1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1034 OF 2008 1] Arunkumar @ Kallu Rajendraprasad Pande, Aged : 34 years, 2] Ashok @ Guddu Rajendraprasad Pande, Aged : 32 years, 3] Santosh @ Lallu Rajendraprasad Pande, Aged : 27 years, All r/o.Bangali Chawl, Yadav Nagar, Pande Bakery Stores, Near Shivam, Vidya Mandir, Khairani Road, Sakinaka, Mumbai (At present lodged in Mumbai Central Prison and undergoing the sentence imposed upon them ....Appellants Vs. The State of Maharashtra (At the instance of Sakinaka Police Station vide their C.R.No.85 of 2003) ....Respondents ......... Mr.Sudeep Pasbola, for appellants. Mrs.V.R.Bhosale, APP for respondent-State. ......... cri.appeal.1034-08.sxw 2 CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. RESERVED ON : 20 th JANUARY, 2010 PRONOUNCED ON : 18 th FEBRUARY, 2010 JUDGMENT : (Per R.G.KETKAR, J.) This appeal is preferred by the original accused Nos.1 to 3 challenging the judgment and order dated September 17, 2008 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.449 of 2003. By the impugned judgment and order, the learned Sessions Judge found all the accused guilty under Section 235 (2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) of the offence punishable under Sections 302 r/w.34 Indian Penal Code (for short “IPC”). The accused were sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default to suffer R.I. for three months each. The accused No.2 was convicted under Section 235(2) of the Cr.P.C. for the offence punishable under Section 324 IPC and sentenced to suffer R.I. for 3 years with fine of Rs.2,000/-, in default, to further suffer R.I. for one month. The sentences of the accused no.2 were to run concurrently. The case of the prosecution is as under. cri.appeal.1034-08.sxw 3 2] Jahid Khan - informant in the present case (P.W.2) along with brother Laik Khan (hereinafter referred as “the victim”), his brother-in-law Zulfikar Khan PW 3 along with others were residing in New Iqbal Bakery, situate at Munna Estate, in front of Cafe Naaz Hotel, Khairani Road, Sakinaka, Mumbai – 400 072. They were buying bakery products from the said bakery and also were buying milk, eggs and breads and used to sell those articles in Hiranandani Complex, Powai and Jalwayu Vihar Society as hawkers between 5:00 am. and 9:00 am. in the morning and 5:30 pm. and 10.30 pm. in the evening. 3] The accused were resident of Bengali Chawl, Yadav Nagar, Khairani Road, which was situate at a distance about 1 k.m. from the said bakery. The accused were also dealing in the said bakery products by purchasing them from the said bakery and also used to sell milk, eggs and breads at other places. About 3 to 4 days prior to the incident in question, a quarrel took place between Zulfikar PW 3 and uncle of the accused No.1, as the accused were selling the bakery products, milk, eggs in Hiranandani Complex, being the area where PW 2 Jahid and PW 3 Zulfikar used to sell the said products. On April 3, 2003, accused Nos.1 and 2 came to the bakery at about 4 pm. and started abusing PW 3 cri.appeal.1034-08.sxw 4 Zulfikar. After the exchange of hot words. The accused told that they will come on the next date and will see what to do. They left the bakery. 4] On April 4, 2003, at about 4 p.m. all the accused came to the said bakery and started abusing PW 3 Zulfikar. Munshi of the said bakery and PW 2 Jahid tried to pacify the accused persons. Since there was no response, PW 2 Jahid and the victim told them that they will lodge complaint to the police. When PW 2 Jahid started for Sakinaka police station from rear side Galli from the rare side door, he saw some persons standing in the galli. He felt that they were from the side of accused. He got frightened and came back to the bakery. PW 2 Jahid started for the police station from the main road through Saibaba Galli. At that time, the victim and PW 3 Zulfikar were with him. When they reached near Siddivinayak General Stores, suddenly accused came to the spot and intercepted them. Accused No.2 was holding belt. All the three accused started assaulting victim and PW 2 Jahid. In order to defend himself, the victim picked up a wooden plank. The accused no.3 picked up stone and gave blow on the head of the victim. The victim fell down. The Victim tried to get up and at that time, the accused no.2 caught hold of the legs of the victim and accused no.1 gave blows of the stone on the head of the cri.appeal.1034-08.sxw 5 victim. PW 2 Jahid tried to save the victim. While