IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CRIMINAL APPEALLTE JURISDICTION. CRIMINAL APPEAL NO. 615 OF 1996 Raju Willson Pawda @ Kalya Raju..... ....Appellants. (Orig.Accd.No.1) V/s The State of Maharashtra ..... .... Respondents. Mr.Harshad Suryawanshi i/by Mr.S.P. Kadam, Adv. for the appellant. Mr.A. M.S.Shringarpure, APP for the State. CORAM: V.G. PALSHIKAR AND R.C. CHAVAN, JJ. 19th July, 2005. ORAL JUDGMENT: (Per Palshikar, J.) Being aggrieved by the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.1462 of 1992 on 24.9.1996 the appellants-accused has preferred this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before us. 2. With the assistance of the learned Advocate for the appellants as also the learned Public Prosecutor we have scrutinized the entire evidence on and reappreciated the same. 1 3. The prosecution story is that at about 10.00 p.m. on 4.10.1992 six persons came near Budhawar Park, Colaba, Bombay in a taxi. After they alighted from the taxi they went to Babu Sampat Mannaswami who was residing at that time in Budhawar Park along with his parents. Brother of the said Babu was sitting on the pavement and he watched the persons alighting from the taxi. Those persons then went in and talked to Babu and thereafter assaulted him. He tried to run away, they chased him again assaulted him and ran away. Pittar Sampat Munnaswami who is brother of the deceased saw his brother injured, complained to the police, took the man to the hospital where he was pronounced dead. Therefore a complaint with the police was lodged, investigation was commenced, five accused persons were arrested immediately the 6th accused was arrested after he was released from the hospital. The prosecution examined 14 witnesses to prove its case and the learned trial Judge on appreciation of that evidence came to the conclusion that the prosecution has failed to bring home the charge of murder against five of the six accused and convicted one for murder and that was the person who was arrested later after he was released from G.T. Hospital, Bombay where he was admitted on the same day of incident in the night. It is this order of conviction of that accused who is now present appellant which is challenged in this appeal as aforesaid. 4. The only ocular testimony is that of P.W.1-Pittar Swami brother of the deceased. Rest of the evidence is circumstantial. P.W.2-Sanmugam Paniar is the panch to the inquest panchnama which is not disputed. P.W.3-Shirin Shirake is panch to the spot panchnama which is also not disputed. P.W.4-Sanjay Shetty is panch who was supposed to identify accused No.2 in the police custody. He has failed to identify 2 accused No.2. P.W.5-Dinesh Verma is panch who was supposed to identify four accused persons who he failed to identify any of them. P.W.6-Riasantali Shaikh identified the present appellant as person who was admitted in G.T. Hospital in injured condition on 4.10.1992. P.W.7-Balkrishna Khamkar is the Special Executive Magistrate who held the test identification parade in which five of the accused persons were identified by P.W.1-Pittar. P.W.8-Baban Shinde is police constable who went to the G.T. Hospital, Bombay and found the appellant admitted in injured condition. He seized the clothes of the appellant and has proved the same. 5. P.W.9-Mangesh Chavan is police constable who was at the relevant time posted at G.T. Hospital and saw the appellant in injured condition. He was told by the accused that he, the accused, was hurt by Babu Sampat Munnaswami i.e. the deceased in this case. P.W.10-Prem Raut is the panch who has proved the seizure of blood stained clothes but does not state whose clothes they were. P.W.11 is Dr.Ashok Shinde who conducted the post mortem and proved the report and thereby proved homicidal death of Babu. P.W.12-Vijay Kelvekar is the doctor who examined Sandeep and proved injuries on his person. P.W.13-Umesh Hendra is the doctor who examined the present appellant and proved injuries on his person. P.W.14-Tammaray Loni is the investigating officer. This is all the evidence that was asserted by the learned trial Judge while coming to the conclusion that only the present appellant was guilty person and he proceeded to acquit the rest of the accused. 6. It is an admitted position on record that the accused-appellant was also injured on the same day and was admitted to G.T. Hospital in injured condition. The prosecution has not made any efforts to explain the injuries on the person of this 3 accused. P.W.1-Pittar is the only eye witness who has categorically admitted in his cross examination that he has seen the entire incident while hiding behind a tree in the Budhawar Park. According to this witness six persons came by taxi around 10.00 p.m. He identified three of them as Raju, Sandeep and Shailendra with three other unknown persons. He identifies the three in the Court and says “I saw all the six persons in the street light”. Then he has said that he saw all the six accused had surrounded the deceased near `R' block and then accused Raju took out a dagger and hit a blow on the abdomen of Babu. Then according to this witness the victim wanted to run away but the appellant held him by hair and prevented him from running away when accused Sandeep attempted to strike blow by