:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.307 OF 1994 CRIMINAL APPEAL NO.307 OF 1994 CRIMINAL APPEAL NO.307 OF 1994 1. Bhagwan Atmaram Bhoir 2. Pandit Atmaram Bhoir .. Appellants (Org.Accd.Nos. 1 & 2) Vs. The State of Maharashtra .. Respondent WITH CRIMINAL APPEAL NO. 309 OF 1994 CRIMINAL APPEAL NO. 309 OF 1994 CRIMINAL APPEAL NO. 309 OF 1994 1. Krishna Mahadu Gavali 2. Ananta Gopal Gavali 3. Nanu Rambharansingh .. Appellants (Org.Accd.Nos. 3, 7 & 8) Vs. The State of Maharashtra .. Respondent WITH CRIMINAL APPEAL NO. 343 OF 1994 CRIMINAL APPEAL NO. 343 OF 1994 CRIMINAL APPEAL NO. 343 OF 1994 Raju @ Abdul Rajjak Shaikh .. Appellant (Org.Accd.No.4) Vs. The State of Maharashtra .. Respondent Mr. Shirish Gupte with Mr. A.P. Mundargi, Mr. Z.N. Kazi and Mr. M.K. Kocharekar for the appellants in Cri.Appeal No.307/94. Mrs. Manjula Rao for appellants in Cri.Appeal Nos.309/94 and 343/94. Dr. F.R. Shaikh, APP for Respondent-State in all the appeals. :2: CORAM: S.S. PARKAR & CORAM: S.S. PARKAR & CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. ANOOP V. MOHTA, JJ. ANOOP V. MOHTA, JJ. Date : March 03 & 04, 2005. Date : March 03 & 04, 2005. Date : March 03 & 04, 2005. ORAL JUDGMENT (Per S.S. Parkar,J.): ORAL JUDGMENT (Per S.S. Parkar,J.): ORAL JUDGMENT (Per S.S. Parkar,J.): 1. These three appeals arise from the Judgment and Order dated 28/4/1994 delivered by the II Additional Sessions Judge, Thane convicting the appellants in the three appeals, who are original accused nos.1 to 4, 7 and 8 in Sessions Case No.622 of 1990 for offences under Sections 302, 364, 201 all read with Section 149 of IPC and for offence under Section 147 of IPC. In addition, appellants - original accused nos. 1,2 and 7 were convicted for offence under Section 148 of IPC. For offence under Section 302 of IPC all the appellants were sentenced to RI for life and to pay a fine of Rs.1000/- each in default RI for three months. For offence under Section 364 of IPC all the appellants were sentenced to RI for 7 years and to pay a fine of Rs.500/- each in default RI for one and half month. For offence under Section 201 of IPC all the appellants were sentenced to RI for four years and to pay a fine of Rs.500/- each in default RI for one and half month. For offence under Sections 147 and 148 the appellants :3: were not awarded separate sentences. Since all these appeals arise in respect of the same incident in the same Sessions Case from the common judgment in which the appellants were tried with two more accused who were acquitted, all the appeals were heard together and are being disposed of by this common judgment. 2. The incident had taken place on the night of 6th of May 1990 after 10 p.m. when the members of both the sides were present in a ‘Mandap’ which was erected in front of the house of one Gangubai for the purpose of haldi ceremony in connection with the marriage of one Madhukar Bhoir and his sister Asha Bhoir. The names of accused nos.1 and 2 appeared in the invitation card produced on record at Exh.81 as two of the several persons named as the persons who had extended invitation to the guests. The presence of both the sides at the said occasion was not only natural but was not disputed at the trial. 3. After the haldi ceremony was over in the early hours of the night, it was time for serving the dinner to the persons who had assembled there. At that time there was pelting of chairs and assault was made with choppers by accused nos.1,2 and 7 on deceased Suhas who was the brother of complainant P.W.1 Sudhir whose :4: house is situated hardly at a distance of three minutes’ walk from the place of the incident. Some other associates of accused nos.1,2 and 7 also assaulted Suhas with fist blows and kicks. Suhas was then dragged outside the Pandal and removed in a jeep which was parked outside the Pandal by accused nos.1,2 and 7 and their associates. Complainant Sudhir, the brother of deceased Suhas, therefore, lodged his complaint at the police station which is Exh.33 mentioning about the assault on Suhas made by accused nos.1,2 and 7 with choppers and by others with fist blows and kicks and thereafter having abducted Suhas in a jeep from the aforesaid venue to a destination unknown to him. On the basis of the complaint Exh.33 crime was registered by the Kolshewadi Police Station being C.R. No.I-39/1990 for offences under Sections 147, 148, 149, 363 and 366 of IPC at about 11.30 hours that night. The dead body of Suhas was found in the afternoon of following day on goods track near Kalyan Railway Line. The dead body was identified by the complainant and his