:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 672 OF 1989 CRIMINAL APPEAL NO. 672 OF 1989 CRIMINAL APPEAL NO. 672 OF 1989 WITH WITH WITH CRIMINAL APPEAL NO. 673 OF 1989 CRIMINAL APPEAL NO. 673 OF 1989 CRIMINAL APPEAL NO. 673 OF 1989 The State of Maharashtra ..Appellant versus 1. Bhoju @ Bhajanlal Jethanand ] Aswani, Age 22 years, ] Camp No.3, Barrack No. 824/6 ] Section No. 17, Ulhasnagar ] Dist : Thane ] 2. Manu Radhamal Basantani ] age 28 years, R/o. Camp No. 3, ] Barrack NO. 824, Section No.17 ] Ulhasnagar, Dist: Thane ] 3. Aku @ Nand Tekchand Makhija ] age 23 years, R/o. Camp No.3 ] Barrack No.824/8, Section No.17 ] Ulhasnagar, Dist: Thane ] 4. Ganesh @ Kalu Prataprao ] Jeswani, age 22 years, ] R/o. Camp No. 3, Barrack No.1177] Forward Line, Ulhasnagar ] Dist: Thane ] 5. Shankar Dhirumal Rohida ] age 22 years, R/o. Camp No.3 ]..Respondents Barrack No 838/8, Ulhasnagar ](Original Dist : Thane ] Accused) Mr. D. R. More, APP for the Appellant - State. Mr. Ganesh Gole for the Respondents - Original :2: Accused. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & S. R. SATHE, JJ. S. R. SATHE, JJ. S. R. SATHE, JJ. DATE : 15TH JANUARY, 2007. DATE : 15TH JANUARY, 2007. DATE : 15TH JANUARY, 2007. ORAL JUDGMENT : (Per: D. G. DESHPANDE, J.) : ORAL JUDGMENT : (Per: D. G. DESHPANDE, J.) : ORAL JUDGMENT : (Per: D. G. DESHPANDE, J.) : 1. Heard Mr. More APP for the State and Mr. Gole counsel for the Accused. Both the Appeals are filed by the State against the acquittal of the accused for offences under Sections 147, 148, 336, 354, 302 read with Section 149 of IPC or in ther alternative under sections 336, 354, 302 read with 34 of I.P.C. It appears that two sessions cases were tried together i.e. Sessions Case No.702 of 1988 against accused Nos. 1 to 3 as accused Nos. 4 and 5 were absconding. Accused Nos. 4 and 5 were arrested later on and separate charge sheet was filed against them and Sessions Case No. 703 of 1988 was filed, therefore it was a joint trial, concluded by a common judgment. Out of the five accused, accused No.1 Bhoju @ Bhajanlal was convicted under Section 323 of IPC and sentenced to suffer R.I. for one year and fine of Rs.100/- in default R.I. for 15 days. :3: 2. The case of the prosecution as per the FIR is that Vinod had a younger sister by name Manju, who used to attend tution classes conducted in Section No. 17 at Ulhasnagar daily in the evening. Some road romios used to tease her while going and coming back from tution class. Manju made a complaint to her married sister Indu who was residing in that same area. Indu therefore accompanied Manju for few days and during that time nobody teased her. Thereafter Indu stopped to accompany Manju to the tution class. 3. On 29.3.1988 Manju alone went to the tution class and after her tution was over while she was returning some one hold her hand and outraged her modesty. Therefore, on the next day i.e. on 30.3.1988 Manju’s elder sister Indu, her brothers Narendra and Vinod accompanied Manju upto the tuition class. They were accompanied by one Abhijit Savant the friend of Vinod. All of them again went to bring her back from the tution class. While they were near one General Store, these accused were there. When they saw Manju, one of them uttered "Red Rose Aayi, Deni Ladaki Aayi". This was their :4: manner of teasing Manju. Therefore, Manju’s elder brother Narendra questioned accused whey they were teasing Manju. There was exchange of hot words between Narendra and these accused. Narendra was held by them. He was man-handled by them. His brother Vinod and others tried to go towards him to help him but soda water bottles were being thrown at them from the General Stores. Narendra started running but he was made to fall down by obstructing his way by one of the accused and then Mahesh - the absconding accused is alleged to have hit Narendra on his right side buttock from the back causing serious bleeding injury. Narendra collapsed and the assailants ran away. 4. Thereafter Narendra was taken to the hospital by Vinod but while under treatment he died and the complaint came to be lodged by Vinod. Offence was registered, spot panchnama was drawn, statement of witnesses were recorded, inquest panchnama and post mortem was conducted. The accused were arrested. Two identification parades were held and then charge sheets came to be filed. 