Bombay High Court
Umesh S/O Sampatrao Dahake, And Others vs The State Of Maharshtra, Through Police ... on 26 June, 2015
Bench: A.B. Chaudhari, P.N. Deshmukh
1 apeal569.13 & others
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) CRIMINAL APPEAL NO.569 OF 2013
Vijay s/o Kisanrao Mate,
aged about 38 years,
occupation : business,
r/o Raghuji Nagar, Bhosalewada,
behind Chota Tajbag, P.S.,
Sakkardara, Nagpur. ... Appellant
Original
Accused No.1
- Versus -
The State of Maharashtra,
through Police Station Officer,
P.S. Sadar, Nagpur. ... Respondent
-----------------
Shri A.V. Gupta, Advocate for appellant.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
respondent.
----------------
(II) CRIMINAL APPEAL NO.561 OF 2013
Raju s/o Vitthalrao Bhadre,
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aged about 48 years,
occupation : business,
r/o Bhande Plot, Umrer Road,
Nagpur. ... Appellant
Original
Accused No.15
- Versus -
The State of Maharashtra,
through Police Station Officer,
Sadar Police Station, Nagpur. ... Respondent
-----------------
Shri S.P. Dharmadhikari, Senior Advocate with Shri C.S.
Dharmadhikari and Shri S.A. Dharmadhikari, Advocates
for appellant.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
respondent.
----------------
(III) CRIMINAL APPEAL NO.564 OF 2013
1) Kiran s/o Umraoji Kaithe,
aged 24 years, occupation :
labour, resident of Bhande
Plot, Umred Road, near
Chandsi Hospital, Police
Station, Sakkardara, Nagpur
(original accused no.9)
2) Dinesh s/o Devidas Gaiki,
aged 23 years, occupation :
Centering work, resident of
Bhande Plot, behind Chandsi
Hospital, Plot No.42, Police
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Station, Sakkardara, Nagpur
(original accused no.13) ... Appellants
- Versus -
The State of Maharashtra,
through Police Station Officer,
Sadar, Nagpur, District Nagpur. ... Respondent
------------
Shri A.V. Gupta, Advocate for appellants.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
respondent.
--------
(IV) CRIMINAL APPEAL NO. 570 OF 2013
Ayubkhan s/o Amirkhan Pathan,
age 46 years, occupation :
business, r/o Raghuji Nagar,
Nagpur. ... Appellant
Original
- Versus - Accused
No.11
The State of Maharashtra,
through Police Station Officer,
Sadar Police Station,
District Nagpur. ... Respondent
--------
Shri R.K. Tiwari, Advocate for appellant.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
respondent.
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--------
(V) CRIMINAL APPEAL NO. 573 OF 2013
1) Umesh s/o Sampatrao Dahake,
aged 27 years, occupation : nil,
resident of Somwari Quarter
No.210/2, P.S. Sakkardara,
Nagpur (original accused no.4)
2) Ritesh s/o Hiramanji Gawande,
aged 23 years, occupation :
Panthela, resident of behind
Chota Tajbagh, Sonzarinagar,
Solankiwadi, c/o Haribhau Dhobale,
P.S. Sakkardara, Nagpur
(original accused no.5)
3) Kamlesh s/o Sitaram Nimbarte,
aged 22 years, occupation :
education, resident of Raghujinagar,
Chota Tajbagh, behind Jattewar
Apartment, Plot No.101,
P.S. Sakkardara, Nagpur
(Original accused no.10). ... Appellants
- Versus -
The State of Maharashtra, through
Police Station Officer, Sadar,
Nagpur, District Nagpur. ... Respondent
---------
Shri U.P. Dable, Advocate for appellant no.1.
Shri R.B. Gaikwad, Advocate for appellant no.2.
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Shri A.M. Jaltare, Advocate for appellant no.3.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
respondent.
