Bombay High Court
State Of Mah.Thr.P.S.O.Frezarpura vs Sanjay Vasant Gajbhiiye & 5 Ors on 9 January, 2017
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 7 OF 2002
WITH
CRIMINAL APPEAL NO. 26 OF 2002
WITH
CRIMINAL APPEAL NO. 55 OF 2002
AND
CRIMINAL APPEAL NO. 124 OF 2002
CRIMINAL APPEAL NO. 7 OF 2002
1. Ajay s/o Vasant Gajbhiye,
aged about 28 years,
occupation - Government Service,
2. Vasant s/o Sitaram Gajbhiye,
aged about 50 years,
occupation - Government Service
Both residents of Frezarpura, Amravati.
(Presently in Central Prison, Amravati) ... APPELLANTS
Versus
The State of Maharashtra
through P.S.O. Frezarpura, Amravati. ... RESPONDENT
Shri Mahesh Rai, Advocate for appellant No. 1.
Shri R.M. Daga, Advocate for appellant No. 2.
Shri S.D. Sonak, APP for the respondent - State.
.....
CRIMINAL APPEAL NO. 26 OF 2002
Gajanan s/o Udebhan Ramteke,
aged about 20 years,
r/o Amravati (in Jail) ... APPELLANT
Versus
The State of Maharashtra
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through P.S.O. Frezarpura, Amravati. ... RESPONDENT
Shri R.M. Daga, Advocate for the appellant.
Shri S.D. Sonak, APP for the respondent - State.
.....
CRIMINAL APPEAL NO. 55 OF 2002
1. Rambhau Bhivaji Bagde,
aged 47 years, r/o Amravati.
2. Rameshchandra Govindrao
Kamble, aged 45 years,
r/o Amravati ig ... APPELLANTS
(Org. Accused Nos. 5 & 6.
Versus
The State of Maharashtra
through P.S.O. Frezarpura, Amravati. ... RESPONDENT
Shri Mahesh Rai, Advocate for appellant No. 1.
Shri R.M. Daga, Advocate for appellant No. 2.
Shri S.D. Sonak, APP for the respondent - State.
.....
CRIMINAL APPEAL NO. 124 OF 2002
The State of Maharashtra
through Police Station Officer,
Frezarpura, Amravati. ... APPELLANT.
Versus
1. Sanjay Vasant Gajbhiye,
aged about 22 years,
(Original Accused No. 2)
2. Surendra Mahadeo Meshram,
aged about 22 years,
(Original Accused No. 7)
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3. Sunil Chandrabhan Nikose,
aged 22 years,
(Original Accused No. 8)
4. Yuvraj Baliram Sahare
aged 21 years,
(Original Accused No. 9)
5. Balu Laxman Nagdeve,
aged about 20 years,
(Original Accused No. 12)
6. Sharad Amarchand Bagde,
Aged 27 years,
(Original Accused No. 13)
All residents of Frezarpura Police
Station, Frezarpura, Amravati. ... RESPONDENTS.
Shri S.D. Sonak, APP for the appellant - State.
Shri R.M. Daga, Advocate for respondent No. 1.
Shri R.D. Wakode, Advocate for respondent Nos. 2 to 4.
Shri A.M. Jaltare, Advocate for respondent No. 6.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE OF RESERVE : DECEMBER 14, 2016.
DATE OF PRONOUNCEMENT : JANUARY 09, 2017.
JUDGMENT :(PER B.P. DHARMADHIKARI, J.) The prosecution story briefly stated is of assault on the deceased Abhay Deshmukh and PW-3 - Sunil Kulat, by 13 accused persons on 08.02.1991 by coming to the house where Abhay and his wife Vasudha Deshmukh (PW-1) were residing. The details of this story are apparent from deposition of PW-1 which is required ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 4 to be looked into at length as not only convicted accused persons but State Government also is in Criminal Appeal before us.
Accused Nos. 1 and 3 to 6 have assailed their conviction while State Government has assailed acquittal of remaining accused persons except Accused Nos. 10 & 11.
2. We have heard Shri Mahesh Rai, learned counsel for appellant No. 1 - Ajay s/o Vasant Gajbhiye and Shri R.M. Daga, learned counsel for appellant No. 2 - Vasant Sitaram Gajbhiye, in Appeal No. 7 of 2002; Shri R.M. Daga, learned counsel for the appellants in other Criminal Appeals. Shri R.D. Wakode and Shri A.M. Jaltare, learned counsel for acquitted accused persons in State Appeal. Shri S.D. Sonak, learned APP has argued the matter for the State Government. As the entire evidence is required to be looked into, we do not find it necessary to reproduce the rival contentions in these matters.
3. All these Criminal Appeals filed by the convicted accused or by the State Government arise out of the judgment and order dated 12.12.2001 delivered by the Additional Sessions Judge, Amravati, in Sessions Trial No. 140 of 1991. The ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 5 appellants in Criminal Appeal No. 7 of 2002 are Accused Nos. 1 &
3. Appellant in Criminal Appeal No. 26 of 2002 is Accused No. 4 and Accused Nos. 5 & 6 together have filed Criminal Appeal No. 55 of 2002.
4. Criminal Appeal No. 124 of 2002 is filed by the State Government challenging acquittal of Accused Nos. 2, 7, 9, 12 & 13.
There is no appeal filed challenging acquittal of Accused No. 10 -
Sunil and Accused No. 11 - Sudam.
5. To understand the operative part of the order of lower Court, it is necessary to note the points framed by it for consideration as Points No. 2 to 7.
Sr. POINTS FINDINGS
No.
2. Whether prosecution has proved that on Proved only 8/2/91 at about 9.10 P.M. in Chaitanya against accused Colony of Amravati town, all accused Nos. 1, 3, 4 &6. persons in prosecution of common object to assault Abhay Deshmukh and to commit his murder had formed an unlawful assembly and thereby committed riot an offence punishable under Section 147 of I.P. Code ?
3. Whether prosecution has further proved Proved only that on 8/2/01 at about 9.10 P.M. at against accused Chaitanya Colony of Amravati town all Nos. 1, 3 to 6. accused persons or some of them in prosecution of common object of their ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 6 unlawful assembly to commit the murder of Abhay Deshmukh were found armed with deadly weapons to wit knife and gupti and thereby they committed an offence punishable under Section 148 of I.P.C. Code?
4. Whether prosecution has further proved Proved only that on 8/2/91 at about 9.10 P.M. at against accused Chaitanya Colony of Amravati town all Nos. 1 and 3 to accused persons or some of them in 6.
prosecution of common object of their unlawful assembly assaulted person viz.
Abhay Gajanan Deshmukh by means of deadly weapons to wit knife and gupti and caused grievance injuries to Abhay Deshmukh on his vital organ ?