5. Charges under Sections 147, 148, 336, 354, :5: 302 read with 149 or in the alternative under Sections 336, 354, 302 read with 34 of IPC were framed against the accused. Their defence was of total denial. Prosecution examined in all nine witnesses. The trial court disbelieved the prosecution case and acquitted the accused and hence these appeals. 6. It was urged by APP Mr. More that the acquittal of the accused by the trial court is totally erroneous and perverse. The trial court according to him fail to see that there were as many as six eye witnesses to the incident who had given consistent ocular evidence fully supported by medical evidence and spot panchnama and also the full proof evidence of the identification parade and identification in the court, and, therefore, acquittal of the accused was totally unjustified. He therefore prayed that the accused should be convicted for the offences committed and in any case they should be convicted under Section 325, read with 147, 148 and 149 of the IPC. He contended that even though main assailant Mahesh was absconding that could not be a reason for upholding the acquittal. :6: 7. On the other hand, Mr. Gole counsel for the accused contended that two of the eye witnesses i.e. P.W. 4 Dilip and P.W. 6 Manthan were found by the trial court as chance witnesses and therefore unreliable and so far as the remaining eye witnesses were concerned, there were number of inconsistencies and number of contradictions in their evidence. He also contended that the identification parades were held belatedly, they were not according to the norms prescribed and further medical evidence also did not support the prosecution, and, therefore, according to him, the acquittal was fully justified and no interference was called for. In view of these submissions, we have to find out whether the appeals require interference or not. 8. It is to be noted that P.W. 1 Vinod, P.W. 2 Manju, P.W. 3 Indu and P.W. 5 Abhijit are the important witnesses for the prosecution because Manju is a victim girl who was subjected to teasing for quite a long time. Indu her elder sister accompanied Manju for many days to have a check upon those road side romios and P.W. 1 Vinod and P.W. 5 Abhijit are persons who accompanied Manju on the :7: fateful day along with deceased Narendra. P. W. No. 4 Dilip and P.W. No.6 Manthan are also eye witnesses relied upon by the prosecution. 9. So far as Narendra is concerned, it is necessary to see what is the nature of the injuries received by him, he is the victim who died as a result of the assault by the accused according to the prosecution. P.W. 9 is Dr. Gaidhande. He has proved the post mortem report Exhibit 29. Dr. Gaidhane has stated that on 30.3.1988 at about 8.15 p.m. Narendra was brought to the Central Hospital, Ulhasnagar, where he was serving as a Medical Officer. Narendra was brought with history of assault. Doctor started giving him treatment, but the Narendra expired within 10-15 minutes and Narendra was unconscious when brought. Next day post mortem examination was conducted and Dr. found the following injuries : "1. Stitched wound right buttock, inferior "1. Stitched wound right buttock, inferior "1. Stitched wound right buttock, inferior aspect just medial to centre, 1" in length. aspect just medial to centre, 1" in length. aspect just medial to centre, 1" in length. 2. Contusion right lateral aspect of the 2. Contusion right lateral aspect of the 2. Contusion right lateral aspect of the chest superior region, about 2 1/2" in chest superior region, about 2 1/2" in chest superior region, about 2 1/2" in diameter. diameter. diameter. 3. Contusion right side axillary region, in 3. Contusion right side axillary region, in 3. Contusion right side axillary region, in defined edges about 6" x 2". defined edges about 6" x 2". defined edges about 6" x 2". :8: 4. Abrasion right hand dorsal aspect, 4. Abrasion right hand dorsal aspect, 4. Abrasion right hand dorsal aspect, second falange of middle and index fingers second falange of middle and index fingers second falange of middle and index fingers about 1/2". about 1/2". about 1/2". 5. Abrasion left palm. Abrasion with 5. Abrasion left palm. Abrasion with 5. Abrasion left palm. Abrasion with clotted blood left palm thinner eminence clotted blood left palm thinner eminence clotted blood left palm thinner eminence about 3/4". about 3/4". about 3/4". 6. Abrasion left hand dorsal middle and 6. Abrasion left hand dorsal middle and 6. Abrasion left hand dorsal middle and ring finger. Second falange about 1/2". ring finger. Second falange about 1/2". ring finger. Second falange about 1/2". 