:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.312 OF 1994 The State of Maharashtra .. Appellant Vs. 1. Kisan Nathu Pardeshi Age - Adult, Occ-Vegetable Merchant, R/at 135/E, Ward, Lonavala, Dist. Pune. 2. Sunil Motiram Pardeshi Age - Adult, Occ-Rikshaw Driver, R/at 135/E, Ward, Lonavala, Dist. Pune. 3. Balu Atmaram Chavan Age-Adult, Occu-Service. R/at 123/E Ward, Lonavala, Dist. Pune. 4. Jamil Abbas Sayyad Age-adult, Occu-Contractor, R/at 143/E Ward, Lonavala, Dist. Pune. 5. Kailas Narayan Wagh Age-adult, Occ- Rickshaw Driver, R/at 175/E Ward, Lonavala, Dist. Pune. .. Respondents (Org.Accused Nos. 1 to 5) Mr. B.H. Mehta, APP for Appellant-State. Mr. R.R. Bhosale for Respondent Nos.1 to 4. Respondent No.5 reported to be dead. CORAM : S.S. PARKAR & S.R. SATHE, JJ. CORAM : S.S. PARKAR & S.R. SATHE, JJ. CORAM : S.S. PARKAR & S.R. SATHE, JJ. Date : October 25, 26 & 27, 2004. Date : October 25, 26 & 27, 2004. Date : October 25, 26 & 27, 2004. ORAL JUDGMENT (Per S.S. Parkar,J.): ORAL JUDGMENT (Per S.S. Parkar,J.): ORAL JUDGMENT (Per S.S. Parkar,J.): 1. This appeal is filed by the State against the order of acquittal dated 21/1/1994 passed by the Additional Sessions Judge, Pune acquitting all the respondents-accused of the offence of murder in :2: Sessions Case No.391 of 1991. 2. The prosecution case briefly stated is as follows:- . The respondents-accused were charged for the offences under Sections 147, 148, 302 read with Section 149 and alternatively read with Section 34 of IPC in respect of murder of one Mustaffa which took place on the night of 13th July 1989 at Lonavala, a Hill Station in the District of Pune. The incident of assault had taken place in front of Central Hotel which is situated in Jaichand square. That night deceased Mustaffa along with his two friends, complainant Manohar Ingolkar PW 8 and Nasir Shaikh PW 6 had met in Central Hotel. At about 10.30 p.m. when the hotel was closing they came out of the hotel and were chit-chatting in front of the said hotel near the motorcycle of the deceased which was parked there. When they were chit-chatting, PW 7 Akram Pathan, an auto-rickshaw driver, went there along with a passenger and asked them to wait for him till he returned after dropping the passenger at his destination as he wanted to fix program with them on the occasion of Id which was to take place on the following day. After PW 7 left with his rickshaw, :3: five accused persons rushed towards Mustaffa and his friends with weapons in their hands. Accused Nos.1 and 2 came from the side of Punjab Hotel and Mamta Cold Drinks, while accused nos.3 to 5 came there from the side of the road situated on the front side of the Central Hotel. All the five accused started assaulting Mustaffa with the weapons in their hands. Apprehending danger to their lives, Manohar and Nasir ran away from that place. While Manohar PW 8 ran towards Railway Bridge, Nasir PW 6 ran towards Royal Bakery Chowk. PW 7 Akram Pathan who had gone to Gavli Naka along with the passenger came back near the Central Hotel along with his friend Kamar Ansari PW 11. Since nobody was present near the Central Hotel and the motorcycle of the Mustaffa was parked there, auto-rickshaw was taken towards Jakatnaka. At Jakatnaka Akram and Kamar heard voice uttering "ma", "ma" in pain. They recognised the said voice of Mustaffa. When they turned towards the place from where they heard the voice of Mustaffa, they saw Mustaffa lying in the lane between Jakatnaka and Bhagyalaxmi Bhail Bhandar. Said place is about 96 ft. from the Central Hotel. Mustaffa was lying in pool of blood. On enquiry by them Mustaffa told them that respondents-accused assaulted him by means of swords. PWs 7 and 11, therefore, lifted him and put him in the :4: auto-rickshaw and proceeded to take him at Parmar Hospital which is situated in Royal Bakery Chowk. Meantime, PW 6 Nasir, who had run towards the police station which is situated near Royal Bakery Chowk, had met two constables on the way i.e. PW 12 constable Jagtap and constable Chavan. He informed them that five accused named by him were assaulting Mustaffa with swords. When the constables along with Nasir were rushing towards the Jaichand square, on their way, they met PW 13 constable Patil and informed him about the assault taking place in the square. On their way towards the place of offence, auto-rickshaw of PW 7 Akram came from the opposite side and stopped near them. Akram informed the police that five respondents-accused named by him had assaulted Mustaffa and they were taking Mustaffa to the hospital. PW 13 police constable Patil went