1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPEAL NO. 385 OF 2000 USMAN BADESAHEB SHAIKH ) R/o Kurnur, Taluka Akalkot ) District Sholapur ) ..APPELLANT VERSUS THE STATE OF MAHARASHTRA ) ..RESPONDENT Shri V. V. Purwant for appellant Shri F. R. Shaikh, Addl. PP. WITH CRIMINAL APPEAL NO. 483 OF 2000 ANKUSH RAMA MORE ) R/o Kurnur, Taluka Akalkot ) Dist. Solapur. At present in ) Yeroda Central Prison, Pune. ) ..APPELLANT VERSUS THE STATE OF MAHARASHTRA ) ..RESPONDENT Shri V. M. Thorat for appellant Shri F.R. Shaikh, Addl. PP. WITH CRIMINAL APPEAL NO. 654 OF 2000 MARUTI SHANKAR SARVADE ) 2 At present confined in Yeravada) Central Prison, Pune-6 ) ..APPELLANT VERSUS THE STATE OF MAHARASHTRA ) ..RESPONDENT Shri Shekhar Ingawale for appellant Shri F. R. Shaikh, Addl. PP WITH CRIMINAL APPEAL NO. 429 OF 2000 1. PEERSAHEB BADESAHEB SHAIKH ) R/o Kumtha, Tal.North Solapur Dist. Solapur. ) 2. KUTBUDDIN SAHEBLAL TAMBOLI ) R/o Hotagi, Tal.South Solapur District Solapur. ) At present lodged in Solapur) District Prison, Solapur ) ..APPELLANTS VERSUS THE STATE OF MAHARASHTRA ) ..RESPONDENT Shri Rajan Salvi for appellants Shri F.R. Shaikh, Addl. PP CORAM: SMT. RANJANA DESAI, & SMT. R. S. DALVI, JJ. DATE ON WHICH THE JUDGMENT IS 3 RESERVED : 31ST JULY, 2007 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 21st AUGUST, 2007 JUDGMENT:-(Per Smt. Ranjana Desai, J.) . In all these appeals, judgment and order dated 22nd May, 2000 passed by the Sessions Judge, Solapur in Sessions Case No. 126 of 1999 is under challenge. Hence these appeals can be disposed of by a common judgment and order. 2. The appellant in Criminal Appeal No. 385/2000 is original accused 1. Appellant in Criminal Appeal No. 483/2000 is original accused 2. Appellant in Criminal Appeal No. 654 of 2000 is original accused 3 and appellants in Criminal Appeal No. 429 of 2000 are original accused 4 and 5. All the accused were tried for offence punishable under Section 302 read with Section 34 and 120-B of the Indian Penal Code. The accused are referred to in this judgment according to their status in the trial court as "A-1, A-2, A-3, A-4 & A-5" for convenience. 3. According to the prosecution as disclosed from the evidence of PW 7 Vinod More, on the day of 4 incident i.e. on 5/4/99 deceased Brahmhanand More along with his son PW 7 Vinod had been to Solapur in the morning. They left their village Kurnur for Solapur at about 9 a.m. on motor cycle No. MVP 1154 owned by the deceased. They came to Akalkot. They parked their motor cycle there. Thereafter they proceeded to Solapur by ST Bus because they had work at Zilla Parishad, Solapur. They returned to Akalkot from Solapur by ST bus at about 3-30 p.m. After finishing their work at Akalkot both of them started returning to their village Kurnur at about 6 p.m. on motor cycle. Deceased Brahmhanand was driving the motor cycle while PW 7 Vinod was on pillion seat. They started proceeding to their village Kurnur by Akalkot Wagdari road which leads to south north direction and after crossing a distance of approximately half kilometre towards Wagdari when their motor cycle came near Sharan Math, three persons who were on the road, halted their motor cycle. They started assaulting the deceased with knife. PW 7 Vinod got down from motor cycle. He started running towards Akalkot. One of the assailants chased him. That assailant returned to deceased Brahmhanand after some time. All the three persons dragged the deceased by the side of the road and again attacked him with 5 knives. Thereafter one of them went towards western side and two of them went towards eastern side. The deceased who had sustained several injuries started proceeding towards Akalkot in injured condition. After crossing about 200 feet he fell down on the road on account of injuries sustained by him. By that time PW 7 Vinod More had come towards him. The deceased was not in a position to talk. One Sanjay Dattatraya Bhandare was proceeding towards Akalkot from Wagdari on motor cycle. On the request made by him Sanjay Bhandare halted his scooter. PW 7 Vinod disclosed the incident to him. By that time a tempo came from Wagdari. It was proceeding towards Akalkot. Both PW 7 Vinod and Sanjay Bhandare took the deceased in the tempo to Rural Hospital, Akalkot for treatment. However, the doctor at the Rural Hospital told PW 7 Vinod that his father was dead. He then went to Police Station Akalkot. 