5. Whether prosecution has further proved Proved only that on 8/2/1991 at about 9.10 P.M. at against accused Chaitanya Colony of Amravati town all Nos. 1 and 3 to accused persons in prosecution of their 6.
common object of unlawful assembly while making assault on Abhay Gajanan Deshmukh by means of deadly weapons to wit knife and gupti and while causing grievous injuries to him had intended to commit the murder of Abhay Gajanan Deshmukh and thereby all of them are guilty of offence punishable under Sections 302 read with Section 149 of Indian Penal Code ?
6. Whether prosecution has further proved No that on 8/2/91 at 9.10 P.M. all accused persons or some of them in prosecution of common object of their unlawful assembly had voluntarily caused simple hurt to person viz. Sunil Kulat by assaulting him by weapon knife or gupti or any other instrument like stick and thereby committed an offence punishable under Section 324 read with Section 149 of Indian Penal Code ?
7. Whether prosecution has further proved No that on 9/2/91 at about 6 A.M. along ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 7 Shamnagar to Rukhmini Nagar road accused No. 13 found while taking away weapon gupti to dispose of the same so as to cause to disappear the evidence of murder of Abhay Deshmukh with an intention to screen himself and other accused persons from legal punishment of offence of murder and thereby committed an offence punishable under Section 201 of Indian Penal Code ?
6. The trial Court has acquitted Accused No. 2 - Sanjay Vasant Gajbhiye, Accused No. 7 - Surendra Mahadeo Meshram, Accused No. 8 - Sunil Chandrabhan Nikose, Accused No. 9 -
Yuvraj Baliram Sahare, Accused No. 10 - Sunil Sadashio Gajbhiye, Accused No. 11 - Sudam Manikrao Borkar and Accused No. 12 -
Balu Laxman Nagdive of the offences punishable under Sections 147, 148, 302 and 324 read with Section 149 of the Indian Penal Code. Accused No. 13 - Sharad Amarchand Bagde came to be acquitted of these offences as also of offence punishable under Section 201 of the Indian Penal Code. Accused Nos. 1 and 3 to 6 are also acquitted of the offences punishable under Section 324 read with Section 149 of the Indian Penal Code. However, they are found guilty for having committed an offence punishable under Sections 147, 148 and Section 302 read with Section 149 of the Indian Penal Code. For the offence under Sections 147 and 148 ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 8 they are sentenced to suffer Rigorous Imprisonment for a period of two years and fine of Rs.300/-, in default further R.I. for one month. For the offence punishable under Sections 302 and 149 of the Indian Penal Code, each of them is sentenced to suffer life imprisonment and to pay fine of Rs.500/-, in default, R.I. for two months. Appropriate set off is also ordered.
7. After these convicted accused filed their respective appeals, this Court has ordered their release on bail during the pendency of these proceedings.
8. There are two accused by name Sunil in present matter. Accused No. 8 - Sunil Nikose and Accused No. 10 - Sunil Gajbhiye. Both are acquitted by the trial Court. The State Government has challenged acquittal of Sunil Nikose only in its appeal.
9. The evidence against accused persons is in the shape of four eye witnesses, seizure of weapons and clothes from their person and report of Chemical Analyzer upon it.
10. Abhay Deshmukh was killed on 08.02.2991 at about ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 9 9.10 PM and in relation to this death, all these persons were tried.
His widow PW-1 - Vasudha and her sister by name Kavita (PW-2) are the important eye witnesses. PW-3 - Sunil Kulat, who happens to be friend of the deceased and claimed to be a victim of assailants is third eye witness. He has not supported the prosecution. PW-4 - Subhash, a neighbour cited as eye witness has also not supported the prosecution.
11. A perusal of evidence of PW-1 - Vasudha reveals that the deceased husband and she herself resided in tenanted house belonging to Kalawanti Ramteke. Accused No. 3 - Vasant Gajbhiye, brother of Kalawanti Ramteke looked after the affairs of that house and he was asking them to vacate. Couple found an alternate house of one Mrs. Bagde in the area known as Kishornagar and on 01.02.1991 paid an advance of Rs.500/- to Mrs. Bagde to secure it. Maternal brother of PW-1 - residing in Kishornagar area was informed by Mrs. Bagde that she was not willing to lease house to the couple. Due to this development, Abhay and one Raju Lunge went to meet Mrs. Bagde. After coming back, he informed PW-1 that accused No. 3 had communicated to Mrs. Bagde about non-payment of rent regularly ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 10 by the couple and their refusal to vacate. After getting knowledge of this deed of accused No. 3, Abhay along with Raju Lunge also went to the house of Vasant Gajbhiye to inquire why he was not permitting them to vacate the house. Accused No. 1 - Ajay, son of Accused No. 3 and other son Sanjay came out and abused her husband.
12. After this incident in the evening of 07.02.1991, on next day i.e. on 08.02.1991, her husband returned home from office at about 6.00 PM. One Sadhana Deshmukh, daughter of her maternal uncle and Kavita (PW-2) were present at her house. The younger brother of her husband viz. Ajay Deshmukh came there and informed that he had a quarrel with accused No. 1 - Ajay Gajbhiye at Motinagar chowk. Gajanan Ramteke (accused No. 4) also quarreled with him.
13. At 7.45 PM when she herself and her husband, Kavita and Sadhana were present, Accused No. 1 - Ajay Gajbhiye and Accused No. 4 - Gajanan Ramteke accompanied by 4 to 5 boys came there. They inquired whereabouts of her husband, Abhay and his brother Ajay. They abused them all and then went away.
::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 11Her husband then went on Luna to Frezarpura Police Station to lodge a report. He returned back between 9 PM or 10 PM accompanied by his friend Harshal Kadam. They drank water and her husband took Harshal Kadam on Lune to drop him at his house. PW-1 - Vasudha, Sadhana and Kavita then went inside the house and started their dinner. At about 9.15 PM their door bell rang and there was knocking. All three came in the front room and from window they saw accused No. 1 - Ajay Gajbhiye, accused No. 4 - Gajanan Ramteke on ota (platform) in front of their house.
Accused No. 3 - Vasant Gajbhiye, accused No. 2 - Sanjay Gajbhiye were also present. Trial Court has recorded that PW-1 pointed out accused No. 3 seated in the dock and stated that he along with Vasant Gajbhiye and Rambhau Bagde were present. The trial Court records that Rambhau Kamble was also pointed out by the witness in the court. She identified one accused as Ramesh Kamble and stated that he was also present. Ajay Gajbhiye asked her whether her husband was inside the house. He brandished a knife and told that house belonged to them and it should be vacated. She also identified accused No. 1 - Ajay Gajbhiye in Court hall. The trial Court has recorded that she indicated accused sitting at Sr. No. 2 in the first row. However, immediately, she ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 12 stated that Ajay Gajbhiye was sitting at Sr. No. 2 in upper row.