to Parmar Hospital in the same autorickshaw and the other two constables went to the spot. Complainant Manohar PW 8, who had run away towards Railway Station also returned in the midst of the passengers after arrival of the local train. He also noticed that Akram was carrying Mustaffa in the auto to Parmar Hospital. So he also went to the said hospital. PW 6 Nasir also arrived at the said hospital. In the hospital Dr. Parmar gave first aid to the injured and advised to :5: remove the injured to Sassoon Hospital, Pune immediately. The injured was thereafter taken to Sassoon Hospital, Pune in the car. Injured was accompanied by PW 6 Nasir and PW 11 Kamar and the members of the injured’s family. In the night PW 13 had gone to the police station and narrated above incident to PSO who issued written requisition requesting Dean of Sassoon Hospital for examination of the patient. The said letter was handed over to police constable Thorat who also accompanied injured to Sassoon Hospital. In the Sassoon Hospital injured was declared dead. When the car taking injured to Sassoon Hospital left Parmar Hospital of Lonavala, rickshaw driver Akram took the complainant Manohar in his auto-rickshaw to Lonavala Police Station where Manohar PW 8 lodged complaint giving all the relevant details, on the basis of which crime was registered under C.R. No.92 of 1989 for offences under Sections 307, 147, 148 and 149 of IPC. Crime was registered at about 11.35 p.m. on that night. 3. After registering the crime, PI Bival PW 15, the Investigating Officer visited the place of offence along with panchas and complainant Manohar and drew the spot panchanama Exh.76. The motorcycle of the deceased Mustaffa was found parked in front of the :6: Central Hotel and near the motorcycle two pairs of chappals were seen which were seized under spot panchanama. One of the pairs of chappal belonged to the deceased while the other belonged to the complainant Manohar. They also visited the place between Jakatnaka and Bhagyalaxmi Bhail Bhandar where the injured Mustaffa was lying, from where they collected blood in a bottle and seized the same. The spot panchanama was drawn between 12 p.m. and 1 a.m. at night. At about 1.40 a.m. PI Bival received message from Bundgarden Police Station about the death of Mustaffa and, therefore, offence registered under Section 307 of IPC was converted to offence under Section 302 of IPC. Inquest panchanama Exh.71 was drawn on 14/7/1989 at 11.30 a.m. and the clothes of the deceased were seized in the evening. The dead body was sent for post-mortem examination. In the post-mortem 28 injuries were noticed on the dead body which were in the nature of incised wounds, stab wounds and abrasions etc. Cause of death given was haemorrhagic and shock as a result of injuries. On the same day statements of the witnesses were recorded. The search for the accused had started after crime was registered. But they could not be traced until 20th July 1989. They were arrested from the forest of village Bushi on the basis of :7: information received by PI Bival. They were arrested under arrest panchanama dated 20/7/1989 at 9.30 p.m. Accused Nos.1 to 5 were sent for medical examination to Dr. Saswade PW 14. The clothes of the accused also were seized under panchanama in the night of 20/7/1989 at about 11.50 p.m. The clothes of the accused were also found stained with blood. On 22/7/1989, while in custody, accused no.1 volunteered to produce the weapons of assault used by all the accused from the place where they were hidden. Accordingly the accused had led the police and panchas to Hanuman Tekadi where the weapons were concealed. From the said place two swords, two daggers and one steel pipe were recovered. The blood samples of the accused were also collected. All the seized articles were sent to the office of C.A. on 3/8/1989. Through the Circle Officer map of the place of offence was prepared. After completing the investigation charge-sheet was filed on 10/10/1989 in the Tada Court as provisions of Tada Act were made applicable. On 26/10/1991 the Designated Court, Pune held that offences under the provisions of Tada Act were not made out and, therefore, that court transferred the case to the Court of J.M.F.C., Vadgaon, who committed the case to the Sessions Court. :8: 4. Before the Sessions Court, charges were framed against all the five accused for offences under Sections 147, 148, 302 read with Section 149 and in the alternatively for offence under Section 302 read with Section 34 of IPC. All the accused pleaded not guilty to the charge framed against them. 5. On behalf