Case: Yogesh Madhav Andhale Vs. State of Maharashtra

as to whether Kavita had disclosed the phone number of Seema to him. Deceased Eknath was not in a position to talk and could not speak anything. One of the accused slapped Kavita. A crowd had gathered there and they questioned the accused as to why they were assaulting Kavita. Accused No.1 Sharad informed them that Kavita had given the phone number of his wife to Eknath and that Eknath was harassing his wife by telephoning her. Kavita informed them that since she was assaulted by the accused, she would lodge a report against them. Accused No.3 Yogesh then lifted deceased Eknath and placed him on the motorcycle. Another persons sat behind Eknath and in that manner Eknath was taken on the motorcycle. Thereafter, Accused No.1 and the other 2 unknown assailants also left on another motorcycle. Accused No.1 Sharad threatened Kavita that he would kill her.Kavita therefore contacted her husband on phone and informed him about the incident. After some time her husband reached home and Kavita narrated the incident to him. On the same day, Kavita and her husband went to their native place as they were frightened. On 15.12.2010, her brother Shashikant received a telephone call from the Police, who informed them that Eknath had been killed and Kavita and her husband were required to come to Pune. Kavita and her husband accordingly reached Pune on 16.12.2010 when their statements were recorded. Kavita further deposes that on 5.3.2011 she had identified the Accused No.4 Popat, Accused No.6 Sachin and Accused No.7 Nitin in the test identification parade.12. In Cross-examination she has admitted that though deceased Eknath was residing opposite her house, she was not knowing him till he came her house for seeing her husband after husband of Kavita suffered a fracture. An admission is elicited in the cross-examination that "at the time of the incident, accused persons were present for about half an hour. Out of that time, for 15 to 20 minutes, the accused persons were present in my house for inquiry. I saw the beating for 10 to 15 minutes. At that time I do not see any bleeding injury on the person of Eknath Kamble."An omission has been elicited that she had not stated that one unknown assailant was armed with a stick and that she had seen deceased Eknath who was unconscious.13. The evidence of PW-3 Shashikant clearly implicates Accused Nos.1 and 6 as the persons who had abducted deceased Eknath while Eknath was sitting in the bus. The evidence of PW-8 Kavita clearly establishes the overt act of assaulting deceased Eknath by Accused No.1 Sharad and Accused No.3 Yogesh. Though these witnesses have been cross-examined at length, nothing of substance has been elicited in the cross-examination, which would in any manner affect their credibility.14. The learned Counsel for Appellant Yogesh has urged before us that statement of Kavita was recorded on 16th i.e. 4 days after the incident and therefore, the Trial Court was in error in placing implicit reliance on the testimony of PW-8 Kavita. The learned APP has supported the findings arrived at by the Trial Court.According to PW-3 Kavita, she was mercilessly assaulted by the accused and had also seen deceased Eknath being assaulted by the accused. In fact, when she had seen deceased Eknath, Eknath was unconscious due to assault on him. According to Kavita, she was frightened and therefore, telephoned her husband and then fled to her native place. It was only on the receipt of the message from the Police that she was required that she returned to Pune. Thus, according to us, there is no delay in the recording of the statement of Kavita. Delay simplicitor in recording the statement of a witness would not necessarily affect the credibility of the witness. PW-8 Kavita had fled apprehending a danger to her and therefore, it is most natural that she was not available for recording of her statement. The delay therefore, in recording of the statement of Kavita, in our opinion, does not affect the credibility of Kavita. The evidence of PW-8 Kavita is amply corroborated by the evidence of PW-3 Shashikant who had also fled and had gone to his village where he was informed by PW-8 Kavita about the incident. Thus, the evidence of PW-8 Kavita as well as the evidence of PW-3 Shashikant clearly establishes the offence against Accused No.1 Sharad and Accused No.3 Yogesh.15. The learned Counsel for the Appellants have also urged before us that the test identification parade in which PW-3 Shashikant has identified Accused Nos.1 and 6 is vitiated as there are several infirmities in the test identification parade.According to us, even if the test identification parade is vitiated, PW-3 Sharad had ample opportunity of observing the features of Accused Nos.1 and 6 when they have abducted deceased Eknath from the bus. In fact, on hearing the cries of