1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.444 OF 2008 The State of Maharashtra Through Dy.S.P.Shrirampur, For Complainant Jakir Hamid Shah, R/o Ward No.2, Shrirampur, Taluka Shrirampur, District Ahmednagar ..APPELLANT (Orig.Complainant) Versus 1. Shatrughna Baburao Gavhane, Age 28 years, Occu.Labourer 2. Shriram @ Shiva Baburao Gavhane, Age 28 years, Occu.Electric Shop 3. Irfan @ Pintya Sikandar Shaikh Age 22 years, Occu.Rickshaw Driver, 4. Illiyas Sikandar Shaikh, Age 25 years, Occu.Truck Driver, 5. Laxman @ Kamal Baburao Gavhane, Age 29 years, Occu.Labourer 6. Raju Bhiva More, Age 29 years, Occu.Rickshaw Driver 7. Kailas Anna Gavali, Age 30 years, Occu.Labourer 8. Ejal Harun Bagwan, Age 27 years, Occu.Fitter 2 9. Nisar Bhikan Shaikh, Age 25 years, Occu.Business 10. Farid Jamal Shaikh, Age 21 years, Occu.Labourer All r/o Ward No.2, Shrirampur, Taluka Shrirampur, District Ahmednagar ..RESPONDENTS (Orig.Accused No.1, 3 to 5 7 to 10, 13 and 14) Mr.N.R.Shaikh, Assistant Public Prosecutor for appellant-State. Mr.K.P.Chaware, Advocate holding for Mr.S.B.Talekar, Advocate for respondents 1, 2, 6 and 7. (Appeal admitted as against R.Nos.1, 2, 6 and 7 only) - WITH - CRIMINAL APPEAL NO.55 OF 2008 1. Bharat Baburao Gavhane, Age 34 years, Occu.Electric Shop 2. Rafiq Burhan Shaikh, Age 24 years, Occu.Tailoring work 3. Asif Mustak Shaikh, Age 27 years, Occu.Tailor, All Residents of Ward No.2, Shrirampur, Taluka Shrirampur, District Ahmednagar ..APPELLANTS (Orig.Accused 2, 6 & 12) Versus The State of Maharashtra At the instance of Dy.S.P.Shrirampur, Police Station Vide their C.R.No.134 of 2001 ..RESPONDENT 3 Mr.K.P.Chaware, Advocate holding for Mr.S.K.Shaikh, Advocate for appellants. Mr.N.R.Shaikh, Assistant Public Prosecutor for respondent-State. - WITH - CRIMINAL REVISION APPLICATION NO.100 OF 2010 Jakir Hamid Shah, Age 30 years, Occu.Nil, R/o Ward No.2, Shrirampur, Taluka Shrirampur, Dist.Ahmednagar ..PETITIONER (Orig. Complainant) Versus 1. The State of Maharashtra through its Dy.S.P., Shrirampur, 2. Shatrughna Baburao Gavhane, Age 28 years, Occu.Labourer 3. Shriram/Shiva Baburao Gavhane, Age 36 years, Occu.Rickshaw Driver 4. Irfan @ Pintya Sikandar Shaikh Age 22 years, Occu.Rickshaw Driver 5. Iliyas Sikandar Shaikh, Age 25 years, Occu.Truck Driver 6. Laxman @ Kamal Baburao Gavhane, Age 29 years, Occu.Labourer 7. Raju Bhiva More, Age 29 years, Occu.Rickshaw Driver 8. Kailas Anna Gawali, Age 30 years, Occu.Labourer 4 9. Ezaz Harun Bagwan, Age 27 years, Occu.Fitter 10. Lucky Sikandar Shaikh, Age 29 years, Occu.Welding 11. Nisar Bhikan Shaikh, Age 25 years, Occu.Business 12. Farid Jamal Shaikh Age 21 years, Occu.Labourer All R/o Ward No.2, Shrirampur, Taluka Shrirampur, District Ahmednagar ..RESPONDENTS Mr.A.B.Kale, Advocate for petitioner. Mr.N.R.Shaikh, Assistant Public Prosecutor for respondent-State. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 14th SEPTEMBER 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) : Since all these matters arise from the judgment of the trial Court, all these matters are being decided by this common judgment. 2. The appellants in Criminal Appeal No.55 of 2008 namely accused Nos.2, 6 and 12 stand convicted for an offence punishable under Section 302 read with sec.34 of the Indian Penal 5 Code for having committed murder of deceased Aslam Dada Qureshi and sentenced to imprisonment for life and to each pay fine of Rs.10,000/- in default of which to undergo further rigorous imprisonment for two years. The appellants also stand convicted for an offence punishable under Section 302 read with section 34 of the Indian Penal Code for having committed murder of deceased Ansar and stand sentenced to imprisonment for life and to each pay fine of Rs.10,000/- in default of which to undergo further rigorous imprisonment for two years. The appellants also stand convicted for offence punishable under Section 307 read with section 34 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years and to each pay fine of Rs. 10,000/- with a default condition of undergoing further rigorous imprisonment for two years in the event of non-payment of fine with a direction that all sentences would run concurrently, by the District Judge-2 and Additional Sessions Judge, Shrirampur, by judgment dated 26.12.2007, in Sessions Case No.43 of 2002, by this appeal question the correctness of their conviction and sentence. Criminal Appeal No.444 of 2008 has been filed by the appellant-State questioning the acquittal of the respondents for the offences with which they were charged. Criminal Revision Application No.100 of 2010 has been filed by the original complainant. 