1 Appeals 745/04, 828/04 & 118/08 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.745 OF 2004 Jai John Peter ] Age 24 years, Occupation – service, ] R/a. 6/2, Defence Colony, Lulla Nagar ]... Appellant Wanawadi, Pune ] (Org.Accused No.4) (At present detained in Yerawada ] Centralk Prison, Pune 411 006) ] versus 1] The State of Maharashtra ] ] 2] Smt.Kiran Shivshankar Gujar ] R/o Defence Colony ]... Respondents Lulla Nagar, Wanawadi, Pune ] (Org.Complainant) ALONG WITH CRIMINAL APPEAL NO.828 OF 2004 Shri Kadir Mohammad Shakil Shaikh ] Age 25 years, Occ : Painting work ] R/a. 7/1, Defence Colony, Lulla Nagar ]... Appellant Wanawadi, Pune ] (Org.Accused No.1) versus 1] The State of Maharashtra ] ] 2] Smt.Kiran Shivshankar Gujar ] Age-Adult, Resident of 1/19 ] Defence Colony ] Lulla Nagar, Wanawadi, Pune ] Respondents. 2 Appeals 745/04, 828/04 & 118/08 ALONG WITH CRIMINAL APPEAL NO.118 OF 2008 Mohan @ Munna Gopal Pillay ] aged 30 years, Residing at ] Shaha Building, 8/5 Bhagyodaya ] Near Kondwa Khurd, Pune 48 ] Presently in custody at the ] Yerwada Cental Prison, ]... Appellant Yerwada, Pune ] (Org.Accused No.2) versus 1] The State of Maharashtra ] ] 2] Smt.Kiran Shivshankar Gujar ] Residing at 1/19 ] Defence Colony ] Lulla Nagar, Wanawadi, Pune-40 ] Respondent Mr.D G Khamkar for the Appellant in Appeal No.745/04 Mr.Ashish Sawant for the Appellant in Appeal No.828/04 Ms.Rebecca Gonsalves for the Appellant in Appeal No.188/08 Mr. P S Hingorani APP for the State/Respondent. CORAM : NARESH H PATIL & K U CHANDIWAL, JJ DATE : 21st JULY 2011 COMMON JUDGMENT : [PER NARESH H PATEIL, J] 1 These appeals are directed against the Judgment and Order dated 23rd April 2004 passed by the Additional Sessions Judge, Pune in Sessions Case No.494 of 2002. As these appeals have been filed by appellants, who are original accused in Sessions Case No.494/2002, We are deciding the appeals by common judgment. 3 Appeals 745/04, 828/04 & 118/08 2 The Appellants along with one Sunil alias Bittu Ram Tiwade were charged by trial court for offences punishable under Sections 452, 324, 302 and 427 simplicitor r/w 34 of the IPC. They were also charged for the offence under Section 4 (25) of the Arms Act and Section 37(1) r/w 135 of the Bombay Police Act. The appellants pleaded not guilty before trial court and claimed to be tried. The charge was framed on 9/4/2003. 3 The prosecution case was unfolded in the court through Prosecution Witness No.1 Kiran Shivshankar Gujar, who is the wife of deceased Shivshankar. In substance she deposed that on 29/07/2002 at about 9.30 pm she was present in the house along with her husband and Santosh. At about 4.00 pm Santosh left the house saying that he was going with his friend. In the night after having dinner, the family went to sleep. Between 11.15 pm and 11.30 pm there was knock on the door. The inmates of the house woke up, but they preferred not to open the door. Thereafter those persons started pushing the door, as a result of which, the latch of the door was broken and the door got opened. There were four persons who entered the house of Kiran (PW No.1). PW No.1 Kiran has narrated their names before Court as accused Munna Gopal Pillay, Gani Mohammad Shaikh, Jai John Peter and one unknown person. These persons started damaging household articles. PW No.1 and her husband came outside their bedroom and they saw these accused persons. Accused 4 Appeals 745/04, 828/04 & 118/08 Kadir was armed with sickle, Munna was armed with sword, Jai John Peter was armed with Gupti and one unknown person was armed with Gupti. For want of evidence the trial Court acquitted original accused No.3 Sunil alias Bittu Ram Tiwad of all the charges. The accused persons assaulted the deceased with weapons which they were carrying with them and while assaulting they were saying “Santosh Kidhar Hai, Santosh Kidhar Hai”. Thereafter they left the spot. The husband of PW No.1 had sustained bleeding injury. Her husband was taken to Sassoon Hospital. Doctor examined him and declared him dead. PW No.1 Kiran filed a complaint with Wanawadi Police Station. The complaint was recorded by police which is at Exhibit 17. PW No.1 identified the accused persons in Court by narrating their names too. 4 PW No.11 Murlidhar Arjun Gaikwad got the complaint recorded and registered the offence vide Crime No.148/2002 under Section 302 r/w 34 of the Indian Penal Code. He prepared inquest panchanama (Exhibit 25). The clothes on the persons of decease were seized under panchanama (Exhibit 28). Before recording the complaint, he visited the spot between 1.00 am and 3.00 am. The investigating officer thereafter conducted further investigation, recorded statements of the witnesses, collected Post Mortem Notes (Exhibit 69) and after conducting investigation, filed a charge sheet against the accused persons. 