AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.231 OF 1999 DIST. BOMBAY Shri Kishore Bhau Shinde residing at Mahasagar Chawl Committee, Chawl No.13, Kamraj Nagar, Ghatkopar (E), Mumbai – 400 077 at present at Nasik Central Prison, Nasik. ) ) ) ) ) ... Appellant / Orig. Accused 2 Versus The State of Maharashtra (At the instance of Pant Nagar Police Station). ) ) ) ... Respondent Mr. A.H.H. Ponda for the appellant / original accused 2. Mr. S.R. Borulkar, Public Prosecutor for the respondent- State. CORAM : SMT. RANJANA DESAI & D.G. KARNIK, JJ. DATE ON WHICH THE JUDGMENT RESERVED : 13TH MARCH, 2006. DATE ON WHICH THE JUDGMENT PRONOUNCED : 3RD APRIL, 2006. AJN 2 JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. The appellant, original accused 2 (for short, “A-2”) was tried along with four others (for short, “A-1”, “A—3”, “A--4” and “A--5” respectively) for offence punishable under section 120- B of the Indian Penal Code (for short, “the Code”) in Sessions Case No.359 of 1998. A-1, A-2 A-3 and A-4 were also charged under section 302 read with section 34 of the Code. The learned Additional Sessions Judge, Greater Bombay, by the impugned judgment and order dated 9/4 / 1 999 acquitted all the accused of the offence punishable under section 120- B of the Code. He acquitted A-1, A-3 and A-4 of the offence under section 302 read with section 34 of the Code. He convicted A-2 for the offence punishable under section 302 read with section 34 of the Code and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs.1,000 /- and, in default, to suffer rigorous imprisonment for one month. Being aggrieved by this judgment and order, A-2 has preferred the instant appeal. 2. It would be advantageous to give the gist of the facts : PW-1 Vasant Bhosale is the Police Nayak, who was at the relevant time, attached to Pant Nagar Police Station. According to him, on 11/12 / 1 997, he was on night duty. He reached Pant Nagar AJN 3 Police Station at 7.00 p.m. He was posted at Kamral Nagar Chowky. At about 10.45 p.m., one Devendra Bhurjiwala came and informed that one Ganpat was being assaulted by 3-4 persons near the dispensary of Dr. Kulkarni and he was lying there in a pool of blood. He went to the scene of offence with the said Devendra Bhurjiwala in a rickshaw. He found one person lying in an injured condition in a pool of blood. The wife of the injured by name Kavita and his mother Krishnabai were crying and saying that A-2 and his associates had attacked the injured. With the help of Narayan Shetty and Ganesh, he removed the injured to Rajawadi Hospital. The mother of the injured and Narayan Shetty sat in the rikshaw. Before leaving the spot, he informed PW-9 PSI Bhosale, who was at Pant Nagar Police Station, on phone, about the said incident. PW-9 PSI Bhosale made station diary entry [Ex.P- 32/A]. At the Rajawadi Hospital, the doctor declared the injured, dead. When PSI Bhosale reached the hospital, PW-1 Vasant Bhosale narrated the incident to him. PW-9 PSI Bhosale recorded his statement. According to PW-1 Vasant Bhosale, the wife of the deceased had told him that the deceased was assaulted with sharp edged weapons like knives and choppers by A-2 and his associates. According to the prosecution, on the basis of the statement of PW-1 Vasant Bhosale, which is at Ex- P-12, the investigation started. The statement of witnesses came to be recorded. Post- mortem was done on the deceased. There were 52 AJN 4 external injuries on the person of the deceased and the cause of death was haemorrhage and shock due to multiple incised stab wounds and incised wounds by sharp edged weapons (Unnatural). After completion of the investigation, the accused came to be charged as aforesaid. 3. The prosecution examined, in all, 12 witnesses. The star witnesses of the prosecution are PW-2 Kavita, the wife of the deceased and PW-3 Krishnabai, the mother of the deceased. PW-8 Dr. Ashok Shinde proved the post- mortem notes. Details of investigation were given by PW-9 PSI Hanumant Bhosale. PW-10 PI Charudatta Zendekar and PW-12 PN Bhanudas Kadam, who were attached to Pant Nagar Police Station at the relevant time. The defence of the accused was one of denial. After perusing the evidence on record, the learned Sessions Judge, convicted the accused as above and, hence, this appeal by A-2. 4. We have heard, at some length, Mr. Ponda, the learned counsel appearing for A-2 and the learned Public Prosecutor Mr. Borulkar. With the assistance of the learned counsel, we have gone through the record. 