4. PW 17 Shri Khalid the police station officer recorded his statement which is treated as F.I.R. It is at Exh.-45. Investigation was started on the basis of the F.I.R. A-1 was arrested on 6/4/99, A-2 was arrested on 16/4/99, A-3 and A-4 were arrested on 20/4/99 and A-5 was arrested on 6 23/4/99. After completion of the investigation, the accused came to be charged as aforesaid. 5. In support of it’s case the prosecution examined as many as 17 witnesses. The star witness of the prosecution is PW 7 Vinod More, the son of the deceased who has identified A-3, A-4 and A-5 in the identification parade. According to A-1 and A-2, they are falsely involved in the case on account of political enmity. A-3, A-4 and A-5 also contended that they are falsely involved in the crime. A-3, A-4 & A-5 examined DW 11 Nana Uttamrao Wankhede in support of their defence. 6. After perusing the evidence on record the learned Sessions Judge was of the view that the prosecution had proved its case beyond reasonable doubt. He, therefore, convicted all the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life. He convicted them for offence punishable under Section 120-B read with Section 302 of the Indian Penal Code and sentenced them to suffer imprisonment for life. The substantive sentences were ordered to run concurrently. Being aggrieved by this order of 7 conviction and sentence the appellants/accused have approached this court. 7. We have heard the learned counsel appearing for the parties at some length. With the assistance of the learned counsel, we have gone through the evidence and record of the case. 8. Mr. Purwant, the learned counsel appearing for A-1 submitted that the learned judge erred in coming to a conclusion that A-1 and A-2 were party to any conspiracy to kill the deceased. He submitted that the prosecution has relied on the evidence of PW 13 and PW 14 to establish conspiracy. PW 13 Raosaheb Kale claimed that A-1 and two others came near the tempo adjacent to the Mallikarjun Temple at Akalkot where he and one Bhima Jadhav were waiting for the jeep and at that time he saw A-2 handing over money to A-4. Mr. Purwant submitted that PW 13 has not even referred to A-1. 9. Mr. Purwant submitted that the prosecution has also relied on evidence of PW 14 Pandurang Ambaji Dagade a hotel owner. He submitted that it is inconceivable that this witness would state that 8 six months prior to the incident in question which took place on 5/4/99, A-1 and A-2 had been to his hotel. It is not possible for PW 14 to remember after six months the conversation A-1 and A-2 had in his hotel. Besides if this witness had heard them saying that they would teach the deceased a lesson natural conduct of this witness should have been to inform the police or people about this plan of the accused. According to Mr. Purwant the evidence of this witness, therefore, does not inspire any confidence. 10. Mr. Purwant pointed out that A-1 was arrested on 6/4/99 and A-2 was arrested on 16/4/99 and the statements of PWs 13 and 14 were recorded on 9/5/99 i.e. one month after the arrest of A-1 and A-2. He submitted that it is, therefore, not known as to on what basis A-1 and A-2 were arrested on 6/4/99 and 16/4/99 respectively. The learned counsel submitted that apart from evidence of PWs 13 and 14 there is no other evidence on record to support the theory of conspiracy in which A-1 & A-2 had allegedly participated. The learned counsel submitted that since the evidence of PWs 13 and 14 is liable to be discarded, conviction of A-1 must also be set aside. 9 11. Mr. V. M. Thorat, the learned counsel for A-2 adopted the submissions of Mr. Purwant and submitted that for the same reason conviction and sentence of A-2 must also be set aside. 