1apeal-37-05 .sxw Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 37 of 2005. Anil Shashikant Alve, ] age 29 years, ] R/o A/6 Ground Floor, ] Room No.1, Sahar, P.N.T. ] Colony, Andheri, Bombay ] At present in Yerwada ] Central Prison, Pune ] .. .. Appellant. (Orig. accused) Versus The State of Maharashtra .. .. Respondent. Mr Sudeep Pasbola, for the Appellant.(Appointed). Mrs A.S. Pai, Additional Public Prosecutor, for the Respondent-State. 2apeal-37-05 .sxw CORAM:- D.D. SINHA AND A. P. BHANGALE, JJ. DATE OF RESERVING THE JUDGMENT :- 11TH OCTOBER , 2010. DATE OF PRONOUNCING THE JUDGMENT:- 27th OCTOBER, 2010. JUDGMENT (PER A. P. BHANGALE, J):- 1. This Appeal is directed against the Judgment and order dated 17/12/2004 passed in the Sessions Case No.285 of 2002 by the learned Additional Sessions Judge, at Court of Sessions, Mumbai, whereby the Appellant Anil Shashikant Alve was found guilty of the offence punishable under Section 302 read with section 34 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life and to pay fine in the sum of Rs. 20,000/-, in default to undergo rigorous imprisonment for four months. Being aggrieved by the judgment and order of conviction, present appeal is filed by the appellant. 2. Brief facts which led to the prosecution of the Appellant are: Complaint (Exh.10) was lodged by Shri Chandrashekhar (PW1) in respect of the incident which occurred on 09/12/2001 at about 10:15 p.m. at 3apeal-37-05 .sxw the Chatrapati Shiwaji road opposite, Nityanand Hindu Hotel, Vakola bridge Santacruz (East) Mumbai. After the first informant had attended hotel and was sitting at the counter and while watching traffic on the road, saw that Santosh Karunakaran Malli, who had visited the hotel and who after enjoying a beer in the hotel, paid the bill and left the hotel, was stabbed repeatedly by three persons by means of weapons like chopper and Gupti. People had collected at the spot due to the incident. Santosh Malli fell on the road in injured condition. He was taken to the Hospital, but was declared dead before admission. The Complaint was registered as FIR No 550 of 2001 at the Vakola Police Station(Exh 10 & Exh 10 A). It was recorded by PW9 Vijay Dalvi, the investigating officer, on 09/12/2001, who had proceeded to the spot along with the staff soon after receiving telephonic information. Inquest(Exh. 30) was drawn. During the inquest Panchnama, wrist watch (Art.1), bracelet (Art.2) and blood stained clothes of the deceased (Art Nos. 3 to 6) were recovered from the dead body and they were sealed and labeled. The dead body of the deceased was referred for the post-postmortem examination to Cooper Hospital. P.S.I., Shri Patel drew spot Panchnama, as the spot was pointed out by the first informant (Exh 31). The accused Manoj Yadav @ Kanya was arrested on 14/12/2001. 4apeal-37-05 .sxw The appellant Anil Alve and the accused Ashok Yadav were arrested on 23/12/2001. The accused Anil had made disclosure statement (Exh. 22), pursuant to which a Chopper (Art. No 7) was discovered at his instance. On 25/12/2001, Panchnama regarding Disclosure Statement was made, in respect of the Statement of A-2, and pursuant to which knife was recovered under the Panchnama (Exh 24-A). 3. Muddemal articles, weapon recovered from the spot as well as sample of earth taken from the spot and clothes of the deceased were referred to the Chemical Analyzer with letter dated 10/12/2001. Reports of Chemical Analysis were received as per Exhs. 34 and 35 colly, indicating that the sample of earth soil, and clothes of the deceased were found stained with human blood, while stains of human blood were also detected on weapons i.e. chopper and also knife which were seized, during the course of investigation, pursuant to disclosures from the accused. Results as to blood group, however, were inconclusive. Upon completion of investigation the accused were charge sheeted before learned Metropolitan Magistrate, 21st Court, at Bandra. On 04/04/2002 the case was committed to the Court of Sessions, Mumbai. 5apeal-37-05 .sxw 4. The Charge was framed on 20/06/2003 (Exh.2). The Appellant/ accused pleaded not guilty and claimed trial. (Plea recorded at Exh. 3). 5. The prosecution examined ten witnesses and closed evidence in the trial Court. The defence of the accused was of total denial. 6. We have heard learned Advocate for the Appellant and Learned A.P.P. for the State. 7. PW1 Dr. Kalyankar had conducted post-postmortem examination of the dead body of the victim Santosh Malli. According to him, he found following external injuries on the dead body: 1) Incised Stab wound over right side chest front 8 cm;, below right clavicle and ½ cm right to mid line, Oblique spindle shaped size 7.5 cms x 3 cms x cavity deep. 2) Incised Stab wound over left side chest front 4 cms, below left clavicle, and 6 cms lateral to mid line, oblique upper edge undermine spindle shape measuring 3 cms x 2 cms x cavity deep. 3) Incised stab wound over left side of chest front 3 cms below injury Nos. 2 and 7 cms left to mid line, spindle shaped size 3 cms x 1 cm oblique. 6apeal-37-05 .sxw 4) Incised stab wound over left side chest front,5 cm left to mid line, 2 cms below injury No.3, spindle shaped, horizontal size 4 cms x 1 cm x cavity deep. 5) Two incised stab wounds, one below another intermingled at one and spindle shaped ½ cm below injury no.4. 