5 Appeals 745/04, 828/04 & 118/08 5 PW No.1 Kiran Shivshankar Gujar- the wife of the deceased, named the accused persons to the police as the assailants and identified them by name before Court. They were armed with dangerous weapons according to this witness. The defence of the appellants is that there was darkness in the defence colony where the incident took place as there was no electric supply there at that time and, therefore, the witnesses could not identify as to who were the assailants. The names of the appellants are falsely involved due to past incident. There is exaggeration on the part of the prosecution witnesses in narrating the incident. In her cross examination PW No.1 deposed before Court that her house is a four storeyed building and they were residing on the second floor. There were people residing on the ground floor and other floors. The assailants had given successive blows on the person of her husband. She tried to rescue her husband from the accused. Father in law of the witness was also assaulted by accused. The witness stated that she went to police station in the morning at about 5.00 to 6.00 am along with her mother in law. She lodged a complaint. She stated before Court in her cross examination that at about 2.00 am on the day of incident, the police reached the spot but did not enter the house. It was suggested by defence that a dispute arose on 28/7/2002 between Santosh and Yashin Shaikh and 6 Appeals 745/04, 828/04 & 118/08 their friends. This witness clearly admitted that she did not narrate before Court the individual role attributed to the accused in respect of assault. She denied suggestion that on the day of incident electric supply was cut off and so the residents of their colony had lodged complaint with the defence officer. 6 PW No.2 Rajpati Chhotu Gujar, who is the mother in law of PW No.1, deposed before court that on the day of incident at about 11.00 pm she was watching TV along with her daughter in law Kiran, her son Shivshankar, her daughter Inderpati and two grand sons and one daugher. She stated that Kadir Shaikh and others came to their house and started knocking the doors. They also started shouting and abusing. As the inmates of the did not open the door, they forcibly pushed the door and entered the house. They dragged Shivshankar outside his bedroom and started assaulting him. This witness named the accused persons before court. Munna Pillay was armed with sword, Kadir Shaikh was armed with sickle and Jai John Peter was armed with Gupti, according to her. She stated that all of them started assaulting Shivshankar. Shivshankar sustained injuries. Thereafter police arrived on the spot accompanied by Ajay Bhosale. The witness identified all the accused persons before court. 7 Appeals 745/04, 828/04 & 118/08 In her cross examination, the witness stated that accused were shown to her by police in the court. The house of Ajay Bhosale is situated near the house of complainant. She further stated before court that she was not knowing Mohan Pillay from his childhood. The witness denied the suggestion that she deposed falsely that Munna Pillay had come to her house at the time of incident and he was armed with sword. The witness stated that she knew Jai John Peter since last many years. He resides in the building adjoining her house. She denied the suggestion that at the time of incident, there was no electricity. 7 PW No.3 is Smt.Leela Sundar Ballari used to reside in one of the room in the bungalow of Harish Wahib along with her husband and children. She was working as a maid servant there. She stated that at about 11.45 pm in the night, they were sitting in the house after having dinner. At that time some persons while knocking and kicking the door started shouting “Bali Kidhar Hai”. The witness informed them That Bali was not present in the house, even then those persons started banging the door, as a result of which the latch of the door was opened. All those persons entered the house. This witness named the accused as Kadir, Munna, Bittu and Jai. She identified the accused before court. She stated that she knew the accused since their childhood. She identified the accused as there was light in the room. They were armed with dangerous weapons. They were 8 Appeals 745/04, 828/04 & 118/08 asking about whereabouts of Bali. The accused damaged the house property, TV and other articles including cupboard. Thereafter they ran away from her house. A complaint about the incident was lodged to the police station. The police recorded her statement in the morning. The articles before the court were identified by her so also the weapons. In her cross examination, PW No.3 deposed that there was dispute between her son Dayanand and one Yasin Shaikh and, on 28/07/2002 there was a quarrel between her son and Yasin Shaikh. 