5. Mr. Ponda, the learned counsel for A-2 contended that the AJN 5 learned Sessions Judge has erred in convicting A-2 when there is no cogent and credible evidence on record to establish his involvement. He submitted that there are several serious infirmities in the evidence of PW-2 Kavita and PW-3 Krishnabai, which negative their claim of being eye- witnesses. He submitted that the testimony of PW-1 PN Bhosale to the effect that PW-2 Kavita and PW-3 Krishnabai gave the name of A-2 to him is falsified. PW-2 and PW-3 deny having any talk with him. He claims that he gave these names to the police station. But this is falsified by the dairy entry made by PW-9 PSI Bhosale and the admission of PW-9 PSI Bhosale. Mr. Ponda submitted that the conduct of PW-2 Kavita is unnatural. She did not disclose the names of the assailants to anyone after Mangala told her that her husband was dead. She did not tell the names of the assailants when the police came to her house and made enquiries with her. Till 2.30 p.m. when she went to the police station, she did not disclose the names of the assailants to anyone. According to her, the Beat Office was seven minutes walking distance but surprisingly she did not go to the Beat Office to inform about the incident. She did not go to the hospital when her husband was lying there seriously injured. Her unnatural conduct makes her testimony doubtful. 6. Mr. Ponda pointed out that whereas PW-3 Krishnabai says that both she and PW-2 Kavita disclosed the incident to the police, PW-2 AJN 6 Kavita says that they did not. Mr. Ponda submitted that there are number of contradictions in the evidence of these two witnesses. PW- 2 Kavita has stated that A-1 dropped the weapon which he was holding. But PW-3 Krishnabai has stated that the weapon was dropped by A-2. PW-2 Kavita has said that PW-3 Krishnabai raised her hands and told A-2 not to assault the deceased but PW-3 Krishnabai has said that she laid on the deceased and told A-2 not to assault the deceased. PW-2 has said that A-1, A-3 and A-4 ran away before PW-3 Krishnabai intervened. However, PW-3 Krishnabai has said that she laid on the deceased and thereafter all the accused ran away. PW-2 Kavita has said that first A-1 ran away, then A-3 ran away and after some time A-4 ran away and they all ran towards highway direction. PW-3 Krishnabai has said that they ran towards the lane. Mr. Ponda contended that these discrepancies as regards the incident in question are fatal to the prosecution case. They suggest that the incident has not taken place in the manner in which the prosecution wants the court to believe it has taken place. Mr. Ponda pointed out that PW-3 Krishnabai has said that she did not know the names of the accused and that none of the accused were shown to her. Then it is not understood as to how PW-3 Krishnabai disclosed the names of the accused to the police. He pointed out that no identification parade was held. This suggests that the police have concocted the prosecution story. Mr. Ponda AJN 7 contended that in any event, rest of the accused have been acquitted on the basis of the same evidence and, therefore, since partly the evidence of these witnesses has been disbelieved, it is not prudent to place reliance on their testimony. PW-2 Kavita being the wife was expected to name the assailants after seeing the incident. Her conduct of not disclosing the names is highly unnatural. It is not explained by the prosecution and, hence, A-2 must get benefit of doubt. In this connection, he relied upon the judgment of the Supreme Court in Shivaji Dayanu Patil v. State of Maharashtra, AIR 1989 SC 1762 . 7. Mr. Ponda also relied on the judgment of the Supreme Court in Meharaj Singh (L/Nk.) v. State of U.P., 1994 SCC (Cri.) 1390. In that case, widow of the deceased did not try to go anywhere near her husband after he fell down on account of injuries inflicted on him. The Supreme Court found that conduct unnatural and it was observed that in a situation like this, the normal conduct of the wife would be firstly to make an effort to save her husband. The Supreme Court did not place reliance on the evidence of the wife of the deceased and held that she was not present at the scene of offence. Mr. Ponda contended that the facts of this case are comparable to the facts of the present case. The evidence of PW-2 Kavita, therefore, needs to be kept out of consideration. AJN 8 8. Mr. Ponda then relied on the judgment of the Supreme Court in Ali Mollah and another v. State of West Bengal, 1996 Cri.L.J. 3842. In that case, there was a murder of the employer of the eye- witness. The eye- witness admitted in the cross- examination that he did not tell anyone, even to his co-employees about the incident in question though next day he went to his work place. The prosecution did not offer any explanation for this silence. The Supreme Court found the conduct of the eye- witness unnatural and held that the claim of this witness that he was present at the scene of offence was doubtful. Relying on these cases, Mr. Ponda contended that the evidence of PW-2 Kavita and PW-3 Krishnabai must be rejected as unreliable. 9. Mr. Ponda contended that the trial court has rightly disbelieved the evidence of discovery of articles and, therefore, apart from the evidence of PW-2 Kavita and PW-3 Krishnabai, there is hardly any other evidence on record which can connect A-2 with the murder. Since the evidence of PW-2 and PW-3 is not credible, A-2 will have to be acquitted. 