1 cr-apeal-268-03-with jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 268 OF 2003 1 Kamlesh Dashrath Dethe, ] Age 27 years, R/o Hanuman Nagar ] Nilkanth Hsg. Society, Room No. 188, ] Kandivali (E) Mumbai-400 101 ] ] 2 Kamlesh @ Appa Navinchadra Shah, ] Age 28 years, r/o 1/8, Hanuman Nagar] Navyug Sangh Mangal ] Kandivali (E), Mumbai-400 101 ] ] 3 Meheboob Tejmul Khan Age 28 yrs. ] R/o Mahatma Gandhi Chawl, ] Room No.18, Hanuman Nagar, ] Kandivali (E), Mumbai-400 101 ] ] 4 Mohan Appa Nair, ] Age 29 years, r/o Adarshwadi, ] Hanuman Nagar, Akurli Road, ] Kandivali (E), Mumbai-400 101 ] ] 5 Suresh Punalal Jaiswal ] Age 32 years, r/o Sonia Niwas, ] Room No.17, Achole Road, ] Nallasopara (East), Dist.Thane ] ] 6 Danial Samual Bhandari, ] Age 28 years, r/o Navrangwadi Chawl ] Room No.141, Hanuman Nagar, ] Akurli Road, Kandivali (E) ] Mumbai-400 101 ]..Appellants All at present in Bombay ][Ori. Accused Nos.2, 3, 4, Central Prison, ]6, 7 and 8 respectively] 2 cr-apeal-268-03-with Vs. State of Maharashtra ] (at the instance of Kandivali Police St. ] Vide CR No.154 of 1993 in ] S.C. No.605 of 1993 ]..Respondents WITH CRI. APPEAL NO. 115 OF 2004 Suresh Punalal Jaiswal ] Age 32 years, r/o Sonia Niwas, ] Room No.17, Achole Road, ] Nallasopara (East), Dist.Thane ]..Appellant [Ori. Accused no.7] Vs. The State of Maharashtra ] (at the instance of Kandivali Police Station) ]..Respondent .... Mr. R. Satyanarayanan Adv. for Appellant Nos. 1, 2, 3, and 6- original accused nos. 2, 3, 4, 6 and 8) in Cri. Appeal No. 268 of 2003 Mr. Abhaykumar Apte Adv. for appellant no.4 in Cri. Appeal No.268 of 2003 and for appellant (original accused no.7) in Cri. Appeal No. 115 of 2004 Mrs. A.S.Pai A.P.P. for the State. .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : FEBRUARY 14/15/21, 2011 ORAL JUDGMENT : [PER B.H.MARLAPALLE, J]: 3 cr-apeal-268-03-with 1 Both these appeals filed under Section 374 of Cr.P.C. arise from the order of conviction and sentence passed in Sessions Case No. 605 of 1993 by the learned Additional Sessions Judge for Greater Mumbai on 29.1.2003. In all 8 accused came to be tried in Sessions Case No. 605 of 1993 and during the pendency of the trial, accused no.1 Shabbir Mohd. Shaikh died on 3.2.2000 and accused no.5 Maruti Nagappa Pawar died on 28.12.2001 and therefore, the case continued against the remaining six accused i.e. accused nos. 2, 3, 4, 6, 7 and 8. They have been convicted for the offence punishable under Section 302 read with Section 149 of I.P.C. and sentenced to suffer R.I. for life. They have also been convicted for the offences punishable under Sections 144 and 148 of I.P.C. Criminal Appeal No. 268 of 2003 has been filed by all the six accused but subsequently, accused no.7 Suresh Pannalal Jaiswal has filed Criminal Appeal No. 115 of 2004 and therefore, Criminal Appeal No. 268 of 2003 survives for accused nos. 2, 3, 4, 6 and 8. Accused nos. 6 and 7 are on bail. 2 As per the prosecution case, P.W.1 Smt. Indravati wife of Rajnarayan Vishwakarma was residing at Hanuman Nagar, Kandivali with her husband and five sons viz. (1) Suresh (aged 18 years), (2) Avadesh alias Subbu (aged 15 years), (3) Ramesh (aged 12 years), (4) Dinesh (aged 10 years), and (5) Ganesh (aged 8 years). On 4.4.1993 her 4 cr-apeal-268-03-with husband left the house at about 8 a.m. to attend to his duties and around 9.30 a.m. her son Avadesh alias Subbu left the house to go to Malad for his duties. While she was going out of her house to fetch water from the common tap at about 10.00 a.m. her son returned with bleeding injuries and fell into her arms. She noticed that her son Subbu had sustained bleeding injury near his neck on right hand side. With the help of her neighbour Smt. Sundera Rane (P.W.6), she made the injured Subbu to lie on a “khat” and carried him to the Hanuman Nagar Police Chowky. From the police chowky, he was moved into an auto-rickshaw and taken to Borivali hospital where he was declared dead. As per her, accused no.4 Meheboob had a love affair with neighbouring girl Meera Pandit and the deceased Subbu had objected to their love affair. He had instructed accused Meheboob not to move around the house of Meera and therefore, Meheboob was annoyed. On 13.3.1993 Ramesh Jaiswal accused no.7 and a friend of Meheboob accused no.4 had some verbal altercation with Subbu and his friends and on that ground, Subbu was assaulted and killed. 