deceased Eknath, PW-3 Shashikant had gone near them and had questioned Accused Nos.1 and 6 as to why they were assaulting deceased Eknath. Thus, PW-3 Shashikant had adequate opportunity of observing the features of Accused No.1 Sharad and Accused No.6 Sachin. Even if the test identification parade is left out of consideration, the substantive identification of the accused in the Court is not affected.16. The learned Counsel for Accused No.6 has urged before us that Accused No.6 has undergone approximately two and half years of imprisonment and therefore, he be released on the period of imprisonment already undergone by him. In the light of the evidence of the prosecution witnesses and in the light of the fact that Accused No.6 had abducted deceased Eknath knowing well that deceased Eknath was likely to be subjected to assault and grievous injuries being caused to him, does not merit any consideration from the Court of his release from the period of imprisonment already undergone by him. In our opinion, the sufficient leniency has already been shown by the Trial Court and no further leniency is required to be shown by this Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. Prosecution has examinedDagadu, father of deceased Eknath. He deposes about being informed on 12.12.2010 that his son Eknath had been killed and his dead body was kept at the Sassoon Hospital, Pune. He accordingly rushed to Pune and reached Sassoon Hospital on 13.12.2010 at about 6.30 a.m. and identified the dead body of his son. He had thereafter lodged his report at Exhibit 79.7. Prosecution has examinedShashikant Kokatikar, a friend of deceased Eknath, who deposes that he was also employed and was working in the Concentric Heldex Company at Lonikand.Kavita, his cousin who was residing at Sanaswadi.Shashikant was also residing at Sanaswadi in the Chairmanvasti. Deceased Eknath was also residing in the Chairmanvasti in a room which was adjoining to the room of Shashikant. One Sanjay Jadhav was room mate ofShashikant. Shashikant further deposes that Accused No.1 Sharad was also residing at Chairmanvasti and was employed as a Security Guard with Johndear Company and was residing in the room opposite the room ofShashikant. According to Shashikant, his relations with Accused No.1 Sharad were cordial and Accused No.1 Sharad was residing alongwith his wife Accused No.2 Seema. Deceased Eknath had informed Shashikant that Accused No.2 Seema, wife of Accused No.1 Sharad, was friendly with deceased Eknath and Eknath had often talked with Seema on mobile. Shashikant told Eknath to immediately stop talking to Seema. Shashikant also inquired from Eknath as to how he had been able to secure the mobile number of Seema and Eknath had informed him that he had taken the mobile number of Seema fromKavita. Sometimes, deceased Eknath used to call Seema from the mobile ofShashikant. In July 2010, deceased Eknath had informed Shashikant that he had received a telephone call from Seema and he had gone to the room of Seema twice.In October 2010, Shashikant vacated the room in Chairmanvasti and shifted to Kanadevasti alongwith his cousinKavita. In December 2010, he alone shifted to Tulapurphata vasti. On 11.12.2010, he had gone to the Company at 6.00 a.m. and he had learnt that deceased Eknath had been assaulted and was taken away on a motorcycle from the gate of the Company. At about 8.15 a.m. he learnt that the person who had been assaulted and taken away was deceased Eknath and therefore, immediately telephoned Eknath on his mobile. Deceased Eknath had informed him that he was at Sanaswadi and was being assaulted. While deceased Eknath was talking withShashikant, the mobile phone was snatched from him and the person who had snatched the mobile asked Shashikant as to why he had called. That person also inquired from Shashikant as to where he was and Shashikant replied that he was in the Concentric Heldex Company. That person then asked him to come immediately to Sanaswadi but Shashikant informed him that since he was on duty, he could not come. That person then threatened Shashikant that he would be taken in the same manner like Eknath. Shashikant identified the voice of Accused No.1 Sharad and therefore, took leave of half day and went to his room and took his baggage and fled to Kolhapur.On reaching Kolhapur he metKavita, who informed him that on 11.12.2010, Accused No.1 Sharad alongwith Accused No.2 Seema and one more lady and 2 to 3 other persons had come to her house and had inquired the whereabouts of Shashikant. The accused had asked Kavita as to why she had given the mobile number of Seema to deceased Eknath. Kavita further disclosed to him that the accused had assaulted her and then had taken her to the place where deceased Eknath was brought and in her presence, Eknath was asked as to how he had obtained the mobile number of Seema. Shashikant learnt on