1 APEAL708.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.708 OF 2003 1. Deepak Ramchandra Chavria ) Age: 26 years, Occu: was conducting a ) Poultry Farm, R/o. Narayan Kalbhor Chawl, ) Chawl No.21/4, Kalbhor Nagar, ) Chinchwada, Pune—411 019. ) 2. Sangram Shriram Mote ) Age : 23 years, Occu. Student (B.Com.) ) R/o. B-9/9, Guru Ganesh Nagar, ) Near Kumbre Park, Kothrud, ) Pune—411 038. ) (Both at present lodged at Yervada ) Central Prison). ): Appellants (Orig.Accused nos.1&2) V/s. The State of Maharashtra. : Respondent ... Mr.Nitin Pradhan i/b. Ms S.D.Khot and Ms A. Kuttikrishnan for appellant no.1 (original accused no.1). Mr.M.S.Mohite i/b. Mr.A.R.Kapadnis and Mr.Vijay Killedar for appellant no.2 (original accused no.2). Mr.Y.S.Shinde, Addl. Public Prosecutor for the State. ... WITH 2 APEAL708.03 CRIMINAL APPEAL NO.709 OF 2003 1. Shridhar Babaji Kinjalkar ) Age : 24 years, Occu: was in service ) R/o. Sahebrao Kalbhor Chawl No.2, ) Room No.5, Kalbhornagar, Chinchwad, ) Pune—411 019. ) 2. Jitendra Tanaji Mane ) Age : 23 years, Occu. Nil ) R/o. Waman Kalbhor Chawl No.4, ) Kalbhornagar, Chinchwad, ) Pune—411 019. ) (Both at present lodged at Yervada ) Central Prison). ): Appellants (Orig.Accused Nos.3 & 4) V/s. The State of Maharashtra : Respondent .... Mr.M.S.Mohite i/b. Mr.A.R.Kapadnis and Mr.Vijay Killedar for appellant no.1 (original accused no.3). Mr.Nitin Pradhan i/b. Ms S.D.Khot and Ms A. Kuttikrishnan for appellant no.2 (original accused no.4). Mr.Y.S.Shinde, Addl. Public Prosecutor for the State. .... CORAM : D.D. SINHA & A.P.BHANGALE,JJ. Date of Reserving ) : 14.10.2010. the Judgement. ) Date of Pronouncing ) : 23.11.2010. the Judgement. ) 3 APEAL708.03 JUDGEMENT (Per D.D.Sinha,J.) As these appeals give rise to common questions of facts and law and arise out of the same incident and the same Sessions Case, they were heard together and are being disposed of by this common judgement. 2. Heard the learned counsel for the respective appellants and the learned Addl. Public Prosecutor for the State. 3. These Criminal Appeals are directed against the judgement and order dated 16.4.2003 passed by the Special Judge under M.C.O.C. Act & Addl. Sessions Judge, Pune, whereby the appellants are convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer R.I. for life and to pay a fine of Rs.1,000/- each, in default to undergo further rigorous imprisonment for three months. The appellants are acquitted for the offence punishable under section 4 read with section 25 of the Indian Arms Act as well as offences punishable under section 3(1)(i) and 3(2) of the Maharashtra Control of Organised Crime Act, 1999. The State has not preferred an appeal against the order of acquittal. 4. The prosecution case in a nutshell is as follows:- 4 APEAL708.03 Deceased Sunil Anant Durge was the younger brother of Raju Durge ((P.W.7). Their house, at the relevant time, was situated in Kalbhor Nagar, Nigadi, Pune. Both of them were residing jointly with their family members. Raju Durge was a Municipal Corporator from Kalbhor and was also the Chairman of Omkar Swarupa Nagari Sahakari Finance society. All the appellants were also hailing from the same locality. The house of accused Sangram Mote was located on way to the house of Raju Durge. The father of the appellant Sangram Mote was addicted to drinks and whenever Raju Durge and his family members used to pass by the road which was in front of the house of the accused Sangram Mote, his father used to spit. Once Raju Durge and his brother deceased Sunil questioned the father of the appellant Sangram about his conduct. The father of the appellant Sangram, at that time, abused deceased Sunil and P.W. Raju. Raju lodged a complaint, on the basis thereof, a non-cognizable case was registered against the father of the appellant Sangram by Mohannagar police chowky. Appellant Sangram was annoyed because of this act of Raju. 5. It is the case of the prosecution that in the night of 8.12.2000, all the appellants and two others went to the house of Raju Durge, armed with weapons like swords, daggers, iron bars, etc. Accused Sangram was 5 APEAL708.03 also having a pistol with him. They knocked the door of the house of Raju Durge, who opened the door and saw all the appellants armed with weapons. It is the case of the prosecution that the appellant Sangram dragged Raju outside the house and pointed the pistol towards him. All the appellants abused and assaulted him. The information about the said incident was received by deceased Sunil and others and, therefore, they came to the house of Raju. However, by then the appellants had left the said place. Raju Durge was injured in the said assault, therefore, he was shifted to Lokmanya Hospital, Chinchwad. On the complaint of Raju, crime was registered under sections 395, 397 and 326 of the Indian Penal Code as well as sections 4 read with section 25 of the Indian Arms Act by the Police Station, Pimpri. All the assailants were prosecuted by the police. 