-----------
(VI) CRIMINAL APPEAL NO.55 OF 2014
Smt. Vijaya Dilipsinghraje
Shirke, aged about 62 years,
occupation : housewife,
r/o new Colony, Sadar,
Nagpur. ... Appellant
- Versus -
1) State of Maharashtra, through
Police Station Officer,
S.P., Sadar, Nagpur.
2) Mangesh Shivajirao Chavan,
aged about 32 years,
occupation : labour,
r/o Raghujinagar, Chhota
Tajbag, behind House of
Vijay Mate, P.S. Sakkardara,
Nagpur.
3) Mayur @ Banti s/o Shivajirao
Chavan, aged 31 years,
occupation : not known,
r/o Raghujinagar, Bhoslewada,
P.S. Sakkardara, Nagpur.
4) Pandurang s/o Motiramji
Injewar, aged about 43 years,
occupation : Cable Operator,
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r/o Raghujinagar, Qtr. No.3/81,
P.S., Sakkardara, Nagpur.
5) Rajesh Dayaramji Kadoo,
aged about 38 years,
occupation : Electrician, r/o
Raghujinagar, Plot No.100,
behind Chota Tajbag, P.S.
Sakkardara, Nagpur.
6) Mahesh Damodhar Bante,
aged about 33 years,
occupation : not known,
r/o Raghuji Nagar, behind
Chota Tajbag, in the house of
Vijay Mate, P.S. Sakkardara,
Nagpur.
7) Sandip Nilkanthrao Sanas,
aged about 39 years,
occupation : nil, r/o Raje
Raghujinagar, Qtr. No.6/85,
near the house of Sanjay
Gaikwad, P.S. Sakkardara,
Nagpur.
8) Maroti @ Navva s/o Santoshrao
Walake, aged about 40 years,
occupation : business, r/o
Bhande Plot, behind Chandsi
Hospital, Plot No.46, near the
House of Gaiki, P.S., Sakkardara,
Nagpur. ... Respondents
---------
Smt. Vijaya Dilipsinghraje Shirke, appellant in person.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
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respondent no.1.
Shri R.B. Gaikwad, Advocate for respondent no.2.
Shri A.M. Jaltare, Advocate for respondent no.3.
Shri R.K. Tiwari, Advocate for respondent no.4.
Shri A.V. Gupta, Advocate for respondent nos.5 and 6.
Shri B.R. Trivedi, Advocate for respondent no.8.
------------
(VII) CRIMINAL APPEAL NO.56 OF 2014
Smt. Vijaya Dilipsinghraje
Shirke, aged about 62 years,
occupation : housewife,
r/o new Colony, Sadar,
Nagpur. ... Appellant
- Versus -
1) State of Maharashtra, through
Police Station Officer,
S.P., Sadar, Nagpur.
2) Vijay s/o Kisanrao Mate, aged
about 50 years, occupation :
business, r/o Raghujinagar,
Bhosalewada, behind Chota
Tajbagh, P.S. Sakkardara, Nagpur.
3) Umesh s/o Sampatrao Dahake,
aged about 39 years,
occupation : nil, r/o Somwari
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Qtr. No. 210/2, P.S. Sakkardara,
Nagpur.
4) Ritesh Hiramanji Gawande,
aged about 35 years, occupation :
Panthela, r/o Behind Chota Tajbagh,
Sonzarinagar, Solankiwadi,
c/o Haribhau Dhobale, P.S.
Sakkardara, Nagpur.
5) Kiran s/o Umraoji Kaithe,
aged about 36 years, occupation :
labour, r/o Bhande Plot,
Umred Road, near Chandsi
Hospital, P.S., Sakkardara,
Nagpur.
6) Kamlesh s/o Sitaram Nimbarte,
aged about 34 years, occupation :
nil, r/o Raghujinagar, Chota
Tajbag, behind Jattewar
Apartment, Plot No.101, P.S.
Sakkardara, Nagpur.