3. Such of the facts as are necessary for the decision of these 6 appeals and criminal revision application may briefly be stated thus: P.W.16 P.I.Vasant Sanap who was attached to the Shrirampur City Police Station received an anonymous telephone call on 18.7.2001 at about 11.00 p.m. informing him that in Ward No.2 in the Islamiya Chowk three persons were lying injured. P.W.16 P.I. Sanap was also informed that Shatrughna Gavhane and his brothers and others had assaulted the injured with swords, sickle etc. On receipt of the said information P.W.16 P.I.Sanap proceeded to the scene of the incident along with the Police staff. The injured were found at the scene of the offence and the injured were referred to the Shirsath hospital. After posting the guards at the scene of the offence, P.W.16 P.I. Sanap proceeded to the Shirsath hospital. On reaching the hospital he saw the dead body of deceased Ansar while the other injured Aslam was in a critical condition. Injured Aslam was, therefore, referred to the Saint Look hospital for treatment. The third injured Jakir was under treatment in the hospital and, therefore, a memo was issued to the Medical Officer to ascertain from him the condition of the injured. The Medical Officer examined the injured and informed P.W.16 P.I. Sanap that the injured was in a fit condition to give his statement. Accordingly, statement at Exh. 144 of injured Jakir came to be recorded. The said statement was 7 forwarded to the P.S.O. of the Police Station for registration of the offence and accordingly, offence at Crime No.134/2001 came to be registered. A memo was also issued to the Executive Magistrate for recording the dying declaration of the injured at Exh.230. The Executive Magistrate recorded the dying declaration of the injured. Injured Aslam who had been referred to the Saint Look hospital succumbed to his injuries and this was communicated to P.W.16 P.I.Sanap by a communication at Exh. 231. Accordingly, the inquest panchnamas of the dead bodies came to be recorded in the presence of witnesses and the dead bodies were referred for post mortem examination. The post mortem on the dead bodies came to be performed by P.W.6 Dr.Shinde. Exh.93 is the post mortem report of deceased Aslam while Exh.94 is the post mortem report in respect of deceased Ansar. P.W.6 Dr.Shinde noticed the following external injuries on the dead body of deceased Aslam. 1) Incised cut injury on left side of neck size 10”x2 and 1/4” extending from anterior triangle apex to lower aspect of thyroid cartilage-skin sub-tissue muscle left common carotid. Cut esophagus on left side cut blood clots were present, sharp edges of injury tapering at both the ends; 2) Incised cut injury on neck from right to left side oblique 6” x 1/2” muscle deep, blood clots were present, sharp edges 8 tapering at both the ends; 3) Incised cut injury on chest middle third region, 2 and 1/2” x 1/4” blood clot sharp edges tapering at both the end clots were present sharp edges tapering at both sub-cutaneous tissue deep He opined that all the injuries were ante mortem. He opined that cause of death was shock due to massive hemorrhage and anorexia of cerebrum due to cut left catid artery. The post mortem report of deceased Aslam is at Exh.93. In respect of deceased Ansar, he noticed the following external injuries: 1(a) Incised cut injury on right parietal region anterior to posterior extension 6” x 1/4” bone deep, blood clots were present; 1(b) Incised cut injury on left parietal region anterior to 2/3, 4 x 1/2” bone deep, blood clots were present; 1(c) C.L.W. on chest 3 ¼ x 1/4” reddish in colour with blood clots present; 1(d) Fracture of right and left parietal bone, reddish in colour. dura 9 On internal examination, he noticed that the brain and the arachnoid mater and dura mater were congested and there was massive cerebral hemorrhage on both sides. He opined that cause of death of deceased Ansar was shock due to massive cerebral hemorrhage due to head injury. The post mortem report of deceased Ansar is at Exh.94. Search for the accused was instituted and the accused, who were found, were taken into custody and an arrest panchanama thereof came to be drawn. The accused were referred to the Medical Officer along with the requisition at Exhibit 234. PW 16 thereafter proceeded to the scene of the offence and drew the panchanama of scene of the offence (Exh.80) and recorded the statements of witnesses. The clothes of the accused Bharat came to be seized under panchanama at Exhibit 88. Since the injured PW 8 Jakir expressed that he was not in a fit condition to give his statement, his supplementary statement came to be recorded on the next day. Statements of witnesses