the accused no.1 was trying to get up, he fell down on the wooden plank. The accused no.2 gave blow of belt to PW 2 Jahid and, consequently, he sustained injury on the head from the backside. He ran towards bakery. PW 2 and the Munshi of the bakery along with one Mujjabin and Badkun came to the spot where they saw the victim lying in the injured condition and the accused had run away. 5] It is a case of the prosecution that Mujjabin and Badkun and PW 2 Jahid Khan brought the Victim to Rajawadi Hospital, Ghatkopar. On examination, the Doctor declared him dead. PW 2 Jahid was treated by the Doctor. PW 4 Rizwan reported this fact to the bakery. At that time, the accused no.1 also reached the hospital as he sustained injury on account of fall on the wooden plank. The police also reached to the hospital and PW 2 Jahid told the police that the accused had killed the victim. The cloths of the victim namely one Khaki brown pant, one off white full shirt having blood stains, one Sandow green baniyan and one nicker were seized by the police. The accused no.1 was arrested by the police. He was provided medical treatment. PSI Nandkishor Taksalkar [PW 9] registered crime No.85 of 2003 under Sections 302, 324 r/w.34 IPC. The cri.appeal.1034-08.sxw 6 inquest panchnama of dead body was prepared (exhibit 37), likewise, he prepared panchnama of scene of offence (exhibit 16) in the presence of two panchas. PW 9 also seized two blood stained stones, one wooden plank, blood mixed earth from the spot under the same panchnama. He collected the post mortem notes. The further investigation was thereafter conducted by Police Inspector Ramsiddha Somanna Narote PW 10. He arrested the accused, seized their cloths, recorded the statements of witnesses, seized the cloths of the deceased. He sent the cloths of the deceased and accused and the property seized from the spot to the Chemical Analyzer, Mumbai. He collected the C.A. Reports which are at exhibits 40 to 45. He also collected the injury report of the PW 2 Jahid and accused no.1 which are at exhibits 27 and 28. After completing the investigation, the charge sheet was filed in the Court of the learned 22 nd Metropolitan Magistrate, Andheri, Mumbai. 6] By order dated July 14, 2003, the learned Metropolitan Magistrate committed the case to the Sessions Court, Greater Bombay, for trial according to law. 7] The charge was framed against the accused under Section 302 r/w.34 IPC. In so far as the accused no.2 is concerned, he was cri.appeal.1034-08.sxw 7 charged for offence punishable under Section 324 IPC for causing voluntarily hurt to PW 2 Jahid Khan by means of belt. The Charge was read over and explained to the accused in vernacular. They pleaded not guilty and claimed to be tried. The defence of accused is total denial and about false implication in the case. It is the defence of the accused no.1 that at the time of incident in question, the victim had assaulted him, hence, the crowd gathered on the spot and somebody from the crowd had pelted stones which hit the victim and he sustained injuries and finally lost the life. It is the further defence of the accused that the victim assaulted accused no.1 by a wooden plank and the blood appeared on the wooden plank as would be evident from the perusal of the CA report (Exhibit 41). Further, the prosecution suppressed the said fact throughout and consequently, the genesis of the prosecution’s case as also evidence of the PW 2 to PW 4, is not trustworthy. 8] It is the defence of the accused, that PW 3 Zulfikar Khan and PW 4 Rizwan had no occasion to witness the incident, however, since they are the relatives of PW 2 Jahid and victim, they came to be planted as the witnesses to the incident and their evidence is full of omissions and contradiction and deserves to be discarded in toto. cri.appeal.1034-08.sxw 8 9] The accused also raised defence that PW 3 Zulfikar and PW 4 Rizwan were not present when the victim was shifted to the Rajawadi hospital by PW 2 Jahid with the help of others. This fact establishes that at the time of incident PW 3 and PW 4 were not present on the spot. 10] In order to prove the charges against the accused, the prosecution had examined 10 witnesses who can be broadly classified into the following categories: EYE WITNESSES 1] PW 2 : Jahid Khan, at exhibit 17, who is also injured witness. He had filed the F.I.R. on April 4, 2003 which is at exhibit 18. 2] PW 3 : Mr.Mohd. Zulfikar, at exhibit 19. 