father to be of Suhas. Same night accused no.1 had also lodged his complaint at the same police station alleging that deceased Suhas and his associates assaulted him and his brother i.e. accused no.2 as a result of which his brother Pandit - accused no.2 was admitted to the private hospital of Dr. :5: Mahajan. The said complaint also mentioned that they were assaulted with fire arm and choppers. That complaint was registered under C.R. No.I-40/1990 at about 23.45 hours that night. In the morning of 7/5/1990 spot panchanama Exh.64 was drawn at the place of incident which was in Chikanipada in front of the house of Gangubai Gaikwad where the Pandal was erected and haldi program was arranged on the previous night. The said panchanama Exh.64 was drawn in respect of both the cross complaints registered by the police. On the same day i.e. on 7/5/1990 accused no.1 Bhagwan Bhoir and accused no.2 Pandit Bhoir were arrested. After the recovery of the dead body from near Kalyan Railway Line the offence under Section 302 of IPC was added to C.R. No.I-39/1990. Inquest panchanama Exh.59 was drawn on the dead body and the dead body was sent for post mortem examination. The panchanama of the place where the dead body was found was also drawn which is at Exh.57. 4. In the course of the investigation two Jeeps, one standing in the name of father of accused nos.1 and 2 and another belonging to accused no.7 were attached on 8/5/90 under common panchanama Exh.53. On the seat cover of Jeep No.MZM-7832 belonging to accused no.7 red coloured stains were found. That :6: portion of the seat cover was cut out, sealed and was later on sent to the office of C.A. for examination. The clothes of the deceased were attached after post mortem examination on 8/5/1990 under panchanama Exh.59. On 9/5/1990 the statements of the eye witnesses and other witnesses were recorded. While in custody two blood stained choppers being article nos.8 and 9 were recovered at the instance of accused no.1 on 10/5/1990 under memorandum statement Exh.46 and seizure panchanama Exh.47. On the same day four clothes i.e. two shirts and two pants belonging to accused nos.1 and 2 were also recovered at the instance of accused no.1 under memorandum statement Exh.50 and seizure panchanama Exh.50-A which are article nos.10, 11, 12 and 13, three of which were stained with blood. 5. In the course of investigation accused nos.3,5 and 6 were arrested on 22/5/1990 while accused no.4 was arrested on 30/6/1990 and accused no.8 on 15/9/1990, who were not named in the complaint. The clothes of accused nos.3,5 and 6 were seized by the I.O. on the date of their arrest. Pursuant to requisition letter dated 2/7/1990 T.I. Parade was held on 6/7/1990 in respect of accused nos.3,5 and 6 who were arrested on 22/5/1990 and of accused no.4 who :7: was arrested on 30/6/1990 as they were not named in the complaint. Charge-sheet was filed against accused nos.1 to 6 on 3/8/1990. 6. Subsequently, accused no.7 who was named in the complaint came to be arrested on 13/9/1990. On 15/9/1990 there was recovery of chopper article no.22 at the instance of accused no.7 vide memorandum of statement Exh.61 and seizure panchanama Exh.62. Pursuant to the requisition sent on 20/9/1990, T.I. Parade was held for identification of accused no.8 on 26/9/1990. Thereafter on 4/10/1990 supplementary charge-sheet was filed impleading accused nos.7 and 8 as accused. The muddemal articles were initially sent to the office of C.A. for examination under forwarding letter dated 7/6/1990 Exh.68 in respect of which C.A. report dated 24/9/1990 Exh.69 was received. Chopper recovered at the instance of accused no.7 on 15/9/1990 was sent to the office of C.A. for examination under forwarding letter dated 27/9/1990 Exh.70. Thereafter C.A. reports Exhs.71 and 72 were received. In connection with crime registered under C.R.No.I-40/1990 i.e. the complaint of accused no.1, "A" Summary was obtained from the court of JMFC, Kalyan. However, after completion of the investigation in C.R. No.I-39/1990 charge-sheet :8: was filed in the present case and case was committed to the Sessions Court. 