1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 696 OF 2002 1. Vinod Shamrao Pawar, Age 23 years and 2. Malya @ Mahaling Mahadeo Naik Age 23 years both residents of Miraj, Taluka Miraj District – Sangli (at present lodged in Kalamba Jail, Kolhapur.) ... Appellants. V/s. 1.The State of Maharashtra. 2. Salima Rahemansab Ghodewale. 3. Shenaz Shabbir Ghodewale both residents of Dindives Zopadpatti, Malegaon Road, Miraj, Taluka Miraj, District – Sangli. ... Respondents. .... Mr. Kedar Patil with Sudatta J. Patil for the Appellants. Mrs. V.R. Bhosale, A.P.P. for the State. ..... CORAM : F.I. REBELLO & K.U. CHANDIWAL, JJ. DATE : 12TH JUNE, 2008. JUDGMENT (PER K.U. CHANDIWAL, J.) :- The Appellant/Original Accused Nos.1 and 2 have challenged the order of conviction and sentence recorded by the 2nd 2 Ad-hoc Additional Sessions Judge, Sangli in Sessions Case No.88 of 2000, and by order dated 18.4.2002 convicted the Accused/Appellants for the offence punishable under Section 302 r/w. 34 of I.P.C., to undergo imprisonment for life and to pay fine of Rs.5,000/- I.D. imprisonment of six months each. 2. The learned 2nd ad-hoc Additional Sessions Judge, Sangli has acquitted original Accused Nos. 3 and 4. 3. Deceased Shabbir and Accused No.1 Vinod Shamrao Pawar were on cross terms since six months prior to the incident as Accused No.1 used to tease his sister Rasula. On 25th January 2000, the Accused assaulted Imtiaz brother of Shabbir for previous dispute. The matter was taken by Imtiaz, deceased Shabbir and his mother to police on the very day for lodging report against the Appellant. 4. In the night under pretext of receiving phone call the deceased Shabbir was urgently called to the S.T.D. Booth and consequently Shabbir on a bicycle went to telephone booth situated at 3 Jalebi Chowk in Miraj. The complainant Smt. Amina Imamsab Makandar suspected the movements of Shabbir being called, she took one Mehboobi (PW-4) and went to the S.T.D. Booth. However, she found Shabbir sitting in the booth. Thereafter, complainant Amina, Shabbir and Mehboobi started from the S.T.D. Booth towards his house while at road it is the Accused No.1 and his friends Malya (Accused No.2) with two other unknown persons came from behind attacked Shabbir with sword and knives. Shabbir received fatal injuries. The complainant sensing the gravity of the matter telephonically communicated to the Police. The Police reached the spot and removed Shabbir to Government Hospital, Miraj where he was declared dead. The report of the complainant vide C.R.No.19 of 2000 came to be registered on the same day at 23.15 hours at Miraj City Police Station. 5. Charge below Exhibit 4 was explained to the Accused individually. The Accused pleaded not guilty to the charge and claimed trial. 4 6. In order to establish guilt of the Accused, the prosecution has put in six witnesses :- PW-1 Dr. Gurunath Sadashiv Modak (Exhibit 14) carried post-mortem on the dead body of Shabbir on 26.1.2000 notes are at Exhibit 15). PW-2 Namdeo Ramu Bhandari, witnessed the disclosure panchanama for 3 knives and one sword as per Exhibit 17 and Exhibit 18. PW-3 Amina Imamsab Makandar (Exhibit 19) is the complainant and also the eye witness. PW-4 Mehboobi Mahamadsab Shaikh (Exhibit 21) is another eye witness. PW-5 Ashok Kirshna Nikam acted as a panch concerning seizure of cloths however did not support the prosecution. PW-6 Keshav Baburao Keskar carried investigation and filed charge-sheet. 7. The Defence of the Accused is total denial. The accused did not examine any defence witness. According to them they are falsely implicated. 5 8. The learned defence Counsel claimed that there are material contradictions, omissions in the matter which go to the root. There was no legitimate identification of Accused No.2 Malya @ Mahaling Mahadev Naik and his presence at the time of incident is questionable. The prosecution witnesses are interested. There were other persons available as the location is a thickly populated but none of such independent person has come forward. Non-examination of S.T.D. operator also raises doubt. The deceased Shabbir had criminal antecedents, somebody else may have attack or killed him. The articles seized were not properly seized as the Accused was under handcuffs . 