12. Mr. Ingawale, learned counsel appearing for A-3 submitted that the prosecution story rests on the evidence of PW 7 Vinod More, the son of the deceased. According to Vinod More he was the pillion rider of the scooter which was being driven by his father, the deceased. He has stated that when they were proceeding to Kurnur by Akalkot Wagdari Road and their motor cycle reached near Sharan Math, three persons asked them to stop the motor cycle. Accordingly they stopped their motor cycle. The three persons started attacking the deceased with knives. This witness claims to have seen the accused assaulting his father. He claims to have identified the accused in the identification parade. The learned counsel contended that identification parade is not held as per the guidelines laid down in the Criminal Manual. Therefore, the said evidence deserves to be rejected. He submitted that the accused were brought for the identification parade in ST bus to 10 Akalkot from Solapur. It is not the prosecution case that they were brought by ST bus in burkha. PW 7 Vinod More has also said that he came by bus to Akalkot S.T. stand. The learned counsel pointed out that DW 1 Nana Wankhede, Jailor of District Jail Solapur has produced record showing that the accused were directed to be produced before J.M.F.C., Akalkot for identification parade and they were taken by S.T. bus. They were brought by bus. The learned counsel submitted that, therefore, identification made by PW 7 Vinod deserves to be discarded because he had ample opportunity to see the accused at the S.T. Stand. Besides PW 7, the identifying witness has not given any specific role to the accused and hence the said evidence is of no value. 13. The learned counsel contended that A-3 was arrested on 20/4/99 and the identification parade was held one month after his arrest. The delay in holding the identification parade, is, therefore, fatal to the prosecution case. The learned counsel submitted that the alleged seizure of bloodstained clothes from the person of the accused at the time of his arrest on 20/4/99 is also suspicious. He submitted that the incident is dated 5/4/99. It is 11 inconceivable that for 15 days A-3 would wear the same clothes stained with blood. The learned counsel urged that evidence of PW 13 must also be discarded. He has stated that he attended the funeral of the deceased. If in fact he knew about conspiracy than his conduct of not informing any one about the same till his statement was recorded on 9/5/99 i.e. almost one month after incident, makes his evidence suspect. The prosecution has also not examined Bhimrao Jadhav, who was supposed to be with PW 13. Evidence of Bhimrao Jadhav would have supported the evidence of PW 13. The learned counsel contended that evidence of PW 14 must also be discarded because his statement is recorded one month after the incident. 14. Mr. Ingawale also submitted that there is no discovery of weapon at the instance of A-3 and discoveries made at the instance of the other accused cannot be used against A-3. In this connection he relied on the judgment of the Supreme Court in Pohalya Motya Valvi v. State of Maharashtra, A.I.R. 1979 SC 1949. The learned counsel submitted that in the circumstances the conviction and sentence of A-3 deserves to be set aside. 12 15. Learned counsel appearing for A-4 has addressed us. Learned counsel for A-5 is not present. However, the evidence as against A-4 and A-5 being almost similar, we have appointed him to appear for A-5 also. He adopted the argument of learned counsel appearing for A-1 A-2 and A-3. He submitted that if the evidence of identification parade is disbelieved the conviction of A-4 and A-5 will have to be set aside. He submitted that it is true that bloodstained clothes and weapons of assault have been recovered at the instance of A-4 and A-5 but that by itself will not establish the complicity of the accused. Morever the discovery evidence does not inspire confidence. If the identification evidence is disbelieved the substratum of the prosecution story goes away. A-3, A-4 and A-5 cannot, therefore, be convicted on the basis of remaining evidence. 16. The learned APP Shri Shaikh on the other hand submitted that the evidence on record is cogent and credible. No fault can be found with the identification parade evidence. The guidelines have been meticulously followed by the Naib Tahsildar who held the parade. If there are any 13 minor discrepancies they cannot vitiate the identification parade. In this connection the learned APP relied on the judgment of the Supreme Court in Pramod Mandal v. State of Bihar 2005 SCC (Cri.) 75. He also relied on the Supreme Court judgment in State of Maharashtra v. Suresh, 2000 SCC (Cri) 263. The learned APP submitted that no interference is necessary with the impugned order. 