3] PW 4 : Mohd. Rizwan, at exhibit 20. PANCH WITNESSES 1] PW 1: Mr.Rajesh Fulchand Gupta, at exhibit 15, who is witness to the scene of offence panchnama at exhibit 16. 2] PW 7: Tanaji Sakharam Shinde at exhibit 32 who is witness to the seizer panchnama of belt at exhibit 33. cri.appeal.1034-08.sxw 9 3] PW 8: Jagannath Baburao Udugare, at exhibit 34, panch witness. He is the witness to seizer of panchnama at exhibit 35 under which cloths of the accused were seized. MEDICAL EVIDENCE 1] PW 5: Dr.Rajaram Narayan Marathe, at the relevant time Medical Officer attached to Rajawadi Hospital, whose evidence is at exhibit 23. He conducted autopsy on the dead body of the victim and issued P.M. Notes which are at exhibit 24. 2] PW 6: Dr.Sunil Wamanrao Bhoir, attached to Rajawadi Hospital, as a Casualty Medical Officer. His evidence is at exhibit 26. He examined PW 2 Jahid Khan as as also accused no.1 Arunkumar @ Kallu Rajendraprasad Pande and submitted injury report at exhibit 27 and 28. INVESTIGATING OFFICER 1] PW 9 : Mr.Nandkishor Digambar Taksalkar, at exhibit 36. He recorded the F.I.R. lodged by PW 2 Jahid Khan at exhibit 18. He prepared inquest panchnama at Exhibit 37 as also spot panchnama at exhibit 16. He also seized two stones and one wooden plank which are marked as Articles “C-1”, cri.appeal.1034-08.sxw 10 “C-2” and “A”. 2] PW 10: Mr.Ramsiddha Somanna Narote, exhibit 39, at the relevant time attached to Sakinaka Police Station. He prepared spot panchnama exhibit 16 and seized the cloths of the accused. He recorded statements of the witnesses and also collected blood samples of the accused from the Medical Officer. The blood samples of the victim as also complainant PW 2 were collected and sent to the Chemical Analyser. He placed on record the reports of the Chemical Analyser at exhibit 40 to 45. 11] On the basis of the material on record, as stated earlier, the learned Sessions Judge convicted the accused under Section 302 r/w.34 IPC and sentenced to suffer R.I. For life and to pay fine of Rs.5,000/-, in default, to suffer R.I. for 3 months each. The accused no.2 who was convicted for the offence punishable under Section 324 IPC and sentenced to suffer R.I. for the 3 years with fine of Rs.2,000/-, in default, further R.I. for one month. The sentences of the accused no.2 were to run concurrently. 12] In support of this appeal, we have heard Mr.Sudeep Pasbola, learned counsel for the appellants and Mrs.V.R.Bhosale, Learned APP for respondent – State. The learned Counsel for the parties have taken us through the evidence on record. cri.appeal.1034-08.sxw 11 13] Mr.Pasbola, learned counsel for the appellants submitted that it is the case of the prosecution that the incident took place at about 4 pm. on April 4, 2003 in a busy locality. However, the prosecution has not examined any independent witness to substantiate its case. The eye witnesses PWs 2, 3 and 4 are the interested witnesses and the Court has to consider their evidence with due care and caution. He further submitted that admittedly in the instant case, the accused no.1 sustained injury and the prosecution has not offered any explanation on this aspect. He relied upon several judgments in support of this contention. Mr.Pasbola also submitted that PW 3 Mohd. Zulfikhar and PW 4 Mohd. Rizwan were not present on the spot and their presence is extremely doubtful. They cannot be termed as an eye witness. This is substantiated from the evidence of PW 2 Jahid exhibit 17 as also FIR exhibit 18. He further submitted that, at any rate, in the facts and circumstances of the case, Section 34 IPC has no application. As also, Section 302 IPC has no application. The case squarely falls under the exception 4 of Section 300 IPC. He submitted that the accused were not carrying any weapon and it shows that there was no intention on the part of the accused to commit offence punishable under Section 302 IPC. On the contrary, from the evidence of PW 2 Jahid, cri.appeal.1034-08.sxw 12 it would be evident that, it was the victim who picked up the wooden plank, and thereafter, the accused picked up the stone. He submitted that the accused were not agressors. Mr.Pasbola further submitted that the case of the prosecution is that the accused no.3 picked up the stone and gave blow on the head of the victim. The accused no.3 did not know that thereafter the accused no.2 will catch hold of the legs of the victim. The accused no.2, in turn, did not know/was not aware that thereafter the accused no.1 will give blows on the head of the victim. Thus, in the instant case, Section 34 IPC has no application whatsoever. In support of this submission Mr.Pasbola relied upon several judgments which will be referred in the due course. 