of the prosecution 15 witnesses were examined, amongst them are two eye witnesses i.e. PW 6 Nasir Shaikh and PW 8 Complainant Manohar Ingolkar. PW 7 Akram Pathan, an auto-rickshaw driver and PW 11 Kamar Ansari have deposed about the oral dying declaration made by the injured Mustaffa to them when they saw him lying in injured condition and they also took him in the rickshaw to Parmar Hospital. PW 10 is Dr. Parmar who examined the injured at 11 p.m. in his hospital. PW 9 is Dr. Kevaliya, who performed autopsy on the dead body. PW 14 is Dr. Saswade who had examined injured accused nos.1 and 5 after their arrest. PWs 12 and PW 13 are constables Jagtap and Patil who had met the eye witness PW 6 Nasir on the way and PWs 7 and 11 while taking the inured to Parmar Hospital, out of whom constable Patil had accompanied the injured to the hospital in the autorickshaw. PW 1 is Yashwant Kedari who acted as panch for spot panchanama while PW 2 is Sushil Gupta who acted as :9: panch for seizure of clothes of the accused. PW 3 is Imtiaz Khan who acted as panch for the arrest panchanama of the accused and PW 4 is Raju Naidu who acted as panch for the recovery of the weapons made at the instance of the accused no.1. PW 5 is Sambhaji Shinde, the Circle Officer who drew the map of scene of offence Exh.96. Lastly, PW 15 is PI Bival who investigated the case. The defence of the accused was of total denial and false implication due to enmity. On behalf of the defence Dr. Pherwani has been examined with a view to prove that due to injuries deceased must be unable to make any statement. 6. After considering the evidence led by the prosecution and the defence of the accused, the trial court has acquitted all the respondents-accused of the offences with which they were charged by disbelieving the eye witnesses as well as other evidence and giving benefit of doubt. The said order of acquittal is under challenge in this appeal filed by the State. 7. We have gone through the oral as well as documentary evidence produced on record and heard both the sides and have also perused the reasoning of the trial judge, who has after considering the lengthy cross-examination of the witnesses permitted by him :10: held that the witnesses did not prove the prosecution case against the accused beyond reasonable doubt. While the argument was going on, the Additional Public Prosecutor, who appeared in the appeal, was showing the omissions and minor discrepancies in the evidence of main prosecution witnesses until he was asked by the court whether he is supporting the said appeal or the impugned judgment of the trial court, whereupon he changed his trend. Yet no serious effort was made to point out why the judgment of the trial court should be set aside. We, therefore, had to minutely go through the entire evidence of the prosecution witnesses and the documents placed on record with a view to appreciate the arguments advanced on behalf of the defence and reasoning of the trial court. 8. The prosecution case is based mainly on the evidence of two eye witnesses, one of whom has lodged the complaint within short time of the incident immediately after the injured was admitted to nearby hospital of Dr. Parmar. The corroborating circumstances relied on behalf of the prosecution are; the evidence of two witnesses on the oral dying declaration, the circumstance of the accused absconding from their houses for a period of one week and their arrest from forest pursuant to the :11: information received by the police. Then there is evidence of seizure of blood stained clothes from the persons of the accused and the discovery of blood stained weapons at the instance of the accused while in custody. The evidence of two eye witnesses, including the complainant and the two witnesses who have deposed about the oral dying declaration has been corroborated by two constables PW 12 Jagtap and PW 13 Patil who met the four witnesses immediately after the incident at the time of taking the injured to the nearby hospital of Dr. Parmar. While the incident appears to have taken place at about 10.30 p.m. in the night, complaint was lodged at about 11.20 on the same night naming all the five accused persons on the basis of which crime was registered, inter alia, not for offence under Section 302 but for offence under Section 307 of IPC because at that time the injured had not died and was declared dead in the Sassoon Hospital, Pune. Thereafter the offence was converted under Section 302 of IPC. 9. PW 8 complainant Manohar is a resident of same town Lonavala who knew the deceased as well as the other witnesses