8 PW No.4 is Vaishali Enjalis Anthony. She deposed that on the day of the incident she had gone to hospital as her daughter was sick. She stated that she stayed in the house of her parents in defence colony for two days. On 28/07/2002 there was quarrel between Dayanand Balhari and Yasin Shaikh near tea stall. At that time Ajay had gone to Lulla Nagar Chowk. Thereafter police had come to their house in search of accused. She deposed before Court that on 29/07/2002 after having dinner they were about to sleep, at that time, some persons came to their house on motorcycle and started shouting “Ajay Bhar Nikal”. They broke the window panes of the house. The door of the house was closed. They started knocking the door. They broke opened the door and entered the hall. This witness and other persons were frightened, therefore they went into 9 Appeals 745/04, 828/04 & 118/08 another room and closed the door from inside. The accused were armed with dangerous weapons. She had named the accused persons. They started shouting “Ajay Kidhar Chupke Baitha, Bahar Nikal” . She specifically stated that accused Munna Pillay started abusing “Ajay Bahar Nikal, Chodenge Nahi.” Thereafter they said “chalo Abhi Bali ke Ghar Jayenge” The accused were told that Ajay was not present in house. The accused were identified by this witness. Statement of the witness was recorded by police on 1/8/2002. In her cross examination, PW No.4 deposed that Munna Pillay was not residing in the Defence Colony at the time of incident. She was not aware that there was previous quarrel between Yasin Shaikh and Ajay. Ajay is real brother of PW No.4. 9 PW No.5- Chandrakant Ashanna Palleru, PW No.6 Aslam Rashid Shaikh, PW No.7 Shahauddin Shamsuddin Shaikh, PW No.8 Rashid Siddiq Shaikh, and PW No.9 Chandrakant Vasant Gaikwad, who were examined by the prosecution as panchas, were declared hostile. 10 PW No.10 Nazir Ahamad Mamud Khan is the Police Inspector of ACN Pune. Through the evidence of this witness, the prosecution has proved seizure and recovery of articles, weapons used by the accused 10 Appeals 745/04, 828/04 & 118/08 persons, motorcycle used in the offence. The panchanamas were exhibited accordingly. During the cross examination of this witness, he deposed that Mohan Pillay had lodged complaint against Dayanand Malhari, Santosh Chotu Gujar and Ajay Bhosale prior to the incident in question. Muddemal, seized on the date of seizure of the property, was sent to the Chemical Analyser. But the statement of the Muddemal Clerk was not recorded. He deposed that during his investigation he did not make any inquiry as to who had conveyed the first information report regarding the incident in question. 11 PW No.11 is Murlidhar Arjun Gaikwad who had conducted part of investigation. 12 PW No.12 Dr.Kishor Shantaram Chabukswar examined Sundar Ballari and Leela Sundar Ballari. He noticed following injuries on the person of Sundar Ballari :- 1) Incised wound over right medial third of forearm post laterial 3 cm x 1 cm deep in muscle with clean cut edges; 2) Contusion with abrasion left shoulder joint suterorly. That was 11 Appeals 745/04, 828/04 & 118/08 7 cm x 6 cm swelling tender reddish and 3 cm x ¼th superficial reddish. 3) Contusion to the abrassion over right scapulary region that was 10 cm x 5 cm swelling reddish and 8 cm x 5 cm superficial reddish. The doctor also noticed following injuries on the person of Leela Sundar Ballari :- 1) incised wound over left 3rd finger of hand-proximal phalanx- paler aspect, 3 cm x ½ cm deep to muscle deep, bleeding present, clean cut edges; 2) Contusion over right base of thumbs, dorsally 3 cm x 2 cm swelling tender reddish. According to Doctor, in both the Injury Certificates, name of the person who brought the patient is not mentioned. 13 PW No.13 is Dr.Bhagwan Subhashchandra Narkhede who conducted post mortem on the dead body of Shivshankar. He noticed following 16 injuries on the person of deceased. 1) Stab injury transverse oblique, 3 cm length, gaping over right 12 Appeals 745/04, 828/04 & 118/08 side of chest, margins clean cut, angles clean cut at lateral end and rounded at medial end, penetrating through 4th intercostal space, 11 cm from medical end of clavicle and 3 cm from lateral margin of sternum opening into chest cavity, 4th intercostal muscle and pleura shows corresponding stab injury, corresponding internal injuries-transverse incise injury over aorta 2.5 cm above base measuring 2 cm circumferentially with perisuscular surrounding haemmorhage opening into lumen. Chest cavities are full of blood and blood clots. 