7) Ayub Amir Khan, aged about
35 years, occupation : Panthela,
r/o Qtr. No.147/5, Raghujinagar
Housing Board Colony, behind
Mate Vyayam School, P.S.
Sakkardara, Nagpur.
8) Dinesh Devidas Gaiki, aged
about 23 years, occupation :
Centring Work, r/o Bhande
Plot, behind Chandsi Hospital,
Plot No. 42, P.S. Sakkardara,
Nagpur.
9) Raju s/o Vitthalrao Bhadre,
aged about 32 years,
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occupation : business, r/o
Bhande Plot, Umred Road,
c/o Bhaurao Mankar, Behind
Country Liquor Shop, P.S.,
Sakkardara, Nagpur. ... Respondents
--------
Smt. Vijaya Dilipsinghraje Shirke, appellant in person.
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
respondent no.1.
Shri A.V. Gupta, Advocate for respondent nos.2, 5 and
8.
Shri R.K. Tiwari, Advocate for respondent nos.3, 4, 6
and 7.
Shri U.P. Dable, Advocate for respondent no.9.
------------
(VIII) CRIMINAL APPEAL NO. 73 OF 2014
State of Maharashtra, through
Police Station Officer,
S.P., Sadar, Nagpur. ... Appellant
- Versus -
1) Mangesh Shivajirao Chavan,
(original accused no.2),
aged about 20 years,
occupation : labour,
r/o Raghujinagar, Chota
Tajbag, behind the House of
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Vijay Mate, P.S. Sakkardara,
Nagpur.
2) Mayur @ Banti s/o Shivajirao
Chavan, (original accused
no.6), aged 19 years,
occupation : education,
r/o Raghujinagar, Bhoslewada,
P.S. Sakkardara, Nagpur.
3) Pandurang s/o Motiramji
Injewar, (original accused no.7),
aged about 31 years,
occupation : Cable Operator,
r/o Raghujinagar, Qtr. No.3/81,
P.S., Sakkardara, Nagpur.
4) Rajesh Dayaramji Kadoo,
(original accused no.8),
aged about 26 years,
occupation : Electrician, r/o
Raghujinagar, Plot No.100,
behind Chota Tajbag, P.S.
Sakkardara, Nagpur.
5) Mahesh Damodhar Bante,
(original accused no.12),
aged about 21 years,
occupation : education,
r/o Raghuji Nagar, behind
Chota Tajbag, in the house of
Vijay Mate, P.S. Sakkardara,
Nagpur.
6) Sandip Nilkanthrao Sanas,
(original accused no.14),
aged about 27 years,
occupation : nil, r/o Raje
Raghujinagar, Qtr. No.6/85,
near the house of Sanjay
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Gaikwad, P.S. Sakkardara,
Nagpur.
7) Maroti @ Navva s/o Santoshrao
Walake, (original accused
no.16), aged about 28 years,
occupation : business, r/o
Bhande Plot, behind Chandsi
Hospital, Plot No.46, near the
House of Gaiki, P.S., Sakkardara,
Nagpur. ... Respondents
ig -------
Smt. B.H. Dangre, Public Prosecutor with Shri S.M. Ukey
and Shri S.S. Doifode, Additional Public Prosecutors for
appellant.
Shri R.B. Gaikwad, Advocate for respondent no.1.
Shri A. Jaltare, Advocate for respondent no.2.
Shri R.K. Tiwari, Advocate for respondent no.3.
Shri A.V. Gupta, Advocate for respondent nos.4 and 5.
Respondent no.6 served.
Shri B.R. Trivedi, Advocate for respondent no.7.
Date of reserving the judgment : 22nd April, 2015
Date of pronouncing the judgment : 22nd June, 2015.
CORAM : A.B. CHAUDHARI AND
P.N. DESHMUKH, JJ.
JUDGMENT [Per Court] :
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All these criminal appeals take exception to
the judgment and order dated 18/10/2013 passed by
learned Additional Sessions Judge, Nagpur in Sessions
Trial No.554/2002.