and all the accused persons. He was also an autorickshaw driver doing day-ship. He has deposed that on the night of the incident he went to :12: Central Hotel at about 9.15 p.m. and after some time deceased Mustaffa arrived there on his motorcycle. He parked the same in front of the Central Hotel and went inside the hotel. They used to meet daily each other in the Jaichand square where the said hotel is situated. After some time PW 6 Nasir who was also called as Raju also went there. They came out of the hotel because it was closing time of the hotel. Thereafter they were chit-chatting outside the hotel near the motorcycle of Mustaffa. That time PW 7 Akram went there in his rickshaw, in which he was carrying a passenger. He told them to wait for him till he returns after taking the passenger to his destination for settling the program of Id day. After Akram left, accused nos.1 and 2 came with swords from the lane of Punjab Restaurant and accused nos.3 to 5 also armed with weapons came from the opposite side. They started assaulting Mustaffa with the weapons in their hands. Mustaffa was raising shouts. Complainant Manohar and Nasir, therefore, ran away from that place. Manohar went towards railway station and after arrival of the local train, came back along with the passengers. On the way he saw Akram carrying Mustaffa towards hospital and, therefore, he also went to Parmar Hospital. Thereafter Nasir came there. From that hospital injured Mustaffa was taken to Pune. :13: Nasir and Kamar went with the injured to Pune in the car. Manohar had told Akram about the assault by accused persons with swords. Akram also told him that Mustaffa told him that five accused persons had assaulted him with swords. He then went to police station in the autorickshaw of Akram. He narrated the incident to the police. Same was reduced to writing, which is Exh.103. Thereafter he along with the police and panchas went to Jaichand square. In front of Central Hotel motorcycle of deceased Mustaffa and two pairs of slippers were lying. At Jakatnaka blood stains were found when police drew spot panchanama. He has identified swords article nos. 16 and 17 shown to him stating that accused were also holding swords like those articles. The evidence given by the complainant Manohar, who was an eye witness, has been fully corroborated in more essential particulars by his complaint Exh.103. His evidence is also supported by another eye witness Nasir Shaikh PW 6. 10. PW 6 Nasir Shaikh had gone to the Central Hotel on the night of the incident at about 10.15 p.m. That time Mustaffa and complainant Manohar were taking meals. He took tea. As hotel was to be closed at 10.30 p.m. all the three came out of the hotel and were chit-chatting near the motorcycle of Mustaffa :14: which was parked outside that hotel. He has also deposed that seeing them, PW 7 Akram, who was proceeding towards Bombay-Pune road with a passenger, stopped near them and asked them not to go away as he had to plan for Id day’s program which was scheduled on the following day. Some time after Akram left, accused nos.1 and 2 came towards them from the side of Pubjab Hotel with swords in their hands. Accused nos.3 to 5 came from the road in front of the Central Hotel. They were also armed with swords. All the five accused started assaulting Mustaffa with the weapons in their hands and, therefore, he and complainant Manohar started running away. While he ran towards the Police Station, Manohar ran towards Railway Bridge. When he was running away he met two policemen at Royal Bakery whom he told about the assault on Mustaffa by the accused persons. Therefore, policemen started going towards the place of the incident along with the witness. When they were proceeding towards the place of incident the witness noticed Akram taking injured Mustaffa in the autorickshaw to the Parmar Hospital. He, therefore, went to Parmar Hospital. Both the eye witnesses i.e. this witness and complainant Manohar PW 8 have stated about the lights in Jaichand square. He has stated that on that night pairs of chappal of Mustaffa and of :15: himself remained at the place from where they started running away. He has identified the leather chappals belonging to him and slippers belonging to Mustaffa. He has stated that accused were carrying similar types of swords as article nos.16 and 17 which were recovered at the instance of the accused. Like complainant Manohar, this witness also was subjected to the lengthy cross examination by the different advocates who are representing different accused. Different accused were represented by four advocates. While accused nos.1,2 and 3 had their own separate advocates, accused nos.4 and 5 were represented by one common advocate. 