2) Stab injury over left side of chest verticle oblique 2 cm in length gaping, kargine clean cut, upper end angel clean cut and lower end of left clavicle, penetrating 7th intercosal space and muscle, upper margin of 8th rib shown clean cut fracture involving its partial thickness, corresponding internal injuries – left doma of diapharaym shows tab injury pertoaining over anterior aspect of body of stomach along with greature curvature, 10 cm proximal to pylorus, 1,5 cm transverse perforation wound gaping margins clean cut, mucosal everted also reaching and penetring through the posterior aspect of body of stomach 11 cm from pyluros, transferse, wound margins clean cut, part of semi-digested food spreading into abdomen from the wounds; 3) Linear abrasion, starting 1 cm lateral and above xipisternum transversely oblique 11 cm x 0.2 cm with overlying contusion through out it’s length; 4) Contusion above injury No.2 (2.5 cm above) verticle 3.5 x 2 cm.) 13 Appeals 745/04, 828/04 & 118/08 5) Linear abrasion, verticle oblique starting 1 cm medial to Injury No.2, running downwards upt 3.5 cm below and lateral to umbilicus 20 x 0.2 cm length; 6) Linear abrasion left arm, lateral aspect, over upper 1/3, 3x0.2 cm, 3 cm below injury No.6. 7) Linear abrasion left arm lateral aspect over upper 1/3rd transverse 5 x 0.2 c.m. 8) Incised injury, left fore arm near wrist joint dorso lateral aspect, margins irregular at places 5 x 3.5 c.m. Muscle deep; 9) Incised injury over Web space between thumb and index finger 6 c.m. Length gaping margins clean cut muscle deep, gaping. 10) Linear abrasion over right shoulder 7 x 0.3 cm reaching upto upper 1/3rd of arm. 11) Linear abrasion over gi right lower lateral aspect of abdomen, vertical 15 x 0.2 c.m. 12) Incised injury right thenar eninence, 2 cm margins clear cut gaping, muscle deep; 13) Circular abrasion middle 1/3rd, right leg 0.5. c.m. 14) Abrasion right forearm middle 1/3rd, 3 x 0.5 cm 14 Appeals 745/04, 828/04 & 118/08 15) Incised injury over, posterior aspect of middle of neck transverse 6 c.m. Margins clean cut muscle deep; and 16) Contusion above and lateral to left supra scupular region, transverse 7 x 2.5 c.m. According to the medical officer, the cause of death was “shock due to stab injuries”. The Injury Nos.1 and 2 are grievous in nature and individually sufficient to cause death. According to him, the injuries could be possible by any pointed weapons like sword, gupti, sickle etc. Post mortem notes is at Exhibit 69. In his cross examination, the doctor stated that Injury Nos.3 to 16 are simple injuries and they could be caused by fall on hard and blunt substance. 14 PW No.14 is Sampt Dadabhau Fotghan who is Police Inspector Railway. 15 The defence has examined one witness Avadhkumar Gupta, who is engineer in Electrical and Water Supply Deptt. Of Garrision Engineer on the point that there was no electricity during the night between 29/7/2002 and 30/7/2002. 15 Appeals 745/04, 828/04 & 118/08 16 We have heard Mr. D G Khamkar, the learned counsel appearing for the Appellant-Original Accused No.4 in Appeal No.745 of 2004 with the assistance of Mr.Ashish Sawant, the learned counsel appearing for the Appellant-Original Accused No.1 in Appeal No.828/04 and Ms.Rebecca Gonsalves, the learned counsel appearing for the Appellant-Original Accused No.2 in Appeal No.118 of 2008. We have gone through the evidence on record with the assistance of the learned counsel for the parties. Mr.Khamkar the learned counsel for the Original Accused No.4 submitted that the prosecution witnesses are interested witnesses . After the incident in question, the police reached the spot, it is not known as to who informed the police. Before the complaint could be registered the police had started investigating the crime and had drawn inquest panchanama, therefore, the complaint registered can not be treated as FIR. There was darkness during night hours at the relevant time as there was no electricity. It was submitted that the prosecution witnesses are not deposing consistently. There is tendency to falsely implicate innocent persons. Their version is tutored by Santosh. Evidence of PW 2 is not consistent and contradictory. She could not identify the accused persons. The witnesses in the house were sleeping after watching TV. They had no occasion to witness 16 Appeals 745/04, 828/04 & 118/08 the assault. It was submitted that the prosecution has failed to point out individual role played by the accused. All the panchas in respect of recovery of articles turned hostile. Doctor who claims to have issued Injury Certificates failed to record history of assault. In the light of the strained relationship