The trial Court in bracket has recorded that PW-1 pointed out Sanjay Gajbhiye and stated that he brandished knife and asked them to vacate the house. All the accused persons then walked out of gate of compound wall. In the meanwhile, they heard noise of Luna engine and her husband arrived at the gate of compound wall. Accused persons met him there. PW-1 opened the door of house. Kavita, Sadhana and PW-1 went near gate. PW-3 Sunil Kulat had also come on Luna along with her husband and was present at the gate. Accused persons encircled both of them and started scuffle. Accused No. 1 inquired from her husband where his brother Ajay Deshmukh was. Her husband stated that he had no knowledge. Ajay Gajbhiye, Sanjay Gajbhiye, Vasant Gajbhiye, Rambhau Bagde and Ramesh Kamble gave fist and kick blows to her husband and Sunil Kulat. Accused No. 1 - Ajay Gajbhiye took out a knife and gave its blow on chest of her husband. Sanjay Gajbhiye at that time delivered blow of Gupti to her husband.
Because of kick and fist blows Sunil Kulat had fallen down. The assailants then departed from their house. Her husband has collapsed on the ground. PW-3 - Sunil Sudam Kulat brought auto rickshaw. Her sister Kavita brought water and tried to pour it in ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 13 the mouth of Abhay. As lamp post was just near the compound wall with tube-light ON, everything was visible. With the assistance of one Mhatre and Fuse, her husband was put in auto rickshaw. He was brought to Irwin Hospital, Amravati where he was pronounced dead. She then lodged report in Frezarpura Police Station. She proved FIR vide Exh. 62. She also identified black colour saree which got stained with blood and her signature on seizure memo. She indicated person who stabbed with knife on chest of her husband and pointed out person at Sr. No. 1 in the row of accused. This time she identified him as accused No. 1 -
Ajay Gajbhiye. In next breath, she has said that Ajay was sitting at serial no. 2 in top row. She then stated that accused Ajay Gajbhiye, Sanjay Gajbhiye, Vasant Gajbhiye, Rambhau Bagde, Ramesh Kamble and Gajanan Ramteke were present in Court as accused persons in dock. She identified accused No. 2 - Sanjay Gajbhiye, accused No. 3 - Vasant Gajbhiye, accused No. 5 -
Rambhau Bagde and accused No. 6 - Ramesh Kamble. She stated that other accused persons were also present with them but their names she was not knowing and she could identify them only with their faces. She identified in T.I. parade accused seated at Sr. No. 3 in the second row. Said person was accused No. 10 - Sunil ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 14 Chandrabhan Nikose. She also indicated accused sitting at Sr. No. 2 in second row from the side of window/ wall and disclosed that she identified him because of his face in the Identification Parade.
This person was accused No. 11 - Sudam Borkar. She could not remember or identify whether one of the accused persons sitting alone on the chair facing north was present at the time of incident or not. However, person sitting at Sr. No. 4 in second row was present. That person was Yuvraj Sahare (accused No. 9). She expressed her inability to identify either by name or by face remaining accused persons and could not, therefore, state whether they were or were not present at the time of assault on her husband. In chief, she deposed that on the next day, police recorded her statement afresh. She further stated that she may not be able to identify the weapons such as knife and gupti, if shown to her.
14. Her cross examination conducted by accused Nos. 1 to 3 and accused No. 13 reveals that she had earlier come to Court on two different dates but her deposition could not be recorded. She denied that she was given FIR and her statement to read or then she was given list of accused persons. She was in Irwin hospital ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 15 for 10 to 15 minutes. Kavita, Sadhana, Ajay (her husband's brother) and her maternal uncle Purshottam had also come to hospital. From hospital all of them went to Police Station in Police jeep to lodge report. In hospital, Purshottam had inquired about the incidence. She and Ajay Deshmukh had discussed on how to lodge the report. She denied that Ajay Deshmukh gave her names of persons to be named as accused persons. All of them reached Police Station at about 10.30 PM and were there for 1½ hours.
She stated that on next day i.e. on 09.02.1991, she did not go to Police station. She declined that on next day she carried pink coloured saree and it was seized by police. She volunteered that police had come to her house and saree was seized there.
15. Her cross examination in paragraph 7 reveals that in FIR she did not mention inquiry made earlier by accused No. 1 -
Ajay Gajbhiye and accused No. 4 - Gajanan Ramteke about her husband and brother. She explained that she was under the impression that her husband had already lodged report about that inquiry with the police, so she did not again speak about it while reporting the murder. She declined that accused No. 1 and accused No. 4 did not come along with some boys to her house ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 16 and abused them. She accepted that fact of accused No. 1 - Ajay Gajbhiye brandishing a knife and asking them to vacate, was not appearing in her report. She explained that as her mental condition was disturbed, she might not have spoken about it. She denied that no such incident took place. She could not explain why the fact that PW-3 - Sunil Kulat was accompanying her husband on Luna did not figure in her report. Similarly, non mention of accused persons surrounding her husband and Sunil Kulat at gate, accused persons Ajay, Sanjay, Vasant, Rambhau and Ramesh giving fist and kicks blow to her husband and Sunil could not be explained by her. She stated that name of Sanjay Gajbhiye was disclosed by her while giving FIR but could not explain why police omitted it. Assault on her husband with Gupti by said Sanjay and fist blows by him also did not appear in FIR and she could not explain its reason. Similarly, she could not explain why the fact that as a result of kicks and fist blows PW-3 Sunil Kulat fell down, did not appear in it. She denied that she was not knowing or not in a position to identify Sanjay Gajbhiye and Ajay Gajbhiye.
She identified both of them in T.I.P. She denied that accused No. 4 - Gajanan, Accused No. 5 - Rambhau and accused No. 6 -
Ramesh were not standing in Identification Parade and she did not ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 17 identify them. She asserted that accused Nos. 1, 2 and 4 to 6 were all made to stand in identification parade. She denied that by imputing role to accused No. 1 - Ajay and accused No. 2 - Sanjay, she was deposing false. She states that accused No. 2 - Sanjay had a gupti but not knife and he did not assault her husband by knife.
She denied that after lodging report at Exh. 62, Ajay Deshmukh told her and PW-2 - Kavita to state that accused No. 2 - Sanjay Gajbhiye was present and assaulted husband with Gupti. She further stated that she did not see Vasant Gajbhiye in police station while lodging FIR. She denied that Vasant was in Police Station before they went there. She denied that even at the time of incidence Vasant Gajbhiye was in police station. She stated that she has no personal relations with accused persons. Accused persons were searching for Ajay Deshmukh between 6 PM to 9 PM on 08.02.1991. They were searching for her husband as also his brother Ajay. She has stated that assailants were questioning about her husband and his brother. Thereafter, the trial Court has recorded her deposition in question answer form. PW-1 states that the assailants might have desired to question her brother-in-
law Ajay regarding incident of quarrel which took place at 6.00 PM on the same day. She accepted that she saw 4 to 5 other persons ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 18 at the place of incident. These 4 to 5 persons were other than those named in the FIR. She further stated that the officer holding TIP asked her to identify the accused persons present at the time of incidence. Their role was not asked for. She further stated that she identified accused Gajanan, Rambhau and Ramesh separately and not at one time. She denied that she could not identify these persons in T.I.P.
16. Her further cross reveals that she did not give description of any accused to the police. The police recorded her statement in the morning of 09.02.1991 but she could not give exact time thereof. She could not explain why inquiry made by Ajay Gajbhiye with her husband relating to whereabouts of his brother (Ajay Deshmukh) did not figure in her statement. The answer given by her shows that though she disclosed it, it did not figure in her police statement and she could not explain reason thereof. The trial Court has recorded that in the statement recorded on 09.02.1991, this fact was not specifically appearing.
17. Cross examination in paragraph 13 shows that she had communicated to police her ability to identify unknown persons if ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 19 shown to her. She could not explain why this fact did not figure in her report at Exh. 62. She accepted that in said report, she did not describe type of body constitution, height, clothes etc. of unknown assailants. She accepted that in later statement recorded on 09.02.1991, she did not furnish these details.
18. Thus, use of gupti by accused No. 2 - Sanjay Gajbhiye and assault with it by him on her husband is an omission. The said omission is also proved by putting to the Investigating Officer.
Similarly, attack with fist and kick blows by accused Nos. 3 to 6 on her husband as well as PW-3 - Sunil Kulat is a proved omission.
19. PW-2 - Kavita is younger sister of Vasudha. She speaks of incidence dated 07.02.1991 i.e. about inquiries made by Abhay with Smt. Bagde. She deposes that she stayed overnight in the house of Vasudha along with Sadhana.
20. Speaking about the incidence dated 08.02.1991, she deposed that Vasudha and her husband Abhay came back from office at about 6.00 PM. She then speaks of visit by Ajay Deshmukh and narration of his quarrel with accused No. 1 - Ajay ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 20 Gajbhiye and accused No. 4 - Gajanan Ramteke in Motinagar chowk. Then she speaks of visit by accused No. 1 - Ajay and accused No. 4 - Gajanan between 7.45 and 8.00 PM along with 4- 5 other persons. They inquired about Ajay Deshmukh as also Abhay Deshmukh (deceased). At that time, Abhay Deshmukh was in the house. Ajay Gajbhiye and Gajanan Ramteke abused Abhay Deshmukh and Ajay Deshmukh and threatened to kill them.
Thereafter Ajay and his companion went away. Abhay Deshmukh then went to lodge report. He returned back with his friend Harshad Kadam. After drinking water, they left again. Then they all sat for dinner. Then she points out about ringing of door bell, knocking of door. When they peeped out from window, Ajay Gajbhiye and Gajanan Ramteke were seen on ota (platform) in the courtyard. They were inquiring about whereabouts of Abhay Deshmukh and Ajay Deshmukh. Vasudha told them that both of them were not at home. These two persons were asking them to get out of the house so that they put lock. Other 8 to 10 persons were standing out of the courtyard. Ajay Gajbhiye and those persons then started moving away. At that juncture, the deceased Abhay and PW-3 - Sunil arrived there on Luna. These persons then inquired in courtyard from Abhay about his brother Ajay.
::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 21Hearing voice of Abhay Deshmukh, she and her sister Vasudha came out of the house. Accused persons had assembled in the courtyard and they pushed Sunil Kulat. Accused No. 1 - Ajay Gajbhiye stabbed knife in the chest of Abhay Deshmukh. Sanjay Gajbhiye assaulted deceased by means of Gupti. Abhay Deshmukh collapsed on the ground. Mhatre and Salvi, neighbours were present at that time. Electric bulb on the front wall of the house as well as tube light on lamp post were ON. When Abhay Deshmukh fell down in wounded condition, PW-2 rushed to house to bring water. Vasudha poured some water in the mouth of Abhay.
Thereafter Salvi took Kavita on motorcycle to the house of Purshottam i.e. her maternal uncle. While proceeding towards the house of uncle she noticed PW-3 - Sunil taking auto rickshaw towards Vasudha's house. Purshottam and Salvi went on motorcycle to Irwin Hospital. She along with her maternal aunt went to the hospital. When they reached there, Abhay Deshmukh had already expired. She deposed that thereafter she herself, Vasudha and Sadhana went to Vasudha's house.
21. Prior to incidence, she (Kavita) had seen accused No. 1
- Ajay, accused No. 2 - Sanjay and accused No. 4 - Gajanan on ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 22 one or two occasions as their house was in the vicinity of the house of Vasudha. Mhatre and Salvi were tenants in adjacent house.
PW-2 states that because of passage of 10 years, she was unable to identify faces of Gajanan Ramteke or Sanjay Gajbhiye and Ajay Gajbhiye. She expressed inability to identify them in the Court.
She deposes that she was in a position to identify one of them by face. She identified a person present at the time of assault and that person turned out to be Sanjay Gajbhiye i.e. accused No. 2.
She stated that many faces out of persons sitting in dock were seen by her. She indicated accused sitting on extreme left in the second row, but mentioned that she was not knowing his name. She also indicated accused sitting at Sr. No. 3 in the first row from right side. The trial Court recorded that in the absence of witness, accused sitting at Sr. No. 1 from left side in the second row was asked his name and he turned out to be Vasant Sitaram Gajbhiye i.e. accused No. 3. Similarly, person sitting at Sr. No. 3 in first row (upper row) turned out to be Sharad Amarchand Bagde i.e. accused No. 13. She deposed that after the incidence, she had an occasion to see accused persons other than Gajanan Ramteke, Sanjay Gajbhiye and Ajay Gajbhiye in jail premises during T.I.P. She could identify some of the accused persons there in T.I.P. but ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 23 she could not identify those persons in Court. She also could not state whether accused persons identified by her because of their faces in the Court were identified by her in T.I.P. It is to be note that accused no. 13 Sharad was not exhibited in TIP.
22. She accepted that face of a person changes in 10 years.
She denied that identification by her in Court was a guess work.
She denied that before deposing, she read police statement. She accepted that she did not give any description to Police. She further stated that when she went outside the hall after identification of one accused, PW-1 - Vasudha was in open site of court campus and she was sitting on the bench in varandah. She denied that at that juncture, Vasudha gave her description of other accused persons. Kavita further stated that she identified two more accused during her deposition. She stated that from hospital, she herself, Vasudha, Purshottam and others went to Police Station to lodge FIR. She did not read report lodged by Vasudha. Police inquired from her at that time and whatever she narrated was taken down. Raju Lunge was a friend of the deceased Abhay Deshmukh. She stated that in her police statement, she has pointed out disclosure made to them by the ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 24 deceased after his return from Bagde's house. She accepted that she did not mention name of accused No. 2 - Sanjay Gajbhiye as a person giving abuses. She did not inform police her competency to identify culprits as Police did not ask about it.
23. In paragraph 8, Kavita deposed that on 09.02.1991, she learnt that Gajanan was amongst the assailants. The distance between the door of house and compound gate is about 20 feet and in between, there is a courtyard. The assailants asked about Ajay Gajbhiye in open courtyard. At that time they were near compound. There was altercation between Abhay (deceased) and the assailants. During that altercation, one of the assailants given stab blow on chest of Abhay. Again her further cross examination is recorded in question answer form. Thus, this witness was not in a position to identify all accused persons. Her deposition in paragraph 4 & 7 does not inspire confidence.
24. Witness No. 3 is Sunil Kulat. He deposes that he returned from his office on 08.02.1991 at 6.30 PM. Thereafter he himself and Abhay Deshmukh went on Luna. On way they stopped at Dr. Bonde's dispensary where he got some treatment for ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 25 Blood Pressure. Then he and Abhay Deshmukh went to office of Weekly 'Lokpal'. When they were waiting, Harshal Kadam arrived at that spot. Abhay and Harshal then went to Frezarpura Police Station and came back after sometime. Abhay disclosed to him that he had gone to see his landlord. About night incident, he submits that on Luna of Abhay they came to house of Abhay. They reached there between 9.00 PM and 9.15 PM. Luna was stopped near compound. 10 to 12 persons were present in mob. Some of them questioned Abhay in relation to whereabouts of his brother Abhay. They were talking in loud tone. PW-3 - tried to pacify them. Somebody gave him a push and he fell down. He panicked and got up. He found the deceased Abhay lying on the ground and assailants had run away. He started feeling giddy & could not understand anything for about 2-3 minutes. Abhay was wounded by some of the persons in the mob. He could not say, who was the person who inflicted that injury. Seeing this, PW-3 ran away. One Khandekar came on Luna and he sat on that Luna along with Khandekar. He went to Aara machine, Yashodanagar. Phone call was made by Khandekar and he informed control room about the incidence. PW-3 then went to house of Vilas Mahalle, who resided nearby to inform about the incidence as he was their common ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 26 friend. Before proceeding there, he sent one auto rickshaw to the house of Abhay Deshmukh. Out of 10 to 12 persons in the mob, except Ajay Deshmukh, nobody was known to him either by face or name. He, therefore, stated that he was unable to identify any accused persons. He deposes that on next day, police inquired from him and recorded his statement. He denied that Sanjay Gajbhiye, Ajay Gajbhiye, Vasant Gajbhiye, Gajanan Ramteke and Sudam Borkar were present. He denied that Sudam Borkar caught hold of Abhay Deshmukh by collar. He denied that when PW-3 tried to intervene, he was pushed aside and fell down.
25. At this juncture, the learned APP got PW-3 declared hostile. His further cross examination thereafter continued. His further examination or cross examination is not that relevant for adjudicating the controversy.
26. PW-4 - Subhash Ramchand Salvi is also claimed to be an eye witness. He is a neighbour and he was tenant of accused No. 3 - Vasant Gajbhiye. He speaks about events occurring at about 9.15 PM. He deposes that he and his friend Mhatre came out of house to watch what was going on. 10 to 15 persons had assembled. These persons were not known to PW-4. Persons ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 27 residing in the colony had also gathered at the spot of incidence.
He found PW-3 - Sunil Kulat sitting and Abhay Deshmukh was lying on the ground in a pool of blood. Thus, this witness has not seen the actual assault.
27. In cross examination in paragraph 4, he stated that in the tube light which was ON on that day near Mehandi (a shrub) compound near the house of the deceased. Electric light in the front wall of his house and house of Abhay Deshmukh was also ON. He was not knowing any of the persons who assaulted Abhay.
He was not aware who beat whom. He was not in a position to recollect whether portion marked in red by letter 'A' in his police statement was right or not. The portion marked 'A' contains a statement that Vasant Gajbhiye, Ajay Gajbhiye and Sanjay Gajbhiye as also Gajanan Ramteke and their other friends had assembled and they assaulted Abhay Deshmukh and Sunil Kulat with fist and kick blows. He claimed that he was in habit of forgetting everything and, therefore, not knowing what he had stated at portion 'A'. He could not state whether that portion 'A' was right or wrong. Similar is his answer regarding portion marked 'B' to the effect that he saw assailants of Abhay and Sunil ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 28 when they were running away.
28. After the incidence, he stayed in the house of Vasant Gajbhiye for 15 to 20 days and then shifted to other house.
29. Thus, this witness again is not in a position to speak anything about actual assault. Thus, on actual assault on Abhay, there are only two witnesses viz., his widow Vasudha and her sister Kavita.
30. The respective counsel for the accused have pointed out two Station diary entries i.e. entry Nos. 62 & 63. They urge that in these entries taken by the police authorities at the earliest point of time, assault mentioned is by unknown persons. Hence, addition of names of accused persons as assailants is definitely on account of discussion between Vasudha and her brother-in-law Ajay Deshmukh.
31. Names narrated by Vasudha, when she lodged report at Exh. 62 are matter of record. The defence has tried to point out improvements made by her thereafter. Hence, our attention has been invited to Exh. 62. According to State, her statement ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 29 recorded on the next day under Section 161 of the Code of Criminal Procedure is important. The learned APP has also pointed out that supplementary statement of Vasudha was recorded on 17.05.1991.
32. After the incidence, PW-1, PW-2 along with other persons went to General Hospital i.e. Irwin Hospital at Amravati.
There the victim Abhay was declared dead. Then in police jeep they proceeded to Frezarpura Police Station to lodge report.
33. A perusal of report Exh. 62 reveals that whatever was stated orally by Vasudha was taken down by Police Station Officer Shri Gautam. She has disclosed that accused No. 1 - Ajay Gajbhiye, Gajanan Ramteke and 4 - 5 young boys had come to her house and threatened. Then her husband went to lodge report, came back and again went out. After he went out, again accused persons Ajay Gajbhiye, Gajanan Ramteke, Vasant Gajbhiye, Rambhau Bagde, Ramesh Bagde and 4 - 5 boys came to their house. On hearing their threats PW-1 and PW-2 came out and found that these persons were asking her to bring her husband outside the house. In the meanwhile, her husband arrived there ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 30 on Luna. These persons caught hold of him and inquired about his brother. Accused No. 1 - Ajay took out a knife from his pocket and inflicted blow on chest of her husband. Neighbours were watching the developments.
34. This report is lodged by her after discussion with brother-in-law Ajay and in it she has not named accused No. 2 -
Sanjay. She has also not described his role. Persons named therein by her are accused Nos. 1 and 3 to 6.
35. PW-2 her sister speaks of assault by accused No. 2 -
Sanjay with Gupti. She claims that the police had recorded her statement on 08.02.1991 itself but that statement is not produced by the prosecution on record. Her statement recorded on 09.02.1991 instead forms part of charge sheet. Name of accused No. 2 - Sanjay with his role finds mention in this statement recorded on next day. Similarly, it appears in the statement of Vasudha was also recorded on next day.
36. The Investigating officer PW-13 - Gautam has been questioned in this respect and in paragraph 7 of cross examination, ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 31 he has stated that statement of Kavita Deshmukh recorded on 08.02.1991 was not filed on record. He volunteered that her statement was recorded on 09.02.1991 and it was on record.
Cross examination of this witness in paragraphs 6 & 7 is important.
His deposition has been recorded in October 2000 and at that time he was Dy. S.P., C.I.D., Amravati. At the relevant time, he was in-
charge of Frezarpura Police Station. His deposition shows that he did not prepare arrest panchnama of any accused. He states that entry was taken in arrest register in which all relevant details appear. Copy of those entries was not filed. Thus, the physical condition of accused or his clothes immediately at arrest is not on record. Not only this, but date and time of their arrest is also not on record.
37. In this background, the seizure of clothes of respective accused persons effected by him needs to be appreciated. The said seizure is at Exh. 71 from Surendra Mahadeorao Meshram i.e. accused No. 7. A blue coloured torn lungi and one white shirt torn near collar are seized from him on 09.02.1991 at 2.30 O' clock and panchnama is concluded at 2.45 O' clock. Seizure from Sunil Nikose - accused No. 8 of a white shirt and black coloured full ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 32 pant is recorded at 2.30 O' clock on 09.02.1991 by the very same officer in presence of very same panchas. Seizure of half manila and a full pant from Sunil Gajbhiye is also recorded on the very same day at 3 O' clock. At 4 O' clock, the seizure of shirt and jeans full pant is recorded from Sudam. The prosecution has not challenged acquittal of this Sunil and Sudam by the trial Court.
38. At 09.02.1991, without mentioning date and hour of seizure, shirt and full pant was seized from accused No. 9 - Yuvraj.
On the very same day at 4.30 O' clock bluish coloured banian with stains like blood and bluish coloured full pant again with stains like that of blood was seized from accused No. 2 - Sanjay.
39. On 09.02.1991 at 22.30 hrs. a Manila and Terricot pant are seized from accused No. 3 - Vasant. In this panchnama, it is mentioned that these clothes were on the person of accused at the time of commission of offence. With similar endorsement and at the very same time, clothes were seized from accused No. 6 -
Rameshchandra Kamble. Seizure from Gajanan Ramteke (accused No. 4) is of same date and same time. In this panchnama, there is mention of stains like blood on shirt as also on full pant. It is not ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 33 mentioned that these clothes were on his person. Vide seizure memo at Exh. 80, on 09.02.1991 at 22.30 hrs. i.e. same time, a shirt and full pant were seized from accused No. 1 Ajay Gajbhiye.
Stains like blood find mention in description of seized articles.
This panchnama also carries remark that clothes were on the person of accused at the time of commission of offence. On the same date and same hour, a half sleeved manila and a full pant are shown to have been seized from accused No. 5 - Rambhau Bagde.
There is no mention of blood stains but remark that these clothes were on his person at the time of commission of offence appears.
Vide Exh. 82, at the same time and same hour, shirt and full pant alleged to be on the person of accused Bandu Laxman Nagdeve are seized. Thus, when all these seizure memos are read together, blood stains, if present are taken note of in it. Similarly if clothes were reported to be on person of accused at the time of commission of offence, that note has also been taken. However, it is not mentioned anywhere that said clothes were on their person when the same were seized or then at the time of their arrest As place of arrest and time of arrest is not certain, mode and manner of seizure of clothes has not come on record. Whether these clothes were produced by the accused persons voluntarily in police ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 34 station or they were found wearing it at the time of arrest or then police raided their residence and seized the clothes, therefore, has not come on record.
40. PW-6 - Raju Lunge is the person who has been examined by the prosecution in support of seizure of clothes. He also speaks about an occurrence dated 07.02.1991 when he accompanied Abhay Deshmukh to the house of Mrs. Bagde, taking back of advance from her and visit to the house of Vasant Gajbhiye, quarrel between Vasant Gajbhiye, his two sons and Abhay. He states that after murder of Abhay, between 11.00 and 12.00 at night on that day, he went to Police Station and police seized clothes of several accused persons in his presence. He speaks of Surendra Meshram (accused 7) as one such accused person and identifies his signature on memo of seizure of his shirt and lungi. He also identified lungi. However, he could not identify shirt of Surendra from number of shirts shown to him.
Then he speaks of seizure of black pant and white shirt of the accused Sunil Nikose (accused No. 8). He identified white shirt and black pant shown to him as muddemal article No. 4.
However, he could not distinguish it from other shirts. He also ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 35 points out seizure of clothes of Sunil Gajbhiye (accused No. 10) and accused No. 11 - Sudam Borkar. Both of them are acquitted by the trial Court and State has not challenged that acquittal. He then states that likewise clothes of two or more persons whose name he could not recollect were also seized in his presence. He identified his signature on seizure memo of clothes of accused No. 9 - Yuvraj Sahare, accused No. 2 - Sanjay Gajbhiye. He was then collectively shown six seizure memos and he stated that all of them carried his signature and they were drawn in his presence.
Clothes of other accused were seized under six memos one after the other. Those seizure memos were marked by the trial Court as Exhs. 77, 78, 79, 80, 81 & 82. He was shown heap of clothes kept on a stool in court room and he stated that those clothes were seized in his presence from accused at that time.
41. This recording & procedure followed by the trial court shows a very casual approach undermining the sanctity of the justice administration system itself. It is apparent that attention of witness needed to be drawn to each seizure memo & accused/clothes associated with that memo ought to have been identified with reference to their description. We do not wish to ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 36 observe more about this procedure in present matter as the Shri Gautam the investigating officer himself either created or left fatal flaws in the seizure procedure which renders those clothes inadmissible as evidence.
42. Cross examination of PW-6, in paragraph 12, shows that he was not in a position to remember what was written in seizure memo pertaining to clothes of accused No. 1 - Ajay, accused No. 2 - Sanjay and accused No. 3 - Vasant. In paragraph 13 he states that accused No. 5 - Rambhau was arrested between 6 or 6.30 AM on 09.02.1991 and he was with police on the spot where he was arrested. He came with police from Police Station.
He could not point out who amongst accused persons was Rambhau Bagde.
43. Different times or hour of panchnamas recording seizure of clothes are already mentioned by us above. Last of these panchnamas are all drawn at 22.30 hours and thus, there are about five panchnamas drawn on 09.02.1991 then at Police Station. These are from convicted accused No. 3 - Vasant, convicted accused No. 6 - Ramchandra, convicted accused No. 4 -
::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 37Gajanan, convicted accused No. 1 - Ajay and convicted accused No. 5 - Rambhau. As all these seizures are recorded simultaneously by the same officer & witnessed by the same person, the entire exercise looses its importance. It is humanly impossible for anybody to watch it with due care as a witness & vouchsafe its authenticity.
44. This discussion, therefore, shows that PW-6 was not in a position to support seizure and no efforts were made either by the prosecution or by the witness to identify respective clothes and to trace it a particular accused. It appears that the learned trial Court in this situation remained satisfied with mere exhibiting seizure memos without giving the errors in the process its due importance. It may not have found it necessary to comment on this serious lapse by IO.
45. In this background, when evidence of PW-13 -
Investigating Officer Shri Gautam is looked into, he states that panchnamas Exhs. 79 to 82 were prepared while seizing clothes of accused persons Ramesh Kamble (there is no accused by name Ramesh Kamble before the trial Court or before this Court).
Accused No. 4 - Gajanan Ramteke, accused No. 1 - Ajay, accused ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 38 No. 5 - Rambhau. He states that these clothes were on the person of these accused. He does not speak of sealing of clothes thus seized and even seizure panchnama does not show that same were sealed in the presence of witness. The Investigating Officer also was not asked to identify the clothes so as to connect it with any particular panchnama and, therefore, with a particular accused.
46. The report of Chemical Analyzer needs to be appreciated in this background. Human blood is found on clothes of accused No. 1 - Ajay, accused No. 2 - Sanjay, accused No. 9 -
Yuvraj, accused No. 6 - Rameshchandra and accused No. 4 -
Gajanan. In seizure memos, blood stains are mentioned on clothes of accused No. 1 - Ajay, accused No. 2 - Sanjay and accused No. 4
- Gajanan. In relation to clothes of others, seizure memos do not mention finding of any blood stains. Thus, this material of seizure of clothes from respective accused who were acquitted by the trial Court does not enable us to look into the finding of human blood when it is not mentioned in seizure report on their clothes.
47. Shri Sonak, learned APP has placed strong reliance upon Test Identification Parade (TIP). The place where parade ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 39 was held is itself in dispute. PW-1 - Vasudha states that it was held in jail while PW-2 - Kavita supports her in this connection.
PW-4 - Subhash is also sought by the prosecution but he does not speak anything about TIP. He was declared hostile and the learned APP was permitted to cross examine him. Thus, apart from PW-1 and PW-2, Tahsildar, who conducted TIP i.e. PW-7 -
Shivanand Bharti is the only witness available to support it.
48. Before proceeding to consider evidence of Shivanand Bharti, it is important to note that accused No. 11 was not put in TIP and still PW-2 - Kavita claims that she identified him. She admits that in her police statement, she did not give description of any accused person and did not inform police that she would be in a position to identify them. The failure to identify, recorded by the trial Court, is briefly noted by us while commenting upon her evidence. Similarly, PW-1 - Vasudha could identify in Court & in TIP only accused Nos. 8 & 9. She did identify accused Nos. 7 & 12 in TIP. The proceedings of TIP show that PW-2 - Kavita and PW-4
- Subhash could identify only four accused persons each. They have not identified fifth accused person who was standing in the parade. One Bandu Laxman Nagdive is shown as a participating ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 40 accused in TIP. However name of accused 12 is Balu Laxman Nagdive. The evidence of PW-7 - Shivanand shows that he did not inquire from police whether witness had any opportunity to see accused persons earlier. He did not also make any inquiry on these lines from witness. He accepted that any person sitting in open space in front side could have seen accused entering from three gates in Tahsil office campus. He could not state whether witnesses in TIP had seen accused persons while they entered from front gate of Tahsil office.
49. We have to take note of the fact that accused 1 to 6, 11 & 13 were not subjected to any TIP while accused 7 to 9 10 & 12 were only put on it. Shivanand's deposition shows that TIP was held in Tahsil office on 01.06.1991 & 18 persons including the five accused persons took part in it. Thus, this TIP is almost in 16 th week after the incident & the arrests.
50. Shri Wakode, learned counsel has relied upon the judgment in the case of Subhash and Shiv Shankar vs. State of U.P., reported at 1987 Cri. L.J. 991, to point out how delay in conducting TIP is held fatal. There the delay was of same length ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 41 i.e. of four months. Our attention is also drawn to provisions of Chapter I, Rule 15 of Criminal Manual about procedure to be followed while holding TIP. However, in present facts, we do not find it necessary to delve into these procedural irregularities as not only on account of delay but also otherwise, possibility of witness seeing accused persons prior to TIP cannot be ruled out. When PW-1 - Vasudha and her sister Kavita clearly state that TIP was held in jail, it raises a serious doubt about authenticity of said proceedings. The prosecution, therefore, is not in a position to use circumstances like seizure of clothes from accused persons or Chemical Analyzer's report upon it against anybody. Not only this, TIP by itself cannot be relied upon. PW-1 and PW-2 could not identify all the accused persons named by the prosecution in the Court. Therefore, only ocular evidence needs to be appreciated for the purpose of considering this controversy.
51. The omission of presence of accused No. 2 - Sanjay on the spot or use of gupti by him is an omission in report and trial Court has accepted it and acquitted Sanjay. We do not find anything wrong or perverse in this appreciation.
::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 4252. Similarly, beating deceased Abhay by accused No. 1 -
Ajay, accused No. 3 - Vasant, accused No. 5 - Rambhau and Ramesh Kamble is found to be an omission. Deposition of PW-1 -
Vasudha that these persons used fist and kick blows to beat her husband, cannot be accepted.
53. Kavita in her deposition mentions only accused No. 1 -
Ajay and accused No. 4 - Gajanan as persons present on ota. She also mentions that there were 8 to 10 persons with them. Then she mentions that all those persons pushed PW-3 - Sunil and Ajay stabbed knife on chest of the deceased - Abhay. She does not speak of use of fist and kick blows on the deceased - Abhay. PW-3
- Sunil, in his deposition before the Court, does not name anybody. He only mentions 10 to 12 persons. He thereafter mentions that somebody gave him a push and he fell down. He got frightened and while getting up he noticed that Abhay Deshmukh (deceased) was lying on the ground and the assailants had run away. He was declared hostile. Thus, he also does not support any assault on him by kick and fist blows.
54. Thus, ocular evidence of PW-2 - Kavita only supports ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 43 PW-1 - Vasudha to the extent of presence of accused No. 1 - Ajay on the spot and stabbing by him with knife. She does not take name of Vasant also. Paragraph 4 of examination-in-chief of Kavita reveals that identification in Court by her does not inspire any confidence.
55. Here, it is important to look into evidence of Police Constable - Punjabrao Vithalrao Gadling (PW-9). After pointing out earlier report lodged by Abhay, he in cross examination states that at about 9.20 PM, a telephonic message was received that one unknown person had stabbed knife to one man at Yashodanagar.
PSI Mhaske proceeded there with staff. Shri Mhaske returned at about 10.00 PM and he then made entry No. 63 in Station diary.
PW-1 Vasudha was with Mhaske at that time. In that entry, assault on Abhay Deshmukh by 8 to 10 persons is mentioned.
Little later, he states that that entry was made by Mhaske at his own without any inquiry from Vasudha Deshmukh. No name of any accused person was mentioned by Shri Mhaske.
56. A perusal of entry No. 61 (Exh. 118) shows that at 21.20 hours in Police station diary, on telephonic message, attack ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 44 with knife by an unknown person was entered. Vide entry No. 63, fact of attack by 8 to 10 persons on Abhay Deshmukh and taking Abhay Deshmukh to Irwin Hospital appears In this Station diary entry, Shri Mhaske mentioned that after confirming the fact with Sau. Vasudha w/o deceased, he returned to police station.
Thereafter, half an hour later, vide entry No. 64 crime No. 49 of 1991 under Sections 302, 147, 148 & 149 of IPC has been registered. In this entry, word "accused" itself is not used.
57. When PW-1 - Vasudha came to Police Station with PSI Mhaske, it follows that it is only after her husband was already declared dead. She has also stated that she came to police station with police in police jeep. Thus, after Abhay's death, as deposed by PW-9 - Punjabrao, entry of assault by 8 to 10 unknown persons was taken in station diary. Surely Shri Mhaske was aware of death & had Vasudha disclosed the identity of culprits, he ought to have entered those names. Why at that time names of assailants, if disclosed by Vasudha, could not be recorded is not clear. Purpose of taking entry No. 64 half an hour thereafter by same Shri Mhaske is also not apparent.
::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 4558. At this stage, it will be appropriate to consider evidence of PW-11 Dr. Suresh Thakare. His evidence discloses 8 incise wounds on body of Ajay. Out of it two were on chest. His deposition does not support use of any fist or kick blows on the deceased. This Doctor has also deposed that all wounds were possible by knife. Chest injuries are deposed to be delivered with force.
59. Thus, oral evidence of PW-1 - Vasudha who claims that she watched entire attack, does not support all these injuries. PW-
10 is PSI Vithoba Mhaske. He had proceeded to spot immediately after receipt of phone call and thereafter he came to hospital. He deposes that when he reached hospital, Abhay Deshmukh was already dead. Impliedly before taking entry No. 63 in station diary at 10.00 O' clock, this officer was aware that Abhay Deshmukh had expired. He states that he took Vasudha to Police Station in jeep in order to record her complaint. Then he speaks of further investigation. Cross examination in paragraph 8 brings on record need for verification felt by him. He further states that while talking to Vasudha in hospital, he did not ask her whether she saw assault on her husband or not. He further stated that along with ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 46 Vasudha, 3 - 4 persons also came to police station. Distance between hospital and police station is between one to one and half km. and in jeep also he did not make any inquiry from Vasudha.
This conduct again raises serious doubt about his integrity & sincerity. Normally Vasudha & her sister Kavita could narrated names of assailants & their description also to him & to other relatives. In any case, after seeing police, names of the assailants ought to have been & could have been narrated by them.
60. This discussion assumes importance because of the fact that there are certain omissions in FIR which has been recorded in Police Station and deposition. Statement of Vasudha under Section 161 Criminal Procedure Code was recorded on next day and supplementary statement was drawn on 17.05.1991. PW-2 -
Kavita states that her statement was recorded on the date of incident itself but that statement has not come on record. We can not presume that PW-10 Mhaske was not aware of the need to at-
once ascertain identity of the assailants or their description. He must have accordingly inquired at least from Vasudha, Kavita & recorded their initial statements under S. 161 Cr. P.C. Why these statements have not seen the light of the day is a moot question. In ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 47 paragraph 5 of her cross-examination, PW-1 Smt. Vasudha herself states that she had discussion with her brother in law Ajay Deshmukh as to how the police report was to be lodged.
61. On 17.01.2011 this Court has taken note of plea that accused No. 1 - Ajay was below 18 years of age on 08.02.1991.
Accordingly, Sessions Judge was directed to hold inquiry and report within six months. That report has been received and report shows that appellant No. 1 - Ajay was below 18 years of age on that day. Said report dated 28.06.2011 after looking into the birth records of Municipal Corporation, evidence of mother and Headmistress of Zilla Parishad School at Benoda holds that Ajay is born on 25.10.1973. Thus, he was 17 years 3 months and 13 days old at the time of occurrence.
62. Our conclusions above are based on facts available on record. The parties have referred to several judgments but in this situation, we do not find it necessary to refer to the same.
63. The learned APP has relied upon the judgment of the Hon'ble Apex Court in the case of State of Maharashtra vs. Ramlal Devappa Rathod, reported at 2015 (15) SCC 77, where the Hon'ble ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 48 Apex Court has explained the law on Section 149 of the Indian Penal Code and pointed out that in appropriate cases conviction can be based also on deposition of a solitary witness. We only point out that here, deposition of two eye witnesses viz. PW-1 Vasudha and PW-2 Kavita are not found cogent, convincing or consistent by this Court.
64. The learned APP has also relied upon the judgment in the case of Jodhan vs. State of Madhya Pradesh, reported at (2015) 11 SCC 52, where mere presence of a person as a member of an unlawful assembly can, in certain circumstances without any overt act, is held sufficient to bring him within the ambit of Section 149 of the Indian Penal Code. Here, we have already noted that presence of accused persons on the spot is itself in doubt.
Judgment of trial court shows involvement of certain unidentified persons along with the accused persons convicted by it. We do not find any thing perverse in this appreciation.
65. We, therefore, find material brought on record by the prosecution insufficient to conclusively hold the accused persons guilty of the offence punishable under Section 302 read with ::: Uploaded on - 11/01/2017 ::: Downloaded on - 12/01/2017 01:00:42 ::: apeal7.02 49 Section 148 and Section 149 of the Indian Penal Code. Charge against & conviction of accused 13 Sharad also therefore, can not be sustained. Hence, they are exonerated and acquitted of the charges for which they are held guilty by the trial Court.
Accordingly, we allow Criminal Appeal Nos. 7 of 2002 as also 26 of 2002 and 55 of 2002. As such, the Criminal Appeal No. 124 of 2002 filed by the State Government is dismissed.
66. Bail bonds furnished by the accused persons are hereby cancelled.
67. Muddemal property be dealt with as directed by the trial Court, after the appeal period is over.
JUDGE JUDGE
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*GS.
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