3 The dead body of Subbu was sent for post mortem which was conducted by P.W. 7 Dr. Baban Shinde at the Cooper hospital on 5.4.1993 between 11 a.m. to 12 noon. He signed post mortem notes at Exh. 31 and gave the cause of death as “shock and haemorrhage due to 5 cr-apeal-268-03-with injury to vital organ (unnatural death)”. After 8 to 9 days, clothes of the deceased as well as P.W. 1 were recovered and sent for chemical analysis by P.W. 10 Suresh Bhumkar Investigating Officer. In the presence of P.W. 5 Ashok as a Panch witness, the discovery of knife at the instance of Maruti Pawar accused no. 5 was made and recovery panchnama Exh. 27 was drawn. The said weapon was also sent for chemical analysis. Accused nos. 1 to 4 came to be arrested by P.W. 10 on 4.4.1993 whereas accused nos. 5 and 6 came to be arrested by P.S.I. Mathadikari on 5.4.1993 and the said Officer arrested accused nos. 7 and 8 also on 7.4.1993. On completion of the investigation, the charge sheet came to be filed on 30.6.1993 by P.W. 10 and the case being exclusively triable by the Sessions Court, it was committed. Charge at Exh. 8 was framed on 14.8.2002. 4 The prosecution examined in all ten witnesses and it claimed that P.W.1 Indravati, P.W. 2 Dinesh, P.W. 6 Smt. Sundera and P.W. 8 Ramraj Yadav were the eye witnesses. P.W. 4 Vijay who was panch witness for the inquest panchnama at Exh.24 and P.W. 5 Ashok Manful who was a panch witness for the discovery of knife, turned hostile. P.W.3 Subhedar Pathak was also a panch witness for the spot panchnama at Exh. 22 and it indicated that as per the prosecution, the incident had taken place infront of room no. 242, Radhakrishna Housing 6 cr-apeal-268-03-with Society, Hanuman Nagar. P.W. 9 Shri. Ramesh Gavit was the Police Sub-Inspector attached to Kandivali Police Station and he was the Station Officer on 4.4.1993. He had recorded the complaint of P.W. 1 at about 11.30 a.m. and registered C.R. No. 154 of 1993 for the offence punishable under Section 302 read with Section 149 of I.P.C. against 8 accused. He had drawn the inquest panchnama Exh. 24 as well as spot panchnama Exh. 22. The evidence of P.W. 7 Dr. Shinde along with the evidence of other witnesses was considered by the trial Court and it held that Subbu alias Avadesh was murdered by the accused. The trial Court accepted the prosecution evidence and more particularly of the so called eye witnesses i.e. P.W. 1, P.W. 2, P.W. 6 and P.W. 8 and the trial Court also held that the motive behind the crime was the annoyance of Meheboob with the deceased as he had objected to the love affair between Meheboob and Meera Pandit. 5 The evidence of P.W. 7 Dr. Baban Shinde indicates that during the post mortem, he noticed the following external injuries on the dead body of Subbu: (1) One stab wound 4 cms. X 0.8 cm. X cavity deep over right supra clavicular region oblique in direction and upper edge laterally, edges sharp, lower end 3 cm. right to traces, double edged weapon might be used; 7 cr-apeal-268-03-with (2) Abrasion 6 cms. X 0.2 cm. over right cheek oblique; (3) Abrasion 6-3 cms. X 0.2 cm. over left cheek. 6 The internal injury noticed was on upper lobe of right lung pierced 3 cms. x 0.6 cms. X 1.00 cm. and collapsed. There was haemothorax 100 ml. on right side of thorax. As per the doctor, the left lung was normal and all the injuries were ante mortem. According to him, injury no.1 was fatal and sufficient to cause death in its ordinary course and it corresponded to the internal injury mentioned in column no. 20. It was possible by hard and sharp pointed weapon, whereas, injury nos. 2 and 3 were possible by fist blows. However, in the cross-examination, he also ruled out the possibility of fist blows as there was no swelling on the person of the deceased and specially in connection with injury nos. 2 and 3. He also stated that only in rare cases, abrasion is possible by fist blows. He also admitted in his cross-examination that it was possible that injury no.1 would be by a weapon used with force. This witness, in our opinion, proved that Avdesh alias Subbu died a homicidal death on 4.4.1993 at 10 a.m. 7 As noted earlier, the prosecution has relied upon the motive and the evidence of four eye witnesses to connect the accused with the homicidal death of Subbu. As far as the motive is concerned, beyond the 8 cr-apeal-268-03-with evidence of P.W.1, there is nothing to corroborate the prosecution evidence that accused no.4 Meheboob had a love affair with a girl