1 APEAL285.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.285 OF 2005 Lal Mohan Ramayodhya Singh C/4965 (Presently undergoing term of imprisonment in Nasik Road Central Prison). : Appellant (Orig. Accused no.1) V/s. The State of Maharashtra : Respondent .... WITH CRIMINAL APPEAL NO.1355 OF 2006 Ramkumar Ramrudhya Zha Convict No.C/4966 Nasik Road Central Prison, Nasik. : Appellant (Orig.Accused No.2) V/s. The State of Maharashtra : Respondent .... Mr.Suresh N. Bhosle for the appellant in Cri. Appeal No.285 of 2005. Ms Arti P. Bhide for the appellant in Cri. Appeal No.1355 of 2006. Ms M.H. Mhatre, Addl. Public Prosecutor for the State. .... 2 APEAL285.05 CORAM : D.D. SINHA AND SMT.V.K.TAHILRAMANI, JJ. Date of Reserving ) : 30.11.2010. the Judgement. ) Date of Pronouncing ) : 10.12.2010. the Judgement. ) ORAL JUDGEMENT (Per D.D.Sinha, J.) Heard the learned counsel for the appellants and the learned Addl. Public Prosecutor for the State. 2. Criminal Appeal Nos.285 of 2005 as well as Criminal Appeal No.1355 of 2006 filed by Lal Mohan Ramayodhya Singh as well as Ramkumar Ramrudhya Zha are against the judgement and order dated 1st September, 2004 passed by the Addl. Sessions Judge, Greater Bombay, raise common questions of law and facts and, therefore, both the appeals were heard together and are being disposed of by this common judgement. 3. The circumstances which have given rise to the prosecution of the appellants are as follows:- 3 APEAL285.05 On 17.12.2001 at about 21.45 hours the appellants with a view to commit robbery assaulted the husband of the complainant by means of a knife and caused injury on his chest and, therefore, they were prosecuted for the offence punishable under section 394 read with 34 of the Indian Penal Code. The husband of the complainant Javed Ahmed Ansari succumbed to the injury caused to him by the appellants and, therefore, the appellants were also prosecuted for the offence of murder punishable under section 302 read with section 34 of the Indian Penal Code. Since the appellants were found in possession of dangerous weapon, they were also prosecuted for the offence punishable under section 4 read with section 25 of the Arms Act as well as for the offence punishable under section 135 of the Bombay Police Act. 4. It is the case of the prosecution that the complainant and her husband on 17.12.2001 which was an Id day, at about 9.45 p.m. were loitering on Juhu beach. One of the appellants caught hold of the deceased and the other assaulted him by knife. Deceased Javed sustained serious injury and was shifted to the hospital by his wife, the complainant. Javed succumbed to the injuries. The police went to the hospital, recorded the statement of P.W.1 Ishrad and other witnesses. The inquest 4 APEAL285.05 panchanama and spot panchanama were drawn by the Investigating Officer. The clothes were seized. Identification parade was conducted and after completion of the investigation, charge-sheet came to be filed against the appellant. The charge was framed against the appellants for the above referred offences which was explained and read over to them. The appellants pleaded not guilty and claimed to be tried. 5. The prosecution examined three eye-witnesses to bring home the guilt of the appellants, viz., P.W.1 Mrs.Ishrad, P.W.2 Baban and P.W.6 Manish Sonar. The learned counsel for the appellants has submitted that the evidenc of the complainant Mrs.Ishrad shows that the defence has elucidated material omissions in her police statement which goes to the root of the matter and it renders the testimony of this witness doubtful. Similarly, the incident even as per the prosecution lasted only for a very short period and, therefore, the complainant had very little time to see the faces of the appellants and, in these circumstances, the identification of the appellants done by the complainant in the identification parade creates doubt about the whole evidence of identification. The learned counsel for the appellants further submitted that so far as P.W.2 Baban is concerned, he was a chance witness who happened to be on Juhu beach at the relevant time. It is contended that the evidence of this witness is also not 5 APEAL285.05 free from material omissions. Similarly, P.W.6 Manish Sonar is another chance witness who happened to be at Juhu beach by chance. Both these witnesses though claimed that they have witnessed the incident of assault, their presence on the scene of offence itself is doubtful. P.W.6 Manish Sonar claimed that he went to the shore for collecting bottles. It is contented