3 cms left to mid line size upper one 5 cms x 2 cms x cavity deep and below one 6 cms x 3 cms x cavity deep. 6) Incise stab wound over left side chest 2 cms below injury No.5, Oblique size 3.5 cms x 1 cms x cavity deep. 7) Two incised stab wounds over left side abdomen ½ cms apart one below another 1 cm left mid line upper one side 2 cms x 1 x cavity deep. Spindle shaped. 8) Incised wound over west side sub coastal region, 10 cms left to mid line. 3 x 1 cm x muscle deep. Spindle shaped. 9) Incised stab wound over left side mix axillary line. abdominal fold 2 cms above left pelvic crest size 2 cms x1 cm x cavity deep. 10)Incised stab wound left side chest posterior auxiliary 14 cms below posterior auxiliary fold vertically oblique 4 cms x 2 cms x cavity deep. 11) Incised wound over upper end of left upper arm, vertical Spindle shaped, 3 cms x 1 cm x muscle deep. 7apeal-37-05 .sxw 12) Incised wound over neck front horizontal, Spindle shaped 5 x 5 cms x muscle deep. 13) Incised wound over left upper arm back 6 cms below posterior axillaries fold oblique 2.5 x 1 cm x muscle deep. 14)Incised wound over left side Chest back 2 cms below shoulder line oblique 6 cms x 1 cm x muscle deep with 1 cm tailing below. 15) Three incised wound over left side chest back scapular region ½ cm apart of size each 3 cms x 1 cm x muscle deep. 16)Two incised wound over left side chest back 1 cm apart each size 3 cms x 1 cm x muscle deep. 17)Incised wound over left back lumbar region1 cm left to mid line oblique 3 cms x 1 cm x muscle deep. 18)Two chop wounds over left side occipital temporal region 1 cm apart horizontal, parallel to each other each size 7 cms x .5 cms x with bone outer table cut. 19)Incised stab wound over right chest back 12 cms below shoulder line 4 cms right to mid line horizontally oblique size 3 cms x 1 x cavity deep. 20) Two chop wounds 4 cms below injury no. 18, 2 cms apart horizontal parallel to each other each size 7 cms x 1 cm x bone cut outer table. Doctor found following internal injuries: 8apeal-37-05 .sxw 1) on dissection of external injuries Nos. 2, 3, 4, 5, & 6, & 10 it was found that left side chest muscles (intercostal muscles) perforated through and through left side lung perforated, heart, left atrium perforated by injury no 3, left side diaphragm and left side lower lung lob perforated by injury No. 6 and 5 th and 6 th ribs cut by injury No.5. 2) On dissection of external injury Nos.7, 8, 9, abdominal wall, muscles perforated through and through, coils small intestines, stomach greater curvature, large intestinal coins mesentery, and peritoneum, perforated through and through. 3) On dissection of injury no. 1 right side chest 4 to 6th ribs cut Right Atrium of the heart perforated right lung perforated through and through. 4) On dissection of injury no 19 right chest back muscles, intercostal muscles perforated right side lung middle lobe perforated through and through. PW 5 Dr Kalyankar had noted that the alcohol content was 132 ml. grams per 100 ml. which was found positive in C.A report (Exh 18 colly) which corroborates to the contents of First Information Report (FIR) (Exh. 10) lodged by PW 1, the eye witness, that the deceased had visited his Hotel and consumed a beer prior to the incident. It is often said that “Men may lie but circumstances can not”. The medical evidence, therefore, becomes a safe 9apeal-37-05 .sxw yardstick to measure veracity of the testimony of an eye-witness, unless the ocular evidence appears inherently improbable or intrinsically infirm. The medical evidence indicates that the deceased had received multiple number of stab blows associated with chop injuries on vital part of the body caused by not less than two assailants carrying weapons like knife and chopper. 8. The cause of death of Santosh Mall, as per medical evidence, was due to hemorrhage and shock due to multiple incised stab injuries associated with chop wounds over skull, it was unnatural death, and the injuries were possible by reason of sharp edged weapons like Gupti, Sura, Chopper, sword Knife etc. PW 5 Dr Kalyankar, in post postmortem notes (Exh 19), has opined that all the injuries described by him were ante mortem and fatal in nature. The defence did not raise any serious challenge nor dislodged these facts. We have no hesitation, whatsoever, to conclude that the prosecution has established beyond reasonable doubt that the deceased Santosh Malli met with homicidal death. 9. The next important question is : as to who were authors of the injuries noted above on the body of the deceased. Prosecution witnesses Nos. 1 and 2 are eye-witnesses to the incident. PW1 Chandrashekhar, Manager of 10apeal-37-05 .sxw Nityanand Hindu Hotel at Vakola bridge Santacruz (East) saw two persons assaulting the victim by means of chopper and Knife and he had immediately dialed 100 for police help. PW 9 has corroborated this fact in his testimony. While deposing PW 1 Chandrashekhar also identified the accused Anil and Ashok, as assailants, who were seen inflicting the blows by weapons upon the victim. He pointed out at them while deposing. It appears from his evidence, earlier also when summoned, he had identified the accused during the test identification parade held in the Jail. His evidence indicates that he knew the deceased Santosh Malli since 4 or 5 years prior to the incident as he used to casually visit the hotel once or twice in a month. The evidence of PW1 is also corroborated by the complaint (Exh. 10). PW 1 was cross-examined at length. When questioned about the FIR (complaint), in Para 4 he stated thus:- “--- I had signed my complaint also on the same day. Police recorded my complaint as per my narration.” 