17. There can be no dispute about the fact that on 5/4/99 deceased Brahmhanand More was attacked by some persons near Sharan Math at a distance of about half K.M. from Akkalkot with deadly weapons and the deceased succumbed to death on account of the injuries sustained by him in that assault. Complaint was lodged by PW 7 Vinod More, the son of the deceased. PW 6 Dr. Momin who did post mortem on the deceased found 12 external injuries and 3 internal injuries. According to her cause of death was shock due to injury to lung and liver and multiple incised wounds. 18. We shall first deal with the evidence against A-1 and A-2. It is the case of the prosecution that the deceased was a political leader. One group in village Kurnur was headed by him and the 14 other group was headed by Swamirao Patil. Political rivalry between these two groups is the motive of the murder. The trial court has rejected this case and, in our opinion, rightly so because in the F.I.R. A-2’s name is not mentioned. A-1’s name is mentioned in a different context. It is stated that in 1998 the son of A-1 was attacked by one Balurao Kale and his sons and A-1 was under the impression that the said attack was at the instance of the deceased. According to the prosecution A-1 wanted to take revenge and that is why he conspired with the other accused and killed the deceased. Since the prosecution case that political rivalry is the motive is rejected, it is necessary to see whether A-1 wanted to take revenge because of the attack on his son allegedly arranged by the deceased and hence he hatched a conspiracy and killed the deceased with the help of the other accused. So far as revenge theory is concerned apart from PW 7’s evidence and evidence of PW 14 there is no other evidence to substantiate it. Prosecution has not led any other evidence to establish this case. PW 14’s evidence does not inspire confidence for the reasons which, we shall soon advert. It is not possible to accept the revenge theory only on the basis of PW 7’s 15 evidence. 19. We will now examine the conspiracy theory. PW 13 is Raosaheb Kale. According to him he knew the deceased. On 5/4/99 he claims to have gone to sell agricultural produce at Adat Shop. For returning to his village he came to ST stand Akalkot at about 2-30 p.m. As the bus had already left he went near Mallikarjun Temple which is in front of S.T. Stand. According to him one Bhim Jadhav was with him. At about 4 or 4-30 p.m. A 2 along with A 4 and two others came to the hotel adjacent to Mallikarjun Temple. According to PW 13 Raosaheb Kale after taking tea A-2, A-4 and two others returned near the tempo adjacent to the temple where he and Bhim Jadhav were waiting. Raosaheb Kale has further stated that at that time A-2 handed over a bundle of currency notes of Rs.50 denomination each to A-4. A-2 then told A-4 and others that the deceased will proceed towards village Kurnur and hence they should do the work. Thereafter A-2 went towards S.T. Stand while three others went towards Wagdari Road. Raosaheb Kale has stated that thereafter he went to Kurnur by jeep. In the court Raosaheb Kale identified A-2, A-3, A-4 and A-5. 16 20. It is pertinent to note that the statement of this witness was recorded on 9/5/99 i.e. about a month after the incident. This delay itself makes the evidence of this witness unreliable. Besides, it is not established that this witness was in fact at Malikarjun Temple at the relevant time. He has not produced any evidence to establish that he had taken any agricultural produce for sale to Adat shop on that day. He has stated that he came to know about the murder of the deceased on the same day. It is surprising that though he had heard A-2 telling the other accused that the deceased would be going towards village Kurnur and that they should do the work and according to him he saw the money being exchanged, he should not have told this incident to anyone. He should have at least contacted the police. It is pertinent to note that to avoid being accused of unnatural conduct he first denied that he attended the funeral of the deceased but realising that it is difficult to deny this fact he immediately admitted that he had attended the funeral. At the funeral he had ample opportunity to talk to the people or even to the police who were present there. But he did not do so. He has not been able to offer any explanation 17 for this conduct. 