6. On 24.12.2000 at about 11.00 to 11.30 a.m., Sunil and Pralhad Mhaske (P.W.8) had gone to Bhosari by motorcycle bearing registration no.MVM-935. At Bhosari, Sunil was given an amount of Rs.900/- by his friend. Thereafter, they went to workshop at Akurdi to buy spare-parts for the motorcycle of deceased Sunil. It is the case of the prosecution that they purchased the spare-parts at about 1.45 p.m. on 24.12.2000. The complainant Pralhad (P.W.8) was riding the motorcycle and deceased Sunil was the pillion rider, who was holding the spare-parts. When they 6 APEAL708.03 were proceeding by a kaccha road leading to Vitthal Mandir through Boudha Vasti, the appellants who were sitting by the side of the road, all of a sudden, got up. They were armed with swords and knives in their hands. As soon as deceased Sunil and the complainant saw the accused who were armed with weapons, both were afraid and, therefore, they left the motorcycle and started running away from the said place. The complainant Pralhad asked the deceased Sunil to run away from there and told him that he would prevent the accused persons from chasing him. Pralhad tried to prevent the appellants by hurling stones and brick-bats, however, he could not stop them. The appellants continued to chase deceased Sunil. It is the case of the prosecution that the accused Deepak and Sangram assaulted Sunil by swords due to which Sunil sustained injuries and collapsed on the ground. Accused Sridhar and Jitendra assaulted deceased Sunil with stones on his head. The complainant Pralhad witnessed the incident of assault, immediately thereafter went to the house of Raju Durge and informed him about the incident. Thereafter, both of them came to the place of the incident by car and saw the dead- body of Sunil lying near the hut of one Zanzarabai. Both of them thereafter went to the police station, Nigadi, and lodged the complaint. In the meanwhile, Chinchwad-gaon police chowky, on receiving the information about the incident, Police Inspector Gaikwad (P.W.15) rushed to the spot. He saw Sunil in an injured condition and, therefore, sent him 7 APEAL708.03 to Y.C.M. Hospital. P.S.I. Marathe and P.S.I. Kulkarni and other police staff members also came on the scene of offence. P.S.I. Marathe recorded the complaint (exh.57) lodged by Pralhad (P.W.8), on the basis thereof, crime no.221/2000 under section 302 read with section 34 of the Indian Penal Code came to be registered. P.S.I. Marathe, thereafter, went to Y.C.M. Hospital and prepared inquest over the dead-body of Sunil as per inquest panchanama (exh.42). P.S.I. Kulkarni recorded the spot panchanama in the presence of panchas, seized shock-absorbers of the motorcycle, stones stained with blood, one iron handle, one pair of white coloured sleeper, etc., from the spot. The appellants were arrested and their clothes were seized which had blood-stains, in the presence of panchas as per panchanama (exh.37). The appellant Deepak made a disclosure statement that the weapons were concealed by him and he would produce it. At his instance, the weapons came to be recovered from throny bushes near the railway line. On 25.12.2000 P.I. Gaikwad recorded the statement of the witnesses. On 26.12.2000, the blood samples of all the appellants were collected which were forwarded to the hospital with a request letter (exh.75). On 31.12.2000 blood sample bottles as well as other muddemal articles were sent to the Chemical Analyser, Pune, with yadi (exh.77). On 22.2.2001 P.I. Gaikwad handed over the case papers to his successor P.I. Kadus (P.W.16). On completion of the investigation, the charge was framed against the appellants for the 8 APEAL708.03 offence punishable under section 302 read with 34 of the I.P.C., section 4 read with section 25 of the Indian Arms Act as well as under the provisions of the Maharashtra Control of Organised Crime Act. The same was explained and read over to the appellants and they pleaded not guilty and claimed to be tried. The trial Court convicted the appellants for the offence of murder with the aid of section 34 of the I.P.C. and acquitted them for the offence punishable under the M.C.O.C. Act and the Arms Act. Being aggrieved by the order of conviction and sentence, the appellants have filed the present appeals. 