9. The postmortem carried by PW-1 illustrate following external injuries :- (1)Incise wound below Rt. Eye over maxillary region 2 cm. X 1 cm. Bone deep. Edges are sharp narrow at both ends and widen in middle with oozing of blood. (2) Sharp cutting wound just below hyoid bone. 2 cm. X 1 cm. X 0.5 cm. bone deep with oozing blood. 6 (3) Punctured wound in the supra sternal notch 1 cm. X 1 cm. X 1 cm. Edged are inverted with blood oozing. (4) An elptical wound over chest on left side vertically placed in the area of 7 and 8th ribs 2 cm. Away from laterally from mid clavicular line with sharp edges 2 cm. X 2 cm. X 2 cm. with blood oozing. (5) An incised wound 3 cm. X 2 cm. X 1 cm. Bone deep oblique placed with sharp edges and narrow at both ends, with blood oozing. (6) Three small incised wound over index, middle and ring finger with compound fracture of respective metacarpal bones. (7) An incised wound over Rt. Anterior superior iliac spine 2 cm. X 2 cm. X 1 cm. With oozing of blood. (8) An incised wound over Rt. Lower thigh 2 cm. X 1 cm. X muscle deep with blood oozing. (9) An incised wound left mid thigh 2 cm. X 2 cm. X muscle deep with blood oozing. (10) An incised wound over Rt. Gluteal region 2 cm. X 1 cm. X muscle deep with blood oozing. (11) Stab wound over Rt. Flank at the lever of 9th and 10th rib 1 cm. Laterally to right and scapular line 3 cm. X 1 cm. Probe passed through wound measuring 8 cm. (12) Stab wound over left flank on the left midscapular line. Just below left. 12 rib. Probe passed through wound measuring 7 cm. 10. These injuries were caused within 6 to 12 hours before 7 examination. In his opinion, injury Nos. 2 to 4 and 6 and 12 are individually grievous injuries. 11. The following internal injuries correspond to the external injuries :- (1)7th and 8th rib left side fractured. (2)Abdomen clavity is full of clotts and blood. (3) Stomach contains semidigested food. (4) Liver has cut wound 2 cm. X 1 cm. X 0.5 cm. with full of blood clotts. 12. In his opinion, the cause of death is hypovolumic shock due to hemorrhage. The Accused has admitted the inquest on 25.1.2000 (Exhibit 12) and also the cloths of the victim Shabbir (Exhibit 13). The evidence of Investigating Officer and PW-3 and PW- 4 so endorse about death of Shabbir. Hence, there is no controversy that Shabbir met homicidal death due to fatal injuries. 13. PW-3 Amina and PW-4 Mehboobi are the eye witnesses. Both were substantially cross examined by the defence. The defence 8 Advocate claimed that after the injuries suffered by Shabbir, PW-3 should have accompanied him to hospital and her conduct is doubtful. We do not find any substance in such hypothetical averments. On her phone call police rushed to spot and in their mobile patrolling van P.S.I. Bhokare removed Shabbir to Hospital. She had followed them to Civil Hospital where PW-6 made enquiries with her and her statement (Exhibit 20) was recorded. 14. We find from evidence of PW-3 and PW-4 that Accused No.1 Vinod assaulted Shabbir with knife while Accused No.2 Malya used sword and other two persons also inflicted knife injuries, simultaneously. There is no question of any doubt about identifying capacity of PW-3 and PW-4. 15. The defence canvassed, PW-3 has admitted that after two days she has made a signed statement which is at Exhibit 20. In fact Exhibit 20 is the F.I.R.. The evidence of PW-3 on this sole aspect cannot be brushed aside. One should not loose sight that PW-3 is a illiterate witness and naturally does not know purport of the document. 