came to be recorded and a communication was addressed to the Tahsildar for drawing the sketch of the scene of the offence vide communication at Exhibit 235. A letter was issued to the Medial Officer, Shrirampur, at Exhibit 236 for providing the report of the post mortem. On 21.7.2001, mother of PW 8 Jakir produced the clothes of Jakir, 10 which came to be seized under panchanama at Exhibit 237. Instructions were issued for arresting the absconding accused at Exhibit 238. Similarly, instructions were issued at Exhibit 239 thereafter for arresting the absconding accused. The sketch map of the scene of the offence, which was received from the Tahsildar, is at Exhibit 240. The investigation thereafter came to be entrusted to PW 15 Medha Kadam. PW 15 PI Medha Kadam obtained the Police custody of the arrested accused and also took search of the absconding accused. Despite search at various places, the accused were not traced. Accordingly, PW 15 PI Medha Kadam submitted reports at Exhibits 225 to 227. On 6.8.2001, the investigation of the crime was entrusted to PW 14 PI Gadge. The Police party deputed to search for absconding accused Kailash was successful and ultimately he came to be apprehended and was brought to Dhule where he was arrested on 10.8.2001. Accused Kailash, during custodial interrogation, expressed his willingness to point out the place where the sickle had been hidden. Accordingly, memorandum came to be recorded at Exhibit 89 in the presence of panchas. The accused led the Police and the panch and produced a sickle hidden in the gross near the Subabul trees by the side of the road. The said sickle was found to be blood stained and is Article 14. The said sickle came to be seized in the presence of panchas at Exhibit 90. Accused Raju, during custodial interrogation, also expressed his 11 willingness to point out the sickle, which had been hidden in front of his house. Accordingly, a memorandum came to be drawn in the presence of panchas at Exhibit 81. Accused Raju led the Police and the panch to his house and from a heap of stones produced a sickle, which is Article 15. The said sickle came to be seized under seizure memo at Exhibit 83. Investigation thereafter came to be entrusted to PW 13 Dy.S.P. Shashikant Mane. The seized articles were referred to the Chemical Analyser through a Police Constable along with the forwarding letter at Exhibit 208. On 18.9.2001, four other accused came to be arrested and on 23.9.2001, accused Asif, during custodial interrogation, expressed his readiness to produce a wooden log. Memorandum accordingly came to be drawn in the presence of panchas at Exhibit 186. Accused led the Police and the panch near the office of the Sub Divisional Officer and to his tailoring shop and produced two wooden logs, which came to be seized under seizure memo at Exhibit 185. On 24.9.2001, during custodial interrogation, accused Lucky Sikandar expressed his willingness to produce sword and accordingly a memorandum came to be drawn at Exhibit 209. Accused led the Police and the panch to the rear side of his house and produced a sword hidden in the bushes, which came to be seized under a seizure memo at Exhibit 210. On 24.9.2001, provisions of the MCOC Act were applied and the investigation was thereafter entrusted to Shri Pawar. Accused 12 Shatrughna was apprehended by Manchar Police and accordingly he was brought to the Police Station and arrested in the presence of panchas. The extract of the register of the Lodge from where the remaining accused were arrested was also sent along with the extract of the station diary. On 10.6.2004, the investigation was entrusted back to PW 13 Dy.S.P. Mane. On 23.6.2004, a supplementary charge-sheet against rest of the accused came to be submitted. Further to the completion of investigation, the charge-sheet came to be submitted. 4. Prosecution, in support of the charge, which was framed by the trial Court, examined 17 witnesses. The accused had produced a document in respect of non-availability of street lights. The report of the Chemical Analyser is at Exhibit 251. The trial Court, on the basis of the prosecution evidence, convicted and sentenced the appellants as afore-stated. The trial Court convicted and sentenced accused no.2 Bharat, accused no.6 Rafiq and accused no.12 Asif u/s 302 r/w 34 of the Indian Penal Code for having committed murder of deceased Aslam and also convicted them for having committed murder of deceased Ansar. These accused also came to be convicted for having attempted to kill PW 8 Jakir. The complainant has filed Criminal Revision Application No.100/2010 praying for conviction of all accused. 