IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.637 OF 2003 1. Balu Sudam Khalde ] Aged – 23 years, ] Resudebt if 54/BP/394 ] Near Hindmata Mitra Mandal ] Lohiyanagar, Pune ] ] 2. Raju Gulabrao Mohte ] .. Appellants/ Original Aged 27 years, ] Accused Nos. 1 and 3. Resident of 54/CP/4, ] Lohiyanagar, Pune ] (At present at Yerwada ] Central Prison, Pune.) ] Verses The State of Maharashtra ] (Khadak Police Station, Pune) ] .. Respondents. Mr.Girish Kulkarni with Mr.Sandeep C.Kakan for the Appellants. Mr.P.S.Hingorani, A.P.P. For the State. CORAM : BILAL NAZKI and A.R. JOSHI, JJ. DATED : 2ND MARCH, 2009 1 JUDGMENT :- (Per A.R.Joshi, J.) This Appeal is preferred by both the Appellants (original Accused Nos. 1 and 3) against the impugned Judgment and order passed by the Additional Sessions Judge, Pune dated 12th March, 2003 in Sessions Case No.323 of 2001. By the said impugned Judgment and Order out of original four accused persons, Appellants were convicted for the offences punishable under section 302 and 323 read with section 34 of Indian Penal Code. Both the Appellants were sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.1,000/- each and in default to suffer further Rigorous Imprisonment for six months for the offences punishable under section 302 read with section 34 of Indian Penal Code. Both the Appellants were also sentenced to suffer Rigorous Imprisonment for one year and to pay fine of Rs.500/- each in default to suffer further Rigorous Imprisonment for three months for the offences punishable under section 323 read with section 34 of Indian Penal Code. Reportedly, the present Appellant No.1 is on bail and Appellant No.2 2 is still in custody as his earlier Bail Application were rejected during the pendency of the present Appeal. 2. The case of the prosecution as unfolded in the evidence of prosecution witnesses and also detailed in the First Information Report is that on the fateful day of the incident i.e. on 1st April, 2001 at about 11.15 p.m. Complainant P.W.1 was chit-chatting with his friend Abbas Baig, since deceased. That time, accused No.3 accompanied by some other persons was proceeding by the side and he was accosted by the deceased Abbas and there was some exchange of words and thereafter said accused No.3 alongwith the other assailants i.e. accused Nos.1,2 and 4 came to the spot and there was a sort of commotion and fight in which the first informant P.W.1 was initially assaulted on his head by means of a weapon and it was a assault by present Appellant Accused No.1 by means of a sickle, Article 16. The complainant sustained bleeding injury on his head. Thereafter there was severe assault on deceased Abbas Baig and the main role of assaulting Abbas by means of sickle and sword was at the 3 hands of present Applicants i.e. accused Nos. 1 and 3. Accused Nos. 2 and 4 being assailants were present on the spot and assisted in the assault. In the said assault, deceased Abbas Baig sustained severe bleeding injuries and the main injury which is injury No.9 is mentioned in the Post Mortem Report Exh.19 which is infact the fatal injury a stab injury inflicted on the shoulder adjacent and below the right middle clavicle. Due to such sever bleeding injuries deceased Abbas raised shouts and on hearing such commotion and shouts one Phiroz i.e. P.W.2 arrived on the spot and accosted the accused persons. That time original Accused No.4 abused him and assaulted him with some weapons he was carrying. Phiroj Shaikh P.W.2 also sustained some injuries on his head. Many persons gathered on the spot and hence, all the four assailants accused ran away in the nearby lane. Deceased Abbas Baig was lying in the sever injured condition on the spot. He had sustained injuries on his hands, arms and mainly on the shoulder. Complainant P.W.1 asked one nearby Auto rickshaw driver Naseer P.W.3 to lookafter the injured Abbas and said P.W.1 alongwith Phiroj P.W.2 went to Lohianagar Police Chowki. The 4 incident was narrated to the Police, by that time injured Abbas Baig brought by Nazeer P.W.3 to the Police Chowki and thereafter shifted to Sasoon Hospital. Abbas Baig was declared dead on arrival at hospital. Injured witnesses were sent to medical examination at Sasoon hospital aongwith police yadi. They were treated in the hospital and were discharged. 