chopper on Babu but Babu missed the blow and it landed on the head of present appellant Raju. According to the witness all the accused assaulted the victim and dragged him towards block ` K' and `M' in Budhawar Park and there was again assaulted him and then they ran away. According to the witness the incident was watched by many persons from their houses. This witness made a statement before the police on 5.10.1992 disclosing the entire incident but in that statement he has nowhere said that accused No.2 Sandeep wanted to give blow to victim Babu but the blow landed on the head of the accused Raju the present appellant. But he has said so in his deposition in the Court. It is obvious that he has so said only to account for the injury on the person of the accused. This according to us is positive improvement made by the witness to improve prosecution case. This witness identified five persons in the test identification parade and again identified them in the Court. He names them by pointing out towards accused Sandeep, accused Anand, accused Nagesh and accused Maslamani who were before the Court. There is therefore no 4 statement of this witness positively identifying the accused Raju in the Court. Assuming that it is therefore the learned trial Judge has rejected the testimony of this witness in so far as other five accused persons are concerned and has chosen to convict the present appellant only because he is mentioned as person alighting from taxi by P.W.1-Pittar and he had head injury which is explained by the witness as caused in the incident. 7. The prosecution has also examined the Special Executive Magistrate in whose presence test identification parade was conducted. His report is at Ex.36. He has deposed to the manner in which the parade was held. In this report he has very clearly stated how the parade was conducted and how P.W.1-Pittar was called to identify the accused. It is then recorded that he pointed out to accused Nagesh as the person who assaulted Babu with knife, then he pointed out to accused Sandeep as the person assaulting Babu with chopper. He then identified accused Maslamani as the person who assaulted Babu with dagger. Thus, nowhere in this test identification parade report is there any mention that of the present appellant Raju. In his deposition P.W.1-Pittar also does not mention that he identified Raju in the test identification parade. It is true that he has identified Raju as the person when six persons alighted from taxi and he named three not knowing names of other three. The learned trial Judge has discarded his evidence in so far as other persons are concerned including those named by P.W.1 as persons alighting from taxi and has chosen only Raju for conviction again only because he was injured and the injury was explained as caused by one of the accused according to P.W.1. 8. We have already noted the improvement made by witness P.W.1-Pittar while explaining the injury on the person of the present appellant. He has not said so in the 5 statement before the police. Consequently in our opinion, the injury on the person of present appellant is unexplained by the prosecution. The documents which the prosecution has brought on record to prove that the accused-appellant was injured themselves point out that according to the accused present appellant the injury was caused by the deceased victim. There is nothing on record to disclose this allegation as disclosed by documents proved by prosecution itself. It is well settled principle of law that where injuries on the person of accused are not explained and injuries are substantial in nature, the entire factual data is not being brought before the Court and in such evidence the person injured is liable to be acquitted. We can in this regard make reference to a judgment in the case of Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 where a division bench of Supreme Court of India observed that the prosecution must explain the injuries on the person of the accused, non explanation should lead to an inference that the prosecution has suppressed genesis of the origin of occurrence and has thus not proved the true version and if that is so the benefit must go to the accused. The latest judgment on the point being in the case of Shriram v. State of M.P., (2004) 9 SCC 292 where another division bench of the Supreme Court has reiterated the aforesaid principle. In our opinion, therefore, the prosecution has failed to explain the injuries on the accused. P.W.1-Pittar the only eye witness has failed to identify the accused in the Court or atleast say so in the Court. His evidence in so far as other accused persons are concerned is rejected by the learned trial Judge. The reasons given by the learned trial Judge for so doing are not convincing. Apart from that if the version of P.W.1 is to accepted in part then he has failed to identify the accused Raju the present appellant before the Special Executive Magistrate who held the test 6 identification parade and has failed to say so in the Court. In our opinion, in such circumstances, it is impossible to sustain the order of conviction. In the result therefore the appeal succeeds and is allowed. Appellant-accused-Raju Willson Pawda @ Kalya Raju is already on bail. His bail bond stands canceled. 7