For the sake of convenience, accused
numbers are referred according to their serial numbers
as mentioned in charge (Exh.20).
By the impugned judgment passed by the
learned trial Court, accused no.1 Vijay Kisanrao Mate,
accused no.4 Umesh Sampatrao Dahake, accused no.9
Kiran Umraoji Kaithe, accused no.10 Kamlesh Sitaram
Nimbarte, accused no.13 Dinesh s/o Devidas Gaiki and
accused no.15 Raju Vitthalrao Bhadre came to be
convicted for the offences punishable under Sections
147, 148 and 302, 120-B read with Section 149 of
Indian Penal Code and are sentenced to suffer rigorous
imprisonment for one year and to pay fine of Rs.500/-,
in default to suffer simple imprisonment for three
months for the offence punishable under Section 147
of Indian Penal Code, to undergo rigorous
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imprisonment for one year and to pay fine of Rs.500/-,
in default to suffer simple imprisonment for three
months for the offence punishable under Section 148
of Indian Penal Code and to suffer rigorous
imprisonment for life and to pay fine of Rs.1000/- and
in default, to suffer simple imprisonment for three
months for the offences punishable under Sections
302, 120(b) read with Section 149 of Indian Penal
Code.
Accused no.5 Ritesh s/o Hiramanji Gawande
and accused no.11 Ayub s/o Amir Khan are convicted
for the offences punishable under Section 147 and 302,
120(b) read with Section 149 of Indian Penal Code and
are sentenced to suffer rigorous imprisonment for one
year and to pay fine of Rs.500/-, in default, to suffer
simple imprisonment for three months for the offence
punishable under Section 147 of Indian Penal Code and
to undergo rigorous imprisonment for life and pay fine
of Rs.1000/-, in default, to suffer simple imprisonment
for three months for the offences punishable under
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Sections 302, 120(b) read with Section 149 of Indian
Penal Code.
Accused no.1 Vijay Kisanrao Mate, accused
no.4 Umesh Sampatrao Dahake, accused no.5 Ritesh
Hiramanji Gawande, accused no.9 Kiran Umraoji
Kaithe, accused no.10 Kamlesh Sitaram Nimbarte,
accused no.11 Ayub Amir Khan, accused no.13 Dinesh
s/o Devidas Gaiki and accused no.15 Raju Vitthalrao
Bhadre are acquitted of offences punishable under
Sections 186, 332, 353 and 307 of Indian Penal Code,
under Section 4 read with Section 25 of Arms Act and
under Section 135 of Bombay Police Act.
Accused no.2 Mangesh Shivajirao Chavan,
accused no.6 Mayur alias Banti Shivajirao Chavan,
accused no.7 Pandurang Motiram Injewar, accused
no.8 Rajesh Dayaramji Kadoo, accused no.12 Mahesh
Damodhar Bante, accused no.14 Sandip Nilkanthrao
Sanas, accused no.16 Maroti alias Navva Santoshrao
Walake are acquitted of the offences punishable under
Sections 147, 148, 149, 186, 120(b), 332, 353, 307,
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302 read with Section 34 of Indian Penal Code and
under Section 4 read with Section 25 of Arms Act and
Section 135 of Bombay Police Act.
Trial against accused no.3 Sachin Arunrao
Gawande came to be abated since dead. Trial against
accused no.17 Raju Tukaram Gaikwad could not be
conducted since he is absconding.