between two groups of boys, the appellants are falsely involved in the crime, according to the learned counsel for the appellants. The witnesses are interested, partisan and inimical. Their evidence is not reliable. Identity of the accused is not established. In the alternative the learned counsel for the appellants submitted that benefit of doubt should be given to the appellants/accused. There is no corroboration to the evidence given by the witnesses. Mr.Ashish Sawant, the learned counsel for the Appellant- Original Accused No.1 submitted that there is no independent evidence against the accused. The first information given to the police was deliberately suppressed and the accused were falsely involved. There is no motive for committing crime, neither there is any previous enmity. Other two incident of forcibly entering in the house never took place. The accused was acquitted of the offence punishable under Section 427 of the Indian Penal Code. Plea that Ajay was hiding in almira is not believable. 17 Appeals 745/04, 828/04 & 118/08 Ms.Rebecca Gonsalves, the learned counsel appearing for the Appellant-Original Accused No.2 submitted that through the Defence Witness No.1 it has been established by the defence that there was no electricity during night at the relevant time. Complaint to that effect was also lodged. Entries thereof are proved. The learned counsel placed reliance on the provisions of Indian Evidence Act in support of her submission. It was further submitted that PW No.1 had no opportunity to see the assailants as there was no electricity at that time. Lights were put off. The trial Court failed to consider the issue of availability of electricity at the time of incident in question. The prosecution deliberately did not examine single independent witness from the locality or residing in the building. The first information given to the police was suppressed. The conduct of the police is unnatural. In respect of evidence of PW No.2, the learned counsel submitted that the witness is confused one. Whether statements of the witnesses are recorded on 29/7/2002 or 31/07/2002 is a mystery. The witnesses do not know the accused persons. They are tutored to say that they know accused from childhood and they know their names too. The prosecution has failed to hold test identification parade. In respect of actual assault, the learned counsel submitted that, individual roles are not described by the witnesses. There is general description of assault. The learned counsel submitted that the prosecution has failed to demonstrate intention on the part of appellants to commit murder of 18 Appeals 745/04, 828/04 & 118/08 deceased Shivshankar. The weapons allegedly used by the accused were not shown to the witnesses neither to the doctor. The counsel further submitted that the husband of PW No.2 was not examined by the prosecution. The prosecution has deliberately produced witnesses who are partisan and interested ones. Injury Certificate did not refer to history of assault. The learned counsel for the Appellants relied upon following Judgments of the Apex Court :- 1] AIR 2002 SC 1949 in Bijoy Singh and anr v/s State of Bihar. 2] AIR 2003 SC 1813 in Rajeevan and anr v/s State of Kerala 3] (1975) 3 SCC 822 in Kundan Singh v/s. Delhi Administration 4] AIR 1976 SC 2499 in Molu and ors. v/s State of Haryana 5] AIR 1993 SC 2644 in State of Andhra Pradesh v/s. Punati Ramulu 6] (1973) 3 SCC 466 in Ram Lal v/s Delhi Administration. We have perused the judgments cited by the learned counsel for the appellants. In Bijoy Singh’s case (supra) the Apex Court in para 11 held as under :- There is no denial of the fact as it has been proved beyond any shadow of doubt that Jawahar 19 Appeals 745/04, 828/04 & 118/08 Singh (A-2) and Upender Singh (A-3) had come on spot with fire arms and had actually fired at the deceased and Sanuj Singh as a consequence of which Vijay Singh died and Sanuj Singh was injured. Whereas A-2 is held guilty for the commission of offence under Section 302 and 307 read with Section 34, A-3 is held responsible for the commission of the offence under Section 307 and 302 read with Section 34. The conviction and sentence awarded to Jawahar Singh (A-2) and Upender Singh (A-3) by the trial court and upheld by the High Court is confirmed. So far as the presence of other accused persons are concerned, the same being doubtful, they cannot be convicted on the ground of sharing common object as held by the courts vide the judgments impugned in these appeals. Merely because the aforesaid accused persons are related to A-2 and A-3 and were on inimical terms with the deceased and the injured is no ground to hold them guilty despite the fact that there presence on spot