7. Abrasion left knee, infrapatelar i.e. 7. Abrasion left knee, infrapatelar i.e. 7. Abrasion left knee, infrapatelar i.e. superior aspect of leg." superior aspect of leg." superior aspect of leg." Doctor found in addition to the aforesaid external injuries, following internal injuries: "1. Fracture of 4th ribs, posterior lateral "1. Fracture of 4th ribs, posterior lateral "1. Fracture of 4th ribs, posterior lateral aspect right side. Pleura is torned at the aspect right side. Pleura is torned at the aspect right side. Pleura is torned at the fracture site. Both lungs posterial lobe fracture site. Both lungs posterial lobe fracture site. Both lungs posterial lobe were edematous inflamed. Right lung torned were edematous inflamed. Right lung torned were edematous inflamed. Right lung torned in the fracture side 1 1/2" x 1" x 1" in the fracture side 1 1/2" x 1" x 1" in the fracture side 1 1/2" x 1" x 1" congested. Other lobes deflected, pale, congested. Other lobes deflected, pale, congested. Other lobes deflected, pale, left side of heart was partially empty. left side of heart was partially empty. left side of heart was partially empty. Haemorrhage was found in posterior lobes. Haemorrhage was found in posterior lobes. Haemorrhage was found in posterior lobes. 2. Abdomenal cavity was full of blood about 2. Abdomenal cavity was full of blood about 2. Abdomenal cavity was full of blood about 500 Ml. stomach contained about 600 gms. 500 Ml. stomach contained about 600 gms. 500 Ml. stomach contained about 600 gms. undigested food." undigested food." undigested food." So far as injury on buttock is concerned, it was described in detail by the Dr. as under: "Deep penetrating stab wound, extending from "Deep penetrating stab wound, extending from "Deep penetrating stab wound, extending from right side buttock corresponding to injury right side buttock corresponding to injury right side buttock corresponding to injury No.1 running upwards in the pelvic cavity No.1 running upwards in the pelvic cavity No.1 running upwards in the pelvic cavity cutting right side palvic floor musscle cutting right side palvic floor musscle cutting right side palvic floor musscle running into the pelvic cavity. cutting running into the pelvic cavity. cutting running into the pelvic cavity. cutting ilac vessel from posterior aspect with sharp ilac vessel from posterior aspect with sharp ilac vessel from posterior aspect with sharp edges 1/2" x 1/2" (of vessel plus muscle) edges 1/2" x 1/2" (of vessel plus muscle) edges 1/2" x 1/2" (of vessel plus muscle) with huge collection of blood in pelvic with huge collection of blood in pelvic with huge collection of blood in pelvic cavity about 40 p cc. This entire injury cavity about 40 p cc. This entire injury cavity about 40 p cc. This entire injury was 1" x 3/4" to 1", depth 6 1/2" deep was 1" x 3/4" to 1", depth 6 1/2" deep was 1" x 3/4" to 1", depth 6 1/2" deep penetrating. The injury was caused by sharp penetrating. The injury was caused by sharp penetrating. The injury was caused by sharp :9: cutting object." cutting object." cutting object." The cause of death according to Dr. Gaidhane was cardio respiratory failure due to shock and haemorrhage and due to injury mentioned in column Nos. 17, 20 and 21 of the post mortem notes Exhibit 29. 10. Dr. further opined that injury No.1 in Column No. 17 could be caused by sharp cutting weapon and it was sufficient in ordinary course of nature to cause death. So far as contusions are concerned, he stated that they could be caused by kicks and fist blows and abrasions could also be caused in the same manner. According to him injury No.1 in column No. 17 coupled with the internal damage was sufficient in ordinary course of nature to cause death. There cannot be any dispute that Narendra died a homicidal death. The evidence of the doctor shows that 4th ribs of Narendra was fractured and pleura is torned at the fracture side and the injury on the buttock has resulted in cutting major blood vessel and therefore cause of death are these internal injuries. Doctor was subjected to cross-examination. He admitted that :10: injury at Sr. Nos. 5 to 7 are possible due to fall on the surface of road under construction so also injury Nos. 2 and 3. 