1 APEAL-111-1991 WITH APEAL-353-1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.111 OF 1991 Sarjerao Shahaji Kokare ) resident of Bramhapuri Taluka ) Mangalvedha District Sholapur ) (At present in District Prison ) at Sholapur) ) ..... Appellant. (Ori. Accused No.1) Versus 1 The State of Maharashtra ) ) 2 Smt. Savitra Bhiva Daule ) resident of Naganewadi at ) and Taluka Mangalvedha ) Dist. Sholapur ) ..... Respondents (No.1 Original Complainant) Mr. P. M. Mengane for the Appellant in Criminal Appeal No. 111 of 1991. Dr. F.R. Shaikh, APP for Respondent State in Criminal Appeal No.111 of 1991. ALONG WITH CRIMINAL APPEAL NO.353 OF 1991 The State of Maharashtra ) ..... Appellant. Vs 1. Bhiva Namdeo Kokare ) aged 24. ) 2 APEAL-111-1991 WITH APEAL-353-1991 ) 2. Kondiba Baba Kokare ) aged 32. ) ) 3. Dinkar Sargerao Kokare, ) aged 18 ) ) All r/o. Brahamapuri, ) Talukar : Mangalwada, ) District : Solapur ) Dr. F.R. Shaikh, APP for the Appellant/State in Criminal Appeal No.353 of 1991. Mr. P. M. Mengane for the Respondents in Criminal Appeal No.353 of 1991. CORAM: V. M. KANADE & A.M. THIPSAY, JJ. DATE : 8TH SEPTEMBER, 2011. ORAL JUDGMENT: (Per V.M. Kanade, J.) 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned APP appearing on behalf of the Respondent - State in Criminal Appeal No.111 of 1991 so also the learned APP appearing on behalf of the Appellant – State and the learned Counsel for the Respondents in Criminal Appeal No.353 of 1991. 2. Both these appeals can be disposed of by a common judgment since Criminal Appeal No.111 of 1991 is filed by 3 APEAL-111-1991 WITH APEAL-353-1991 original accused No.1 against the judgment & order of conviction passed by the Trial Court and Criminal Appeal No. 353 of 1991 is filed by the State against the judgment and order passed by the Trial Court acquitting original accused Nos. 2 to 4. 3. Appellant – original accused No. 1 was convicted by the Trial Court for the offence punishable under section 302 of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs 2000/- and, in default, to suffer simple imprisonment for one year and accused Nos. 2 to 4 were acquitted of the offence punishable under section 304 read with section 34 of the Indian Penal Code. For the sake of convenience, the Appellant in Criminal Appeal No.111 of 1991 and Respondent Nos. 2 to 4 in Criminal Appeal No.353 of 1991 shall be referred to as “original accused Nos. 1 to 4”. 4. Prosecution case, in brief, is that on 05/04/1989, at about 12.00 noon, accused Nos. 1 to 4, in furtherance of their common intention, attacked deceased Zakas Bhiva Dhavale with sickle, jambiya, knife and barchi and murdered him in broad day light in the courtyard of Temple of Lord Biroba. According to the complainant Laxman Tatoba Ingole who is the Police Patil and resident of Village Hannur, Taluka Mangalwedha, on the date of the incident, the Yatra of Lord Biroba had started on Chaitra Padva and, during this period, many villagers attended the festival and took darshan of the 4 APEAL-111-1991 WITH APEAL-353-1991 Lord Biroba. According to him, the incident took place on 05/04/1989 and there was police bandobast and from 7.00 A.M. onwards, people were taking darshan of the Lord. According to him, several people had gathered there and during the entire period of festival about 10000 to 15000 people took darshan of the Lord and, near the temple, there were many sweet-meat shops. According to him, at about 12.00 noon, there was some commotion and he noticed that one unknown person was lying in the pool of blood and he noticed many incised wounds on his neck, stomach and chest. He came to know that some unknown persons attacked the deceased with knife, sickle etc. and, thereafter, the assailants ran away from the spot. Though police alongwith the complainant tried to catch the assailants, they ran away from the spot. Thereafter, Police Sub-Inspector came to the spot and he recorded his complaint to the police. An offence was registered at Mangalwedha Police Station. Two panch witnesses were called and they drew the spot and inquest panchanama. At that time, mother of the deceased came there. Her statement was recorded and statements of other persons were also recorded. Police received information that the assailants were in Village Nandeshwar and, therefore, police went there and arrested the four accused. They were brought to the Police Station at Mangalwedha and the arrest panchanama was drawn and the clothes of the accused were attached under the panchanama. The clothes of the deceased were also attached on 06/04/1989. The accused No.1, during 5 APEAL-111-1991 WITH APEAL-353-1991 interrogation, showed his willingness to produce the weapons and, accordingly, in the presence of panchas, knife, sickle, jambiya which were blood-stained were attached. The accused were brought to Village Hunnur at the Office of Grampanchayat and they were identified by all the persons and, thereafter, statements of witnesses who had identified the accused were recorded by the Police Sub-Inspector and all the clothes were sent to Chemical Analyser for chemical analysis. 