called Meera Pandit who was staying about 2 or 3 houses beyond the house of P.W. 1 and that there was a quarrel between Meheboob and the deceased on that ground or that the deceased had warned Meheboob not to be seen around the house of Meera Pandit. At the same time, none of the eye witnesses has stated that it was Meheboob who gave the blow of knife to the deceased. We therefore, find this link of motive to be very weak. In any case, if the prosecution case is based on the evidence of eye witnesses and as many as four of them, motive may not be a material circumstance to examine and therefore, we will proceed to examine the evidence of P.W.1, P.W.2, P.W. 6 and P.W. 8. However, before we do that it is important to note that from the evidence of P.W. 10 Suresh, it has come on record that the assault on the deceased was initially near the flourmill of PW 8 Ramraj Yadav and from there the deceased started running towards his house and near his house, he saw his mother and fell in her arms in bleeding condition. The distance between the flourmill and the house of the deceased is about 300 mts., as per the evidence of PW 10 Suresh Bhumkar-Investigating Officer. 8 While scanning the evidence of the eye witnesses as relied upon by the prosecution, it is necessary to find out whether there was an 9 cr-apeal-268-03-with unlawful assembly either at the first place or the second place of incident and whether any of the members of this unlawful assembly is proved to have assaulted the deceased Subbu during the incident. At the same time, the trial continued only against six accused on the demise of accused no.1 Shabbir and accused no.5 Maruti. We will start with P.W. 8 who is not a member of the family of the deceased and is the proprietor of the flourmill located in Ganeshkrupa Society. Though he had turned hostile, in view of the settled principle in law, he cannot be discarded as shown wholly unreliable witness of the prosecution. He stated before the trial Court that he remembered the incident that had taken place near his mill between 9 a.m. to 10 a.m. on 4.4.1993 as at the material time he was working in the mill. He heard the commotion going on outside the mill and one person was seen having assaulted with a knife by another as he had seen it when he came out of the mill. The assailant put the knife on the throat of the victim who was caught hold by another person. The name of the victim was Subbu and he was from the locality of the witness. He further stated that the victim was residing at some distance from his flourmill. The incident had taken place on the public road and some persons had gathered there. He went inside the mill and he did not see what had happened further. During the cross-examination conducted by the learned Special Public Prosecutor, he conceded that the police had recorded his statement as per his narration and he found it to be correct. 10 cr-apeal-268-03-with He denied the suggestion that it was accused no.6 Mohan who had caught hold of the deceased near his flourmill. He pointedly stated that Subbu alias Avadesh was caught hold by Shabbir accused no.1 (deceased) and Subbu was assaulted with knife by Maruti Pawar (accused no.5 deceased). He stated that his statement recorded by police to the effect that it was Mohan who was another person along with Shabbir catching hold of the victim was wrongly recorded by the police. He also denied that he had stated before the police that accused Suresh, Daniel, Appa @ Kamlesh, Meheboob and Kamlesh were standing near the spot of the occurrence. In his cross-examination, he admitted that about 1 or 2 months after the incident he had gone to his native place in Uttar Pradesh and had returned about a fortnight before the day he was standing in the witness box. In his absence, one of his relations by name Dinesh looked after his flourmill. He also admitted that on hearing the commotion he had come out of the flourmill and then Rakesh had followed him and it was correct to state that Maruti gave a knife blow on the neck of the deceased due to which the deceased fell on the ground. He also admitted to have washed the stains of blood on the road where the first incident had taken place. He clarified that when he was washing the Ota of the flourmill, the washing water reached upto the blood stains. He had returned to the mill after he saw that the victim had fallen on the ground. He also admitted that he used to reside