11. The evidence of Nasir PW 6, an eye witness, has been corroborated to certain extent by PW 12 Constable Jagtap that at about 11 p.m. he was proceeding from Royal Bakery Chowk to police station for his night duty. At the Royal Bakery Chowk Police Constable Chavan met him. When he was talking to constable Chavan, PW 6 Nasir came running and informed him that accused persons, named by him, were assaulting Mushtaffa with swords. When he was told about this incident of assault by Nasir, he along with constable Chavan went towards Jaichand square. On the :16: way constable Patil met them, who also accompanied them. On their way rickshaw coming from opposite direction stopped near them. Said rickshaw was driven by Akram Pathan PW 7. He informed the police constables that five accused named by him assaulted Mushtaffa. He has also deposed that one Kammu i.e. Kamar Ansari PW 11 was also in the auto-rickshaw at that time. He had sent constable Patil in that rickshaw along with the injured to hospital and the other two constables went to Jaichand square. They saw motorcycle was parked in front of the Central Hotel. They also noticed two pairs of chappals lying there. When they went to Jakatnaka, they noticed blood there. He then asked constable Chavan to remain on the spot and he went to the police station. This witness has also thus corroborated and supported the evidence of auto-rickshaw driver Akram Pathan PW 7. 12. PW 7 Akram Pathan, an autorickshaw driver has deposed that he was plying the autorickshaw in the nightship, while his brother used to ply during day time. He knew the deceased as well as the eye witnesses and all the five accused since his childhood. On the night of incident at about 10.40 p.m. he was proceeding with the passenger from Jaichand Chowk to Gavlinaka. That time he noticed :17: deceased Mustaffa, complainant Manohar (PW 8) and Nasir (PW 6) present in front of Central Hotel. He asked them to wait for him for chalking out Id-day program and went to Gavlinaka with the passenger. While returning, he met his friend Kamar Ansari PW 11 near octroi post of Gavlinaka. He told Kamar Ansari that Mustaffa, Manohar and Nasir were waiting for him and asked him also to accompany him for settling Id-day program. Along with Kamar he went to Jaichand stand where eye witnesses along with Mustaffa were supposed to be waiting. But none was there and only motorcycle of Mustaffa was standing there. It was about 11 p.m. He, therefore, returned to Jakatnaka of Jaichand chowk along with PW 11 Kamar. While returning, he heard voice uttering "ma", "ma". He identified that voice to be of Mustaffa and, therefore, went near that place. They saw Mustaffa with injuries on his cheek, face and hand etc. On being asked Mustaffa told him that five accused named by him assaulted him with swords. Injured Mustaffa had given him the names of accused as Jamir, Sunya Paredeshi, Kishya Pardeshi, Balaya and Kailas. According to the witness accused no.1 Sunil Pareshi is know as Sunya Pardeshi, Accused no.3 Ballu Chavan is known as Ballya, Accused No.4 Jamir Sayyad is known as Jamir and Accused No.5 Kailas is known as Kalya. Then :18: he along with PW 11 Kamar lifted Mustaffa and put him in autorickshaw for taking him to Parmar Hospital. On the way constable Patil met them near the square. He informed police that all the accused had caused injuries to Mustaffa and, therefore, they were carrying him to the hospital. He further stated that the constable also sat in the rickshaw and went to Parmar Hospital. That time PW 6 Nasir reached there and both of them called doctor from his house. Doctor gave first aid to the injured and told them that patient was serious and he should be removed to Sassoon Hospital, Pune. Manohar PW 8 was also present outside the hospital. He informed Kamar to arrange for a vehicle as Mustaffa was serious. The witness along with Kamar went to the house of Deepak Poojari in search of car. As the car of Poojari was not there they went to Bangarwadi. Meantime car of Mustaffa had arrived and Mustaffa was taken in the car to Pune accompanied by Nasir. Complainant Manohar who was there near the hospital told the witness about the incident of assault by accused on Mustaffa. Thereafter he took Manohar in his autorickshaw to the police station to lodge the report. The police station is hardly 150 ft. from Parmar Hospital. 13. PW 7 has been corroborated by the evidence of :19: PW 11 Kamar Ansari. He has deposed that