11. Coming to the ocular evidence, the first witness is P.W. 1 Vinod - brother of Manju. Since evidence of P.W. 1 Vinod, P.W. 2 Manju and P.W. 3 Indu is almost identical, we will summarise the evidence of Vinod with the versions in the evidence of other two witnesses about the incident. Vinod has stated that 15 days before the incident Manju complained that some boys near Today Photo Studio teased her and therefore Indu had started accompanying Manju for about 7 to 8 days. Similar is the version of Indu in this regard. He also stated that when Indu was accompanying Manju, nobody teased her and therefore Manju started going alone. Vinod has further stated that on 29.3.1988 when she was returning from the tution, one of the boys who used to tease her caught her hand in Section 17 of Ulhasnagar and teased her. Therefore, on 30.3.1988 at 6.00 p.m. Vinod, Narendra, Indu and their friend Abhijit accompanied Manju to the house of tution teacher Mr. Thakur. They reached her there came back and again all of them went to fetch her back. :11: 12. While they were returning back these boys teased Manju saying "Here comes Red Rose". They were 7-8 in number. Then Narendra went to question those boys. All of them who were sitting on something like a cot by the right side of the road started quarrelling with Narendra, they caught hold of him and started beating him (The age of Vinod on the date of deposition is 19 years, the incident is of 1988, therefore he was 18 years at that time). Then Vinod, Abhijit, both the sisters Indu and Manju rushed to the rescue of Narendra. 2-3 boys went to the General Store nearby and threw soda water bottles, they therefore moved a little. 13. Thereafter, Vinod states that Narendra was trying to wriggle out from the assailants. He managed to escape and all of them started running when they reached the road, the assailants were chasing him. One of them caught Narendra and pushed him to the ground and then inflicted a blow with a weapon like knife on Narendra’s right buttock. Other assailants came and started hitting Narendra with kicks and knees. Narendra was profusely bleeding and then all of them ran away. :12: 14. He has identified accused No.1 Bhoju @ Bhajanlal and stated Mahesh absconding accused is not present. In the parades that were held subsequently, he identified accused Nos. 2, 3, 4 and 5. Attempt is made in the cross-examination to get particulars of the accused who hit Narendra on his private parts because this witness has stated that after this the boys caught hold of Narendra, they hit on his private parts with knees. Doctor in his evidence has admitted that he did not find any injuries to private parts. In this background, Mr. Gole tried to contend that story of beating Narendra on private parts is false. Therefore, according to him the evidence of Vinod becomes suspicious. We are not in agreement with this submission. At the most this can be treated as an exaggeration or omission nor sufficient to create doubt about the veracity of the witness. 15. Further attempt in the cross examination is to show that why no enquiry was made by this witness about boys teasing Manju, why no complaint was lodged to the police and why no description was given of those persons as well as the assailants. :13: This also cannot be considered in favour of the accused because the primary object of Vinod his brother, sister Indu was to give protection to Manju. Generally, no such complaints are lodged about teasing by family members because of fear of retaliation and the matter is tried to be settled amicably. 16. Further, the evidence of Vinod is tried to be criticised on the ground that even though Narendra was being assaulted none of them intervened. If we look at the age of this witness he was 18 years at the time of the incident and therefore when he found that Narendra, his brother was being assaulted by so many persons it was but natural for him not to interfere for fear of being assaulted. So far as identification of accused by this witness in the parade is concerned, a suggestion was given to him that he identified accused only because he had seen them before holding the parade. That suggestion was slightly denied by this witness. Certain omissions are brought out in the evidence of this witness about not mentioning to the police that these persons were sitting on cot and there is omission about accused chasing :14: Narendra, but that is also not important. 17. Next witness is P.W. 2 Manju. She is the victim girl. She has stated about the manner in which she was teased by the boys in Section 17. Her complain to Indu, Indu accompanying her for 8 days, no teasing during this period, then holding of her hand by one of the boys on 29.3.1988, her informing about it to the family members and then on 30.3.1988 i.e. the date of the incident, her brothers and sister accompanied her along with Abhijit. About this incident she has stated that her class was over by 7.30 p.m. Her brothers Narendra and Vinod, sister Indu and Abhijit had come to take her back, they came near Mahadeo Mandir. 