7. The learned counsel for the appellants have submitted that the prosecution has examined in all 19 witnesses to prove the charge framed against the appellants, out of which P.W.2 Ramesh Shelar, P.W.4 A.R.Tiwari and P.W.8 P.S.Mhaske (complainant) were examined by the prosecution as eye-witnesses to the incident. It is submitted by the learned counsel for the appellants that P.W.2 has not identified the accused in the Court and, therefore, there is no substantive evidence on record to show that the appellants were the very persons who have committed the alleged assault. It is contended that in the examination-in- chief of P.W.2, he has stated that he noticed deceased Sunil Durge running away from the spot followed by unknown boys/persons. In cross- examination, P.W.2 has admitted that at the time of the incident, he was 9 APEAL708.03 not knowing Sunil or Raju Durge. However, he has named them in his examination-in-chief, which creates doubt about his own presence at the scene of offence. It is further contended by the learned counsel for the appellants that P.W.2 has stated that the assault on Sunil was committed by the appellants from behind. P.W.6 Dr.Subhash Madane who conducted the post-mortem examination, in his cross-examination has stated that if blows were given by sword and the nature of injuries noticed on the deceased, the victim would not be in a position to run. It is, therefore, contended that the case of the prosecution in respect of the first assault on deceased Sunil alleged to have been committed by sword does not appear to be truthful and, therefore, the trial Court rightly disbelieved the evidence of P.W.2 Ramesh. 8. The learned counsel for the appellants has submitted that so far as the evidence of P.W.4 A.R.Tiwari is concerned, this witness has also not identified the accused before the Court and, therefore, there is no substantive evidence on record to show that the appellants are the same persons who have committed the alleged assault. It is contended that even as per the testimony of P.W.4 Tiwari, the assault on Sunil was committed from behind by sword and if this story of the prosecution is considered in the light of evidence of the Medical Officer Dr.Subhash Madane (P.W.6) which shows that in case blows were given by sword to 10 APEAL708.03 the victim, as in the present case, the victim would not be in a position to run, hence, it creates doubt about the authenticity of the testimony of P.W. 4 Tiwari. It is further submitted that P.W.4 Tiwari has, at the relevant time, wanted to go to his friend P.W.9 Jaykumar Tyagi’s house to borrow moneys. However, P.W.9 Jaykumar Tyagi has stated that he has no acquaintance with P.W.4 Tiwari which creates serious doubts about the presence of P.W.4 Tiwari at the scene of offence, apart from the fact that he was a chance witness. It is submitted that the testimony of P.W.4 also does not corroborate the sequence of events of the assault as disclosed by P.W.2 in his evidence. 9. The counsel or the appellants have submitted that P.W.8 Pralhad Mhaske, another eye-witness who lodged the complaint (exh.56) was also not knowing the appellants and, for the first time, has seen them at the time of the incident. The First Information Report which was lodged on 24.12.2000 at 3.30 p.m. wherein P.W.8 has mentioned the names of the appellants-accused though he saw the appellants for the first time at the time of the incident. Mentioning of the names of the appellants in the First Information Report when P.W.8 Pralhad Mhaske did not know them prior to the incident creates doubt about the authenticity of the First Information Report itself. P.W.8 Pralhad Mhaske in his cross- examination has stated that in the evening on 24.12.2000 he was called by 11 APEAL708.03 the police to the police station. The police by then had already arrested all the appellants and when P.W.8 Pralhad Mhaske visited the police station, the appellants were shown to him and he identified them in the police station as assailants. It is contended that the testimony of P.W.8 Pralhad Mhaske is also not consistent with that of the other two eye- witnesses in respect of the actual assault alleged to have been committed by the appellants. It is further submitted that this witness has also stated in his evidence that the sword blows were given to deceased Sunil Durge from behind while he was running. Such possibility has been ruled out by the Medical Officer P.W.6 Dr.Subhash Madane who has admitted in his cross-examination that if the nature of blows were given by sword, the victim would not be in a position to run. The counsel for the appellants, therefore, contended that the evidence of the so-called eye-witnesses is neither cogent nor trustworthy. On the other hand, the story put forth by the witnesses in respect of the assault, if considered in the light of admission given by the Medical Officer P.W.6 Dr.Subhash in his cross- examination, would create serious doubts about the presence of these witnesses as well as the authenticity of the prosecution case. 10. The learned counsel for the appellants further contended that the other circumstantial evidence brought on record by the prosecution in the form of discovery of weapons under