FACTS
1. The case of prosecution can be briefly stated
as under :
Deceased Pintu alias Swapnil Dilipsingh Shirke
(hereinafter referred to as `deceased Pintu'), Hitesh
Uike (P.W.27) and Pappu Malviya (P.W.28) were facing
trial for the offence punishable under Section 307 of
Indian Penal Code in respect of alleged assault by them
on accused no.1 Vijay Mate on 18/7/2001, which was
pending in the Sessions Court, Nagpur. Accordingly on
19/6/2002, deceased Pintu, Hitesh Uike (P.W.27),
Pappu Maliviya (P.W.28) and Gajraj Mahato (P.W.16),
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who was accused in some other crime, were brought in
the Court by Head Constable Prabhakar (P.W.21), Head
Constable Deepak Trivedi (P.W.22), Police Constable
Deepak Deshbhratar and Gunman Pramod Kalaskar
from Jail. Deceased Pintu and Pappu Malviya (P.W.28)
were in the custody of Head Constable Deepak Trivedi
(P.W.22) and Hitesh Uike (P.W.27) and Gajraj Mahato
(P.W.16) were in the custody of Police Constable
Deepak Deshbhratar. Around 11 a.m. they reached the
main gate of Court building and after making
necessary entries in the register, they came near the
lift to go up on 6th floor. Head Constable Prabhakar,
Police Constable Deepak Deshbhratar, Gunman Pramod
along with Gajraj Mahato (P.W.16) and Hitesh Uike
(P.W.27) boarded the lift. As there was no space in the
lift, other escorting Police and deceased Pintu along
with Pappu Malviya (P.W.28) went by lift thereafter
upto 5th floor as the lift did not use to stop on 6 th floor
and from 5th floor, reached 6th floor by staircase. When
they were being taken to Court, it is alleged that all the
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accused persons having armed with deadly weapons
like knife, gupti and sword assaulted deceased Pintu
as well as Head Constable Deepak Trivedi (P.W.22)
and Pappu Malviya (P.W.28) when they tried to
intervene. It is the case of prosecution that accused
no.1 Vijay Mate at that time was instigating assailants
by saying "Maro Saloko, Jinda Nahi Bachana
Chahiye". Due to shouts raised by deceased Pintu and
commotion, Police Constable Deepak Deshbhratar,
Head Constable Prabhakar (P.W.21) and Hitesh Uike
(P.W.27) rushed to the spot when assailants ran away
from the spot.
2. Due to severe assault on deceased Pintu, he
sustained number of bleeding injuries and as such, he
along with injured Pappu Malvi and Head Constable
Deepak Trivedi was referred to Mure Memorial Hospital
where Pintu was declared dead on admission while
medical treatment was provided to both the injured
persons. Head Constable Prabhakar (P.W.21) informed
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about the incident to Dhantoli Police Station by
wireless message.
3. On the basis of information received as above,
P.I. Yeshkhede (P.W.36) attached to Sadar Police
Station immediately visited the spot of incident on the
6th floor of the Court building and found blood
accumulated on the floor and from the spot, he seized
one mobile, one knife cover, five pairs of chappals and
sleepers lying on the spot and drew spot panchanama
(Exh. 613) in presence of panch witnesses - Nitin
Domne (P.W.1) and Shankar Shirke. P.I. Yeshkhede
then visited Mayo Hospital and recorded statement of
Deepak Trivedi (P.W.22) (Exh. 455). Since no names of
assailants were reported in the statement, first
information report came to be registered against
unknown assailants vide Crime No.226/2002. P.I.
Yeshkhede then visited the spot and found one gupti,
which was lying near the staircase on the 5 th floor of
the Court building, which came to be seized vide
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seizure panchanama (Exh. 621) in the presence of
panch witnesses - Raju Nagtode (P.W.3) and Dhiraj
Wasnik.
4. PSI Chaudhary (P.W.31) then visited Mayo
Hospital and prepared inquest panchanama of the
dead body of Pintu vide Exh. 563 and under requisition
(Exh. 564) forwarded the same for post mortem. On
the day of incident, PSI Paul (P.W.35) having learnt
about involvement of accused no.1 Vijay Mate and
accused no.2 Mangesh Chauhan in the present crime,
effected their arrest on the same day, i.e. at 3.30 p.m.
under arrest panchanama (Exhs. 603 and 604).