14] On the other hand, Mrs.V.R.Bhosle, learned APP supported the impugned judgment. She submitted that in the present case, there are three eye witnesses and one of them namely PW 2 is an injured witness. The cloths of the accused were recovered and there were blood stains on it. The injuries were caused by stones i.e. Articles C-1, C-2 on which blood group “O” was found. PW 5 Dr.Marathe opined that injury no.4 caused to the victim was sufficient in the ordinary course of nature to cause death. She submitted that in the FIR names of the three accused cri.appeal.1034-08.sxw 13 were mentioned. The prosecution has explained the injuries on accused no.1. Doctor examined accused no.1 and PW 2. The history was narrated to the effect that the assault was made by many persons with multiple objects. She submitted that there are no fatal contradictions/omissions in the evidence of the eye witnesses. 15] In order to appreciate the rival contentions raised on behalf of the parties, let us examine the evidence laid by the prosecution. In order to prove the guilt of the accused, the prosecution has examined three eye witnesses apart from the panch witnesses, the Doctors and the investigating officers. PW 2 Zahid Khan is the complainant. He deposed that on April 3, 2003, the accused nos.1 and 2 came to the bakery and started abusing PW 3 Zulfikar. After the exchange of hot words, they told that they will come on the next day and will see what to do, and thereafter, they left. On April 4, 2003 at 4 pm. All the three accused came to the bakery and started abusing PW 3 Zulfikar. The Munshi of bakery namely Khujir and Jahid tried to pacify the accused persons. Since there were no response, Jahid and PW 3 Zulfikar told them that they will lodge complaint to the police. When Jahid started for Sakinaka police station from the rear side galli from the rear door, he saw some suspicious persons. He felt that cri.appeal.1034-08.sxw 14 they are from the side of accused. He came back to the bakery and started to the police station from the main door through Saibaba galli. At that time, the victim and PW 3 Zulfikar were with Jahid. When they reached near the Sidhivinayak General Stores, suddenly the accused came and intercepted them. Accused no.2 was holding a belt. All the three accused started assaulting the victim and Jahid. Therefore, the victim picked up a wooden plank to defend himself. The accused no.3 picked up a stone and gave blow on the head of the victim. The victim fell down. Then he tried to get up, at that moment the accused no.2 caught hold his legs and accused no.1 gave repeated blows of stone on the head of victim. PW 2 Jahid tried to save the victim. While the accused no.1 was getting up, he fell on the wooden plank. Accused no.1 gave blow of the belt to Jahid and he sustained injury on the head from backside. He ran towards the bakery to tell the incident to the Munshi of the bakery. Then Jahid and Munshi of bakery namely Khujir along with Mujjabin and Badkun came to the spot where then saw that the victim was lying in the injured condition and accused had run away. He further deposed that Mujjabin and Badkun and Jahid brought the victim to Rajawadi Hospital, Ghatkopar and on examination the Doctor declared him dead. Jahid was cri.appeal.1034-08.sxw 15 also treated by the Doctor. By that time, the accused no.1 reached the hospital as he also sustained injuries due to the wooden plank. The police also reached to the hospital and then Jahid told the police that the accused have killed the victim. 16] In the cross-examination PW 2 Jahid deposed that 4-5 days prior to the date of incident, quarrel took place between PW 3 Zulfikar and uncle of accused no.1 at Hiranandani Complex. There was minor verbal abuse on account of customers of each other. Mr.Pasbola, learned counsel for the appellants, submitted that there is omission in the deposition of PW 2 Jahid to the effect that though he stated to the police that 4-6 persons standing in the galli were found suspicious to him, it was not specifically mentioned in the FIR to that effect. Again he could not explain why it was not stated in the FIR that PW 3 Zulfikar was also with them while going to the police station. Again he could not explain the omission in the FIR to the effect that the victim did not try to run away. PW 