3. The First Information Report was lodged on 2nd April, 2002 by P.W.No.1 and offence was registered against all the four accused and investigation was taken over by P.W.No.9. Inquest panchanma was drawn on the dead body of the Abbas Baig. Scene of offence panchanma was also drawn. Statements of injured witnesses were recorded. After knowing the whereabouts of the accused they were put under arrest. According to case of the prosecution, accused Nos. 1 and 3 i.e. present Appellants voluntarily made statement and after calling panch witnesses they were recorded and respectively a sickle Article No.16 and a sword Article No.17 were recovered at the instance of present Appellant Nos. 1 and 2 i.e. the original accused 5 Nos. 1 and 3. 4. Also during investigation the cloths of the deceased, injured witnesses and also of the accused were taken charge of under different panchanmas and all the seized articles were sent for chemical analyser. On completion of investigation charge sheet was filed against all the four accused before the Judicial Magistrate First Class, Court No.6, Pune and matter was committed to the Court of Sessions being Sessions Case No.323 of 2001. 5. Charges were framed against all the four accused vide Exh.8 for the offences punishable under section 302, 323, 324 and 506 read with section 34 of the Indian Penal Code. 6. During the trial, total ten witnesses were examined. P.W.1 and 2 are the eye witnesses, P.W.3 is the witness Nasir an Auto Rickshaw driver who happened to be on the spot after the incident was over and saw then injured Abbas lying on the spot and took him 6 to the police chowki and then to hospital. P.W.4 and 5 are the panch witnesses for the memorandum and discovery panchanma concerning accused No.1 when a sickle Article 16 was recovered. P.W.No.6 is the pancha concerning memorandum statement and discovery of a sword at the instance of accused No.3 i.e. Appellant No.2. P.W.No.7 is Dr.Shrikant who conducted the post mortem and observed various external and internal injuries detailed in the post mortem Exh.19. P.W.8 is Police Havaldar on duty at Lohiyanagar Police Chowki at the fateful night and deposed regarding bringing of then injured Abbas Baig by Auto Rickshaw driver Nazeer, P.W.No.3 in the police chowki. Said PW.8 prepared police yadi for sending the said injured Abbas to Sasoon Hospital for medical examination and treatment. P.W.9 is the investigating officer who recorded the First Information Report of P.W.No.1 and after registering the offence took over investigation. 7. After scrutinizing the circumstantial evidence of prosecution witnesses and mainly the evidence of eye witnesses P.W.No.1 and 2 coupled with the corroborative evidence of P.W.No.3 7 and considering the recoveries of the weapons Article 16 and 17, a sickle and sword at the instance of respective accused Nos. 1 and 3 i.e. Appellant Nos. 1 and 2, Sessions Court held accused Nos. 1 and 3 guilty of the offences punishable under section 302 and 323 read with section 34 of Indian Penal Code and acquitted accused Nos. 2 and 4 from all the charges. It may also be mentioned that the Sessions Court did not convict any of the accused for the offence punishable under section 324 and 504 read with section 34 of Indian Penal Code, mainly presuming that no material brought before the Court as to the injuries sustained by the eye witnesses. 8. In the present Appeal, it is to be ascertained whether the Sessions Court has rightly appreciated the evidence brought before it and had come to the conclusion of guilty of the present Appellants Accused Nos. 1 and 2 beyond reasonable doubt. It is also to be ascertain whether there is anything to interfere with the said impugned Judgment and order. 8 9. Firstly, it is argued on behalf of the Appellants the learned Counsel that the substantive evidence of P.W.Nos. 1 and 2, alleged eye witnesses cannot be taken as trustworthy, in as much as they are interested and related witnesses to the deceased Abbas Baig. Secondly, it is argued that there was no immediate disclosure of the names of the accused persons when the injured Abbas was brought to Lohiyanagar Police Chowki and when said Abbas and both the injured P.W.Nos.1 and 2 were sent to Sasoon Hospital for medical treatment no history of assault was given. Thirdly, it is argued that P.W.1, complainant had improved on his story by mentioning that Abbas had sustained injuries on his head and it was not so mentioned by him while giving his complaint. Fourthly, it is argued that the main vital injury which was in the normal course of events, sufficient to cause the death of Abbas is injury No.9 as per the Post Mortem report was attributed to only accused No.3 i.e. Appellant No.2 as it was made by use of a sword and as such it was not the injury inflicted by Appellant No.1 accused. By canvassing such last argument, it is emphasized on behalf of the Appellant that the death of Abbas was 9 caused due to the injury at serial no.9 in the Post Mortem report and as such the Appellant accused No.1 could not be held responsible for the death of Abbas, further argued. 