in the flourmill itself and 11 cr-apeal-268-03-with he used to cook the food inside a room in the mill. His statement was recorded by the police on 5.4.1993 at the police station. He also admitted that he had not stated to the police any other names as the accused other than that of Shabbir and Maruti. The contradictions brought out in the evidence of this witness have not materially affected the prosecution case that P.W. 8 was the eye witness to the incident which had taken place initially near the flourmill. P.W. 8 is the eye witness who saw the assault on the deceased and as per him, it was Maruti Pawar (accused no.5) who had given a blow of knife near the neck of the deceased while the deceased was held by accused no.1 Shabbir. This witness has not spoken about any other accused being either present at the scene and participating/assaulting the deceased and therefore, from this evidence of P.W. 8, there is no indication of formation of an unlawful assembly at the first spot of the incident. 9 We then come to the evidence of P.W.1 Indravati who is the mother of the victim and the victim had fallen into her arms with bleeding injuries when she came out of her room so as to fetch water from the public tap which was at a distance of about 20 feet from her room. She stated before the Court that around 9.30 a.m. on the date of the incident, Subbu left the residence so as to attend his duties and within half an hour, he came back running with bleeding injuries and fell into her arms. 12 cr-apeal-268-03-with Though she claimed that Subbu was being chased by eight persons, it was her case that accused no.6 Mohan had a knife in his hand and he assaulted the deceased on his neck. She also claimed that other persons accompanied Mohan and Suresh, had assaulted the victim by fist blows and after assault, they ran away. She was knowing all the assailants as they were friends of the deceased and they used to come to her house regularly. She also stated that accused Meheboob had a love affair with one Meera Pandit residing in her locality and about 4 to 5 houses away from her room. Deceased Subbu had objected to the said love affair by asking accused Meheboob not to move around in the locality and near the house of Meera Pandit. With the help of P.W. 6, she had taken the victim to the police station at the first instance on a `khat' and from there, in a rickshaw to Bhagwati hospital. The doctor declared Subbu dead at the said hospital. The police recorded her statement as per her narration and registered a crime (Exh. 19). She was also again called to the police station and her supplementary statement was also recorded. She had handed over the blood stained clothes of herself and the deceased to the police during her second visit to the police station. She stated that her `sari' was stained with blood as she carried the victim to the police station and to the hospital. She identified these clothes as being Articles 1 to 3 before the Court. She was also shown the knife purportedly used during the incident and she stated that the said knife was in the hand of Mohan 13 cr-apeal-268-03-with accused no.6 (article no.4). In her cross-examination, she stated that after the victim fell in her arms, both of them fell on the ground and she noticed that there was bleeding from his injury on his neck and his clothes were blood stained and therefore, she shouted as “Bachav Bachav”. On hearing her, neighbours gathered and Subbu was unconscious. In the cross- examination, it was brought out by the defence that her statement to the police regarding the assault at the second place of occurrence i.e. near her house was an improvement over the statements she gave to the police. In her supplementary statement she denied to have stated that “It was not Mohan who assaulted with knife but it was Maruti who assaulted my son Subbu with knife”. She reiterated that it was Maruti who had assaulted Subbu. She also admitted about her knowledge that Subbu was assaulted first near the flourmill and that the deceased was a friend of all the accused as they were from the very same locality. She was not aware whether the deceased had any quarrel with Ramesh Jaiswal brother of accused no.7. She also admitted in her cross-examination that she was not aware as to who assaulted Subbu near the flourmill but near her house, it was Mohan who had assaulted Subbu. She denied that accused Maruti had threatened her son Subbu