IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 176 OF 2000 APPEAL NO. 176 OF 2000 APPEAL NO. 176 OF 2000 1. Vipul C.Dalal. 2. Anis C.Dalal. 3. Govind M.Halpati, 4. Balchandra K.Patel, 5. Bipin K.Patel, 6. Chandrakant S.Tandel, 7. Kishore Fakir Jalat. ... Appellants (Org.Accused Nos. 1,2,3,11,12,13,& 14 respectively.) Versus. 1. State of Maharashtra (State, P.S.D. Danman.) 2. Union of India. ... Respondents. Shri Adik Shirodkar, Senior Counsel with Shri V.S.Kapse for the Appellants Nos.1, 2, 4 to 7. Shri A.P.Mundargi for Appellant No.3. Shri H.V.Mehta for the Respondent No.2. CORAM CORAM CORAM ; SMT.RANJANA DESAI, & ; SMT.RANJANA DESAI, & ; SMT.RANJANA DESAI, & ABHAY ABHAY ABHAY S. OKA, JJ. S. OKA, JJ. S. OKA, JJ. Date Date Date on which the on which the on which the Judgment Judgment Judgment is reserved. : 21st October, 2004. is reserved. : 21st October, 2004. is reserved. : 21st October, 2004. Date Date Date on which the on which the on which the Judgment Judgment Judgment is pronounced: 27th October, 2004. is pronounced: 27th October, 2004. is pronounced: 27th October, 2004. : 2 : ORAL ORAL ORAL JUDGMENT (Per Abhay S.Oka, J.). JUDGMENT (Per Abhay S.Oka, J.). JUDGMENT (Per Abhay S.Oka, J.). 1. By this appeal, the Appellants who are Accused Nos.1 to 3 and 11 to 14 have taken exception to the judgment and order dated 7th March 2000 passed by the learned In-charge Sessions Judge, Daman, in Sessions Case No.1 of 1995. By the impugned judgment and order, the Appellants have been convicted of offence punishable under section 147 of the Indian Penal Code as well as an offence punishable under section 302 read with section 149 of the Indian Penal Code (hereinafer referred to as "IPC"). By the said Judgment and Order, the Appellants are acquitted of the offence punishable under sections 148, 364, 427 and 323 read with section 149 of the IPC. Accused Nos.4 to 10 were acquitted of all the offences alleged against them. Accused Nos.1 to 3 and 11 to 14 were sentenced to suffer R.I. for two years and to pay fine of Rs.500/- and in default suffer R.I. for three months for offence punishable under section 147 of the IPC. The said accused were sentenced to suffer life imprisonment and to pay fine of Rs.2000/- and in default to undergo R.I. for six months for offence punishable under section 302 read with section 149 of the IPC. The learned Sessions Judge directed that substantive sentence awarded to the Appellants shall run : 3 : concurrently. 2. The prosecution case is that on or about 24th February 1993 at about 8.30 p.m. at Nani Daman, the Accused formed an unlawful assembly and in prosecution of common object of the said assembly, namely to kidnap and murder one Shri A.D.Kurade committed offence of rioting punishable under section 147 of the IPC. The allegation against the Accused was that at the same time and place they were armed with deadly weapons such as hockey sticks, wooden sticks and thereby committed offence under section 148 of the IPC. The allegation against the Accused is that in prosecution of the common object of the said unlawful assembly, they kidnapped the said Shri A.D.Kurade with the intention of committing his murder and thereby committed offence punishable under section 364 of the Code. Further allegation against the Accused is that they were guilty of committing murder of said Shri A.D.Kurade and thereby committed offence punishable under section 302 read with section 149 of the IPC. Allegation was also made against the Accused of voluntarily causing hurt to one Eapen George and thereby committing an offence punishable under section 323 read with section 149 of the IPC. : 4 : 3. The prosecution examined total 18 witnesses including the Doctor who performed post-mortem on the body of the deceased and the Investigating officer. Out of the remaining 16 witnesses, 14 witnesses turned hostile and only two prosecution witnesses i.e. P.W.15 Franciso Rocha Mario Rocha and P.W.17 Veerabhai Ramabhai Jethwa supported the prosecution. 