Accused no.3 Sachin Gawande (now deceased),
accused no.4 Umesh Dahake and accused no.5 Ritesh
Gawande came to be arrested on the same day under
arrest panchanama (Exhs. 606, 607 and 559
respectively) while Yeshkhede, P.I. recorded
statements of Pappu Malviya (P.W.28), Gajraj Mahato
(P.W.16), Hitesh Uike (P.W.27), Police Constable
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Prabhakar (P.W.21) and Police Constable Deepak
Deshbhratar. On the same day, at about 7 p.m. by
visiting Mayo Hospital, he recorded supplementary
statement of Head Constable Deepak Trivedi (P.W.22)
wherein he disclosed names of accused no.1 Vijay
Mate, accused no.2 Mangesh Chauhan, accused no.4
Umesh Dahake, accused no.5 Ritesh Gawande and
accused no.16 Maroti Walake. On recording said
statements, Investigating Officer seized blood stained
clothes of Deepak Trivedi under seizure panchanama
(Exh. 458) in the presence of panch witnesses - Deepak
Gajbhiye (P.W.2) and Ajil Rashid Khan.
5. On 21/6/2002, P.I. Yeshkhede (P.W.36)
effected arrest of accused no.6 Mayur Chauhan and
accused no.7 Pandurang Injewar under arrest memos
(Exhs. 628 and 629) and on the same day, recorded
statements of Vijaya (P.W.26) and Shefali (P.W.33),
mother and sister of deceased Pintu respectively. On
22/6/2002 P.I. Yeshkhede, Investigating Officer
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(P.W.36) seized clothes of deceased Pintu as well as
those of accused nos.1 to 5 under separate seizure
panchanamas (Exhs. 631 to 633). On 23/6/2002, P.I.
Nitnaware (P.W.37) attached to Crime Branch, Nagpur
carried further investigation, during the course of
which, he collected blood sample and nail clippings of
accused no.6 Mayur Chauhan and accused no.7
Pandurang Injewar under seizure panchanama
(Exhs. 656 and 657) and on 24/6/2002, effected arrest
of accused no.8 Rajesh Kadu under arrest panchanama
(Exh. 658) and on the following day, collected his blood
sample and nail clippings vide seizure panchanama
(Exh. 660).
6. On 26/6/2002, PSI Gadhwe attached to Crime
Branch effected house search of accused no.6 Mayur
Chauhan, accused no.7 Pandurang Injewar and
accused no.8 Rajesh Kadu and seized their clothes,
which were stated to be on their person on the day of
incident under seizure panchanamas (Exhs. 549, 547
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and 548 respectively).
7. On 26/6/2002, PI Nitnaware (P.W.37) recorded
memorandum statement of accused no.1 Vijay Mate
(Exh. 663) and effected recovery of gupti (article 1),
which came to be seized under panchanama
(Exh. 664) at his instance. On 28/6/2002, PSI Kadu
(P.W.38) arrested accused no.9 Kiran Kaithe, accused
no.10 Kamlesh Nimbarte, accused no.11 Ayub Khan
and accused no.12 Mahesh Bante. On 1/7/2002, PI
Nitnaware (P.W.37) seized clothes and articles C-18
and C-19 of accused no.9 Kiran Kaithe and one big
knife at his instance under his memorandum
statements (Exhs. 667 and 673 respectively) and in
pursuance thereof, effected recovery of the said
articles, which came to be seized under panchanama
(Exhs. 666 and 670) at the instance of said accused.
Said Police Officer under memorandum statement
(Exh. 671) seized motor-cycle Yamaha of accused no.1
Vijay Mate. On 2/7/2002, PSI Gadhwe (P.W.30)
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recorded memorandum statement of accused no.13
Dinesh Gaiki (Exh. 552) and in pursuance of his
statement, seized blood stained blade of spear from
the tool box of scooter bearing Registration No. MH
31/B-9971 at his instance under seizure panchanama
(Exh. 551).
8.
