. She deposed in her examination in chief that the police officer asked her to tell the names of the accused and she told him that she would not be able to give their names, but she would be able to identify them. She further deposed that the police brought 6-7 persons to the police station and she identified them.However, in the F.I.R., Exh.14, she has mentioned the names of appellants/accused and other accused and attributed the acts respectively to them. In the cross examination she has admitted that she knew the accused by face but not by names and she further deposed that she could not say who wrote the names of the accused in her complaint. She has admitted that she did not tell names who assaulted her son with which weapon and on which portion of the body. In the light of these admissions her evidence in respect of attributing the act to the accused persons does not inspire confidence. She has admitted the improvement that how the names were written in complaint, 10 Exh.14. P.W.3 , Madhukar Shettye deposed that 18-20 boys including the accused came to their locality with cricket stumps, beer bottles and they entered the house of Shashikant Gaikwad . They hit him with stump and bottle. He deposed in the examination in chief that he knew all the accused because they were from his locality, however, he admitted in the cross examination that he did not know all the assailants by full names and he admitted the improvement of full names in his statement. He further admitted that he did not give description of the assailants to the police .P.W.2 Arvind Gunjal deposed that accused and other persons had come to their locality. He admitted that he could not identify the accused by name and he had not witnessed the actual incident though he had seen some boys coming to their locality. 8] P.W.7 ,Deepak Gaikwad , brother of the deceased deposed that some boys entered the house and they started beating him and his brother with stump and beer bottle .So he covered himself under the bedsheet .The boys were from Nanepada, so he knew them. He deposed that accused no.1 11 hit his brother with stump and accused no.3 also hit his brother with stump . However, in the cross examination he admitted that he did not give any description of the assailants as to who beat with which weapon. He admitted that before recording the statement he was taken to the police station and the constable showed ten persons there. He deposed that accused no.3 , Pankaj Patil, was holding stumps. Statement of this important witness was not immediately recorded after the incident i.e. 2/3/1999 but it was recorded three months after the incident i.e.on 11/6/1999. 9] Investigating Officer, P.W.12, admitted that till the arrest of the accused the witnesses were not knowing the names of the accused. It was a mob of 18-20 persons. However, on the point of identification of these accused and their participation in the commission of crime the evidence of the prosecution is not sufficient to prove the case beyond reasonable doubt. Under such circumstances the appellants/ accused deserve benefit of doubt . 12 10] If the witness did not know the accused prior to the incident,capacity to identify an offender and connect him to a particular incident is to be tested on different yardsticks as per the facts of the case. The test identification parade is a standard touch stone. If no test identification parade is held then the testimony of the witness is unsafe to rely . The test identification parade is always a corroborative evidence and not substantive evidence. In the present case the witnesses have not specifically identified the accused nor gave evidence consistently about their participation in the act. 11] learned Sessions Judge has erred in accepting such evidence and has wrongly based conviction on such insufficient and weak evidence. Appearance of the names of all the accused persons in the first information report , when the complainant admittedly was not aware of the names of the accused at the time of giving the first information report , creates doubt about the credibility of the evidence of the complainant and also about the truthfulness of the complainant and the investigation. 13 12] We expect that the investigating officer should have properly investigated step by step and no fact can be proved with the help of conjecture and surmises. The submissions of learned defence counsel on the point of the evidence of the report of chemical analyser are convincing as the investigation on that count is totally aimless and hollow . It is expected that the investigating officer should question himself and should know the outcome of the steps which he is taking towards the investigation. However, unfortunately the prosecution has totally failed in proving the offence of murder or the charge under section 452 r/w 34 of the Indian Penal Code as well charge under section 324 of the Indian Penal Code against accused. The trial judge ought to have appreciated the loopholes ,latches and flaws in the evidence of the witnesses and the investigation with legal perspective . From the date of the arrest of accused nos.3 and 4 i.e. the appellants in Appeal No.1523/2003 they are in the prison and accused no.1 , appellant in Appeal no.1524/2003 was released on bail after he has undergone five years of his sentence. Thus, the judgment and order of the trial Judge needs to be set aside. Hence the order. 14 O R D E R Both the appeals are allowed. ` The Judgment and order of conviction dated 5/12/2003 passed by Sessions Judge ,Mumbai is hereby set aside. The appellants in Appeal No.1523/2003 be set at liberty forthwith, if they are not required in any other offence. The appellant in Appeal No. 1524/2003 is on bail. His bail bond stands cancelled. (Smt.Ranjana Desai,J.) (Mrs.Mridula Bhatkar,J.)