7. In the Sessions Court charges were framed against eight accused persons for offences under Sections 147, 148 and for offences under Sections 302, 364 and 201 read with Section 149 of IPC, to which the accused pleaded not guilty. The charge for offence under Section 148 was framed only against accused nos.1,2 and 7 who were allegedly armed with choppers and had assaulted the deceased with choppers. As all the accused pleaded not guilty to the charges framed against them, 14 witnesses were examined on behalf of the prosecution. Those witnesses include four eye witnesses to the incident who are P.Ws.1 to 4 including complainant P.W.1, the brother of deceased Suhas. P.W. 5 is Medical Officer Ashok Bhide who had conducted post mortem on the dead body of deceased Suhas. P.W. 6 is Special Executive Magistrate Vasant Patil who held Test Identification Parades on 6/7/1990 and 26/9/1990. P.Ws. 7 to 13 are the panch witnesses who acted as panchas for the scene of offence panchanma, inquest panchanama and the recovery panchanamas. Lastly, P.W.14 is P.S.I. Raja Hulyalkar who investigated the case. No defence witness was examined. The defence of the accused nos.2 to 8 is of :9: denial and false implication. According to accused no.1 he had gone to attend the haldi program at the house of Gangubai Gaikwad and when he was sitting for dinner inside the Pandal, suddenly deceased Suhas and his associates arrived there and fired shots towards the place where he was sitting. The associates of deceased Suhas assaulted accused no.2 Pandit Bhoir with chopper as a result of which he sustained injury and, therefore, was taken in a Jeep to the hospital of Dr. Mahajan. Thereafter he went to the police station and lodged his report. He has also stated that police arrested him then and there. According to him he has been falsely roped in the case. 8. After considering the evidence on record, the trial court by the impugned judgment and order dated 28/4/1994 acquitted original accused nos.5 and 6 but convicted the appellants and sentenced them as follows:- . Accused Nos.1,2,3,4,7 and 8 were convicted for offence under Section 302 read with Section 149 of IPC and each of them were sentenced to life imprisonment and to pay a fine of Rs.1000/- each in default to undergo RI for three months. They were also convicted for offence under Section 364 read with Section 149 of :10: IPC and sentenced to RI for 7 years and to pay a fine of Rs.500/- each in default to undergo RI for one and half month. They were also convicted for offence under Section 201 read with Section 149 of IPC and sentenced to RI for 4 years and to pay a fine of Rs.500/- each in default to undergo RI for one and half month. The substantive sentences were directed to run concurrently. All the aforesaid accused/appellants were also convicted for offence under Section 147 of IPC but no separate sentence was imposed on that count. Accused nos.1,2 and 7 were, in addition, convicted for offence under Section 148 of IPC but no separate sentence was imposed on any of them on that count. The said judgment and order of conviction and sentences is under challenge in the above three appeals filed by the convicted accused. There is no appeal preferred by the State against the order of acquittal of accused nos.5 and 6. 9. In Criminal Appeal No.307/1994 filed by accused Nos.1 and 2, Mr. Gupte argued on behalf of accused no.1 while Mr. Mundargi argued on behalf of accused no.2. Mrs. Rao argued for the appellants in the other two appeals filed by rest of the convicted accused i.e. accused nos.3,7,8 and 4. :11: 10. Mr. Gupte contended that the Investigating Agency did not investigate the complaint filed by accused no.1 though accused no.2 was admitted in the hospital at about 10.40 p.m. that night. He expressed doubt about the presence of P.W. Nos.2 to 4 at the place of incident as their names were not mentioned in the complaint and their statements were recorded on 9/5/1990 i.e. after four days and, therefore, no reliance can be placed on the evidence of P.W.Nos.2 to 4 when important omissions have been pointed out in their police statements. He submitted that the other witnesses have not given proper sequence of the events and, therefore, their presence at the place of incident is doubtful. He also commented on the evidence of P.W.1 who stated that there was pool of blood in the Pandal due to the injuries suffered by Suhas when he was assaulted there but spot panchanama does not indicate the existence of pool of blood in the Pandal. Mr. Mundargi contended on behalf of accused no.2 that accused no.2 himself being injured and admitted in the hospital same night at about 10.40 p.m. he could not have been convicted for the offence of murder by application of Section 149 of IPC which took place after deceased Suhas was allegedly abducted by the accused persons. Lastly, Mrs. Rao appearing for the rest of the convicted :12: accused contended that accused nos.3,4 and 8 could not have been convicted only on the basis of T.I. Parade in the absence of any other corroborating circumstance. She argued that