2 Jahid also could not explain why it was not recorded in the FIR that accused no.2 started weaving belt. Mr.Pasbola submitted that the victim picked up the wooden plank, and thereafter, stone was picked up by the accused. Thus, the accused were not aggressors. He further submitted cri.appeal.1034-08.sxw 16 that PW 2 Jahid deposed that it is not true that when he started running towards the bakery, PW 3 Zulfikar was also running towards the bakery. He also invited our attention to the omission in the evidence of PW 2 to the effect that though he claims to have informed the police that along with the Munshi of bakery and himself, Mujjabin, Badkun and Rizwan had came on the spot of offence, the said fact is not found in the FIR. It is also not found in the FIR that PW 4 Rizwan telephoned from the hospital to bakery and reported the incident to the Munshi of Bakery. Mr.Pasbola also submitted that when the Doctor attached to the hospital asked him about the history of injuries, the PW 2 did not tell the Doctor that they assault was by many people by multiple objects. As against this, PW 6 Dr.Bhoir, the Casualty Medical Officer attached to Rajawadi hospital deposed that the injured PW 2 Jahid gave the history of assault by many people by multiple objects. He invited our attention to the injury report exhibit 27 which supported the statement of PW 6 that many people assaulted Jahid with multiple objects. On the basis of this material, Mr.Pasbola submitted that the mob was gathered on the spot and assaulted PW 2 Jahid and none of the accused have assaulted him. 17] PW 3 Zulfikar deposed that one of the accused tried to do the cri.appeal.1034-08.sxw 17 business in their area i.e.Hiranandani Complex. He told him not to go to the said area for doing the business. On that count, there was quarrel between him and one of the accused. On April 3, 2003 at about 4 pm. Accused no.1 and 2 abused him in filthy language. At that time, PW 2 Jahid and victim were present in the bakery. Accused nos.1 and 2 threatened him and informed that they will carry on the business in Hiranandani Complex area. They also threatened that they will see him tomorrow. On the next day i.e. April 4, 2003, between 3:45 pm and 4 pm. all the three accused come to Iqbal bakery and started abusing. They started quarreling with him. Munshi of the bakery tried to pacify the accused persons. Accused continued the quarrel, and therefore, he told them that he is going to lodge the complaint in the police station. The victim and PW 2 Jahid started to proceed from the rear side galli of the bakery. They saw the crowd in the said galli and therefore they came back. Thereafter, he started from the main door of the bakery. The victim was followed by PW 2 Jahid and Zulfikar. When they reached upto Siddhivinayak store, all of a sudden, the accused came on the spot. Accused no.2 started weaving the belt and assaulted the victim. The victim picked up a wooden plank which was lying in the galli for his cri.appeal.1034-08.sxw 18 defence. At that time, accused no.3 picked up a stone and gave blow to the victim on his head. The victim fell down and again tried to get up. At that time, the accused no 2 caught hold of the legs of the victim and accused no.1 gave him 4-5 blows successively on is head. PW 2 Jahid rushed there to save the victim. At that time, accused no.2 gave blow to PW 2 Jahid. He got assault on his head from backside. In order to save himself, he ran towards the bakery. Accused no.1 chased, but, fell down. Zulfikar also ran towards the bakery and accused no.1 followed him. PW 2 Jahid shouted “mar dala, mar dala” while running to the bakery. Thereafter, the Munshi of bakery namely Khujir, Mujjabin, Padaku and PW 4 Rizwan came out of bakery and they went to the scene of offence. They saw that the victim was lying down and he was injured with the pool of blood. All the accused had already run away from the scene of offence. The Munshi of bakery advised them to take the victim to the hospital. Badkun and Mujjabin took the victim to Rajawadi hospital, Ghatkopar, in a taxi. PW 3 Zulfikar reached the hospital within half an hours time. Then he came to know that the victim was already dead. He identified the wooden plank and stones. He, however, could not identify the belt. 18] Mr.Pasbola, learned counsel for the accused submitted that cri.appeal.1034-08.sxw 19 there is contradiction in the deposition of the PW 3 in respect of the hot exchange and abuses. He invited our attention to the