10. We have scrutinized the contents of complaint and found that it can not be brushed aside entirely with regard to material contents as to the incident of assault and murder deposed by PW1. It is true that the FIR is not 11apeal-37-05 .sxw a substantive evidence, but when proved, it may be used as a previous statement of the witness in evidence to find out whether it corroborates the first informant’s testimony, in material particulars, in view of the provision under section 157 of the Indian Evidence Act. Learned Advocate for the Appellant argued that the police had already received telephonic information as to commission of cognizable offence and, therefore, complaint can not be read in evidence. We can not agree with this submission because there was no evidence to show that police had received the telephonic information furnishing enough details as to the nature of the offence committed when, where and by whom. It is true that the FIR need not be encyclopedia encompassing all the facts, but at the same time, cryptic telephonic message received by the police station can not be considered as FIR, without disclosing the nature and details of the information in relation to the cognizable offence committed. It can not be considered as FIR because police may be required to move out to verify and check the authenticity of the message /information which may be vague at that preliminary stage. The FIR is a report, giving information of the commission of a cognizable crime, which may be made by the complainant or by any other person knowing about the commission of such an offence. It is intended to set the criminal 12apeal-37-05 .sxw law in motion. Any information relating to the commission of a cognizable offence is required to be reduced into writing by the officer-in charge of the Police Station, which has to be signed by the person giving it and the substance thereof is required to be entered in a book to be kept by such officer, in such a form as the State Government may prescribe in that behalf. The registration of the FIR empowers the officer in charge of the police station to commence investigation with respect to the commission of cognizable crime reported to him. 10. The tenor of the cross-examination in the instant case shows that the defence did not seriously dispute the stabbing incident which led to death of the victim at the time mentioned by the prosecution. Furthermore, nothing worthwhile could be extracted from the eye-witnesses to damage the main ocular account of the incident. PW 1 has deposed having seen two persons assaulting the victim by means of chopper and knife. PW 1 explained that he stated so in the complaint due to confusion as few persons had gathered near the place of incident. It is also brought on record that the witness was scared and the shopkeepers had also downed their shutters. In Para 8 he stated thus- 13apeal-37-05 .sxw “It is true that I was scared after seeing the incident. It is true that after police arrived it took some time to compose myself and thereafter I gave statement to the police. Police had recorded my statement in the same night after about one or two hours. I can not say what the exact timing was. It is true that by the time my statement was recorded it was 10/12/2001” He clarified further in Para 10 of his cross-examination that “It is true that in confusion I had stated the assailants are 3 persons. As there was confusion in my mind, I was not certain whether there were two persons or three persons” Under these circumstances, when the assailants were known to witness by faces, as they were residing in the same locality, an explanation given by the witness is reasonable and acceptable. PW1 was also cross examined about the identity of the assailants. He maintained that one 14apeal-37-05 .sxw assailant was armed with chopper and another with knife. According to PW 1, he had seen the accused Ashok Yadav in the locality of Vakola Bridge prior to the incident. It is revealed in the course of cross-examination of PW 1 that he knew both the assailants by their faces but not by their names since prior to the incident as they were residing in the same locality where witness resided. PW 1 appears firm about the identity of two assailants at the time of the incident. Presence of third person armed with Gupti at the time of incident as a third assailant, as suggested in the cross examination of PW 1, would not diminish the collective penal liability of the accused identified as assailants who were seen assaulting the victim, and who were armed with chopper and knife at the time of the incident. PW 1 confirms that he had given the description of the assailants in respect of their age, height, and complexion and built. He was not expected to give the assailant’s colour of the eyes or hair or their feature, particularly, considering that the incident had occurred during night time nor he was expected to give minute details as to exact length of the weapon in inches. The accused No. 2 was known to PW1 as the accused No. 2 had resided in Happy House and was studying in the St. Anthony High School. 15apeal-37-05 .sxw 11. PW2 Padmakar Shetty is another eye witness who was having a Pan Shop. He knew the victim, as the resident of the same locality, who used to come to his shop quite often to buy cigarette. He had seen two persons arrived in auto rickshaw and after getting down they assaulted the victim and killed him. The assailants were armed with weapons and after the incident they ran away by the same auto rickshaw. He identified Accused Ashok Yadav as one of the assailant while he expressed his inability to identify the second assailant in the court. But, according to him, he had identified two assailants at the time of test identification parade on 10/01/2002 in Arthur Road Jail. He candidly stated that he feel that he had identified Accused No. 2 (Anil) also in the test identification parade. In the course of his cross- examination, PW2 Padmakar stated in Para 7 thus- “I was knowing both the persons prior to the incident for the past 3 months. Those two persons were also coming to my shop for purchase of cigarettes. They were also coming to Nityanand Hotel. At the time when my statement was recorded it did not come to my mind that those two persons were known to me and coming to my shop and the Hotel. This fact I did not disclosed to the police at any time.” 16apeal-37-05 .sxw In view of the above explanations extracted from the eye witnesses, in the course of their cross examination, evidence against the Appellant Anil is in fact got bolstered up further. In the facts and circumstances of the present case, we find that the ruling cited by learned counsel for the appellant in A. Y. Madar & ors vs State AIR 1956 SC 471 can not be pressed in to service for to rescue the Appellant Anil. We need to bear in mind the observations by the Apex Court in Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, at page 800: The Supreme Court observed as under:- “The evil of acquitting a guilty person light heartedly as a learned Author (Glanville Williams in ‘Proof of Guilt’) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a 17apeal-37-05 .sxw miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.” 12. Learned Advocate for the Appellant submitted that the evidence of test identification parade held in the jail, as deposed by PW 4 Suresh Shinde, Special Executive Magistrate (S.E.O.), ought to be discarded as the eye witnesses knew the assailants by faces prior to the incident. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act, the position in law is well settled by catena of decisions of the Supreme Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is, from its very nature, inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier 18apeal-37-05 .sxw identification proceedings. This rule of prudence, however, is subject to exceptions; for example, the court is impressed by a particular witness on whose testimony it can safely rely, without any corroboration. If eye witnesses knew the offenders by faces since prior to the incident, it may not be necessary to hold test identification parade during the investigation, unless the investigating officer wants to reassure himself that the investigation is proceeding on correct lines. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or to confer a right upon the accused to claim that a test identification parade must be held. As such, test identification parades do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification depends upon facts of each case. In appropriate cases, the evidence of identification, even without insisting on corroboration, can be accepted. (See Kanta Prashad vs. Delhi Administration : AIR 1958 SC 350; Vaikuntam Chandrappa and others vs. State of Andhra Pradesh: AIR 1960 SC 1340 ; Budhsen and another vs. State of U.P. : AIR 19apeal-37-05 .sxw 1970 SC 1321 and Rameshwar Singh vs. State of Jammu and Kashmir : (1971) 2 SCC 715 ). 13 . In the present case, it has been brought on record that the eye witnesses knew the assailants by faces since prior to the date of the incident. Therefore, the evidence led by the prosecution about the test identification parade held in the jail became inconsequential and irrelevant in this case. 14. The next question is : whether the direct evidence of two eye witnesses can be safely accepted. The prosecution, apart from the medical evidence of homicidal death (supra) has also relied upon some more evidence to corroborate the ocular evidence. PW6 Shri Pathak deposed about the fact that he was called by the police at Vakola Police Station and disclosure statement was made by the accused Anil Shashikant Alve (identified correctly in the court) that he will point out the place where the weapon Chopper was hidden by him. The Statement was reduced into writing (Exh. 22). It appears that the accused Anil had led the police and panchas to a gutter in the Mishra compound, in Yashwant nagar and took out a Chopper (Art No.7 A) from the gutter which was recovered under the Panchnama (Exh.22-A). Though cross examined at length, the evidence of 20apeal-37-05 .sxw the PW 6 Shri Pathak remained unshattered in his cross-examination. P.S.I. Jamil Shaikh (PW 8) also deposed to corroborate the fact of disclosure statement and the discovery of the Chopper pursuant thereto under the