10. Mr. Ponda further contended that the case of the prosecution that PW-3 Krishnabai laid on the deceased and requested A-2 not to assault the deceased is falsified by the fact that the prosecution has AJN 9 not explained what happened to the clothes of PW-3 Krishnabai. The Investigating Officer has categorically stated that the clothes of PW-3 Krishnabai were not seized. It was the duty of the prosecution to seize the clothes and send them to the chemical analyser to ascertain the blood group of the blood found on those clothes. If the blood found on the clothes of PW-3 Krishnabai were to match the blood group of the deceased, that would have been a clinching circumstance to support the prosecution case. Since the prosecution has not seized the clothes of Krishnabai, adverse inference needs to be drawn against it. 11. Mr. Ponda then submitted that in any event, even if this court believes the evidence of PW-2 Kavita and PW-3 Krishnabai, A-2 cannot be convicted under section 302 read with section 34 of the Code as wrongly done by the trial court. He submitted that both the witnesses have not attributed any specific role or overt act to A-2. If all the other accused are acquitted, A-2 cannot be convicted on the ground that he shared common intention with the other accused. The deceased had suffered 52 injuries. Since the witnesses have not stated which injury was caused by A-2, it cannot be said that the injury caused by A-2 was the fatal injury which resulted in the death. In such circumstances, A-2 could only be convicted for offence under section 325 of the Code. In this connection, he relied on the AJN 10 judgments of the Supreme Court in Baul and another v. State of U.P., AIR 1968 SC 728; Achhey Lal v. State of U.P., AIR 1978 SC 1233 and Atmaram Zingaraji v. State of Maharashtra, 1997 Cri.L.J. 4406 . 12. As against this, Mr. Borulkar, the learned public prosecutor contended that the evidence of PW-2 Kavita and PW-3 Krishnabai is consistent and cogent so far as involvement of A-2 is concerned. There are no major contradictions or discrepancies in their evidence on that aspect and they can always be believed partly. There is no reason for these two witnesses, who are related to the deceased to name a wrong person. He submitted that the fact that they did not report to the police immediately after the incident cannot be taken against them. It is obvious that they were scared because of the ghastly incident which had taken place and were in no position to even disclose the incident to anyone. The learned public prosecutor urged that the trial court has rightly convicted A-2 on the basis of the evidence of PW-2 Kavita and PW-3 Krishnabai. The learned public prosecutor submitted that merely because other accused are acquitted, A-2 cannot be acquitted when the evidence on record establishes his involvement. He relied on the judgment of the Supreme Court in Rajan Rai v. State of Bihar, 2006 All MR (Cri.) 314 (S.C.) and contended that even if the other accused are acquitted, A-2 AJN 11 could be convicted under section 302 read with section 34 of the Code. He urged that the conviction and sentence imposed by the trial court is justified and may not be disturbed. 13. We have given our anxious consideration to the submissions advanced by both sides. The learned Sessions Judge has recorded that the police have prepared false record. He has observed that it is amply clear that the investigation of the case has been done in a manner which suggests that there is probably collusion between the defence and the prosecution. According to the learned Sessions Judge, the police have not recorded the statements of the witnesses faithfully and distorted their version. He has commented on the fact that PW-6 Chandurkar was the common pancha for all the recovery panchnamas and he has deposed that all his signatures were taken in the police station where all articles were kept on the table. All the recoveries have been discarded on the ground that one person acted as pancha to all the panchnamas and he followed the police wherever they went. He was declared hostile. Another pancha PW-7 Ajay Jadhav has also turned hostile. We concur with the learned Sessions Judge that the investigation is done in a shoddy manner and in such circumstances, it is not possible to believe the discoveries on the basis of the evidence of the investigating officer. AJN 12 14. But it is also necessary to note that PW-10 PI Zendekar has stated that he could not record the statements of about ten witnesses which include Ganesh and Narayan. Because they had left their places without leaving any trace behind, the summonses could not be served on these witnesses. PW-10 PI Zendekar has further stated that witnesses Sanjaykumar, Devendra, Datta Lad and Dr. Pardeshi were not going to support the prosecution and, therefore, the prosecution has decided not to record their statements. PW-12 PN Kadam has also stated that he had gone to serve summonses on eight witnesses which include Narayan and Ganesh. He has stated that he could not serve the summonses on them as they had left their places without leaving any trace behind. Some of them had gone to