to kill him. She also admitted that accused Meheboob was on talking terms with the other 14 cr-apeal-268-03-with accused but she was not aware whether he was on talking terms with the deceased. She admitted that the blood stained clothes were collected after 9 days from the date of the incident and all these clothes were kept in a cupboard in her house. She denied the suggestion that she had falsely implicated the accused. She also stated that the incident had taken place on Sunday and her minor sons including P.W.2 Dinesh were in the house at the time of the incident. This witness contradicted herself even in her substantive evidence before the Court. At one point, she admitted that by mistake she had taken the name of Mohan as the assailant but again subsequently in the cross-examination, she denied the suggestion that Mohan was not the assailant. Having regard to the injuries sustained by the deceased, it is undoubtedly clear that there was only one weapon of assault on the deceased and the knife blow was given near the flourmill and not infront of the house of PW 1. At the time or after the deceased fell in his mother's arms in an injured condition, it does not appear that there was any further assault on him by the assailants and he fell unconscious at the second spot. It is also not her case that it was Meheboob who was armed with knife and he gave the blows to the deceased with the said weapon. It is also not the prosecution case that deceased Meheboob had instigated or hired accused nos. 1 and 5 to 15 cr-apeal-268-03-with assault the deceased. The medical evidence ruled out that the deceased was given fist blows and therefore, the evidence of PW 1 that the persons accompanying the main assailants, gave fist blows, does not inspire confidence. 10 P.W. 6 Smt. Sundera Rane is the neighbour of P.W.1 Indravati. She admitted before the Court that the water supply on the public tap used to be available between 10 a.m. to 2 p.m. during the relevant time and therefore, while she was fetching water from the said tap on 4.4.1993 she heard commotion and left her Pot at the door of her house and went to the spot of the offence. She saw Subbu lying on the lap of his mother who was crying and shouting. Subbu had bleeding injuries. P.W.1 Indravati requested her to accompany her to the hospital. The witness also brought a `khat' which lying near the spot of offence and she helped the injury to sleep on the said `khat'. She accompanied P.W.1 Indravati upto the gate of Mahendra and Mahendra Company and thereafter P.W.1 and her children took the injured to the Hanuman Nagar Police Chowky. Father of the injured had also reached nearby by that time and the injured was then removed to Bhagwati hospital in an auto-rickshaw. She returned home. She also admitted in her cross-examination by the defence that she did not know the accused Mohan and Maruti. She also admitted that P.W.1 Indravati was shouting that Shabbir and Maruti 16 cr-apeal-268-03-with assaulted her son. Thus, P.W. 6 is not an eye witness as was claimed by the prosecution. She has also seen the incident only from the time the deceased fell in the arms of his mother with bleeding injuries and she had heard P.W.1 Indravati shouting and taking the names of only two accused i.e. accused no.1 and 5 as the assailants. At the same time, she is the witness only for a limited incident post the assault that had taken place near the flourmill. 11 The next eye witness as claimed by the prosecution is P.W.2 Dinesh Vishwakarma. He was of the age of 10 years when the incident had taken place and was of 20 years of age on the day he had entered the witness box (3.9.2002). He stated before the trial Court that at the material time he had returned from the neighbour's house after a T.V. Programme and he saw that his brother rushed and fell into the arms of his mother who was standing outside the house and his brother was injured around his neck. He claimed that he knew all the accused as they were friends of his late brother and he identified each one of them before the Court by name. He also stated that he had seen the accused Mohan holding a knife and at that time, Suresh and Meheboob shouted as “Maro Maro”, Mohan gave a knife blow on the neck of Avadesh alias Subbu. He also stated that other accused assaulted Avadesh by fist and kick blows and then he had shouted “Bachav Bachav” and the accused fled away. 17 cr-apeal-268-03-with He further