On 3/7/2002, P.I. Nitnaware (P.W.37) recorded
memorandum statement of accused no.2 Mangesh
Chauhan vide Exh. 675 and effected recovery of one
knife (Article 3), which came to be seized (Exh. 676) in
the presence of panch witnesses - Dinesh Maldhure
and Ganesh Hande (P.W.32). On 4/7/2002, statement
of Sagar Jain (P.W.20) was recorded by P.I. Nitnaware
(P.W.37). On 5/7/2002, P.I. Nitnaware (P.W.37)
recorded memorandum statements of accused no.10
Kamlesh Nimbarte (Exhs. 681 and 682) and seized
gupti (Article 4) and clothes of said accused under
seizure panchanama (Exhs. 683 and 684). On
6/7/2002, said Investigating Officer collected sample of
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24 apeal569.13 & others
nail clippings of accused persons and on 7/7/2002, on
visiting house of accused no.12 Mahesh Bante and
accused no.11 Ayub Khan seized their clothes being
Articles C-22 to C-25), which were alleged to be on
their person on the day of incident and seized under
seizure panchanama (Exhs.693 and 694 respectively)
in presence of panchas Bhola Chahande and Shankar
Shahu. On the same day, accused no.14 Sandeep
Sanas was arrested under arrest panchanama
(Exh. 557). The Investigationg Officers from time to
time forwarded seized muddemal property for its
analysis to Chemical Analyser's Office.
9. On 10/7/2002, P.I. Nitnaware (P.W.37) effected
arrest of accused no.15 Raju Bhadre under
panchanama (Exh. 697) and on the following day,
effected house search of accused no.14 Sandeep Sanas
under house search panchanama (Exh.699) and
seizure panchanama (Exh.700). On 12/7/2002,
accused no.16 Maroti alias Nawwa came to be arrested
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25 apeal569.13 & others
under arrest panchanama (Exh. 701) and on the same
day, seized blood stained clothes of Hitesh Uike
(P.W.27) and Pappu Malvi (P.W.28) under seizure
panchanama (Exhs. 528 and 529).
10. On 14/7/2002, P.I. Nitnaware (P.W.37)
recorded memorandum statement of accused no.15
Raju Bhadre (Exh. 706) and in pursuance of said
statement, seized blood stained kukri (Article 8) and
clothes vide Exh.707. On 15/7/2002, said Officer
recorded memorandum statement of accused no.16
Maroti alias Nawwa (Exh. 710) and in pursuance of the
same, seized one knife (Article 8) and his clothes under
seizure panchanama (Exh. 711). On 16/7/2002, the
Investigating Officer by requisition memo made query
to Dr. Dhawne, who had performed post mortem, with
reference to possibility of injuries sustained by
deceased Pintu by the weapons seized in the present
crime. According to Medical Officer, the cause of death
was due to shock and haemorrage due to injuries,
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26 apeal569.13 & others
which were possible by sharp edged weapons like
gupti, sword and knife and accordingly submitted his
report (Exh.497) to the questionnaire sent by
Investigating Officer.
11. On 25/7/2002, requisition letter (Exh. 717) was
issued to Shri Somkuwar, Special Judicial Magistrate
(P.W.39) for holding test identification parade, which
was held on 21/8/2002, 22/8/2002 and 23/8/2002
according to memorandum panchanamas (Exhs. 718,
719 and 720). Map of scene of offence (Exh. 759) was
got prepared from Shri Kadu, Maintenance Surveyor
and Chemical Analyser's reports (Exhs. 725 to 747)
were received from the office of Chemical Analyser.
Few statements of witnesses were then recorded by
L.T. Tighare, Deputy Superintendent of Police and on
completion of investigation, he submitted charge-sheet
against accused in the Court of Judicial Magistrate, First
Class, Nagpur.