that the incident of assault alleged to have taken place at around 9.30 to 10.00 p.m. and, therefore, it is difficult to appreciate as to how P.W.6 Manish Sonar at that time was collecting bottles from the shore of the sea. Be that as it may, it is submitted that the evidence of P.W.2 Baban and P.W.6 Manish Sonar is that of chance witnesses and also suffers from material omissions and, therefore, cannot be relied upon. 6. The counsel for the appellants have contended that when the evidence of the complainant, including the eye-witnesses is not cogent and trustworthy, the evidence of identification as well as medical evidence by itself is not sufficient to prove the charges framed against the appellants. It is, therefore, contended that the finding of conviction recorded by the trial Court are unjust, improper and unsustainable in law. 7. The learned Addl. Public Prosecutor has submitted that P.W.1 Mrs.Ishrad is the wife of deceased Javed and at the relevant time was with 6 APEAL285.05 him. She has witnessed the incident from close quarter and also identified the appellants-accused in the identification parade. The evidence of P.W.1 complainant is consistent with the prosecution case and is also corroborated by the evidence of other two eye-witnesses i.e. P.W.2 and P.W.6. It is contended that the medical evidence corroborates the prosecution case disclosed by the eye-witnesses coupled with the evidence of identification and the Chemical Analyzer's report, the trial Court was justified in convicting the appellants for the offences. 8. We have given anxious consideration to the contentions canvassed by the counsel for the parties and considered the evidence adduced by the prosecution. 9. P.W.1 Mrs.Ishrad is the wife of the deceased Javed. It has come in the examination-in-chief of this witness that at about 9.45 p.m. she and her husband were on Juhu beach. All of a sudden, two people appeared on the spot and one of them placed a knife on the neck of the complainant, the other caught hold of the husband of the complainant deceased Javed. At the relevant time, she was wearing several ornaments such as rings, ear-rings, chain, etc. The evidence of this witness further reveals that the appellants dragged the deceased for some distance. The 7 APEAL285.05 deceased tried to stand on his legs, however, he was assaulted by the appellants on his chest. The complainant managed to take the deceased to Cooper Hospital. However, he succumbed to his injuries in the hospital sometime after his admission in the Hospital. 10. P.W.1 complainant stated in her examination-in-chief that on 19.1.2002 she was called to Arthur Road Prison to identify the appellants. The complainant has identified both the appellants in the identification parade conducted by the prosecution. According to the evidence of this witness, original accused no.1 caught hold of her husband and original accused no.2 assaulted him by means of a knife. The defence has conducted lengthy cross-examination of this witness, however, failed to elucidate any material to discredit the ocular testimony of this witness. The tenor of the cross-examination demonstrates that the defence has not seriously disputed the presence of the appellants at the time of the assault as well as the assault which is evident from the admissions extracted from the complainant in her cross-examination. P.W.1 has admitted in her cross-examination that she was facing the sea when the appellants reached the spot of the incident. She was at the distance of about 10 feet from the wall. She and her husband were sitting when the knife was placed on her neck. This witness has also admitted that her husband was 8 APEAL285.05 caught hold of and dragged for about 10 to 15 feet from where they were sitting. She shouted for help after the attack on her husband and the appellants ran away from the spot after stabbing. This witness has also admitted in her cross-examination that she has identified the appellants from a distance of about five feet. Considering the evidence of P.W.1 Mrs.Ishrad in its totality, in our view, it is cogent and trustworthy. 