when some of the accused were residents of the same locality they would have been identified and named in the F.I.R. itself had they been present at the place of offence. She criticises the holding of the first Parade on the ground of delay in respect of accused nos.3 and 8 and challenged the identification of accused no.4 in T.I. Parade when there is no evidence of the dummies having squint eyes and, therefore, it was easily possible for the witnesses to identify accused no.4 if they had been told that he was having one squint eye. As regards accused no.7 Mrs. Rao argued that he cannot be convicted on the basis of version of eye witnesses alone and the recovery of chopper at his instance on 15/9/1990 was without any blood stains on it. As against that Mr. Shaikh on behalf of the State, after taking us through the reasoning of the trial court, argued that all the appellants were rightly convicted and there is no good reason to interfere in the order of conviction recorded by the trial court. 11. Considering the evidence on record and the arguments advanced before us, it would be convenient :13: to deal with the cases of accused nos.3,4 and 8 first, none of whom were named in the F.I.R. and the only evidence on the basis of which they have been convicted is their identification at the T.I. Parade. The complaint Exh.33 mentions the names of accused nos.1,2 and 7 only but refers to the presence of other persons who had assaulted deceased Suhas in the Pandal with fist blows and kicks and had participated in dragging Suhas from the Pandal to the Jeep parked outside the Pandal by which he was abducted. Out of eight accused persons, accused nos.1,2 and 7 were named in the complaint for having assaulted the deceased with choppers. The other five accused persons were not named, but after their arrest they were presented for identification at the T.I. Parades. Out of these five accused persons, accused nos.5 and 6 were not identified at the T.I. Parade and, therefore, they were acquitted. Accused Nos.3,4 and 8 were convicted on the basis of identification at the T.I. Parade. Out of these three accused persons, accused no.3 was arrested on 22/5/1990 and, therefore, it was contended by Mrs. Rao that the T.I. Parade which was held about one and half month after his arrest should not be attached any importance as there is no explanation given for holding of the T.I. Parade for accused no.3 so belatedly along with :14: accused nos.5 and 6. As per the evidence of I.O. requisition was sent on 2/7/1990 for holding T.I. Parade in respect of accused nos.3,4,5 and 6 and the same was held on 6/7/1990. The identification of accused no.3 at the T.I. Parade cannot be disbelieved merely on the ground that T.I. Parade was held belatedly without any explanation given by I.O. But it is further pointed out on behalf of the appellants that there were 25 dummies brought by the Jailor and all the four accused i.e. accused nos.3,4,5 and 6 were made to stand among the dummies for identification at one and the same time when normally not more than two accused should be presented for identification at the T.I. Parade at a time. 12. From the evidence of the Special Executive Magistrate P.W.6, who held T.I. Parade, it appears that the accused were asked to take their position among the dummies in the presence of both the panchas, one of whom was sent to bring the identifying witnesses. It is, therefore, argued that since both the panchas knew the position where the accused had stood among the dummies, there was no guarantee that the panch who had gone to bring the witnesses would not have told the witnesses about the order in which the accused were standing among the dummies. Accused :15: no.3 was identified at the T.I. Parade by P.W.1 and P.W.4 and not by all the eye witnesses. As regards accused no.4, he was identified by all the four eye witnesses at the T.I. Parade. It is significant to point out that accused no.4 is stated to have one squint eye. We are told by the learned defence advocate Mrs. Rao that he is almost blind from his left eye which cannot be considered even as squint eye and unless other dummies with similar eyes were arranged in the Test Identification Parade, the identification of accused no.4 at such parade is absolutely unreliable because the witnesses could have been told by the police that accused no.4 was having squint eye and in the absence of other similar persons standing in the T.I. Parade any witness could have identified him easily and, therefore, such identification looses importance or significance. In this connection it is pertinent to