21. To lend support to the evidence of this witness, the police could have recorded the statement of Bhim Jadhav, who was allegedly with him. Bhim Jadhav is not examined. In these circumstances, we find it difficult to place reliance on this witness. Besides it is humanly impossible for a man to remember such an incident and identify the accused in the court. This witness does not claim to know A-3 to A-5. In such a situation it was necessary for the police to hold identification parade. No identification parade is held. We, therefore, find it unsafe to rely on this witness. 22. The prosecution has also examined PW 14 Pandurang Dagade, the hotel owner. He has stated that he is running a hotel at village Kurnur. Villagers from Kurnur village including A-1 and A-2 used to visit his hotel. According to him six months prior to the date of incident i.e. 5/4/99, A-1 and A-2 had come to his hotel. According to him A-1 told A-2 that his son was attacked by persons from Kale family at the instance of the deceased. A-1 also told A-2 that they will have to 18 see the deceased (to settle account with the deceased). He further told him that he had one relative by name Peersaheb (A-5) and he has to be called for that purpose. A-1 and A-2 then left the hotel. According to PW 14 Pandurang Dagade, about one month prior to the date of incident A-1, A-2 and A-4 came to his hotel for tea. At that time A-1 stated that his son was attacked at the instance of the deceased and, therefore, the deceased has to be finished. A-2 also stated that A-1’s son was attacked at the instance of the deceased by the members of Kale family. At that time A-4 demanded money. A-1 did not pay the amount at that time. He however, assured to pay the amount. He identified A-1, A-2 and A-4 in the court stating that he knows the said persons. 23. Statement of this witness is also recorded on 9/5/99 i.e. almost one month after the incident. Important omissions in his evidence are that he had not stated before the police that he heard A-1 telling A-2 that his son was attacked by the members of Kale family at the instance of the deceased and that A-2 also stated that A-1’s son was attacked at the instance of the deceased. These omissions are in respect of the most vital 19 part of the prosecution story and make the prosecution story about conspiracy suspect. If this witness had heard such conversation he should have reported it to the police. He has not lodged any complaint. This unusual conduct makes him an unreliable witness. 24. Having perused the evidence of P.W. 13 and 14 on the aspect of alleged conspiracy to kill the deceased, we feel that a doubt is created about the existence of alleged conspiracy and motive. The prosecution has not been able to establish beyond reasonable doubt any meeting of minds, any concert or plan to do away with the deceased. The charge of conspiracy must, therefore, be set aside. The result is that the conviction and sentence of A-1 and A-2 must be set aside. 25. We must now turn to the prosecution case as regards A-3, A-4 and A-5. The prosecution has come out with a case that PW 7 identified A-3, A-4 and A-5 in identification parade. Discovery of bloodstained weapons and clothes is alleged against A-4 and A-5. Bloodstained clothes were seized from the person of A-3. Blood group of bloodstains found on the clothes is stated to be similar to the 20 blood group of the deceased. 26. We shall first deal with the evidence pertaining to the identification parade. A-3 and A-4 were arrested on 20/4/99 and A-5 was arrested on 23/4/99. The identification parade was held by PW 12 Tukaram Khonge, the Naib Tahsildar on 21/5/99 at Akalkot. In this connection it is necessary to see what the Supreme Court has said about evidentiary value of the identification parade evidence. 27. In State of Maharashtra v. Suresh’s case (supra), the Supreme Court was dealing with the value of identification parade evidence. The relevant observations of the Supreme Court may be quoted: . "If potholes were to be ferreted out from the proceedings of the Magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become 21 unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair