Bombay High Court
Waman S/O Bhimrao Mendhe vs State Of Maharashtra on 27 June, 2008
Author: B.P. Dharmadhikari
Bench: K.J. Rohee, B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 647 OF 2002
WITH
CRIMINAL APPEAL NO. 678 OF 2002
AND
CRIMINAL APPEAL NO. 684 OF 2002
CRIMINAL APPEAL NO. 647 OF 2002
1. Waman s/o Bhimrao Mendhe
aged about 26 years,
occupation - Labourer.
2. Bhimrao s/o Laxmanrao Mendhe,
aged about 60 years,
occupation - Labourer.
3. Vinod s/o Sudhakar Harne,
aged about 25 years,
occupation - Labourer.
4. Kalu @ Sudhakar s/o Shankarrao Yadav
aged about 25 years,
occupation - Labourer.
5. Pankaj Govindrao Karpari,
aged about 20 years,
occupation - Student.
6. Pramod s/o Ratan Gujar,
aged about 25 years,
occupation - Labourer.
7. Balya @ Narendra s/o Bhimrao
Mendhe, aged about 32 years,
occupation - Labourer.
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Nos. 1 to 5 and 7 residents of
Nandanwan, Nagpur.
No. 6 resident of Rambagh, Nagpur
(All in Jail) ... APPELLANTS
Versus
State of Maharashtra,
through P.S.O. Kotwali Police Station,
Nagpur. ... RESPONDENT
Shri R.M. Patwardhan, Advocate for the appellants.
Shri S.S. Doifode, APP for the respondent.
.....
CRIMINAL APPEAL NO. 678 OF 2002
1. Prashant @ Balya s/o Panjabrao Shende,
aged about 22 years,
occupation - Labourer,
resident of Nandanwan Layout, Nagpur.
(Now in Central Jail, Nagpur) ... APPELLANT
Versus
State of Maharashtra,
through P.S.O. Kotwali Police Station,
Nagpur. ... RESPONDENT
Shri R.M. Daga, Advocate for the appellant.
Shri S.S. Doifode, APP for the respondent.
.....
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CRIMINAL APPEAL NO. 684 OF 2002
1. Ajay s/o Wamanrao Waghmare,
aged about 20 years,
occupation - Labourer.
2. Amar s/o Kalluji Varma,
aged about 21 years,
occupation - Labourer.
3. Vishwapal s/o Vasantrao Manwatkar,
aged about 24 years,
occupation - Labourer.
4. Sanjay s/o Chandrabhan Ingole,
aged about 26 years,
occupation - Labourer.
5. Gajya Gajanan s/o Motiram Belekar,
aged about 33 years,
occupation - Labourer.
6. Sharad s/o Vasantrao Manwatkar,
aged about 20 years,
occupation - Labourer.
7. Manoj s/o Vasantrao Manwatkar,
aged about 28 years,
occupation - Labourer
all residents of Nandanwan, Nagpur. ... APPELLANTS
Versus
State of Maharashtra,
through P.S.O. Kotwali Police Station,
Nagpur. ... RESPONDENT
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Shri R.M. Daga, Advocate for the appellants.
Shri S.S. Doifode, APP for the respondent.
.....
CORAM :K.J. ROHEE AND
B.P. DHARMADHIKARI, JJ.
DATE OF RESERVING THE JUDGMENT : JUNE 20, 2008.
DATE OF PRONOUNCING THE JUDGMENT: JUNE , 2008.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Fifteen accused convicted by the Second Additional Sessions Judge, Nagpur, in Sessions Trial No.233 of 2001 on 03.10.2002 of an offence under Section 302 read with Section 149 of Indian Penal Code with life imprisonment and fine of Rs.500/- each and in default thereof to undergo simple imprisonment for three months, further convicting them of an offence under Section 147 of Indian Penal Code and sentencing them to pay fine of Rs.500/- each and in default to undergo simple imprisonment for three months, as also holding them guilty of an offence under Section 148 of Indian Penal Code and sentencing them to pay fine of Rs.500/- each or in default to undergo simple imprisonment for three months, have filed these three appeals under Section 374 of Criminal Procedure Code.
::: Downloaded on - 09/06/2013 13:31:49 ::: 52. The case of the prosecution in brief is that all these accused attacked house of victims Jyoti and her husband Jaffer in the night of 17.6.2000. The deceased i.e. Jyoti and Jaffer were at their residence in Nandanwan locality of Nagpur at about 9.30 PM with mother of Jyoti PW-1 - Sulochana & Jyoti's three children from first husband Sanjay. The relations between the deceased and accused No.1 - Waman were strained on account of the rivalry in business as Jaffer and Waman were having their pan stalls in the same area. Both sides had lodged reports against each other prior to this incident. On 17.06.2000, these accused persons armed with weapons like swords, knives, dagger, lathis barged in the house of Jyoti and Jaffer, attacked them and killed them on the spot. PW-1 - Sulochana lodged First Information Report (Exh. 57) with City Police Station Kotwali and PW-
12 - Police Inspector Khadse conducted the investigation. After completing the same, he filed charge sheet before the Judicial Magistrate First Class, Nagpur, and in turn the said Court committed the case for trial to Sessions Court. The charges were framed vide Exh. 31 and explained to accused (present appellants) who pleaded not guilty and claimed to be tried. The Sessions court recorded the evidence of 12 witnesses tendered by the prosecution and recorded ::: Downloaded on - 09/06/2013 13:31:50 ::: 6 statements of accused under Section 313 of Criminal Procedure Code.
The defence of each accused was that of total denial. After hearing oral arguments, the Sessions Court found that the deceased Jyoti and the deceased Jaffer meet with homicidal death and that the prosecution succeeded in proving the guilt of all 15 accused. It accordingly imposed the punishments as mentioned above.
3. In this background, we have heard Shri R.M. Patwardhan, learned counsel for the appellants in Criminal Appeal No. 647 of 2002, Shri R.M. Daga, learned counsel for the appellants in Criminal Appeal Nos. 678 of 2002 and 684 of 2002 and Shri Doifode, learned Additional Public Prosecutor for the respondents.
4. Shri Patwardhan, learned counsel as also Shri Daga, learned counsel have argued that the prosecution has relied upon the evidence of the eye witnesses i.e. PW-1 - Sulochana, PW-4 - Ashwini @ Rani PW-5 - Vikram and PW-6 - Rajesh. These persons have not witnessed the incident at all and cross examination conducted by the accused has proved their absence at the spot. It is argued by both the counsel that these witnesses are got-up ones to suit the design of ::: Downloaded on - 09/06/2013 13:31:50 ::: 7 investigating agency, and the learned Sessions Court erred in relying upon their evidence. It is contended by them that their evidence not only suffers from improvements and omissions but is mutually contradictory and deserves no credence. It is urged by them that names of accused Nos. 3, 5, 6, 7, 8, 9 and 12 did not figure in FIR at all and it has come on record that these accused persons as also accused Nos.2, 4 & 13 had allegedly covered their faces. They argued that there is no direct evidence against any accused and even if the statements of alleged eye witnesses are to be given any importance, there is no direct evidence against accused Nos. 2, 3, 4, 5, 8, 11 & 14.
They have taken the Court through relevant evidence in support of their contentions. They state that one Prabhakar Patrikar was present in the house of Jyoti and Jaffer on the night of 17.6.2000 and he claimed to have been injured in said attack. Though his two statements were recorded by PW-12 - P.I. Khadse, he was not examined as prosecution witness at all. It is further stated that the sister of Jyoti viz., Archana @ Aruna was also present in the house at the time of attack but she was also deliberately kept away by the prosecution and children like PW-4 and PW-6 were ushered in witness box to hide the truth. By pointing out spot panchnama and also the ::: Downloaded on - 09/06/2013 13:31:50 ::: 8 map drawn along with said spot panchnama, both the learned counsel contend that the rooms in occupation of the deceased and their family were very small and could not have even accommodated the number of assailants as claimed by the eye witnesses. According to them, if attack of magnitude as alleged is presumed in such a small space, practically everybody present then would have been seriously injured or killed. They further pointed out that the eye witnesses have stated that the source of light in the house viz., tube lights were broken by the assailants and hence eye witnesses have not seen the faces of accused persons at all. According to them as per the version of so called eye witnesses, they fled from house fearing attack on them also and hence, did not witness the attack at all. In any case, attack in bed room could not have been seen from the chhapri portion i.e. varandah where these witnesses claimed to be present and hence all three appeals need to be allowed.
5. It is further their contention that report at Exh. 57 lodged by Sulochana is not FIR and real FIR has not been produced before the Sessions Court. According to them, Prabhakar Patrikar was the first person to reach Police Station and PW-12 - P.I. Khadse has accepted ::: Downloaded on - 09/06/2013 13:31:50 ::: 9 that he recorded the statement of Prabhakar and obtained signature of Prabhakar on it. It is argued that obviously said statement was not to be used as statement under Section 161 of Criminal Procedure Code and according to the learned counsel, the police reached the spot because of said report and hence said report constituted FIR. They have argued that PW-12 has not correctly deposed about recording of FIR and his evidence is in direct conflict with the evidence of PW-1 -
Sulochana, who claims to have lodged first report with the Police Station Kotwali. According to them, a vital document and a vital witness Shri Prabhakar Patrikar is suppressed by the prosecution and true story has not allowed to be brought on record.
6. It is further argued that the eye witnesses have not explained as to how they could name all assailants though their faces were covered and as to how investigating agency could ascertain identity of other accused persons whose names did not figure in Exh.
57. By pointing out cross examination of PW-6 - Rajesh, the learned counsel vehemently argued that investigating agency as also family members of deceased falsely involved the other accused persons though there was no case or evidence against them. It is contended ::: Downloaded on - 09/06/2013 13:31:50 ::: 10 that prosecution has not brought on record any material to point out how it reached the accused persons whose names were not appearing in FIR. It is further contended that all eye witnesses have used very vague words like "all accused persons before the Court" and this was not sufficient to hold that the identity of the accused is established by these witnesses. According to them, test identification parade was must in such circumstances and ought to have been conducted by the prosecution. As it has not been so conducted, the learned Sessions Court should have proceeded to straight way acquit the accused persons whose names did not figure in FIR or whose faces were admittedly covered.
7. It is their case that the seizure of weapons and of clothes from some of the accused is also not conclusively established. They contend that the Sessions Court has recorded a finding of guilt on the strength of ocular evidence and not on account of circumstantial evidence. They point out that the prosecution did not get blood group of either Jyoti or Jaffer ascertained and blood group of accused Nos. 2 to 6, 8 to 10 and 12 to 15 could not be determined as tests were found inconclusive. The blood group of accused No.1 - Waman was found to ::: Downloaded on - 09/06/2013 13:31:50 ::: 11 be "B" while blood group of accused No.7 - Kalu was found to be "O"
and accused No. 11 - Vishwapal was also found to be of "O" group.
According to them, when no blood was found on weapons seized allegedly under Section 27 of the Evidence Act or when seizure of clothes from accused persons is itself not conclusively established, these circumstances are not sufficient to record finding of complicity of accused persons in the commission of offence. They state that even if seizure is accepted, seizure by itself is not a clinching circumstance indicating conclusively only towards the guilt of accused persons.
They contend that seizure also is not from all accused persons and therefore insufficient to sustain the conviction of all. According to them, therefore, the prosecution has failed to establish the charge and the judgment of conviction delivered by the Sessions Court needs to be quashed and set aside and all accused persons need to be acquitted.
They have relied upon various cases in support of their contentions and we find it convenient to refer to the same while considering the relevant contentions.
8. Shri Daga, learned counsel has pointed out that accused No.2 - Ajay was a juvenile as on the date of commission of offence as ::: Downloaded on - 09/06/2013 13:31:50 ::: 12 his age was less than 18 years and his trial, therefore, ought to have been separated by the Sessions Court and as that has not been done, in any case his trial stands vitiated and he is entitled to be acquitted. It is further argued that in any case in view of the judgment of the Division Bench of this Court in the case of Vinod Gulabrao Kinake vs. State of Maharashtra, reported at 2008 ALL MR (Cri) 192 (paras 9 & 10), the conviction of such minor can only be maintained and he cannot be sentenced at all. He, therefore, prays for acquittal of said accused. He points out that accused No.2 - Ajay was already under observation of District Probationary Officer and all reports have been regularly received from said officer and accordingly said accused needs to be given benefit of provisions of Juvenile Justice (Care & Protection of Children) Act, 2000. Both the learned counsel have further contended that the motive has not been proved at all in the matter and the neighbours who would have been important witnesses have also not been examined. It is their stand that spot panchnama as recorded or map with it is also faulty because the same does not mention the spot at which eye witnesses were standing when they witnessed the entire episode as alleged. They further contend that shirt of accused No.5 -
Bhimrao has been seized from the house of accuse No.1 - Waman and ::: Downloaded on - 09/06/2013 13:31:50 ::: 13 the seizure is fabricated. They further state that the seizure of weapons is also similarly fabricated by the prosecution with the assistance of relatives of the deceased. They contend that witnesses on spot panchnama - Vinod Shrirame is close relative of the deceased Jyoti and with his assistance the police have fabricated false records and seizure.
9. As against this, Shri Doifode, learned Additional Public Prosecutor has contended that the facts mentioned in FIR (Exh. 57) are not only supported by the eye witnesses but also find support in the spot panchnama (Exh. 70). He invites attention to said panchnama and map along with it to state that back door of kitchen was found broken as stated by the eye witnesses and the accused persons stormed into the house of the deceased with deadly weapons in the night hours with an intention to finish them off and accordingly succeeded in their design. He states that the eye witnesses have consistently deposed about the gruesome murders. He contends that there is no consistency in the evidence of the eye witnesses and also invites attention to the statements under Section 161 of Criminal Procedure Code of PW-5 - Vikram and PW-6 - Rajesh in order to show ::: Downloaded on - 09/06/2013 13:31:50 ::: 14 that there are no improvements and omissions and the Sessions Court has expressly found that effort on these lines undertaken by the accused persons was misconceived and ought to have been objected by the learned prosecutor appearing before the Sessions Court. Shri Doifode argues that the perusal of the panchnama itself reveals that it was prepared in the light of the tube light in the house of the deceased and the map on record clearly shows that the eye witnesses could have easily seen the appellants (accused persons) assaulting the deceased.
He states that blood of the deceased Jyoti was of "B" group while blood of the deceased Jaffer was of "A" group and human blood has been found on the clothes of most of the accused. He states that in some cases blood of both groups have been found on their clothes and hence complicity of these accused persons in the commission of crime is conclusively established. He also points out that eye witnesses have identified all accused persons before the Sessions Court and have also stated role played by them in the assault. According to him, seizure of weapons and blood stained clothes from these persons conclusively connects them with the crime and hence their conviction by the Sessions Court deserves to be maintained. The accused persons (present appellants) have before the Sessions Court admitted contents ::: Downloaded on - 09/06/2013 13:31:50 ::: 15 of Post Mortem reports i.e. Exhs. 90 and 91. Exh. 90 is the post mortem report of Jyoti and Exh. 91 is post mortem report of Jaffer.
The accused also did not dispute report (Exh. 130) which revealed the possibilities of injuries being inflicted by the weapons used by connecting each weapon with corresponding injury and did not challenge evidence of Medical Officer (PW-11) - Dr. Vyawahare on the point of homicidal death of Jyoti and Jaffer. Here it is to be noted that even before us, homicidal death of Jyoti and Jaffer is not in dispute. It is, therefore, admitted fact that both Jyoti and Jaffer were murdered on 17.6.2000 in the night at their residence.
10. The prosecution has examined total 12 witnesses. PW-1 -
Sulochana, PW-4 - Ashwini @ Rani, PW-5 - Vikram and PW-6 - Rajesh claimed to be eye witnesses. PW-2 - Rajendar (Exh. 58) and PW-3 -
Rajdeosingh (Exh. 59) are both Police Constables who have pointed out that they were given the work of tracing out the fugitives. PW-7 -
Vinod Shrirame (Exh. 69) is son of Jyoti's sister and was staying with Jyoti. He is a panch on spot panchnama, spot seizure, seizure of shirt of accused PW-5 - Bhimrao and seizure of weapons from some accused. PW-8 - Shaikh Farooqu (Exh. 78) is panch for the purposes ::: Downloaded on - 09/06/2013 13:31:50 ::: 16 of disclosure and seizure of weapon from accused No.8 - Pankaj Karpari and accused No.6 - Vinod Harne. PW-9 - Dr. Pramod Rewale (Exh. 87) has proved injury certificate at Exh. 88 of PW-1 - Sulochana, PW-10 Musa Khan (Exh. 104) is witness to discovery & recovery of sickle from accused No.9 - Pramod. PW-11 - Dr. Makrand Vyawahare has been examined at Exh. 129 to prove post mortem reports Exh. 90 and 91 as also certificate Exh. 130 whereby he after examining the weapons Articles 23 to 28 opined as to which of the injuries sustained by the deceased could have been inflicted by such weapons. PW-12 -
Eknath Khadse (Exh. 131) is the Police Inspector, who has investigated the offence.
11. PW-1 - Sulochana has stated that she went to Kotwali Police Station and informed about accused No.1 - Waman and others killing her daughter Jyoti and son-in-law Jaffer. Her report was reduced into writing by the Police and she put her thumb impression on it. She stated that Exh. 57 was that report. The perusal of Exh. 57 shows that PW-12 - Eknath Khadse has recorded it on 17.6.2000 at Medical College and Hospital & not at Kotwali Police Station. In cross examination, Sulochana has stated that it was incorrect to suggest that ::: Downloaded on - 09/06/2013 13:31:50 ::: 17 she first went to Medical College & Hospital, Nagpur. She further stated in para 18 of her cross examination that before she was taken to hospital, panchnama of spot of occurrence was drawn by the police.
Exh. 57 itself, does not mention any time at which it was recorded.
However, spot panchnama (Exh. 70) shows that its recording commenced at 2310 hrs. on 17.6.2000 and was over at 2400 hrs. Thus, if the evidence of Sulochana is accepted to be correct, she was taken to Medical College & Hospital after completion of work of drawing of this panchnama.
12. PW-12 - P.I. Khadse has stated that he received the information about commission of offence at Medical College Square after his return from Chandrapur. He immediately proceeded to Medical College and recorded FIR as lodged by the injured - Sulochana
- PW-1 and obtained her thumb impression on it. He identified said FIR to be Exh. 57. He has further stated that thereafter he went to Police Station and registered offence against the accused persons. He prepared printed FIR under his signature at Exh. 132. He stated that then he proceeded to spot of incident. The police staff had already reached there and panchnama of the spot was already drawn. He ::: Downloaded on - 09/06/2013 13:31:50 ::: 18 arrested accused persons and got them medically examined. Thus PW-
1 - Sulochana states that her statement (Exh. 57) was recorded in Kotwali Police Station and her thumb impression was obtained there.
She further categorically maintains that panchnama was first recorded and thereafter she was taken to Medical College & Hospital. From the evidence of PW-12, it appears that FIR was recorded after panchnama was drawn. In these circumstances, the perusal of spot panchnama (Exh. 70) shows that it mentions FIR number in it. If the spot panchnama and time mentioned is correct, the recording of spot panchnama was over at 2400 hrs. on 17.6.2000 and thereafter PW-1 was taken to Medical College & Hospital. It is obvious that in that event even her statement recorded at Medical College & Hospital would be on 18.6.2000 because after 2400 hrs. on 17.6.2000, next day commenced. It is, therefore, not clear as to whether FIR was already recorded or whether Exh. 57 is FIR. If Sulochana's statement is accepted to be correct, Exh. 57 which is recorded at Medical College & Hospital cannot be legally treated as FIR at all. PW-12 investigating officer P.I. Khadse could not have recorded her report or statement at Exh. 57 at Medical College on 17.6.2000 at all. Report of PW-1 Sulochana recorded at Kotwali Police Station is, therefore, not ::: Downloaded on - 09/06/2013 13:31:50 ::: 19 produced on record.
13. PW- 1 - Sulochana has stated in para 16 of her evidence that she did not know any Prabhakar Patrikar and she has further stated that she was not knowing whether he sustained any injury in the attack or whether he had come to their house for taking food on that night. She stated that Prabhakar Patrikar did not give any information to police about the incident. Her statement (Exh. 57) states Prabhakar Patrikar had come to their house on his own by Luna and was sitting in the house and he saw the assailants. She stated therein that they assaulted him also. PW- 12 - P.I. Khadse in his cross examination in para 15 has stated that the statement of Prabhakar was recorded by him on the date of incident i.e. 17.6.2000 & Prabhakar's signature was also obtained on the statement. He, however, denied that the statement of Prabhakar Patrikar was recorded before recording the report of PW-1 - Sulochana. He further stated that he had also recorded statement of Prabhakar Patrikar in Medical College & Hospital. The evidence, therefore, shows that if the statement of Prabhakar Patrikar was recorded under Section 161 of Criminal Procedure Code, there was no occasion for PW-12 - P.I. Khadse to ::: Downloaded on - 09/06/2013 13:31:50 ::: 20 obtain signature of Prabhakar on it. It further appears that two statements of Prabhakar have been recorded and he was injured also.
In spite of this, Prabhakar has not been tendered by the prosecution as its witness for the reasons best known to it. Whether the police first got information from Prabhakar and therefore obtained his signature on his statement or then first information report was given by Sulochana at Police Station Kotwali and not at Medical College & Hospital are the questions which beg answer in this situation. It is more than clear that the prosecution has not brought on record anything to satisfactorily answer these questions and accused, therefore, are entitled to receive benefit of this material lacuna.
14. The actual incidence of attack is sought to be established by the prosecution through the evidence of four eye witnesses. The other witnesses, as mentioned above, are in relation to peripheral matters like seizure of clothes and weapons and medical evidence.
Even before us the prosecution has relied upon the evidence of these four eye witnesses. PW-1 - Sulochana is the mother of deceased Jyoti & herself sustained some injuries in the attack. PW-4 - Ashwini @ Rani, PW-5 - Vikram and PW-6 - Rajesh are the children of Jyoti born ::: Downloaded on - 09/06/2013 13:31:50 ::: 21 from her earlier husband - Sanjay Raut. These children and Sulochana were staying in the same house with Jyoti and Jaffer.
15A. PW-1 - Sulochana has deposed that at about 10.30 PM on 17.6.2000 when all of them were to sit for taking food, the accused persons before the Court came near gate of their house and started hurling abuses. Some of them entered the house from the front door while some came by removing the roof tiles. All of them were carrying weapons like sickle, sword, dagger, knives and spears. She attempted to obstruct them but they pushed her aside and attacked her daughter Jyoti and Jyoti's husband Jaffer and killed them in her presence. She was also assaulted and she sustained injuries on her head and thigh.
All accused damaged household articles. She states that therefore all occupants of the house ran out and accused were pointing out weapons at them saying that they would kill them also. When she left for police station, the accused persons were still in the house continuing with their act of damaging the household articles. She has then deposed about going to Kotwali Police Station where her report (Exh. 57) came to be recorded and she states that she was sent for medical examination to Medical College & Hospital where she was ::: Downloaded on - 09/06/2013 13:31:50 ::: 22 admitted for one night. She further stated that she identified weapons carried by the accused at that time and the learned Sessions Court has recorded that those weapons were at articles No. 1 to 24. This is obviously wrong recording as weapons are only six in number. She stated that accused No. 9 - Pramod was carrying sword, accused No.6 -
Vinod was carrying sickle, accused No.1 - Waman was carrying sword, accused No.15 - Manoj was carrying sickle, accused No.13 - Gajanan was carrying knife and accused No.12 - Sanjay was carrying a dagger.
In her cross examination, she stated that it did not happen that accused broke and damaged TV and tube light and almirah in the house. She stated that statement appearing at portion marked "A" in her statement read over to her was not correct and she could not assign any reason as to why it was so mentioned in Exh. 57.
B. PW-12 - P.I. Khadse in cross examination has stated that portion marked "A" and "B" in said FIR were noted as per say of PW-1 -
Sulochana. The portion marked "B" in her FIR reveals a statement to police that her daughter Archana, Jyoti's children and she herself ran away from there. However, in cross examination she denied that as there were so many assailants in the house, she ran out of the house to ::: Downloaded on - 09/06/2013 13:31:50 ::: 23 save herself. She denied running away of herself with Archana and children of Jyoti. She also stated that said portion marked "B" was incorrect and she could not assign any reason as to why said fact came to be recorded by the police. She further stated that she had disclosed to the police that accused No.1 - Waman, accused No.9 - Pramod and accused No.6 - Vinod were carrying swords and she could not assign any reason as to why said facts were not recorded in Exh. 57. She accepted that at the time of attack Jyoti and Jaffer were in the bed room and she along with other family members were in chhapri. She stated that she did not enter the bed room but she could see the incident from chhapri. and there was only one door frame between chhapri. and that room. She further stated that she also disclosed to police that some of the accused entered the house by removing roof tiles but could not assign any reason as to why said fact was not appearing in her report. She further stated that she had told the police that accused No.12 - Sanjay and accused No.13 - Gajanan were carrying dagger and knife but could not assign any reason as to why these facts were not appearing in her report. She further stated that 5
- 6 accused entered the bed room while remaining stood outside that room and none of the family members could go into the bed room.
::: Downloaded on - 09/06/2013 13:31:50 ::: 24She gave the size of chhapri as 13' in length and 6' in width and further stated that two rooms behind this chhapri were of half the size of chhapri. She denied that she did not see who assaulted whom and therefore those facts were not mentioned in the FIR. She further denied that first tube lights were damaged and then assault was done.
C. The reading of her evidence in para 15 from the paper book shows that she stated that portion marked "C" in FIR read over to her was incorrect and she could not assign any reason for its appearances in FIR. However, there is no portion marked "C" in Exh.
57 or Exh. 132. The perusal of original recording shows that the letter "C" appearing in para 15 has been corrected as "A". Portion marked "A" in Exh. 57 which states that accused entered the house and broke TV, Almirah, tube light; appears to be relevant for the question which was put to her in cross examination above. In para 18, she has stated that except accused No.1 - Waman, accused No.10 - Balya, accused No.14 - Sharad, accused No.15 - Manoj and accused No.11 -
Vishwapal, the other accused persons had covered their faces. Name of accused No.11 is Vishwapal and it has been wrongly mentioned as Shishupal. However, the words "the three Manwatkar brothers"
::: Downloaded on - 09/06/2013 13:31:50 ::: 25recorded after his name clearly show that witness wanted to state that he i.e. said Shishupal was brother of Sharad Manwatkar and Manoj Manwatkar.
16. PW - 4 - Ashwini @ Rani, at the time of incident was 11 -
12 years old and when her deposition was being recorded, she was 13 years old. She has stated that the accused persons before the Court and sitting in the dock came to her house. The learned Presiding Officer has recorded in one sentence that witness identified all the "witnesses" sitting in the dock, The word "witnesses" appears to have been wrongly used for the word accused. She stated that the accused were asking as to where Jyoti was and they entered the house by breaking the back door. The accused asked them not to raise voice and brandished knives at them. The accused then charged and assaulted her father Jaffer, who was in the bed room and they were carrying swords, knives and spears. Accused No.1 - Waman and accused No.10 - Balya assaulted Jaffer by sword and knife. She stated that all these accused attacked her father with weapons and killed him. Her mother had hidden herself under the bed but all the accused dragged her out and assaulted her on chest and head. Her brain came ::: Downloaded on - 09/06/2013 13:31:50 ::: 26 out. Spear blow was also given on her back and she was killed. The accused then started assaulting her grand mother and she was inflicted blow on her head and limb. On seeing parents being killed, she (Ashwini) out of fear concealed herself behind her mother. Accused No.1 - Waman, accused No.7 - Sudhakar, accused No.10 - Balya stood on her stomach and gave her kick blows. The accused also assaulted her brother Raja (PW-6 - Rajesh). She stated that she could identify said accused by face and said accused was accused No.10 - Balya. Her maternal aunt - Aruna (Archana ?) was assaulted by one of the accused known as Gajbhiye and she stated that she could identify said person in the dock. He was accused No.13 - Gajanan Belekar. She stated that he was known by name Gajbhiye. She stated that accused then went after her elder brother Vikram but he fled away from there.
She stated that accused took away cash, silver, gold from her house and damaged household articles. After the accused ran away, her grand mother went to police station. She stated that she could identify the weapons carried by the accused if shown to her. Eight weapons were shown to her and she identified sword - Article No.26 and stated that it was in the hands of accused No.1 - Waman. In cross examination, she stated that she disclosed to the police that accused ::: Downloaded on - 09/06/2013 13:31:50 ::: 27 entered the house by breaking open the back door and the Sessions Court found that omission was only about the location of the door on the back side. The further omission noticed was about the brain of Jyoti coming out but then she has stated in her police statement that brain of her mother was broken into pieces. She did not tell police about her concealing behind the body of her mother. She stated that she disclosed to police that accused No.1 - Waman, accused No.7 -
Sudhakar, accused No.10 - Balya stood on her stomach and beat her and her maternal aunt was also assaulted by the accused and accused ran away with cash, silver and gold ornaments. She could not point out as to why these facts were not appearing in her police statement.
In cross examination, she stated that she was knowing the accused persons who were living in the vicinity of her house and was not knowing some of them. She saw them for the first time on the day of incident and after the incident she had no occasion to talk with them.
She stated that neither herself nor her aunt or her brother Rajesh were given treatment by the doctor after assault. She stated that when the accused assaulted her parents, she along with her maternal aunt ran out of the house and was followed by her grand mother. They went to Nandanwan Police Chowky and stood in front of it. The assailants did ::: Downloaded on - 09/06/2013 13:31:50 ::: 28 not follow them and many of them had covered their faces with clothes. She denied that Prabhakar Patrikar had come to their house for taking food and she stated that she was not acquainted with him.
She stated that she never heard about the assailants being residents of Chuna Bhatti area and Reshambagh area. She stated that she heard that they were residents of Rambagh and Nandanwan Colony and she further stated that she got the information about them from the family members and she learnt about their names from their discussion only.
She further stated that there was wall between the kitchen and bed room and one cannot directly go to the bed room from the kitchen but has to enter the chhapri. and thereafter proceed to bed room.
17. PW-5 - Vikram, on the date on which his deposition was recorded i.e. on 6.5.2002, was about 17 years old. He stated that all accused persons before the Court entered the house by breaking open the door and charged upon his parents with swords, spears, knives and slipper. They also assaulted her grand mother and aunt. The accused did not permit them to raise shout and brandished the weapons and threatened them with killing. He stated that accused drove them out of the house and damaged household articles. He then went to house ::: Downloaded on - 09/06/2013 13:31:50 ::: 29 of his maternal aunt. He stated that he could identify the weapons by which accused assaulted them and his parents and stated that articles 1 to 7 were the said weapons. In cross examination, he stated that he had disclosed everything to the police. The accused before the Sessions Court tried to show that all this was improvement made by him. The perusal of his police statement, however, reveals that he did not tell police that inmates of the house attempted to shout and the accused threatened them with life or accused drove them out of the house or after incident he went to house of his maternal aunt. He stated that on next day along with others he had gone to the police station where police recorded their statement in succession one after the other and statement of his grand mother was also recorded at that time. He denied that the persons who had come to their house i.e. accused had covered their faces with muffler. He also denied that after entering the house, the accused broke tube light. In further cross examination, he stated that household articles were damaged in their presence and also after they were driven out. He stated that the tube lights in the house were broken and after causing damage to the household articles, they were beaten. He stated that the police had taken them to doctor and he had not sustained any bleeding injury and his sister ::: Downloaded on - 09/06/2013 13:31:50 ::: 30 sustained bleeding injury on her eye brow. He could not state whether she was treated by the doctor or not.
18. PW-6 - Rajesh is the last eye witness. On the date of deposition i.e. 7.5.2002, he was 12 years old. He stated that Waman Mendhe, Balya Mendhe i.e. accused Nos. 1 & 10 with 14 - 15 persons entered the house by breaking open the door and they went to room of his parents, assaulted his father and mother and murdered them.
Thereafter they broke the tube lights, damaged the household articles and grand mother was also assaulted. He stated that he could identify the persons who entered the house and assaulted his parents and grand mother. He stated that they were all accused persons before the Court. The Sessions Court has recorded that witnesses identified all the accused in the dock. In cross examination, he stated that there was quarrel between his father and accused No.1 - Waman over customers and therefore he named accused No.1 - Waman and accused No. 10 - Balya as accused in assault. He could not assign any reason as to why the fact of breaking open the door by accused was not appearing in his police statement. He stated that he knew about 5
- 6 accused persons by face. He stated that the police recorded his ::: Downloaded on - 09/06/2013 13:31:50 ::: 31 statement as per the say of his grand mother and aunt and he denied that he was not present in the house at the relevant time. He stated that at the time of incident, he was studying in fourth standard and he had no concern with any of the accused. He stated that on previous date before Court as also on 7.5.2002, his family members and about 10 persons accompanied him to the Court and they had shown him the accused persons and asked him to remember their names. He denied that Prabhakar Patrikar had come to his house for taking food. He also denied that on the directions of police, for the purposes of identification, he stated that accused persons were not wearing any mask. He stated that the police enquired with his grand mother about the persons suspected of involvement in crime and his grand mother as also his aunt Aruna gave names of 7 to 8 suspects to the police.
19. The evidence above, therefore, shows that none of the eye witnesses have pointed out any participation by accused Nos. 2, 3, 4, 5, 8, 11 and 14 in the crime. No role whatsoever has been ascribed to them in the alleged attack. It is to be remembered that names of accused Nos. 3, 5, 6, 7, 8, 9 and 12 did not figure in FIR (Exh. 57) at all and according to PW-1 - Sulochana, accused Nos. 3, 5, 6, 7, 8, 9, 12 ::: Downloaded on - 09/06/2013 13:31:50 ::: 32 as also accused Nos.2, 4 & 13 had covered their faces. When the names of these seven accused persons did not figure in FIR, on what basis investigating agency involved them in the commission of crime is not explained. PW-6 has stated in cross examination that police asked his grand mother to disclose the names of suspects and she disclosed 7
- 8 names. What independent investigation police authorities have undertaken to ascertain participation of these 7 - 8 suspects is not apparent from the entire evidence. It appears that PW-1 implicated accused Nos. 2, 4 & 13 though their faces were covered. Whether these 7 or 8 names communicated to the Police by PW-1 Sulochana or Aruna were mentioned in alleged FIR by Police or then these 7--8 names were of persons other than those against whom FIR was prepared is not clear. The presence of Prabhakar in the house at the time of incident has come on record through Exh. 57 and through evidence of PW-12 - Police Inspector - Khadse. Two statements of Prabhakar Patrikar recorded by PW-12 are not brought on record and also Prabhakar Patrikar, who appears to have been injured in the assault has not been examined by the prosecution. The same can be said about Aruna, sister of the deceased Jyoti. When the faces of as many as 10 accused persons are admitted to be covered by PW-1 -::: Downloaded on - 09/06/2013 13:31:50 ::: 33
Sulochana, the other two eye witnesses have refused to accept the same except PW-4 - Ashwini. She has stated that many of the accused persons had covered their faces with clothes. In such circumstances, the very identity of accused persons becomes a debatable issue.
Witness No.4 - Ashwini in one breathe stated that she knew accused persons living in the vicinity and was not knowing some of them and she saw them on the day of incident only and after said incident she had no occasion to talk to them. However, a little thereafter in cross examination, she has stated that she heard that assailants were residents of Rambagh and Nandanwan Colony and she gathered this information from the discussion amongst the family members. She also stated that she learnt their names only from the discussion. She along with two brothers have tried to show that Prabhakar Patrikar was not present on the spot on 17.6.2000. Thus, the evidence as to identification of accused as brought on record by the prosecution is not at all satisfactory. The persons whose faces were covered have been mentioned in the FIR and children have identified them before the Court in one stroke by stating "all accused in the court or in the dock". The circumstances definitely warranted holding of identification parade.::: Downloaded on - 09/06/2013 13:31:50 ::: 34
20. In Kanan vs. State of Kerala, reported at AIR 1979 SC 1127, the Hon'ble Apex Court has found that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is without any worth unless there has been a previous T.I. parade to test his power of observation. There witness PW-25 had identified two appellants as persons who were running away near the place of occurrence. He admitted that he did not know those persons by name and yet he named them while identifying them in the Court. In this background, the Hon'ble Apex Court has observed that idea of holding T.I. Parade under Section 9 in the Evidence Act is to test the veracity of the witness on the question of his capability to identify the unknown person whom the witness may have seen him once. If no T.I. Parade is held then it will be wholly unsafe to rely on his bear testimony regarding the identification of an accused for the first time in the Court. In the present facts, there is no identification of above mentioned accused persons whose names were not mentioned by PW-1 - Sulochana in the FIR. The evidence of other alleged eye witnesses clearly shows that they were trying to lie about the incident.
When PW-1 and PW-4 state that faces were covered, the other two eye witnesses were trying to state that faces were not covered. We have ::: Downloaded on - 09/06/2013 13:31:50 ::: 35 already mentioned above the evidence of PW-4 Ashwini which clearly shows that she was not aware which accused persons were living in the vicinity and which one of them was not living in the vicinity. The evidence of PW-6 - Rajesh also shows same state of affairs. His relatives had shown him accused persons and asked him to remember their names. The learned Presiding Officer of the Court below has not made each accused to rise and has not asked the witness to identify him. Though the spot panchnama mentions that it was written in tube light of house in question, all eye witnesses accept that tube lights were broken. If there was darkness and faces of accused were covered, on what basis their names were included as accused either in FIR or thereafter by the police during the investigation, is not at all clear. If the names are included only because they were named by subsequent witnesses in their police statement, holding of test identification parade was all the more necessary. If these persons were named as suspect by PW-1 and her daughter Aruna (as stated by PW-6 Rajesh), independent verification by the police authorities ought to have been pointed out. The point of time at which eye witnesses left the house of deceased is also not clear. PW-1 Sulochana states that when she left for police station, accused were still inside the house.::: Downloaded on - 09/06/2013 13:31:50 ::: 36
PW-5 - Vikram stated that accused drove them out of the house and damaged household articles. PW-4 Ashwini stated that when the accused assaulted her parents, she along with her maternal aunt Aruna ran out of the house and was followed by her grand mother i.e. PW-1 Sulochana. They went to Nandanwan Police Chowky and stood in front of it. The way in which accused forced or took entry in house is also not proved by consistent and cogent evidence. All these facts create serious doubt about presence of all accused in the house or then about their description of entire incident. Mere mention of broken back door in spot panchanama, is therefore not an incriminating circumstance here. In view of reasons given by the Hon'ble Apex Court above, we find failure to hold identification parade by police or want of proper identification before learned Sessions Court is fatal to the prosecution.
21. As already observed above, there is no direct evidence against accused Nos. 2, 3, 4, 5, 8, 11 & 14. It will now be appropriate to find out whether there is any other evidence available against accused on record. It is not the case of the prosecution that the conviction of these accused persons is based upon circumstantial ::: Downloaded on - 09/06/2013 13:31:50 ::: 37 evidence. The seizure of weapons and seizure of clothes is the only other evidence available on record. These weapons are discovered under Section 27 of the Evidence Act and some clothes are also discovered under Section 27 of the Evidence Act. In the present facts, this at the most can only be the evidence in corroboration. It cannot be the substantive evidence to conclude that guilt of these persons is proved beyond reasonable doubt. The weapons seized under Section 27 are sword from accused No.1 - Waman, sword from accused No.6 -
Vinod, dagger from accused No.7 - Yadav, sword from accused No.8 -
Pankaj and sickle from accused No.9 - Pramod. In her deposition, PW-
1 has stated that accused No.1 - Waman and accused No. 9 - Pramod were armed with swords. Similarly, PW-4 - Ashwini has stated that accused No.1 - Waman and accused No. 10 - Balya @ Narendra armed with sword. In addition to this, PW-1 has stated that accused No. 6 - Vinod was armed with sickle, accused No. 12 - Sanjay was armed with dagger and accused No. 13 - Gajanan was armed with knife and accused No. 15 Manoj was armed with sickle. There is no recovery under Section 27 from accused Nos. 10, 12, 13 & 15. The weapons seized are articles No. 23 to 29 and 31. All these were forwarded to Chemical Analyser and perusal of report Exh. 135 sent by ::: Downloaded on - 09/06/2013 13:31:50 ::: 38 Chemical Analyser shows that no blood stains were found on any of these weapons.
22. The prosecution has also pointed out seizure of a shirt from accused No.5 - Bhimrao, shirt and pant from accused No.7 - Kalu @ Sudhakar, shirt and pant from accused No. 8 - Pankaj and shirt and pant from accused No. 9 - Pramod. These clothes are stated to be blood stained. Here, it is important to note that investigating agency has not made any effort to even point out blood group of the deceased Jyoti or deceased Jaffer. However, clothes on the person of Jyoti are found to contain blood of group "B" while clothes of Jaffer were found to contain blood of group "A". The bed sheet on cot on which bodies of deceased were lying was found to contain blood of group "A".
Blood of all 15 accused was collected and blood of accused No.1 -
Waman was found to be of "B" group and blood of accused No.7 - Kalu @ Sudhakar and accused No. 11 - Vishwapal is found to be of "O"
group. The blood group of remaining accused persons i.e. accused Nos. 2, 3, 4, 5, 6, 8, 9, 10, 12, 13, 14 & 15 could not be determined as the tests were inconclusive. The shirt only seized from Kalu @ Sudhakar was found to be blood stained with human blood of groups ::: Downloaded on - 09/06/2013 13:31:50 ::: 39 "A" and "B" both. The dagger seized from Kalu @ Sudhakar was found to contain human blood but its grouping results were inconclusive.
The shirt and pant seized from accused No.8 - Pankaj were found to contain human blood stains and his shirt was found to have blood stains of group "A" and group "B" both. Shirt and full pant of accused No. 9 - Pramod Gujar were also sent to Chemical Analyser and no blood was detected on his shirt, however, his full pant was found to contain stains of blood group "A" as also blood group "B". The blood group of both deceased is itself not available on record. In these circumstances, this evidence which is basically corroborative in nature cannot be used to connect the accused with the commission of crime itself.
23. The shirt seized from accused No.5 - Bhimrao is found to contain stains of blood group "A" as also blood group "B". However, the record reveals that shirt is not seized from him but as per deposition of PW- 7 - Vinod Shrirame at Exh. 69 it has been seized from the house of accused No.1 - Waman. The police called him to the house of Waman and showed him one shirt which police informed him as of Bhimrao. The witness has stated that Bhimrao was present on ::: Downloaded on - 09/06/2013 13:31:50 ::: 40 the spot and he told the police that the shirt was owned by him. Exh.
71 is the seizure memo dated 18.6.2000 prepared by the police in this respect and it does not mention house of accused No.1 as place of seizure or it does not mention name of accused - Bhimrao as person from whom it is seized. It only mentions that a shirt found to be worn by the accused, who participated in the commission of crime, was seized by the police. This seizure memo does not mention that Bhimrao was present on the spot though at the end it carries right hand thumb impression of Bhimrao. There is no memorandum or disclosure statement made by Bhimrao or Waman in relation to said shirt on record. When this recovery was put to him while recording his statement under Section 313 of Criminal Procedure Code, Bhimrao has denied any knowledge of such recovery. It is difficult, therefore, to connect this shirt to Bhimrao and connect Bhimrao with commission of crime. In view of this material on record, we have tried to verify the position of this seizure of shirt from Bhimrao and entry taken at sana No. 28 in relation to his arrest on 18.6.2000 filed by the prosecution shows that Bhimrao Mendhe at the time of his arrest was found wearing a shirt with blood stains. He was arrested as he was involved in the crime and in his body search, the shirt was seized. This also ::: Downloaded on - 09/06/2013 13:31:50 ::: 41 creates doubt about the seizure of shirt by the prosecuting agency.
24. The seizure of weapons is also not free from doubt. The memorandum of admission recorded on 20.6.2000 vide Exh. 72 in this respect from Kalu @ Sudhakar i.e. accused No. 7 shows that he has in the said statement mentioned names of some of the accused and also various weapons used and then stated that all those weapons were kept by all of them behind the house of Sandip Gujar. Then vide Exh.
73 in presence of two panchas, the police have recovered a dagger from him from the spot described i.e. a bamboo matting near gutter behind house of Sandip Gujar. Exh. 76 is the memorandum under Section 27 recorded on 21.6.2000 from accused No.1 - Waman. The narration is on same lines and he has mentioned the same spot where all of them had hidden the weapons used. Exh. 77 is the recovery panchnama witnessed by Vinod Shrirame and another panch in which iron sword was recovered from the said spot described i.e. a bamboo matting near gutter behind house of Sandip Gujar. Exh. 79 is memorandum dated 24.6.2000 from accused No. 8 - Pankaj and Exh.
105 is memorandum under Section 27 of accused No. 9 - Pramod recorded on 22.6.2000. Again same spot has been mentioned and ::: Downloaded on - 09/06/2013 13:31:50 ::: 42 recovery of one weapon each from the said accused is shown by the police from the same spot i.e. a bamboo matting near gutter behind house of Sandip Gujar. Thus when the police knew on 20.6.2000 itself that all accused have concealed all weapons at particular spot, the seizure has not been effected or recovery has not been done on said date immediately but it has been shown on different dates. The memorandums have been shown from different accused persons on different dates and then a weapon from each has been shown as recovered. When all weapons could have been recovered by police on 20.6.2000 need of showing such a discovery and recovery itself casts serious doubt on entire process. When spot and fact of all weapons being concealed there was within knowledge of PW-12 P.I. Khadse on 20.6.2000, subsequent discoveries from said spot are meaningless. In these circumstances, we find that recovery of weapons also has not been established by legal evidence on record and cannot be used against the accused persons.
25. One of the contentions of the accused is that motive has not been established on record. It has been attempted to demonstrate that the deceased had enmity with other persons in the locality. PW-1 ::: Downloaded on - 09/06/2013 13:31:50 ::: 43
- Sulochana in para 9 accepted that her daughter Jyoti and her former husband as also Jaffer were doing liquor business. She stated that after marriage with Jaffer also for some time ran said liquor business.
She accepted that the deceased Jyoti and her earlier husband Sanjay were involved in pick-pocketing. She accepted that because of Jaffer, residents of locality were harassed and disgusted and there were inimical relations between Jyoti and other residents of locality from the time of her marriage with Jaffer. She stated that Jaffer used to run Pan stall adjacent to pan stall of accused Waman. However, she denied knowledge of any business rivalry and also denied knowledge of frequent quarrel of Jyoti and Jaffer with the accused Waman. PW-4
- Ashwini also accepted that her mother and father Jaffer used to sell liquor and persons used to visit their house for purchasing it. She accepted that relations between them and neighbours were strained.
She denied that there was any quarrel of deceased with accused No.1 -
Waman over customers of pan stall. PW-6 - Rajesh stated that previously his parents used to run liquor business but later on opened pan stall. He stated that there used to be quarrels between his parents and accused No.1 over customer and accused No.1 - Waman lodged report to the police station against his father. He accepted that ::: Downloaded on - 09/06/2013 13:31:50 ::: 44 relations between his parents and Waman were strained. He also accepted that it was correct to state that therefore he named accused No.1 - Waman Mendhe and accused No. 10 - Balya @ Narendra Mendhe as involved in present incident.
26. A person, who has lodged report with the police against the deceased, may not in normal circumstances take such a drastic step of attacking the house of his rival and eliminate him with his wife.
Had there been some dispute between deceased & Waman in recent past, it could have furnished some ground for such attack. The motive for accused No.1 or accused No. 10 for that purpose, therefore, has not been established on record at all. The prosecution could not produce any witness from the neighbourhood and reason thereof has also come on record in cross examination of above mentioned eye witnesses.
Taking overall view of the matter, it is very difficult to accept as conclusively established that the persons whose names did not figure in FIR or whose faces the eye witnesses had no opportunity to see were involved in the commission of crime. Even if statement in spot panchnama that it was written in the night hours in the tube light of house in question is accepted to be true, still it is difficult to accept the ::: Downloaded on - 09/06/2013 13:31:50 ::: 45 contention of eye witnesses that these accused persons were involved in the commission of crime. There is absolutely no evidence to prove their participation in the crime beyond reasonable doubt. Even if some motive is presumed, still that by itself can not establish complicity of accused persons in crime.
27. As per PW-1, accused No.1 - Waman accused No. 10 -
Balya @ Narendra, accused No. 11 - Vishwapal, accused No.14 -
Sharad and accused No. 15 - Manoj were having their faces open at the time of alleged attack. Thus, according to her, she could have seen faces only of these five persons and not of remaining persons. Accused No.1 is stated to possess sword both by PW-1 Sulochana and PW-4 -
Ashwini. According to PW-4 - Ashwini, he assaulted Jaffer. The version of PW-4 that he stood on her stomach or kicked her is an omission. Though sword is seized from him, the discovery and recovery is doubtful. His blood group is found to be "B" and no blood stained clothes are recovered from him. In view of the totality of circumstances, when PW- 6 - Rajesh stated that he added name of accused No.1 because of business rivalry, we find it difficult to convict him only on the basis of this evidence. Accused No. 10 - Balya @ ::: Downloaded on - 09/06/2013 13:31:50 ::: 46 Narendra Mendhe is having identical evidence against him but then there is no recovery of any weapon from him and his blood group also has not been established. There is no recovery of blood stained clothes from him. We are, therefore, not in a position to convict him on the basis of such evidence. Insofar as accused No.11 - Vishwapal is concerned, nobody has ascribed any role to him and there is no recovery of any weapon or blood stained clothes from him. There is no evidence against accused No. 14 - Sharad also. PW-1 - Sulochana has stated that accused No. 15 - Manoj was armed with sickle.
Nobody else has given any evidence against him. There is no discovery of weapon or clothes from accused Nos. 14 & 15. It is, therefore, difficult to maintain their conviction in present matter.
Though face of accused Nos. 13 - Gajanan Belekar is stated to be covered by PW-1 - Sulochana, he has been identified as person who attacked her brother Rajesh (PW-6) by PW-4 Ashwini. He has been mentioned as Gajbhiye while identifying him by PW-4. The evidence is, therefore, not sufficient to convict him.
28. The prosecution, for the reasons best known to it, did not lead evidence of injured Prabhakar Patrikar or of maternal aunt of ::: Downloaded on - 09/06/2013 13:31:50 ::: 47 child witnesses and sister of the deceased i.e. Aruna Rangari. Why said witness, who could have thrown light on the actual incident, have been withheld and why child witnesses were made to enter witness box is not clear. The evidence on record raises serious doubt about the claim of PW-1, PW-4, PW-5 and PW-6 as eye witnesses. In Bijoy Singh vs. State of Bihar, reported at (2002) 9 SCC 147, the Hon'ble Apex Court has stated that in such circumstances, an onerous duty is cast upon the criminal courts to ensure that no innocent is convicted and deprived of his fundamental liberties in cases involved. In cases involving a number of accused persons, the court has to adopt balanced approach and no innocent person should be convicted and a guilty acquitted under the cloak and cover of the loose and liberal interpretations of the statutory provisions and the technicalities of procedural wrangles. The Hon'ble Apex Court has noticed that many a times there may be a designed effort to harass the relations and friends of the real culprits. Here, as we have found that there is no legal and sufficient evidence to implicate the accused persons, there is no question of any liberal interpretation. Here we find that entire investigation has been very defective and even on merits the alleged eye witnesses have failed to prove involvement of any of the ::: Downloaded on - 09/06/2013 13:31:50 ::: 48 appellants before us.
29. The reliance by the accused persons on the judgment of the Hon'ble Apex Court in the case of Mallanna vs. State of Karnataka, reported at (2007) 8 SCC 523, to contend that when names of accused persons are not appearing in FIR, they are entitled to acquittal is misconceived. The judgment does not lay down any such proposition.
The perusal of paras 25 and 26 of said judgment shows that in FIR no details of participation by the accused persons in commission of crime were given and those details were being given for the first time in the Court after five years. The judgment, therefore, has no application in the facts before us. In the case of State of Rajasthan vs. Mahaveer, reported at AIR 1988 SC 1752, the Hon'ble Apex Court has in view of pre-existing enmity between the parties refused to disbelieve the evidence of eye witnesses who tried to contend that they were hiding in the same room where the incident occurred, after noticing that their story of hiding in that room or of accused persons not noticing them was highly improbable in the facts of the case. The Hon'ble Apex Court noticed that because of improbabilities and infirmities seen in the evidence of eye witnesses, it was doubtful whether the incident ::: Downloaded on - 09/06/2013 13:31:50 ::: 49 happened in the manner in which eye witnesses were trying to present it. The view taken is, therefore, in the facts of the case before the Hon'ble Apex Court. The case of State of Maharashtra vs. Ramsai Sukhlal Yadao, reported at 2007 ALL MR (Cri) 2186, is the judgment of this Court. The Division Bench in para 25 has found that not holding of Test identification parade was a serious lapse which gave a fatal blow to the prosecution case. We have already considered this aspect above.
The judgment in the case of Pratap Singh vs. State of M.P., reported at (2006) 2 SCC (Cri) 284, is relied upon by the accused persons to point out that site plan drawn cannot be relied upon because it does not show the position of eye witnesses on the spot so as to enable anybody to know from where they could have noticed what happened in the bed room. The name of eye witnesses mentioned in the spot map before the Hon'ble Apex Court did not figure in FIR and the Hon'ble Apex Court noticed that the learned Sessions Judge was not correct in drawing adverse inference for their non examination. The High Court had accepted said comment of Sessions Judge and also criticized the mode and manner in which the investigation was conducted. The Hon'ble Apex Court observed that it was not in dispute that one Mangal Singh was only eye witness and he ::: Downloaded on - 09/06/2013 13:31:50 ::: 50 was a minor. His evidence in the facts required closure scrutiny and said minor contradicted himself on material particulars. The Hon'ble Apex Court also noticed those contradictions and found them to be material. The Hon'ble Apex Court noticed that after criticizing the investigation conducted, on that finding alone High Court came to the conclusion that view taken by the Sessions Judge was not reasonable and was contrary to evidence on record. In view of the various contradictions noticed by it, the Hon'ble Apex Court found that the view taken by the learned Sessions Judge that Mangal Singh was tutored witness was not illegal. The Hon'ble Apex Court, therefore, restored the judgment of the Sessions Court. In present case, we have already found the inconsistencies in the evidence of all eye witnesses.
Their mutual contradictions are also noted above. In Vinod Gulabrao Kinake vs. State of Maharashtra (supra), the Division Bench of this Court has considered the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, and in the facts, though the conviction of juvenile was maintained, the sentence awarded by the trial Court including imposition of fine was set aside. In present case, the minor accused No.2 has been tried along with others in regular trial. We have already concluded above that there is no legal evidence ::: Downloaded on - 09/06/2013 13:31:50 ::: 51 establishing beyond reasonable doubt guilt of any of the accused.
During the pendency of trial, accused No.2 - Ajay was subjected to supervision of District Probationary Officer. His reports are already on record. In the circumstances, it is apparent that his conviction also cannot be sustained and deserves to be quashed and set aside.
30. In view of this discussion, impugned judgment delivered on 03.10.2002 by the second Additional Sessions Judge, Nagpur, in Sessions Trial No.233 of 2001 is quashed and set aside. All accused i.e accused No. 1 Waman, accused No. 2 Ajay, accused No. 3 Prashant, accused No. 4 Amar, accused No.5 Bhimrao, accused No.6 Vinod, accused No. 7 Kalu @ Sudhakar, accused No. 8 Pankaj, accused No. 9 Pramod, accused No. 10 Balya @ Narendra, accused No. 11 Vishwapal, accused. No. 12 Sanjay, accused No. 13 Gajay @ Gajanan, accused No.14 - Sharad and accused No. 15 Manoj who are appellants in all three Appeals are, therefore, acquitted and their respective appeals i.e. Criminal Appeal Nos. 648 of 2002, 678 of 2002 & 684 of 2002 hereby stand allowed. Accused No. 5 Bhimrao is already on bail as per orders dated 28/11/2002 on Criminal Application No. 2834 of 2002 and Accused No. 2 Ajay, being juvenile is also on bail as per ::: Downloaded on - 09/06/2013 13:31:50 ::: 52 orders dated 2/12/2005, suspending his sentence and subjecting him to constant supervision of District Probationary Officer. Their bail bonds are, therefore, cancelled. Rest of the Accused, be set at liberty, if their custody is not required by the State in any other matter.
Property involved be disposed of as per rules after expiry of appeal period.
JUDGE JUDGE
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*GS.
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