9 Her statement was recorded on three different dates by Police and she could not gather as to which statement the learned defence Advocate was referring. The evidence of PW-1 and PW-6 coupled with F.I.R. (Exh.20) does not leave any doubt to dis-believe them that it was recorded immediately at the hospital. There was no time left for complainant or the Police Officer to add any spice against the Accused. They were not marking time to decide the shape to be given to the case. Had the Police Officer any motive to falsely implicate other Accused, he could have got their names from other witnesses who were present and could have incorporated in the F.I.R. The incident of assault on Shabbir is not disputed nor the location of the incident is disputed. The normal tendency of public at large is to keep bey from Police hazard, hassales and not to face the anguish or repeated calling at Police Station. In this scenario, the locality though was thickly populated, nobody came forward. It must be borne in mind that no sooner the incident occurred the adjoining shop-keepers to close their shops and they ran away. 16. F.I.R. (Exhibit 20) PW-3 has given accurate accounts as to 10 what has happened on 25.1.2000 at 7.00 p.m. about dispute between Accused No.1 Vinod Pawar and Imtiaz, which landed Imtiaz, Shabbir, Salima to report the matter to Police and at around 9.00 to 9.15 p.m. Shabbir alone came to PW-3 and report that the matter is reported to Police. Imtiaz was referred to medical examination. It was at this stage a boy from S.T.D. booth at Jalebi Chawk, Miraj approached Shabbir called him claiming that uncle of Shabbir was sick at Dharwad. This was sufficient to arouse doubt for PW-3 about any untoward incident or any attack on Shabbir and consequently she in natural phenomenon took PW-4 with her and went to the said S.T.D. booth. In the F.I.R. PW-3 gave name of Accused No.1 as Vinod Pawar and Accused No.2 Malya while in her further statement dated 26.1.2000 she gave full name of Malya @ Mahaling Mahadeo Naik and names of acquitted accused. 17. There is no identification parade held in the matter, of which benefit is given by the learned Additional Sessions Judge to Accused Nos.3 and 4. No such concession can be claimed by Accused Nos.1 and 2 as they were known to PW-3 and PW-4. The 11 Accused was well known to PW-3, PW-4 as Malya. Since the witness knew Accused Nos.1 and 2, in our opinion there was no need to conduct test identification parade. These witnesses had no animosity towards Appellants/Accused. 18. The accused persons were armed with knives and sword. Shabbir was alone and PW-3 and PW-4 being ladies could not intervene except yelling. No prudent person in such situation would come forward to control the accused due to fear of his own life and to become a prey of the assault. 19. PW-4 had accompanied PW-3 being so dictated by PW-3. PW-4 has also given clear account of events, including that she was at the left side of Shabbir, Shabbir was holding a bicycle. PW-3 and PW-4 have identified the weapons tendered at Articles 14 and 17. PW.4 has also pointed fingers to Accused No.1 Vinod having assaulted Shabbir with knife and Accused No.2 Malya causing injuries with sword. She too has identified the incriminating articles. The evidence of these two witnesses has essence of credibility and 12 truthfulness, they cannot be treated to be got up witnesses. PW-3, knowns as a ordinary prudent person has promptly phoned the police and informed them about the event, consequently police rushed to the spot and then Shabbir was moved to the Hospital while PW-3 statement/F.I.R. was recorded. 20. The dispute between Accused Nos.1 and 2 over teasing sisters of Shabbir is the root cause occasioned in the morning of the incident since the Accused assaulted Imtiaz. The Accused had a feeling of anger which was igniting in their mind and they have with concert ensured Shabbir to come out of his house and then assaulted him brutely, impassively. The Accused Nos.1 and 2 do not have a licence to pillage precious life of Shabbir, to teach him a permanent lesson. The motive of the Accused to eliminate Shabbir is thus establish by the prosecution. Shabbir's alleged shady past record will not give a licence to the Accused to butcherly eliminate him, in presence of PW-3 and PW-4. The depositions of these witnesses flush out possibility of somebody else taking revenge for life of Shabbir. The Accused committed most heinous crime, which could 13 have caused communal clash and agitation in the society, and PW-6 took adequate precautions for