9 - 10 boys were sitting in front of General Stores on a cot, these boys started teasing on seeing her, they said "Red Rose has come". Narendra went to question them. Some of the boys caught Narendra from behind, other boys caught hold of his collar and hit on his private part when Manju and others went to rescue Narendra some boys threw soda water bottles. These bottles were picked up from the General Store and therefore they could not rescue Narendra. :15: 18. She also further stated that thereafter they retreated. Narendra started running in order to rescue himself. Some boys ran after him. One of the boys obstructed Narendra with leg. Narendra fell to the ground and then he was hit by one of the boys on right buttock with an object like weapon. He suffered injury. Other boys also came there and hit Narendra with kicks and fist blows and then all of them ran away. 19. So far as identification is concerned, she has identified accused No.1 as a person who was one of the assailants and then in the identification parade held on two different dates she identified accused Nos. 2, 3, 4 and 5 as assailants and teasing her and attacking her brother. The persons teasing are accused Nos. 4 and 5. 20. At this juncture, it is necessary to see the spot panchnama. It is Exhibit 14. It was taken in evidence because the defence admitted the genuineness of the document. This panchnama shows that pieces of broken glasses of soda water bottles were lying on the spot. Right foot slipper was also found and it is also mentioned that since :16: construction of the road was going on there was an earth and water on the road and hence blood stains were not visible. 21. Finding of pieces of soda water bottle strongly corroborate the story given by Manju and Vinod and other eye witnesses. 22. Evidence of Manju was criticised by Mr. Gole on the ground that there are omissions, contradictions and exaggerations. Firstly, it has to be noted that on the day of the incident, Manju was 15 years of age. Omission is relating to the incident of holding her hand on 29.3.1988 but she has stated that she did not tell Mr. Thakur teacher of the tution class about this incident, therefore, it does not amount to an omission. Manju was also asked in the cross examination whether she had told the Mamlatdar to hold identification parade about the roles played by the accused Nos. 2, 3, 4 and 5 but she stated that she did not remember whether she had told him about the role. Then, she has admitted that she did not describe 3-4 persons who hold the collar of Narendra but she had explained that since she was frightened she could not remember everything :17: properly. 23. Apart from proving certain minor omissions and contradictions as stated above, nothing is brought out in the cross-examination to disbelieve and discredit this witness. Even identification by this witness in the parade as well as in the court, has not been successfully challenged in the cross - examination. She denied the suggestion that she was first taken to the police station before the identification parade and that accused were shown to her. 24. Next witness is P.W. 3 Indu elder sister of Manju. She has supported Manju regarding teasing by the boys, her going with her for 8 days etc. She has also stated that on the date of the incident she along with Narendra, Vinod and Abhijit reached Manju to the tution class and they again went to take her back. At that time 8-9 boys were sitting in front of the General Store on a seat resembling a cot. They started teasing Manju by saying "here comes Red Rose". Narendra went to question them. The boys caught him from back side and front side. Some of them hit him on his private part with knees. :18: Narendra managed to save himself and ran to the road. Indu and others also ran with him. The boys chased them. One of them obstructed Narendra with legs and made Narendra to fell on the ground. Some of them were kicking and some were giving fist blows. They shouted for help and none came to the rescue and one of the boys hit Narendra on his right side buttock with an object like weapon. Thereafter also Narendra was beaten and then the boys ran away. She identified accused No.1 Bhoju. She