11. The evidence of P.W2. Baban Chougule shows that he went to Juhu beach after dinner for a stroll. He saw two people crossed him and after they went little ahead, one of them placed a knife on the neck of a lady who was sitting with a person. This witness has stated that one of those two persons caught hold of the person who was with the lady and the other assaulted him. The person who was assaulted thereafter collapsed on the ground. The lady started shouting for help, those two persons fled away from the spot towards Centaur Hotel. This witness was called at Arthur Road Prison to identify the appellants. This witness identified both the appellants in the identification parade. The cross- examination of P.W.2 Baban Chougule shows that he has admitted in the cross-examination that the husband of the lady was caught from behind and the incident of stabbing took place. P.W.2 has also admitted in the cross-examination that knife was on the right hand of that person. It is no 9 APEAL285.05 doubt true that P.W.2 happened to be at the place of incident at the relevant time by chance, however, merely because the witness is a chance witness, his testimony cannot be discarded on this count if it is otherwise cogent, trustworthy and reliable. It is no doubt true that the evidence of chance witness needs to be scrutinized with care and caution. The tenor of the cross-examination of P.W.2 also shows that the defence did not seriously dispute his presence on the spot and also the incident of assault which is evident from the admissions extracted by the defence from P.W.2 in his cross-examination. The evidence of this witness, in our view, is quite starightforwad and trustworthy. 12. The evidence of P.W.6 Manish Sonar, the other eye-witness examined by the prosecution is more or less similar to that of P.W.1 and P.W.2. It has come in his evidence that one of the appellants placed knife on the person of the lady and the other caught hold of the person who was sitting with her who tried to free himself and at that time, he was stabbed in his stomach. The lady shouted for help and, therefore, this witness went to call autoriskshaw. This witness also identified the appellants in the identification parade. 13. The evidence of P.W.1 complainant corroborated the material 10 APEAL285.05 particulars of the prosecution case and her testimony has been completely corroborated by other two eye-witnesses, viz., P.W.2 Baban and P.W.6 Manish Sonar. The appellants were identified by these witnesses in the identification parade. P.W.7 Dr. Kiran Kalyankar conducted the post- mortem examination on the dead-body of Javed and found the following external injuries:- “1. Linear surgical wound over left side chest front 3 cm left to midline and 5 cm below left clavicle, oblique 3 cm stiches intact. 2. LSW over right side chest front 2 cm right to midline and 13 cm below right clavicle oblique size 3 cm stiches in tact. 3. LSW right side chest mid axillary line 11 cm below axillary 2.5 cm 1 stitch seen. 4. LSW over left side chest midaxillary line, 12 cm below axilla, size 2 cm, stiches intact. 5. E/o intercoastal drainage left side chest ant. axillary line just below left nipple 1.5 cm x 1 cm.” The Doctor has found the following internal injuries:- 11 APEAL285.05 “Thorax 1000 c.c. of blood alongwith clots positive right side 6th rib cut at parasternal level corresponding to injury no.2. Lefe side 3rd rib cut anteriorally and obliquely 8th rib at Midaxillary line cut vertically corresponding to injury no.1 and 4. Pleura cut, ruptured on left side right lung right lower lobe and middle lobe cut ruptured corresponding to external injury no.2 left lung upper lower cut ruptured pale, corresponding to external injury no.1 and 4 Pericardium cut ruptured large vessels. Small cut nick of ascending avoita-seen corresponding to external injury no.1 12 APEAL285.05 stomach and its contents 100 cc slimy food, NPO, Mucas pale.” Dr.Kiran opined that the cause of death was haemorrhage and shock due to multiple stab injuries. The Doctor also opined that the injuries caused to the deceased were possible by sharp-edged weapon like knife which was shown to him. The defence conducted a cryptic cross-examination of this witness. The medical evidence, in our view, is completely consistent with the prosecution case unfolded by the complainant and the eye- witnesses. In the instant case, the Chemical Analyser’s report shows that the blood found on the clothes of the appellants was of human origin, however, the blood group could not be detected. 14. Considering the evidence of the complainant and the two eye- witnesses coupled with the medical evidence which corroborates the material particulars of the prosecution case disclosed by the complainant and the eye-witnesses, we are of the view that the prosecution succeeded in proving the charges framed against the appellants beyond all reasonable doubt. 13 APEAL285.05 15. In the result, both the appeals fail and are dismissed. (D. D. SINHA, J.) (SMT.V.K.TAHILRAMANI,J.)