the next day that Eknath had been killed. He has admitted that his statement was recorded by the Police on 16.12.2010.8. Inhe has admitted that he was acquainted with deceased Eknath since 5 months prior to his death. He has admitted that deceased Eknath was unmarried. Shashikant admitted that he had not disclosed to anyone about the telephone talk between Eknath and Seema. Shashikant has admitted that he used to often talk withSantosh on telephone. He has denied the suggestion that deceased Eknath had not informed him on telephone that he was at Sanaswadi and was being assaulted.9. Prosecution has examinedVijay, who was also an employee working in Concentric Heldex Company and who deposes that he knew deceased Eknath. According toVijay, he and deceased Eknath came out of the Company after performing the duty from 10.00 p.m. to 6.00 a.m. on 11.12.2010. According to Vijay, he and Eknath then boarded the bus which was parked near the gate of the Company. At that time one person came in the bus and took Eknath alongwith him. That person had a strong physique and was wearing a blackish or bluish jerkin. That person took deceased Eknath near another person who was standing in front of the bus. He thereafter heard the cries of Eknath as "Save Save" and therefore, alighted alongwith the other workers from the bus and went near Eknath. He noticed the two persons assaulting Eknath with a wooden log. Vijay therefore questioned those persons as to why they were beating Eknath and those persons informed him that it was their private affair and Vijay should not interfere. The assailants then took Eknath on a motorcycle towards the Nagar Road. Vijay informed the said incident to the Assistant Manager Sunil Aher. On 12.12.2010, the Police arrived for inquiry and at that time he learnt that the dead body of Eknath was found near the Toll Naka near the Nilgiri forest. He has identified the said persons as Accused Nos.1 and 6. He deposes that on 5.3.2010 he identified the Accused Nos.1 and 6 in the test identification parade.10. Inhe has admitted that after finishing the 3rd shift, normally 30 to 40 persons come out of the Company. He has admitted that his relations with deceased Eknath were friendly as Eknath was aHe has admitted that deceased Eknath was wearing the Company uniform. He has admitted inthat at about 5 to 10 minutes, Accused Nos.1 and 6 again returned for taking the mobile of deceased Eknath which was with one Kailas Bhosale,in the bus. An omission has been elicited that he had not stated in his previous statement about hearing the cries of deceased Eknath as "Save Save". He has denied the suggestion that the accused were shown to him by the Police prior to the test identification parade.11. Prosecution has examinedKavita, a cousin ofShashikant, who deposes that on 5.4.2010 she alongwith her husband came for residing at Pune. Her husband Ravindra Shinde was employed in the Global Company in the House Keeping Department and she was residing in Chairmanvasti, Sansaswadi, Pune. On 27.5.2010, her husband met with an accident and since his leg was fractured, her husband did not attend the duty for 3 months. Deceased Eknath, who was also residing in the same chawl used to visit the house for meeting her husband Ravindra.Kavita has admitted that she knew Accused No.2 Ashwini @ Seema, wife of Accused No.1 Sharad. She has also claimed that she knew Accused No.5 Sunita Andhale, wife of Accused No.3 Yogesh as both of them were residing near her house. Accused No.1 Sharad Shelke was employed as a Security Guard. According toKavita, Accused No.2 Seema used to inquire about deceased Eknath and she used to seek details as to where he was employed and whether Kavita was knowing him and where Eknath was residing. Kavita had informed her that she knew deceased Eknath as he used to visit her husband and she also knew that he was resident of Kolhapur.After some days, Kavita left the room at Chairmanvasti and went to reside in the chawl of one Vijay Kande. On 11.12.2010 at about 8.15 a.m. Accused No.2 Seema, Accused No.5 Sunita Andhale, Accused No.1 Sharad, Accused No.3 Yogesh and 3 other persons came to her room and started assaulting her. Accused were alleging that Kavita had given the mobile phone number of Accused No.2 Seema to deceased Eknath. Kavita denied to have given the mobile number of Accused No.2 Seema to deceased Eknath. All the accused then dragged her near the Sakshi Samiksha Building which was situated nearby. Kavita noticed deceased Eknath was lying there and was unconscious. Deceased Eknath was wearing banian, underwear and black socks. Three other persons were also standing there. Accused No.1 Sharad and Accused No.3 Yogesh and the other three persons then started assaulting Eknath by giving kicks and fists blows. One of the unknown assailants was armed with a stick in his hand and was hitting the stick on the