4. The case of the prosecution appears to be that on 24.2.1998 at about 8.30 p.m. a mob of about 600 persons gathered near Hotel Sovereign at Daman. The mob was shouting "Chor Chor" in front of the hotel. The mob asstembled there as it was suspected that the deceased A.D.Kurade who was inside the Hotel was a thief. After getting information about the mob, P.W.15 Francisco (Police Sub-Inspector) and P.W.17 Jethwa (Inspector of Police) along with police personnel reached the Hotel Sovereign. When they entered the hotel they found one person (the deceased) sitting near the counter of the hotel and Accused No.9 Mr.Chandrakant Dalal, and his three sons, viz. Accused Nos.1, 2 and 10 and two more persons were interrogating the said person. The case of the prosecution is that Accused Nos.1 and 2 assaulted the said person with fist blows. Accused Nos.1 and 10 were having hockey sticks in their hands. The further : 5 : case of the prosecution is that P.W.17 Shri Jethwa informed the crowd gathered outside the hotel Sovereign that the person present in the Hotel Shri Kurade was an Engineer working in Military Engineering Services and he was not a thief. Seeing the ferocity of the mob P.W.17 Jethwa called for more police force. Within five minutes Police force arrived. The crowd started pelting stones on the hotel building. Thereafter Accused No.3 Govind caught hold of the deceased and dragged the deceased upto Western gate of the hotel and at that time the crowd caught hold of the deceased and took him to the road. The case of the prosecution is that the three sons of Accused No.9 Dalal viz. Accused Nos.1, 2 and 10, and Accused No.11 started assaulting the deceased. The crowd also thrashed the deceased and assaulted him with kicks. The crowd started jumping on his body. By the time the Police rescued the deceased, he was unconscious. When he was taken to the hospital, he succumbed to injuries. 5. We have heard Shri Shirodkar learned Senior Counsel appearing for the Appellants Nos.1, 2 and 4 to 7 and Shri Mundargi, learned Counsel appearing for Appellant no.3 at length. We have also heard Shri Mehta appearing for the Respondent No.2. : 6 : 6. The learned Counsel appearing for the Appellants submitted that P.W.15 and P.W.17 were Police Officers who claim to be eye witnesses to the incident. Both P.W.15 and 17 did not record any F.I.R. and the F.I.R. was recorded on the same day by one Verghese Thomas who stated that the assault was by unknown persons. The learned Counsel submitted that if P.W.15 and P.W.17 were eye witnesses, as responsible Police Officers it was their responsibility to register the F.I.R. immediately. It was submitted that P.W.17 has admittedly not entered in the station diary the names of the accused. The learned Counsel further submitted that there was inordinate delay in recording the statement of P.W.15 and P.W.17 and their statements were recorded only on 28.2.1993 though both of them were admittedly on duty in the same Police Station which was investigating the crime. The learned Counsel also pointed out that as an officer of the army was the victim, an independent enquiry was instituted by the Sub-Divisional Magistrate. Both P.W.15 and P.W.17 admitted in their evidence that on 3rd March 1993 their statements were recorded by the Sub-Divisional Magistrate and in their statements both of them did not specifically name the accused. Therefore, it was submitted that the alleged statement of the said witnesses recorded on 28th February 1993 : 7 : were ante-dated. The learned Counsel also brought to our notice that though the Accused were named by P.W.15 and P.W.17 only on 28th February 1993, it is very surprising that some of the Accused were arrested on 27th February 1993 itself. It was also argued that the identification parade was not held. It was submitted that there was no possibility of the P.W.15 and P.W.17 knowing the accused persons and therefore, failure to hold identification parade was fatal to the prosecution. It was submitted that even P.W.1 Dr.Charudatta Jog admitted that all injuries appearing on the person of the deceased were possible during the course of stampede. The learned Counsel further pointed out that atleast five Police Officers who were examined as witnesses have turned hostile. It was lastly submitted that it was a case of no evidence against the accused and in any event, the guilt of the accused was not established beyond reasonable doubt by the prosecution. 7. Shri Mehta, the learned counsel appearing for the Respondent submitted that though most of the prosecution witnesses were declared hostile, part of their evidence can be relied upon by the prosecution which established that a mob assembled outside the hotel Sovereign and the deceased was assaulted by the mob. He relied upon the findings recorded by the learned Sessions Judge. He : 8 : submitted that the evidence of P.W.15 and P.W.17 was found to be trustworthy by the learned Sessions Judge and therefore, there was no reason to disbelieve their version. He submitted that the offence had taken place at a public place and Accused No.3 was the local Municipal Councillor and Accused No.9 was the Tahsildar. He pointed out that Accused Nos.1, 2 and 10 were the sons of Accused No.9. He submitted that Daman being a small place P.W.15 and P.W.17 being Police Officers personally knew all the accused and identified the Accused in the Court. He, therefore, submitted that failure to hold identification parade was not fatal to the prosecution case. He submitted that the Appellants cannot rely upon minor discrepancies and contradictions in the evidence of P.W.15 and P.W.17. He submitted that no interference was required with the impugned Judgment and Order. 8. It will be necessary to refer to the evidence of P.W.15. He stated in his evidence that at about 8.55 p.m. on 24th February 1993 when he was at the Police Station a telephonic message was received from Sovereign Hotel that some quarrel was going on and the Police force was called for. He stated that the Police Inspector Shri Jethwa (P.W.17) asked him to accompany him to Sovereign Hotel. He stated that when he reached : 9 : the Hotel he saw a crowd of about 600 people gathered near the hotel and the persons in the crowd near the hotel were shouting "chor chor". He along with P.I. Jethwa went inside the hotel. He saw a person sitting near the counter of the hotel and at that time Mr.Dalal (Accused No.9) his three sons, and two more persons were interrogating the person sitting there. He identified the Accused No.9 and his three sons, viz. Vipul (Accused No.1), Nimesh (Accused No.10), and Anis (Accused No.2) who were sitting in the Court. He stated that the Accused Nos.1, 2 and 10 assaulted the said person with fist blows and he saw blood coming out from the mouth of that person. He stated that Accused No.1 and Accused No.10 were having hockey sticks in their hands. He stated that Shri jethwa (P.W.17) informed the crowd that the person sitting inside was an Engineer working in Military Engineering Services. Shri Jethwa telephoned the Police Station and called for more force. Within five minutes more Constable arrived and all of them were trying to control the crowd. The crowd was continuously raising slogan "chor chor maro maro". The crowd also started pelting stones on the Hotel Building. P.W.15 further stated that thereafter Accused No.3/Appellant No.3 Govind entered the Hotel. At the time some boys also entered the hotel from the window. He stated that accused Govind caught hold of the person : 10 : who was Shri Kurade and turned him. At that time the boys also caught hold of Shri Kurade and took him towards western side gate and from there to the road. At that time the crowd started assaulting the said Kurade and started kicking him and jumping on his body. The Police had difficulty in reaching him to rescue him. By the time the Police could rescue him, he was unconscious. The said Shri Kurade was taken to Marwad Hospital. P.W.15 stated that he had seen Accused Nos.1, 2, 10, and 11 in the crowd. 9. In the cross-examination P.W.15 admitted that he could not arrest any one from the crowd. He stated that he could not protect Shri Kurade from being handed over to the crowd. He admitted in cross-examination that there were 9 to 10 Police personnel inside the hotel and near the gate. He stated that he saw Shri Kurade for the first time when he was sitting near the counter. At that time he noticed that Shri Kurade had bleeding injuries near the mouth. 10. He admitted that the Sub-Divisional Magistrate recorded his statement on 3rd March 1993. He admitted that he had not state before the Sub-Divisional Magistrate that sons of Accused No.9 Dalal were beating the said person. He also admitted that he did not tell : 11 : the Sub-Divisional Magistrate that sons of Accused No.9 Dalal had hockey sticks with them. P.W.15 admitted that he was on duty from 24th February 1993 to 28th February 1993. He stated that as P.W.15 Jethwa was his superior officer, he did not lodge any complaint. He stated that he was present when P.W.17 Jethwa recorded the complaint of Shri Verghese Thomas. He stated that he did not find it necessary to tell the names of Accused when P.W.17 recorded the complaint. He stated that he had not seized the hockey sticks allegedly in possession of the Accused. He stated that Shri Kurade was beaten by the crowd for a period of about 10 minutes. 11. He admitted of having stated before the Sub-Divisional Magistrate that he had seen Appellant No.3 Govind holding the said injured and in a quick speed taking the injured towards western side gate of the hotel and in the meanwhile other members caught and took the injured from his hand and dragged him to the road and started assaulting him. 12. P.W.17 also stated that at about 8.55 p.m. on the date of incident a telephone message was received at the Police Station regarding the trouble which had erupted near Sovereign Hotel. The version of P.W.17 in his examination-in-chief is different from the version of : 12 : P.W.15. He stated that when he reached Sovereign hotel one injured person was seen sitting near the counter of the hotel. He saw accused No.9 along with his two sons and staff members of the hotel making enquiries with the said injured person. He also stated that he also made enquiries with the injured person and learnt that the person was working in Military Engineering Service at Airport Daman. He stated that as the mob was very violent he called for additional personnel. Additional force arrived at the scene within ten minutes. He stated that after making enquiry with Shri Kurade he told the crowd that the said person was not a thief. According to him the crowd insisted that he should verify whether he was a thief or not. Therefore, he along with the Accused No.9 one Ramji Tandel and sons of Accused No.9 went to room No.105 in the same hotel. In the said room they met one Eepan George and one Jayram Pandit. Both of them confirmed that the said Kurade was working with them in the Military Engineering Service. he thereafter informed the crowd that Shri Kurade was an Engineer working with M.E.S and was not a thief. However, the mob became violent and started pelting stones. 13. P.W.17 further deposed that Appellant No.3 Govind entered the hotel and dragged the said Shri Kurade : 13 : towards western gate of the hotel. At that time some people entered the hotel through windows and gate and took possession of Kurade and they took the said Kurade on the road in front of the hotel. He stated that Accused No.11, 12 and 14 and certain other persons started assaulting Shri Kurade with fist blows. P.W.17 identified Accused Nos.11, 12, 13 and 14. However, he identified Accused No.7 Thakur as Naresh, Accused No.6 Ishwar as Bhagat and Accused No.8 Suresh as Chottu. P.W.17 further stated that Accused No.1 assaulted the deceased with stick and Accused No.2 assaulted the deceased with a hockey stick. He stated that one Thomas who was staying in that hotel along with Shri Kurade lodged F.I.R.. He stated that on 27th February he arrested Accused No.1 to 3. 14. In the cross-examination he admitted that at the time of incident he was concerned with saving the life of Shri Kurade and therefore, he did not arrest the accused. He stated that Shri Kurade was protected by himself and his staff members when Kurade was sitting inside the hotel. He stated that distance between the counter of the hotel and both the gates was about 10 feet and the Police personnel were posted at the gates. He stated that Shri Kurade was brought to the hotel in a jeep. The jeep had come from the side of the Police : 14 : Station and Fatima Hotel. P.W.17 stated that he was not aware whether the crowd of about 200 persons had assaulted Shri Kurade near Fatima Hotel and thereafter he was brought to the hotel. He stated that he recorded the complaint of Shri Thomas. He stated that the other person in the Hotel Shri Eepan George had some injuries. He stated that the said Eepan George was assaulted after Kurade was assaulted. He admitted that in the enquiry conducted by the Sub-Divisional Magistrate his statement was recorded and in the statement he did not disclose that Accused No.1 had assaulted Kurade by stick and Accused No.2 had assaulted Kurade by a hockey stick. He admitted that he had not stated the names of any of the sons of Dalal (Accused No.9) and that he had not stated that Dalal’s sons or any other person had any weapon in their hands. 15. He admitted Shri Kurade was taken out on the road from western gate where two Police personal were posted. He stated that the Accused No.9 Shri Dalal was pacifying the crowd. He admitted that he had not stated the names of any of the accused to the Sub-Divisional Magistrate. He started that he disclosed the names of the Accused for the first time on 28th February 1993 when his statement was recorded by Shri Solanki, the newly appointed Investigating Officer. He stated that he has : 15 : maintained a case diary. He stated that it is not mentioned in the case diary that he could not record the statement of the staff members because he was busy. He stated that when he enquired with Shri Kurade while he was sitting near the counter of the Hotel as to how he has received injuries, the said Kurade replied that he was assaulted by some persons. He admitted that he took about 10 minutes time to make enquiries with various persons about Shri Kurade in the hotel and thereafter he tried to control the mob. He stated that during that time he did not see Appellant No.3 i.e. Accused No.3. He lastly stated that he was not a native of Daman and since he was not knowing the entire story he did not become complainant himself. 16. At this stage it will be necessary to refer to the evidence of Dr.Charudatta Jog, P.W.1. Dr.Jog was Civil Surgeon working at the relevant time in Government Hospital at Marwad. He conducted postmortem on the body of the deceased Shri Kurade. In examination-in-chief he stated that cause of death was hypovolumic shock due to multiple injuries. He stated that the injuries on the person of Shri Kurade were possible by stick, fists and kick blows. In the cross-examination he admitted that the injuries mentioned in the postmortem report are possible during the course of stampede. : 16 : 17. P.W.2 (Jagdish Prema Tangal), P.W.3 (Prakash Prema Tangal), P.W.4 (Hirabhai Morabhai Tangal), P.W.5 (Jayram Chotu), P.W.6 (Vijayan Krishna), P.W.7 (Narendra Tamboli), P.W.8 (Shamji jadav), P.W.9 (Gabrielle Pereira), P.W.10 (Nanalal Jadav), P.W.11 (Natwarlal Babyu Patel), P.W.12 (Agnelo Jesus), P.W.13 (Ahmedali Hasan Mithani), P.W.14 (SDaukat Anwar Mithani), and P.W.16 (Premji Bawa Jethwa) have been declared hostile as they have not supported the prosecution. It is to be noted here that P.W.7, P.W.8, P.W.9, P.W.10, and P.W.11 are Police personnel who accompanied P.W.15 and P.W.17 to the hotel Sovereign. They have not supported the prosecution. P.W.12 is a Homeguard who accompanied P.W.17 Jethwa to Sovereign Hotel. He has also been declared hostile. P.W.18 is Mahendrasingh Solanki who was appointed as the Investigting Officer on 27th February 1993. He recorded statement of all the witnesses. 18. We have carefully considered the evidence of the aforesaid witnesses. P.W.15 is a Police Sub-Inspector attached to the Daman Police Station. P.W.17 is a Police Inspector attached to the same Police Station. P.W.17 was in fact the officer in-charge of the Daman Police Station. Both the same responsible Police : 17 : Officers claim to be eye witnesses to the incident. They have disclosed the names of Accused Nos.1 to 3, Accused No.9 to 14 in the evidence. Both of them were on duty from 24th February 1993 to 28th February 1993 in the same Police Station which was investigating the crime. If P.W.15 and P.W.17 being responsible Police Officers had allegedly seen the commission of offence under section 302 of the IPC, it was their duty to register the F.I.R. However, P.W.17 chose to record F.I.R of one Shri Thomas on the same night who was obviously not a witness to the incident. In the said F.I.R. it is stated that some unknown persons assaulted the deceased Kurade. Till 28th February 1993 when their statements were recorded by P.W.18 Shri Solanki both of them did not disclose to any one the involvement of the accused. This behaviour on the part of P.W.15 and 17 who were Police officers appears to be very strange. 19. Exh.115 is the order dated 26th February 1993 passed by the Collector-cum-District Magistrate of Daman by which he appointed the Sub-Divisional Magistrate to enquire into the circumstances leading to the death of Shri Kurade and injury to Shri George and others during the incident. The said order records that the Enquiry Officer will also go into the adequacy of the action taken by the local Police and other connected aspects of : 18 : the incident. Both P.W.15 and 17 admitted that their statements were recorded by the Sub-Divisional Magistrate on 3rd March 1993. Both of them admitted that they did not disclose the names of the accused in their respective statements. The omission to state the names of accused on 3rd March 1993 is very significant. Because of this omission, the learned Counsel appearing for the Appellants have contended that the statement of both the witnesses allegedly recorded on 28th February 1993 appear to be ante-dated. 20. We find that there are major contradictions and omissions in the deposition of both P.W.15 and 17. P.W.15 stated in his examination-in-chief that when he reached the premises of Hotel Sovereign, Accused No.9 and his three sons as well as two other persons were interrogating one person i.e. Shri Kurade. He stated that the Accused Nos.1, 2 and 10 assaulted the said person with fist blows. He stated that Accused No.1 and Accused No.10 had hockey sticks in their hands. In cross-examination he admitted that when he saw Shri Kurade sitting near the counter of the hotel, there was bleeding injury on his face near the mouth. He admitted that he did not state before the sub-Divisional Magistrate