13 5. In order to effectively deal with the submissions advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of PW 8 Jakir, who is an injured witness. PW 8 Jakir states that he was residing in Ward no.2 along with his parents, wife and children and was knowing deceased Gabbar and deceased Aslam. He states that both the deceased were residing in the same area. He states that he knows all the accused including accused no.1 Shatrughna. On 18.7.2001 at about 10-30 p.m., he along with both the deceased were chitchatting in Islamik Chowk. At that time, accused no.1 Shatrughna, accused no.10 – Ajaj and accused no.13 Nisar arrived there. The accused told the deceased that earlier he had survived, but now he would not survive and they had full support of the owner of Anjum Medicalwala. The accused also expressed that they were not afraid of the Police as they had ample money with them. So saying, the accused left the place and after some time, all the accused arrived there from the side of house of one Javed tailor. The accused were armed with swords and sickles and accused no.2 Bharat was armed with sword and sickle. Accused no.3 Shiva was armed with sickle while accused no.9 Kailash was armed with sword. The accused started assaulting deceased Aslam and deceased Gabbar. Accused Shatrughna and accused Bharat assaulted deceased with swords while accused Shiva assaulted with sickle. Accused no.10 Ajaj, accused no.1 14 Lucky, accused no.8 Iliyas and accused Pintya were also present with them. Both the deceased fell on the ground and thereafter accused Bharat dealt a sword blow on the left hand of PW 8 Jakir. Asif also assaulted with some weapon on the head of PW 8 Jakir. Accused Rafiq assaulted him with a knife on the right hand and caused an injury to the right ring finger. PW 8 Jakir sustained bleeding injury on his head as well as on the right and left hands. He cried for help and accordingly his mother PW 7 Fatima arrived at the scene. PW 7 Fatima rushed to the scene of the offence and a person by name Puli Sharma placed the sword on the stomach of PW 7 and abused her and asked her to go away, otherwise she would be killed. PW 7 Fatima fell on the person of PW 8 Jakir. At that time, Yunusmiya Qureshi and one Babalu also arrived there. Thereafter all the accused fled from the scene. On hearing the cries for help, other people from the area had also gathered there. A jeep was brought and the injured were taken to Shirsath hospital. PW 8 Jakir was admitted there. AT about 3-00 a.m., Police arrived at the hospital and recorded his complaint at Exhibit 144. The Naib Tahsildar also recorded the statement and obtained the thumb impression of PW 8 Jakir. Thereafter, a supplementary statement also came to be recorded. In the supplementary statement, he disclosed the names of the accused whose names had not been disclosed by him in his first information report. He has identified all the accused except 15 accused no.1 and the juvenile accused Lucky. He has further stated that at the time of the incident, the street lights were functioning. Since accused no.1 had not been produced when the examination in chief had been recorded on the first day, this witness was asked to identify accused no.1 and he accordingly identified accused no.1 Shatrughna. 6. In cross examination, he has admitted that he was not knowing the deceased since his childhood, but was knowing him for the last 5 to 6 years. He could not state since when he was knowing accused no.1. He has also admitted that he is residing in Ward No.2 since his birth. He could not state the relations between accused no.1 and the deceased. He has stated that deceased Ansar was also known as Gabbar and has admitted that on 17.5.2001, deceased Gabbar had been attacked and was injured in the incident. He has admitted that he was an eye witness to that incident. He has admitted that he had not questioned deceased Gabbar as to why he had been attacked. He also could not state the number of cases, which had been filed against both the deceased. He has admitted to have met the deceased 4 to 5 days prior to the incident and the deceased had not informed him that they were apprehending an attempt on their lives. He has further admitted that on the day of the incident, he had gone to attend his work and as per his usual 16 practice, he had gone for a walk after his dinner. He states that he was chitchatting with his friends on the day of the incident and had met the deceased at about 10-00 to 10-15 p.m. Both the deceased had arrived there. He has admitted that he did not go to Jamatkhana on that day, but was sitting near the Jamatkhana in Islamia Chowk. He has stated that he had not stated in his previous statements