5. Prosecution case also is that the deceased Zakas Dhavale was married to one Bebibai, daughter of Baba Kokare about four years before the said incident and there was some dispute between the deceased and his wife and, therefore, she left the matrimonial house and was residing with her parents. Accused No.1 – Sarjerao was her uncle, accused No.2 was her cousin, accused No.3 was her brother and accused No.4 also was her cousin. According to mother of the accused, prior to the said incident, deceased was assaulted by the accused and that accused had also attacked them and, therefore, a case was filed by the accused against the deceased and his mother in which the deceased was convicted for six months and since then the accused were threatening the deceased and her mother that they would not spare him and that they would kill him and, on account of the enmity, they had killed Zakas in front of the Temple of the Lord Biroba. 6 APEAL-111-1991 WITH APEAL-353-1991 6. Prosecution, in support of its case, examined 10 witnesses. P.W. 1 – Dagdu Aba Sutar is the panch witness in respect of recovery of weapons at the instance of accused No.1 – Sargerao. According to him, on 08/04/1989, the police prepared memorandum panchanama and accused No. 1 took them near the east side of the lake and took out articles 19, 20 and 21 i.e the knife, sickle and one other knife which were buried by him. P.W. 2 – Ganpat Ramchandra Pawar is the panch in respect of seizure of clothes of the accused. P.W. 3 - Laxman Tatoba Ingole is the Police Patil who had registered the FIR at Exhibit-24. P.W. 4 - Dr. Atiquzzaman Quadri is the Medical Officer who performed postmortem of the deceased. He has noticed that there were about 42 injuries and they were caused by hard, blunt and sharp object and that these injuries were sufficient in the ordinary course of nature to cause death. P.W. 5 – Savitra Bhiva Daule is the mother of the deceased. She has stated that father-in-law of the deceased had murdered her son and she also told the names of accused Nos. 1 to 4 who had murdered her son. P.W. 6 - Nana Hariba Pujari is Pujari in the Temple of Biroba and, according to him, at the time of incident, he was 7 APEAL-111-1991 WITH APEAL-353-1991 accepting coconuts which were offered by the people to Lord Biroba and he noticed that four persons were assaulting the deceased and, in the evening, police called him in the Grampanchayat Office at Hunnur and he identified the assailants. P.W. 7 - Ishwara Mhalappa Pujari was the Sarpanch of Village Hunnur. He has stated that he was informed that one person was murdered in front of the temple and that his dead body was lying there. He has stated that he noticed that four assailants were running towards the east side and though he tried to chase them, he did not apprehend them and then police came to his village alongwith the four accused and he identified them as persons who had assaulted the deceased. He identified them in the court. P.W. 8 - Shamu Anna Mandale was a guard on bandobast duty outside the temple. He has stated that he noticed that one person caught the deceased and another wearing dhoti assaulted him with sickle near left neck and two other persons assaulted him with jambiya and knife on the abdomen. He has stated that on 08/04/1989, P.S.I brought the said assailants at Grampanchayat Office at Hunnur and he identified the said assailants. He also identified the assailants in court. P.W. 9 – Basayya Ravansyya Swami has stated that he was at at temple on the said day and he was pronouncing 8 APEAL-111-1991 WITH APEAL-353-1991 the offerings of the persons to the God and, at that time, he heard that there was a quarrel and he gave a call to the constable to go to the spot on the loudspeaker. He then saw that one person was lying in the pool of blood. This witness was declared as hostile witness and he was cross examined by the prosecution. P.W. 10 – Dilio Shivajirao Mane is the P.S.I. and the Investigating Officer who has carried out the investigation. 7. The Trial Court relied on the evidence of two eye witnesses and the recovery of weapons at the instance of the accused and convicted the accused No.1 on the basis of the evidence which was adduced by the prosecution. However, the Trial Court was pleased to acquit the accused Nos. 2 to 4. 8. The learned APP appearing on behalf of the State in Criminal Appeal No.111 of 1991 submitted that cogent reasons were given by the Trial Court for conviction of accused No.1 and that the judgment and Order of the Trial Court convicting the accused No.1 should be confirmed by this Court. However, on other hand, while appearing on behalf of the appellant – State in Criminal Appeal No.353 of 1991, he submitted that since the Trial Court has convicted the accused No.1, on the same set of evidence adduced by the prosecution there was no reason why accused Nos. 2 to 4 were acquitted and, therefore, the order of acquittal 9 APEAL-111-1991 WITH APEAL-353-1991 should be set aside and the said accused Nos. 2 to 4 should also be convicted. 9. From the evidence of P.W. 4 – Dr Atiquzzaman Quadri, it is apparent that the deceased died as a result of the assault by four persons with knife, jambiya and the death was homicidal. Prosecution, however, has relied on statements of two eye witnesses viz. P.W. 6 – Nana Pujari and P.W. 8 – Shamu Mandale. Prosecution has also relied upon the evidence of P.W. 7 – Ishwara Pujari. However, strictly speaking, it cannot be said that he (P.W.7) was an eye witness since he had not seen the assailants assaulting the deceased. He was a sarpanch of the village and he has stated that he noticed four assailants running away towards the east side and he and one Popat chased the accused on foot and he noticed blood stains on their clothes and since the assailants were having weapons, he avoided to chase them and these three witnesses were told to come to the Grampanchayat Office by the police and there the accused were shown to them and, thereafter, he identified the accused. In their evidence, none of these witnesses have stated that they had properly seen the accused. P.W. 6 – Nana Pujari has stated that he noticed from a distance of 5 ft. that one person was assaulted by four persons and he noticed that two persons assaulted the deceased with sickle and knife and he has categorically stated that due to the huge crowd which had assembled there, he had not seen the said assailants. This witness (P.W.6), therefore, though 10 APEAL-111-1991 WITH APEAL-353-1991 had noticed the assault by four persons on the deceased, in his examination-in-chief he has clearly admitted that due to the crowd he could not see the face of the assailants. He has merely stated that out of four assailants, one was wearing dhoti and others were wearing shirt and trousers. This witness, however, was shown the assailants in Grampanchayat Office by police and he identified them. He also identified them in court. So far as P.W. 8 - Shamu Mandale is concerned, he has merely stated that at the time of the incident, one person caught the deceased and the another wearing dhoti, assaulted him with sickle near left neck and two other persons assaulted him with jambiya and knife on the abdomen and he identified accused No.1 in the court as the person who was wearing dhoti at the time of the incident. This witness (P.W.8) was a guard on duty outside the temple. He, however, does not give description of the assailants in his examination-in-chief. He has merely stated that one person was wearing dhoti. He does not even describe the dress of other three persons. He has stated that he could not identify the person who was short. He also admits that on 08/04/1989, P.S.I. brought the accused in the Grampanchayat Office and the police called him and he identified the said assailants. He also identified them in court. P.W. 7 – Ishwara Pujari was the Sarpanch. He has not witnessed the main incident and he arrived at the scene after the assault was over and he noticed the dead body lying in front of the temple. He has, however, stated that he noticed that four assailants were running away and he and 11 APEAL-111-1991 WITH APEAL-353-1991 one Popat chased the accused on foot and noticed some blood stains on their clothes. He has stated that he met the person and demanded tobacco but they told him to go away from the spot. This statement has been proved to be an improvement since no such statement was made by him before the police. He has also identified the assailants in the Grampanchayat Office when they were produced by the police. He also identified the accused in court. 10. It is very difficult to rely on the testimony of these three witnesses (P.W.6, 7 & 8) and it cannot be said that they have identified the accused. Firstly, so far as P.W. 6 - Nana Pujari is concerned, he admits in his examination-in-chief that due to the crowd, he could not see the assailants. P.W. 8 - Shamu Mandale also does not say that he had time to see the face of the accused since he merely stated that he noticed that one person wearing dhoti assaulted the deceased with sickle and the other persons assaulted him with jambiya and knife on the abdomen. No description of the accused regarding the features has been given by this witness. He merely identifies accused No.1 in the court as a person who was wearing dhoti. He does not identify other assailants. P.W.7- Ishwara Pujari came to the site after the incident was over and claimed to have chased the accused and has not stated that he had an opportunity of having a good look at them. He has merely stated that their clothes were stained with blood. It is obvious from the statements of these three witnesses that they had never seen the accused 12 APEAL-111-1991 WITH APEAL-353-1991 at any time in the past and so the assailants were unknown persons. None of them say that they had seen the accused in the past when they visited the temple. That being the position, it was the duty of the prosecution to have held the test identification parade as per the guidelines laid down in the Criminal Manual. The Investigating Officer does not hold the identification parade but merely brings the assailants to the Grampanchayat Office and shows the assailants to these witnesses and only then they identified them as accused. In, our view, therefore, no reliance could be placed on the identification of the accused by these witnesses. They might have witnessed the incident but, obviously, did not have chance to see them. 11. In all criminal cases, the two important points that are to be decided are whether the alleged offence was committed, and, if so, who committed the offence. Prosecution, very often, conducts the test identification parade, if the eye witness did not know the assailants. The evidence of test identification parade is only supporting evidence and not substantive evidence. It only helps to corroborate the identification by the witness. A two-fold object of the test identification parade is, firstly, to satisfy the investigating agency and ensure before sending the case for trial to the court that the person who is arrested and who is not known to the witness, was the same person who has committed the crime and, secondly, to satisfy the court that the accused was the offender. The idea of the parade is to 13 APEAL-111-1991 WITH APEAL-353-1991 test the veracity of the witness on the question of his capability of identifying the accused from several persons made to stand in the queue as the same person whom the witness had seen at the time of occurrence of the incident. When the accused person is not previously known to the witness concerned, then identification of the accused by the witness soon after his arrest is of great importance because it furnishes assumption that investigation is proceeding on right lines in addition to furnishing the corroboration of the evidence to be given by the witness later in the court at the trial. In the present case, test identification parade is not held and, quite surprisingly, the Investigating Officer has shown the accused to these three witnesses in the Grampanchayat Office and only thereafter they were identified. Under these circumstances, therefore, it is not possible to rely on the testimony of these three witnesses. The identification which is procured in this manner is most unconvincing and illegal in character and, therefore, no reliance can be placed on identification of the accused by these witnesses for the first time in court. 12. Prosecution has examined P.W. 5 – Savitra Bhiva Daule, the mother of the accused. She has stated that there was enmity between the accused and her son. She has further stated that the accused had filed a criminal case against her and her son and, in that case, she was acquitted but her son was convicted and sentenced to suffer rigorous imprisonment for six months and that he had undergone the 14 APEAL-111-1991 WITH APEAL-353-1991 sentence. According to her, the accused wanted to take revenge against her son and had kept a watch on him and has then assaulted him near the temple. In the cross- examination-in-chief, she has stated that she had told the names of accused Nos. 1 to 4 as the persons who had murdered her son. However, in the cross-examination, she states that she had not stated the names of the accused to the police and the police also did not make any inquiry about it. Though this witness has stated in her evidence that there was motive of the accused to kill her son and that immediately after the incident she had informed the police about this fact, it is possible that police might have received a clue about the persons who could be the assailants. However, there are several lapses in the investigation of the case as a result of which it is difficult to rely on the statements of witnesses. According to the Investigating Officer, the accused were arrested in the Nandeshwar area and they were brought to the Police Station at Mangalwedha in the evening on that day. The Investigating Officer has not stated anywhere as to who gave them information that the assailants were in the Nandeshwar area. It was the duty of the Investigating Officer to have noted the names of the person who had given that information. Secondly, no arrest panchanama was made at the place where these persons were arrested at Nandeshwar and the panchanama of attachment of the clothes and arrest of the accused was made at the Mangalwedha Police Station. It is difficult therefore to rely on the seizure of the clothes and arrest of 15 APEAL-111-1991 WITH APEAL-353-1991 the accused at Mangalwedha since it was the duty of the Investigating Officer to have prepared the panchanama at the place where they were arrested. This creates doubt regarding seizure of the clothes by the police and also the arrest of the accused at Village Nandeshwar, as alleged by the police. It does appear that on the basis of the information given by the mother of the deceased, in all probability, the Investigating Officer went to the house of the accused and arrested them and made a farce of seizure of the blood-stained clothes of the accused at Mangalwedha Police Station. The only other material on which reliance has been placed by the prosecution is regarding recovery of the weapons at the instance of accused No.1. So far as the said recovery is concerned, the panch P.W.1 - Dagdu Sutar has admitted that the spot from where the weapons were recovered is accessible to anybody and that sickle and knife had no soil on them when they were removed after digging the earth. This creates doubt about the prosecution case that weapons were buried in the earth. Even otherwise, even if it is assumed that these weapons were recovered, admittedly there were no blood-stains on the said articles and, therefore, recovery of weapons alone cannot be the ground for convicting the accused No.1. It has to be noted that proper investigation has not been done in this case and as a result of which the prosecution has failed to establish its case beyond the reasonable doubt. Trial Court has erred in relying on the testimony of the said so-called witnesses. 16 APEAL-111-1991 WITH APEAL-353-1991 13. Under these circumstances, therefore, in our view, Criminal Appeal No.111 of 1991 will have to be allowed and the judgment and order of the Trial Court will have to be set aside and that the accused No.1 will have to be acquitted. Similarly, for the reasons stated above, Criminal Appeal No. 353 of 1991 filed by the State will have to be dismissed. 14. In the result, the following order is passed:- O R D E R Criminal Appeal No.111 of 1991 is allowed. Judgment and Order of the Trial Court is set aside. Appellant is acquitted of the offence punishable under section 302 of the Indian Penal Code. Appellant is on bail. His bail bonds stand cancelled. Criminal Appeal No.353 of 1991 is, however, dismissed. (A.M. THIPSAY, J.) (V.M. KANADE, J.)