section 27 of the Evidence Act by the 12 APEAL708.03 appellant Deepak by examining P.W.1 Ramesh Yewale (panch on spot panchanama), P.W.10 R.G.Wani (panch on discovery panchanama) is not clinching in nature and that by itself is wholly inadequate to bring home the guilt of the appellants for the offence of murder of Sunil. It is further contended that the other prosecution evidence consists of police officers who conducted investigation in the present case i.e. A.G.Marathe (P.W. 12) (P.S.I. who conducted part of the investigation), P.W.13 B.D.Dalvi, I.O. who conducted part of the investigation pertaining to the arrest of the appellants-accused and conducted discovery proceedings under section 27 of the Evidence Act at the behest of the appellant Deepak. P.W.14 Dilip Kulkarni, another I.O., who has drawn spot panchanama and discovery panchanama regarding two swords alleged to have been discovered by the appellant no.1. It is contended that the evidence of these Police Officers was of a formal nature which only demonstrates the nature of the investigation conducted by each one of them while investigating the crime in question and, therefore, is not of much help to the prosecution. 11. Mr.Pradhan, the learned counsel appearing for the appellants (original accused nos.1 & 4) has submitted that in the instant case, the alleged eye-witness P.W.2 Ramesh Shelar did not identify the appellants in the Court. Similar is the case so far as another eye-witness P.W.4 A.R.Tiwari is concerned whereas the evidence of Pralhad Mhaske (P.W. 13 APEAL708.03 8), the complainant is concerned, it shows that he was not knowing the appellants before the alleged incident in question and has seen them for the first time at the time of the incident. There was no identification parade conducted by the prosecution and the identification of the appellants by this witness for the first time in Court cannot be relied upon for fixing the identify of the assailants. In order to substantiate his contentions, the learned counsel has placed reliance on the decision of the apex Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746]. 12. Mr.Shinde, the learned Addl. Public Prosecutor, has submitted that the case of the prosecution is based on direct evidence of P.Ws.2, 4 and 8 as well as the following circumstantial evidence:- (i) Discovery of weapons under section 27 by the appellant Deepak. (ii)Recovery of weapons/articles from the spot. (iii)Medical evidence. (iv)Motive. (v)Recovery of blood-stained clothes from all the appellants. (vi)All the appellants were absconding after the incident. (vii)Identification of the appellants by independent witnesses before the Court. (viii)Finding of human blood on the clothes of the appellants. 14 APEAL708.03 13. The learned Addl. Public Prosecutor has contended that the evidence of eye-witness P.W.2 Ramesh has been wrongly discarded by the trial Court merely because this witness did not inform about the incident in question to anybody till his statement was recorded by the police. The conduct of the witness after witnessing the incident not to disclose it to anybody and straightaway going home has been held to be unnatural by the trial Court. Similarly, the conduct of this witness of not raising any shouts on witnessing the incident also has been held to be unnatural by the trial Court. The learned Addl. Public Prosecutor has contended that P.W.2 was knowing all the accused persons prior to the incident. It is contended that the evidence of this witness would show that the appellant Deepak and Sangram were having swords and the appellant Shridhar and Jitendra were having wooden logs and stones. According to this witness, the appellants assaulted the deceased with their respective weapons. This witness has identified the swords and sticks. P.W.2 has identified all the accused persons before the Court. It is contended that in cross- examination of this witness, he has admitted that the appellants assaulted the deceased and also admitted that he has seen the incident. The learned Addl. Public Prosecutor, therefore, contended that the testimony of this witness ought not to have been discarded merely on the basis of his subsequent conduct as mentioned hereinabove by the trial Court. 15 APEAL708.03 14. The learned Addl. Public Prosecutor further contented that the evidence of P.W.4 A.R.Tiwari, the other eye-witness examined by the prosecution demonstrates that he has witnessed the incident and mentioned their names in his substantive evidence and, therefore, though the prosecution has failed to hold identification parade as well as non- identification of the appellants by this witness in the Court would not adversely affect the veracity of the evidence of this witness. The testimony of this witness is corroborated by the evidence of another eye- witness P.W.8. Pralhad Mhaske. 