Andhra Pradesh. He, therefore, prepared a report and submitted it to Sr. Inspector of Police. PW-10 PI Zendekar had prepared a report to that effect. PW-12 PN Kadam has produced the relevant documents in this connection which are on record at Ex.P- 76 (Colly.). These documents indicate that the witnesses had left their residences and were not available to give evidence. It appears, therefore, that on account of this ghastly incident, a terror wave was unleashed in the concerned area and the witnesses were not willing to come forward to depose against the accused. Their not coming forward or making themselves scarce could be the result of threats given to them by the perpetrators of the crime. We have, however, no manner of doubt AJN 13 that the investigation of such a grave crime should have been and ought to have been done in a better manner and perhaps there is room to say that lapses in the investigation indicate collusion between the defence and the prosecution as stated by the learned Sessions Judge. But certainly the benefit of this collusion cannot be allowed to be reaped by the accused if it is found that the substratum of the prosecution story has not given way. 15. If the evidence and the attendant circumstances establish that the accused have committed the crime, giving benefit of the collusion or negligence of the investigation to the accused would not be in the interest of justice. In Kernel Singh v. State of M.P., 1995 (5) SCC 518 and in Dhanraj Singh @ Shera and Ors. v. State of Punjab, JT 2004(3) SC 380, the Supreme Court has held that in the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. 16. In Paras Yadav and Ors. v. State of Bihar, 1999 (2) SCC 126, the Supreme Court has held that if the lapse or omission is committed by the investigating agency or because of negligence, the AJN 14 prosecution evidence is required to be examined de hors such omission to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 17. In Ram Bihari Yadav v. State of Bihar and Ors. 1998 (4) SCC 517 , the Supreme Court has observed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. This view has been again reiterated in Amar Singh v. Balwinder Singh and Ors., 2003 (2) SCC 518 . The defective investigation would not, therefore, deter us from convicting the accused if we find that de hors the defects the accused can still be convicted on the basis of the evidence on record. 18. Much criticism was levelled against PW-2 Kavita and PW-3 Krishnabai. It was argued that there are inconsistencies between the statements of these two witnesses and their conduct makes them unreliable witnesses. It was argued that the wife of the deceased PW- 2 Kavita ought to have told the names of the accused to the police; AJN 15 she should have rushed to the police and she should have stayed in the hospital throughout. PW-3 Krishnabai should have also stayed in the hospital. She should have immediately lodged a complaint. Numerous judgments of the Supreme Court were cited in support of this submission. In our opinion, the inconsistencies in the evidence of PW-2 Kavita and PW-3 Krishnabai are not of such nature as would make them unreliable witnesses. In the nature of things, two eye- witnesses cannot give identical evidence in a court of law. They may not see the incident from the same angle. They perceive it in a different manner. At one time, they may not concentrate on the same accused. When an attack is levelled by many persons, it may not be even possible to recapitulate the incident and narrate it with exactitude particularly when the witnesses are near relations of the deceased. On account of emotional trauma suffered by them they may make mistakes. If they give a parrot like version, it is possible to argue that they were tutored. In our opinion, in fact, some inconsistencies and discrepancies make them truthful witnesses. The witnesses tend to exaggerate the incident. The exaggeration by itself will also not make them untrustworthy, if the exaggeration does not affect the core of the evidence. 19. We may advantageously refer to the judgment of the Supreme Court in Sucha Singh and Another v. State of Punjab, (2003) 7 SCC AJN 16 643 . In that case, the Supreme Court was dealing with the credibility of related witness. The Supreme Court observed that the relationship is not a factor which would affect the credibility of a witness because it is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. All that the court had to do is to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. The Supreme Court then considered whether if a witness is partly disbelieved, his evidence has to be rejected in toto. The Supreme Court observed as under : “The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has it come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. The doctrine is a dangerous one, especially in India for if a whole AJN 17 body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.” The Supreme Court further observed as under : AJN 18 “So even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary