1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.722 OF 2002 Ramjit Tilak Yadav ..Appellant An Adult, Occupation : service Indian Inhabitant, residing at Darukhana, 1st Lane, Powder Bunder, Mumbai – 400 010 V/s. The State of Maharashtra ..Respondent Mr.D.G.Khamkar, Advocate, for appellant Mr.P.S.Hingorani, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 20TH JUNE, 2008 JUDGMENT (PER K.U.CHANDIWAL, J.) . The appellant/accused has challenged the Judgment and Order of conviction dated 25th June, 2002 recorded by the learned Additional Sessions Judge, Greater Bombay in Session Case No.660/1987, whereby the appellant/accused is sentenced to life imprisonment and to pay fine of Rs.10,000/- in default to suffer further R.I for one year for the offence punishable under Section 302 read with 34 of the Indian Penal Code. Accused No.4 Harishchandra Ramshri Dube was acquitted of the charge slapped against him. 2 2. The complainant Khushubunissa Yaar Mohammed Sayyed was residing in the hut with her deceased husband Yaar Mohammed Sayyed and her children, situate at 1st Lane, Near Meera Datar Darga, Darukhana, Sewree, Mumbai – 10 at monthly rent of Rs.60/-. Her husband was engaged as a labour on handcart. The accused persons, residing at nearby but allegedly exerted threats to the deceased and the complainant for vacating the said hut. On 18th September, 1986 while the complainant and her deceased husband went to sleep in the hut, their children were sleeping outside the hut on the cot, in the midnight four persons namely Ramji, Pralhad, Kirti and Pandit came & they overturned the cot on which children were sleeping. They started abusing complainant and her husband. The complainant and her husband requested those four persons not to insist for vacating the hut and since their imploring did not yield any response, they rushed to the police and reported the matter. N.C case was recorded by police and however, the accused ran away. After police leaving the spot, at around 3.30 A.M on 19th September, 1986 all four persons again rushed armed with bamboo sticks. They threatened the complainant as to what made her to lodge report against them with police, they roared that nothing will happen, even if the matter is reported to police. Those four persons caught hold complainant's husband, dragged him out of the hut and on the road and they started beating him by bamboo sticks. The complainant and her children requested the accused not to beat her husband. However, assailants did not pay any heed to such representation. The accused No.2 Ramjit Yadav (appellant) 3 gave two blow of bamboo sticks on her person also. Her husband was lying on the ground. Consequently, complainant rushed to the police station and called police staff. A search for the accused was made but they were not traced. The injured was taken by the police to the hospital and the F.I.R Exh.13 of the complainant was recorded against four accused persons. At the hospital injured died on 20th September, 1986. Spot Panchanama Exh.17 was prepared. On 22nd September, 1986 four accused persons were arrested. On 27th September, 1986 four bamboo sticks were taken charge from the accused Pralhad under Panchanama Exh.21 and 21A. The seized articles were sent to the office of C.A under forwarding letter Exh.22. 3. After completion of investigation charge sheet came to be filed against accused. During pendency of the case accused No.1 Pralhad died hence, his case was abated. Accused No.3 has remained absconded. The case was separated against him and the learned Additional Sessions Judge explained the charge to accused No.2 Ramji Tilak Yadav (appellant) and accused No.4 (acquitted accused) to face the trial under Section 302 of the Indian Penal Code. The accused denied the charge and claimed the trial. 4. The defence of the accused is of total denial. They have examined two defence witnesses to impress that there was no electricity light at the place of incident and it was very difficult to identify any of the accused. 4 5. The prosecution has put in six witnesses. P.W.1 Khushubunissa Yaar Mohammed Sayed is the complainant, wife of the deceased. P.W.2 Noorjahan Yaar Mohammed Sayyed. She is eye witness. P.W.3 Narayan Shantaram Waghela witnessed the Spot Panchanama (Exh.17). P.W.4 Vinod R. Upadhyay reports about seizure of the clothes taken charge under the panchanama Exh.19. C.A.Report at Exh.23 indicates that no blood is detected. P.W.5 Suresh Devram Sonavane is the Investigating Officer, Sewree Police Station. P.W.6 is Dr.Kisan Rajaram Khade, carried Post Mortem (Exh.25). 6. P.W.6 Dr.Kisan Rajaram Khade performed autopsy on the dead body of Yaar Mohammed Sayyed and during examination he found four external injuries on the person of deceased Yaar Mohammed Sayyed which were corresponding to internal injuries. External injury Nos.3 and 4 contused abrasion on vertex, two in number 2 x 0.8, 1.5 x 0.8 0.8 cms. in a line and contused abrasion on occipital protruberence, 2.3 x 0.8 cm. According to him, the injuries are sufficient to cause death in the ordinary course of nature. P.W.6 opined that all these injuries were recent and ante mortem and cause of death was given as acute head injury. In the light of evidence of P.W.6 and two eye witnesses, coupled with Postmortem Notes Exh.25 the prosecution has unerringly established that Yaar Mohammed Sayyed died homicidal and unnatural. 5 7. P.W.1 and P.W.2 gave evidence in coherently. P.W.2 Noorjahan was a minor at the relevant time. We do not see any reason for P.W.2 Noorjahan Sayyed to falsely implicate the accused. It was the accused persons who were threatening the deceased and the complainant to vacate the hut since 15 days prior to the incident. P.W.1 and P.W.2 have unerringly established that the accused persons were residing in near by huts and consequently, there was no reason for P.W.1 and P.W.2 to miss identity of the assailants particularly, the accused No.2/appellant. In the night on 18th September, 1986 while the complainant and her husband were sleeping in the hut, P.W.2 with other siblings were sleeping outside the hut on the cot the four persons overturned the cot. The complainant and her husband due to such hue and cry and came out of the hut. They asked accused as to why they have overturned the cot. Accused renewed their command to get the hut vacated. Since accused did not hear them, this was followed by the complainant and her husband proceeding to police station and one police officer with two police staffs rushed to the spot at such midnight, however, all the accused ran away. N.C.report to this effect was recorded by P.W.5 being N.C.No.540/1986. This entry cannot be faulted or suspected. Police have no reason to create such evidence. After the police going away all the four accused again at around 3.30 A.M on 19th September, 1986 came and renewed their threats, they started assaulting her husband and dragged him from the hut to the road. The request from P.W.1 and P.W.2 did not yield any result. P.W.2 categorically deposed that since her father was lying due 6 to assaults by the accused, her mother rushed to the police station to call police. Police officer again came to the place and tried to locate the accused however, accused were not found. It is confirmed by P.W.1 and P.W.2 deceased was removed by police to J.J.Hospital, who expired on 20th September, 1986. The grue some assault was helplessly witnessed by P.W.1 and P.W.2 as the mighty accused were armed with sticks. 8. F.I.R at Exh.13 of P.W.1 reflects the events in the manner they are deposed by P.W.1 in the Court. Few improvements made by her like overturning the cot by the accused will not be changing colour and complexion of the matter as her evidence is recorded on 26th March, 2002 while the incident is of 19th September, 1986. In the cross examination P.W.1 admitted that nobody except one Bhaiyya came at the place of incident in order to rescue them. The non- examination of such Bhaiyya will have to be considered in this light, as P.W.1 did not know his name and the span of nearly 16 years. According to the accused, somebody else assaulted her husband and she has wrongly identified the accused to be assailants, due to darkness. P.W.1, has clarified in the cross examination, nobody introduced accused to her, as she knows them as they are her neighbours. She used to see all the four accused regularly even during day time. She denied that she has seen the accused for the first time at police station on 23rd September, 1986. Another suggestion was given to the complainant that one Amir Ali was present at her residence at about 3.40 A.M on 7 19th September, 1986. The evidence of P.W.1 that accused Ramji Yadav gave two blows to her is not reflected in her F.I.R. However, such improvement will not be tentamount to discard her entire evidence, as on evaluation thereof we find the ring of truth in all her assertions. It is clear that there was electricity at road, as panchanama Exh.17 and even, in the cross examination of P.W.3 Narayan Waghela suggest that there was electricity at the road. The identification of the accused by P.W.1 or her daughter P.W.2 could not be doubted as stated earlier, as the accused is their neighbour and used to exert the threats to vacate the hut. It cannot be accepted that P.W.1 and P.W.2 are interested witnesses and that they are delibrately deposing against accused. It is normal experience that witnesses like P.W.1 and P.W.2 coming from down strata of the society would not leave culprits and rope innocent person like the accused. In the situation events having taken place at 3.30 A.M. it is humanly impossible to expect presence of several witnesses than family members. 9. In order to rebut the prosecution evidence on the aspect of availability of electricity the accused has examined D.W.1 Ramnath Junkun Prajapati and D.W.2 Shivdasan Bhagan Gupta. D.W.1 asserts that accused No.2 Ramji Yadav and accused No.4 Harishchandra i.e.Panditji are residing in separate hutments. However, he does not remember whether, there was electricity or not on the road in the year 1986. The Panchanama at Exh.17 proved by P.W.3 established that there were two tube lights on the door of said 8 go down situate near the hut and there was electricity on the main road. D.W.1 or D.W.2 were not knowing deceased Yaar Mohammed. Therefore, their claim to be residing near by the hut of Ramjit Yadav appears to be a concocted story. He was in sleep at 10.00 to 6.00 A.M all the night intervening 18th September, 1986 and 19th September, 1986 and D.W.2 does not know what happened during this time. 10. The accused with three others had visited the deceased at midnight and threatened deceased and complainant. They again came at 3.30 A.M armed with Bamboo sticks and dealt head injury to deceased. If the accused had a desire to inflict simple injury, such blows should have been to the arms or legs, but inflicting a fracture injury to the head projects the gravity of impact, on appreciation of evidence of P.W.1 and P.W.2, we noticed that accused/appellant had indeed assaulted. P.W.1 has specifically referred name of accused/appellant Ramjit in the F.I.R. She knew him. Same is the position with P.W.2. The description of accused No.2 with his name reflecting in the F.I.R also match in all material particulars. The accused/appellant and three others had barged to the hut of deceased in furtherence of their common intention, and concert. They had guilty intention and knowledge to assault the deceased. In such fact situation, the conviction against accused/appellant can be recorded with the aid of Section 34 of the Indian Penal Code, notwithstanding acquittal of accused No.4. The acquittal of accused No.4 by learned Sessions Judge was 9 owing to non-conducting test identification parade, as his name did not figure in F.I.R. The learned Sessions Judge did not disbelieve version of P.W.1 or P.W.2 about role of acquitted accused No.4, but gave him benefit of doubt due to deficiency to conduct parade. Hence, the accused/appellant is wrong in questioning his conviction under Section 302 read with 34 of the Indian Penal Code. The evidence of D.W.1 and D.W.2 also will not be coming to rescue the accused and we hold that there was sufficient electricity light at the place of incident to identify the accused. It has come on record that Yaar Mohammed Sayyed was dragged from hut on road and then he was assaulted and at the road where electricity illuminating. 11. It was pointed by the defence that recovery under panchanama Exh.21 and 21A was at the instance of the deceased accused Pralhad. There is no reason to quarrel on this aspect. At the same time the evidence of eye witnesses P.W.1 and P.W.2 cannot be ignored when they specifically pointed to the accused/appellant as assailants. 10 12. The evidence of P.W.6 Dr.Kisan Khade with evidence of P.W.1 and P.W.2 having established that the deceased has died due to assault on his head and it was homicidal and unnatural and the accused before the Court has been specifically identified by P.W.1 and P.W.2, we have no reason to discard the evidence. The motive in the matter, the accused wanted the deceased and complainant to vacate the hut which they had occupied. 13. In the result, we do not find any merit in the appeal and is accordingly, dismissed. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)