15. The learned Addl. Public Prosecutor has submitted that P.W.8 Pralhad (complainant) was with the deceased at the time of the incident. He has witnessed the incident and also identified all the appellants before the Court. It is contended that merely because there were some cases pending against this witness, the evidence of this witness cannot be discarded on this count. It has come in the cross-examination of this witness that he has seen the incident and the testimony of this witness is free from material omissions and contradictions. It is contended that the evidence of eye-witness P.Ws.2, 4 and 8 has been completely corroborated by the medical evidence and other circumstantial evidence. 16 APEAL708.03 16. P.W.1 Ramesh is the panch witness who has proved the spot panchanama. The evidence of this witness would show that blood-stained stones, cover of the sword, dagger, cover of dagger were found on the spot of the incident. P.W.3 Rahul is another panch witness who has proved the arrest panchanama of the appellants, seizure panchanama i.e. seizure of blood-stained clothes. There is no cross-examination by the defence on the point of finding of blood-stains on the clothes of the appellants. P.W.7 Raju Durge (brother of the deceased) was examined by the prosecution to establish the motive behind the crime. The evidence of this witness would show that there was previous enmity between the deceased and the accused party. The learned Addl. Public Prosecutor has submitted that P.W.10 Raju Wani is another panch who has proved the memorandum statement of Deepak as well as production of sword by the appellant Deepak from the bushes which had blood-stains on it. 17. The learned Addl. Public Prosecutor has contended that the evidence of the Medical Officer P.W.6 Dr.Subhash who has conducted the post-mortem examination on the dead body of the deceased would show that there were 16 injuries found on the person of the deceased which were ante-mortem and as per the opinion of the Doctor, the same could have been caused by the articles seized and produced during the course of investigation. It is contended that the medical evidence corroborates the 17 APEAL708.03 ocular testimony of all the eye-witnesses coupled with the other material circumstances established by the prosecution, the trial Court was justified in holding that the prosecution proved the case against the appellants for the offences charged beyond all reasonable doubts. The learned Addl. Public Prosecutor has submitted that in a case where the accused are known to the witnesses and are not strangers to them, in that case, test identification parade is not really necessary. In order to substantiate his contention, reliance is placed on the decision of the Supreme Court in the case of State of U.P. v. Sukhpal Singh (2009 All MR (Cri.) 3773 (S.C.). The learned Addl. Public Prosecutor further stated that if the evidence of a witness having criminal background is corroborated by the evidence of other witnesses and if his presence at the scene of occurrence is not doubted, the same can be relied upon by the Court. In order to substantiate this contention, reliance is placed on the decision of the Supreme Court in the case of State of U.P. v. Farid Khan [(2005) 9 SCC 103]. The learned Addl. Public Prosecutor has submitted that it is open for the Court to reject the part of the evidence of the witness and accept the remaining part of the evidence. Merely because part of the evidence is rejected by the Court, the entire evidence need not be rejected only because some part of the evidence is found to be false. In order to substantiate this contention, reliance is placed on the decision of the Supreme Court in State of Maharashtra v. Tulshiram Bhanudas Kamble 18 APEAL708.03 [(2007) 14 SCC 627]. 18. We have given anxious thoughts to the various contentions and propositions of law advanced by the learned counsel for the appellants as well as the learned Addl. Public Prosecutor appearing for the State. In the instant case, though the prosecution has examined in all 19 witnesses to bring home the guilt of the appellants for the offence of murder, however, medical evidence is of P.W.2 Ramesh, P.W.4 Ashok Tiwari and P.W.8 Pralhad Mhaske (complainant) who were examined by the prosecution as eye-witnesses to the incident. The case of the prosecution is based on direct evidence of these witnesses as well as circumstantial evidence which is brought on record by the prosecution in the form of discovery under section 27, spot panchanama of scene of offence, recovery of blood-stained clothes, etc. The prosecution has examined P.W.6 Dr.Subhash Madane to prove the post-mortem report. We now propose to consider and scrutinise the evidence of the eye-witnesses examined by the prosecution. 19. P.W.2 Ramesh Yewale in