ground in order to frighten Eknath. Kavita therefore asked deceased Eknath to tell the accused the truth as to whether Kavita had disclosed the phone number of Seema to him. Deceased Eknath was not in a position to talk and could not speak anything. One of the accused slapped Kavita. A crowd had gathered there and they questioned the accused as to why they were assaulting Kavita. Accused No.1 Sharad informed them that Kavita had given the phone number of his wife to Eknath and that Eknath was harassing his wife by telephoning her. Kavita informed them that since she was assaulted by the accused, she would lodge a report against them. Accused No.3 Yogesh then lifted deceased Eknath and placed him on the motorcycle. Another persons sat behind Eknath and in that manner Eknath was taken on the motorcycle. Thereafter, Accused No.1 and the other 2 unknown assailants also left on another motorcycle. Accused No.1 Sharad threatened Kavita that he would kill her.Kavita therefore contacted her husband on phone and informed him about the incident. After some time her husband reached home and Kavita narrated the incident to him. On the same day, Kavita and her husband went to their native place as they were frightened. On 15.12.2010, her brother Shashikant received a telephone call from the Police, who informed them that Eknath had been killed and Kavita and her husband were required to come to Pune. Kavita and her husband accordingly reached Pune on 16.12.2010 when their statements were recorded. Kavita further deposes that on 5.3.2011 she had identified the Accused No.4 Popat, Accused No.6 Sachin and Accused No.7 Nitin in the test identification parade.12. Inshe has admitted that though deceased Eknath was residing opposite her house, she was not knowing him till he came her house for seeing her husband after husband of Kavita suffered a fracture. An admission is elicited in thethat "at the time of the incident, accused persons were present for about half an hour. Out of that time, for 15 to 20 minutes, the accused persons were present in my house for inquiry. I saw the beating for 10 to 15 minutes. At that time I do not see any bleeding injury on the person of Eknath Kamble."An omission has been elicited that she had not stated that one unknown assailant was armed with a stick and that she had seen deceased Eknath who was unconscious.13. The evidence ofShashikant clearly implicates Accused Nos.1 and 6 as the persons who had abducted deceased Eknath while Eknath was sitting in the bus. The evidence ofKavita clearly establishes the overt act of assaulting deceased Eknath by Accused No.1 Sharad and Accused No.3 Yogesh. Though these witnesses have beenat length, nothing of substance has been elicited in thewhich would in any manner affect theirKavita, she was mercilessly assaulted by the accused and had also seen deceased Eknath being assaulted by the accused. In fact, when she had seen deceased Eknath, Eknath was unconscious due to assault on him. According to Kavita, she was frightened and therefore, telephoned her husband and then fled to her native place. It was only on the receipt of the message from the Police that she was required that she returned to Pune. Thus, according to us, there is no delay in the recording of the statement of Kavita. Delay simplicitor in recording the statement of a witness would not necessarily affect the credibility of the witness.Kavita had fled apprehending a danger to her and therefore, it is most natural that she was not available for recording of her statement. The delay therefore, in recording of the statement of Kavita, in our opinion, does not affect the credibility of Kavita. The evidence ofKavita is amply corroborated by the evidence ofShashikant who had also fled and had gone to his village where he was informed byKavita about the incident. Thus, the evidence ofKavita as well as the evidence ofShashikant clearly establishes the offence against Accused No.1 Sharad and Accused No.3to us, even if the test identification parade is vitiated,Sharad had ample opportunity of observing the features of Accused Nos.1 and 6 when they have abducted deceased Eknath from the bus. In fact, on hearing the cries of deceased Eknath,Shashikant had gone near them and had questioned Accused Nos.1 and 6 as to why they were assaulting deceased Eknath. Thus,Shashikant had adequate opportunity of observing the features of Accused No.1 Sharad and Accused No.6 Sachin. Even if the test identification parade is left out of consideration, the substantive identification of the accused in the Court is notour opinion, the sufficient leniency has already been shown by the Trial Court and no further leniency is required to be shown by this Court.17. Thus, after considering the rival submissions, in our opinion, the Criminal Appeals filed by the Appellants are without any merit and therefore, deserve to be dismissed.