point out and consider that probably because of this special peculiarity in the features of accused no.4 that he was identified by all the four eye wintesses when no other accused was identified by all the four eye witnesses and accused nos. 5 and 6 were not at all identified by any of the eye witnesses including the complainant P.W.1. Accused no.3 could be identified only by two eye witnesses but significantly accused :16: no.4 having a squint eye was identified by all the four eye witnesses. There is nothing on record, either in the evidence of the Executive Magistrate or in the panchanama Exh.42, which records the proceeding of the T.I. Parade, that the dummies included some persons having left squint eyes or eyes with similar appearance as that of accused no.4. In his cross-examination the Executive Magistrate has admitted that accused no.4 was having squint left eye and he could not tell whether at the time of first T.I. Parade held on 6/7/1990 there was any other dummy person with squint eye. If no dummies having squint eyes were included at the T.I. Parade, holding of T.I. Parade vis-a-vis accused no.4 becomes a farce and looses its evidentiary value. One more lacuna or lapse on the part of the Executive Magistrate has been brought on record through his cross-examination when he admitted that he did not enquire from the identifying witnesses whether after the incident and upto the time of holding of T.I. Parade culprits were shown to them. 13. Accused No.8 was identified by P.W.1 complainant and eye witness P.W.3 at the T.I. Parade. However, P.W.3 in his deposition, in the examination-in-chief itself, has stated that he :17: identified one culprit pointing out his finger at accused no.4 only. It may be mentioned here that in the second T.I. Parade held on 26/9/1990 though according to the deposition of Executive Magistrate both P.W.1 as well as P.W.3 had identified accused no.8, P.W. 3 has made a mention only in respect of T.I. Parade held on 6/7/1990 where he was present along with other three eye witnesses and he had identified only one culprit i.e. accused no.4 but in his deposition he has not referred to his identifying accused no.8 at the parade held on 26/9/1990. The learned defence advocate, therefore, rightly contended that the identification of accused no.8 by P.W.1 alone cannot be relied, the identifying witness P.W.3 having not stated so in his substantive evidence. 14. On behalf of accused reliance is placed on some of the judgments of this Court, to which reference may be made at this stage. In the case of Ganesh Bhagwati Pandian vs. State of Maharashtra reported in 1985 Cri.L.J. 191 1985 Cri.L.J. 191 1985 Cri.L.J. 191, Division Bench of this Court held that if the suspect was having a clean shaven head with shendi (tuft of hair) and in the identification parade only one person had clean shaven head with ‘shendi’ (tuft) i.e. of the suspect, the identification parade is a farce and, therefore, :18: identification parade was not relied by the Court. In the said case it was also held that if the two suspects are dissimilar in appearance two separate parades should be held. The ratio of the aforesaid decision would squarely apply to the case of accused no.4 who was having a squint eye. 15. Reliance is then placed on the decision of the Division Bench of this Court in the case of Vilas Vasantrao Patil vs. The State of Maharashtra reported in 1996 Cri.L.J. 1854 1996 Cri.L.J. 1854 1996 Cri.L.J. 1854. In that case identification was held unreliable for non-compliance with instructions contained in the Criminal Manual. In another judgment of the Division Bench of this Court delivered in the case of Sanjay Dagadu Jadhav vs. The State of Maharashtra reported in 1997 ALL MR (Cri) 1997 ALL MR (Cri) 1997 ALL MR (Cri) 197 197 197, it was held that instructions contained in Criminal Manual are to be strictly followed. In that case the Magistrate did not testify that there was no opportunity for identifying witnesses and accused to see each other before parade and, therefore, it was held that evidence of identifying parade could not be accepted. 16. Reference may be made to the judgment of the Supreme Court in the case of Wakil Singh and ors. vs. :19: State of Bihar reported in AIR 1981 SC 1392 AIR 1981 SC 1392 AIR 1981 SC 1392 in which none of the witnesses had given any description of the dacoits in their statements or oral evidence nor had given identification marks about the accused and, therefore, the Supreme Court held that conviction cannot be based only on the identification of the accused by a single witness. On the basis of