that they were sitting near Jamatkhana and it was wrongly mentioned at portion marked ‘A’ that they were sitting near Jamatkhana. He has further stated that Jamatkhana is at a distance of 15 to 20 ft. from Islamia Chowk and is just by the side of the road. He has also admitted that the business of deceased and his profession were altogether different. After the accused had threatened deceased, he had not questioned the deceased as to why he had been threatened and also as to why he had been assaulted previously. He has further stated that immediately thereafter the accused appeared, but the accused were seen only after they had come to the scene of the offence. He has also admitted that the shop and the house of one Javed tailor is visible from the scene of the offence. He has stated that he has seen the assailants when they had reached Sultannagar square and has also seen weapons in their hands. He has admitted that he did not suggest that the deceased should run away as they were chitchatting amongst themselves. He has further stated that neither the deceased nor he apprehended any 17 attack on them. Though the assailants were approaching in their direction, he did not apprehend any attack. He states that they also did not flee from the scene as the accused did not give them any time to get up and run away as the assailants attacked all of a sudden. He was confronted with portion marked ‘A’ from the statement recorded by the Executive Magistrate that they had got up and wanted to run away when the accused assaulted them. He has stated that the aforesaid portion is not correctly recorded. He has stated that he was conscious throughout till his statement was recorded bay the Police in the hospital. Omission has been duly proved that he had not stated the fact that he had cried for help in the name of his mother and that his mother had arrived there and she had fallen on his person in order to protect him and that a person by name Puli Sharma had pointed a sword on her hand abused her and had threatened to kill her. Similarly, omission has been duly pointed out that he had not stated that one Yunusmiya Qureshi and one Babalu had also arrived there. A minor omission that one Ayub had brought a jeep and had taken the injured to the hospital is also brought on record. Omission has been duly proved that he had not stated the name of accused Farid Jamal Shaikh while recording the F.I.R. Similarly, omission has been duly proved that he had not stated the name of accused Kamal Gavhane in his report. Omission has been duly proved that he had not stated the names of Rafiq Burhan Shaikh, Puli 18 Sharma and Farid Jamal Shaikh in his statement recorded by the Executive Magistrate. Omissions have been duly pointed out that he had not stated before the Executive Magistrate that he had cried for help in the name of his mother and that she had arrived there and had fallen on his person in order to protect him and that one Puli Sharma had pointed a sword at her. Omission has been duly proved from the statement recorded by the Tahsildar that PW 8 Jakir had not stated the name Yunusmiya and one Babalu as the persons, who had arrived at the scene. He has admitted that he was stating for the first time about the availability of the street light at the scene of the offence. He has admitted not to have stated it either before the Police or the Magistrate. 7. Omission has been duly pointed out from the statement recorded by the Executive Magistrate that he had not stated that accused no.6 – Rafiq had dealt a knife blow on his right hand. He has admitted as true that they did not get any time to run away from the scene of the offence. He has stated that he had seen only one assailant armed with a big knife while the others were armed with sickles and four persons were armed with swords. Similarly, omission has been duly pointed out that he had not stated in his previous statement that Nisar, Ejaj, Lucky, Iliyas and Pintya were armed with weapons. He has admitted not to have 19 described the weapons with which they were armed. According to him, the assailants first assaulted Aslam and thereafter Gabbar. He could not state after how much time the assailants had assaulted him. He has stated that he did not apprehend any danger to himself. He has also stated that while he was being assaulted, the deceased were also being assaulted simultaneously. He has admitted that he had sustained some injuries after his mother had arrived at the scene of the offence. He has further stated that Rafiq and Asif had assaulted him before arrival of his mother. Omission has been pointed out from the statement recorded by the Naib Tahsildar that he had