10. While dealing with such arguments, on behalf of the Appellants as mentioned above, we have carefully gone through the substantive evidence of P.W.1 and 2 and also of the incidental witness, corroborating the major part of the events i.e. P.W.No.3 and it must be said that immediately after reaching Lohianagar Police Chowki a complaint was lodged by P.W.1 and by that time said Abbas was also brought to the Police Chowki and was subsequently referred to Sasoon Hospital for treatment, however, declared dead on admission. It is also in the substantive evidence of P.W.1 that he and P.W.2 attended the Sasoon Hospital alongwith police yadi for getting treatment. It is a factual position that there is no medical certificate brought on record by the prosecution regarding injury sustained by P.W.Nos.1 and 2 and as such factual position prompted the Sessions Court to hold that there was no charge established for the offence 10 punishable under section 324 read with section 34 of Indian Penal Code for the assault on the witness No.1, the complainant. It is also observed that the death of Abbas was due to multiple injuries though as opined by the Medical Officer P.W.No.7, the main injury which could have in the normal course caused death of Abbas, is injury No.9 mentioned in the Post Mortem report. In other words, it must be said that all the injuries sustained by Abbas were the cause of his resultant death and that a role was attributed to the accused Appellants using the respective weapons i.e. Article No.16 sickle and Article No.17 a sword. 11. Further more, the argument on behalf of the Appellants as to the Appellant No.1 cannot be held responsible for causing the death of Abbas cannot stand to reason and logic, in as much as, the charge against all the accused is for the offences punishable under section 302, 323 and 324 read with section 34 of Indian Penal Code that is of common intention as being present on the spot during the entire incident of assault. Under these circumstances, needless to 11 mention that every person who share the common intention of the group, is equally responsible for the act of his associates and consequently present Appellants can validly be roped together charged. 12. So far as the recoveries at the instance of present Appellants are concerned, it is brought to our notice that panch witness P.W.4 is the husband of sister of the deceased and as such an interested witness and moreover a sickle Article 16 was allegedly procured by accused No.1 not from his house but from the house of sister of accused No.3. On this aspect substantive evidence of another panch witness P.W.No.5 supports the case of the prosecution as to recovery of sickle at the instance of Appellant Accused No.1 and said P.W.No.5 is not at all related to the deceased. So far as the recovery of sword Article 17 at the instance of Appellant Accused No.3 is concerned, substantive evidence of P.W.No.6 panch witness Suhas is taken shelter of by the Sessions Court while scrutinizing the said substantive evidence of panch witness P.W. Nos. 4, 5 and 6 as 12 recovery of the weapons of assault. Though, for the sake of arguments it is accepted that the said weapons cannot be attributed the respective Appellants for aforesaid anomalies in the substantive evidence of such panch witnesses, mainly as to said witnesses say that memorandum panchanama was already written at the police station and that they were told by the police as to said respective accused were to produce certain weapons, still without such recovery attributable to the Appellants, the direct evidence of P.W. Nos. 1 and 2 is sufficient to hold that Appellants were some of the assailants and were present on the spot and did take part in the assault. In other words when assessing the standard of proof which is required to prove the guilt of the person beyond reasonable doubt, it is not necessary that there should be 100 % clinching evidence against the accused persons, but what is required is that the evidence which is beyond reasonable doubt. In our opinion, the evidence laid before the Sessions Court is sufficient enough to hold the Appellants guilty of the offences punishable under sections 302 and 323 read with section 34 of Indian Penal Code. 13 13. With the above observations we find that there is nothing to interfere with the impugned Judgment and order and hence we pass the following order : :: O R D E R :: i. The present Appeal is dismissed and disposed of accordingly. (BILAL NAZKI, J) (A. R. JOSHI, J.) 14