averting the same. 21. PW-2 Namdeo Ramu Bhandare witnessed the events occurred on 30th January 2000 as police called him at Police Station where Accused No.1 was present. The Accused No.1 made a voluntary statement that he is ready to produce the incriminating article/the weapon. The Accused carried the Police and the panch near a brooklet at Goulewadi. It is obvious such a place of concealment could only be within exclusive knowledge of the Accused and consequently at his instance Police followed him. The Panchanama at Exhibit 18 demonstrate that the Accused went near the cluster at brooklet and himself removed three knives and small sword. The paper slips were affixed on the incriminating articles. We find from evidence of PW-2 and Investigating Officer that the fact was discovered, the discovery was in consequence of accused giving information, while in custody. In the Court the panch has identified his slips/signatures and also the weapon/knife placed at Articles 14 to 17. 14 22. The learned defence Counsel canvassed that the Accused was hand cuffed at the material time, and therefore the recovery is under duress. The defence relied to the judgment reported in 1994 Criminal Law Journal (3602) in the mater of Deoraj Deju Suvarnam V/s. State of Maharashtra. In that case the Panchanama (Exhibit 25) itself referred that the Accused was handcuffed as referred in paragraph 24 of the said judgment. Incidentally, in the recovery panchanama (Exhibit 17) or (Exhibit 18) in this case there is no reference of such hand cuffing to the Accused. In that case the Accused Suvarnam was in handcuffs when recovery was effected. However, there is no such fact situation in the present case consequently the sheer admission given by panch in the cross examination will not be of grave consequence. 15 23. The C.A. report at Exhibit 27 shows article 15 knife was found with human blood origin while the C.A. report is inconclusive about blood stains on sword and other two knives. The presence of human blood on the knife cannot go un-attended and it is for the Accused to explain as to under what circumstances such stains were found on the knife. 24. The defence claimed that the F.I.R. is belatedly lodged however, we find that the incident has taken place at around 9.00 p.m. and the F.I.R. is recorded at 21.45 hours. Hence, there is no delay in the F.I.R. 25. In the prosecution of such type, the evidence of PW-3 and PW-4 is by itself is sufficient to prove the brutal attack by Accused Nos.1 and 2. The number of witnesses to be examined is not the criteria but we are concerned with quality, credibility and integrity of the witnesses. The witnesses referred above gave consistent details of the events which inspire confidence to rely. The 12 injuries suffered by deceased Shabbir cannot simply be skipped and taken lightly to hold that it was a simple skirmish. 16 26. We find that the panchanama does not bear signature of PW-6 though he was present at the material time, while proceeding to the spot pursuant to the statement recorded in Exhibit 17. PW-6 has also identified the muddemal articles 14 to 17 and he has equally denied that they were tampered before forwarding to the C.A. The articles were properly sealed as could be seen as stated by PW-2 and PW-6. The non signing by PW-6 is not fetal, but it is a irregularity. 27. It is pertinent that PW-6 has recorded statement of Todkar Satish Balkrishna and Yogesh Yashwant Karmarkar, two S.T.D. Operators. However, prosecution did not examine these two persons sensing that evidence of PW-3 and PW-4 is sufficient. 28. In the light of above discussion, it was Accused Nos.1 and 2 with inter-se concert and common intention with full knowledge have inflicted fatal blows with knives and sword upon the helpless Shabbir, causing his brutal death which was naturally due to previous enmity on account of teasing Rasula by Accused Nos.1 and 2. 17 29. We do not find any infirmity in the order of conviction and sentence recorded by the learned 2nd Ad-hoc Additional Sessions Judge, Sangli. Accordingly, the Appeal is dismissed. (F.I. REBELLO, J.) (K.U. CHANDIWAL, J.)