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27 apeal569.13 & others
12. In the course of time, case came to be
committed for its trial to the Court of Sessions. Charge
was framed against accused as per Exh. 20 for the
offences punishable under Sections 147, 148, 186, 353,
332, 307, 302, 120(b) read with Sections 34 and 149 of
Indian Penal Code and under Section 4 read with
Section 25 of Indian Arms Act and Section 135 of
Bombay Police Act. Accused denied all the charges
and claimed to be tried. The defence of accused
persons is of total denial and of false implication as
according to some accused, they had deposed against
deceased Pintu in the cases conducted against him and
as such, are falsely implicated. In defence, accused
no.15 Raju Bhadre had examined D.W.1 Ajay Dhurve
and accused no.8 Rajesh Kadu had examined D.W.1
Akhtar Hussain to rule out possibility of P.W.26 Vijaya
and P.W.33 Shefali being present on the spot of
incident at the relevant time and on the plea of alibi
respectively.
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28 apeal569.13 & others
13. Learned Trial Judge thereafter recorded the
evidence of as many as thirty-nine witness. The
incident had taken place on 19th June, 2002 and
evidence of first witness PW 1 Nitin Dongre was
recorded on 29th September, 2011. The defence
counsel stated before us that the trial could not
commence for all these years because of stay thereof
as per the prohibitory provision in the Maharashtra
Control of Organized Crime Act, 1999, in which some of
the accused persons were under trials in that case.
PWs 1 to 13 and PW 32 are the Panch witnesses. PW
16 Gajraj Mahato, PW 17 Umesh Shriram Raut, PW 22
HC Deepak Trivedi, PW 26 Smt. Vijaya Shirke, PW 27 -
Hitesh Uike, PW 28 Pappu Malviya, PW 29 Jugendra
Shukla and PW 33 - Shefali Shirke are the eye
witnesses. PW 30 Dattatraya Gadhawe, PW 31 PSI
Choudhary, PW 34 PI Narendra Wankhede, PW 37 PI
Nitnaware and PSI Kadu are the Investigating Officers.
14. The Trial Court framed in all eight points for
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29 apeal569.13 & others
determination and recorded the findings against them.
For convenience, we reproduce below those points as
well as findings:-
"POINTS Findings
1. Whether the deceased
died a homicidal death? Proved.
2. Whether prosecution
prove that assailants
hatched criminal
conspiracy and were
members of an unlawful
assembly? Proved.
3. Whether prosecution
further prove that
assailants were
armed with deadly
weapons? Proved.
4. Whether prosecution
further prove that
common object of said
unlawful assembly was
to commit murder of
deceased Pintu? Proved.
5. Whether prosecution prove
that the accused person Proved
were the member of said against
unlawful assembly A/1, 4,5,9,
having common object 10, 11,13
to commit murder of & 15.
deceased Pintu and armed
with weapons committed
the murder of deceased
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30 apeal569.13 & others
Pintu?
6. Whether prosecution
prove that the accused
person attempted to
commit murder of
complainant HC Deepak
Trivedi or of the
witnesses? No
7. Whether prosecution
prove that accused
persons deter the
public servants and
obstructed them while
discharging their
official duties? No
8. Whether the prosecution
prove that accused
persons were found
weapons in contravention
of the provisions of
Arms Act? No
9. What order? As per final
order."
15. The learned trial Court on considering
evidence on record convicted accused nos.1, 4, 5, 9,
10, 11, 13 and 15 and acquitted accused nos.2, 6, 7,
8, 12, 14 and 16. Hence, all these criminal appeals
came to be preferred as aforesaid.
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31 apeal569.13 & others
SUBMISSIONS :
16. Smt. Dangre, learned Public Prosecutor
commenced her arguments in Criminal Appeal
No.73/2014 filed by State against acquittal of accused
nos. 2, 6, 7, 8, 12, 14 and 16, which was replied by
learned Counsel appearing for the respective accused.
We have then heard learned Counsel for all the
accused in their criminal appeals against conviction,
which was replied by learned Public Prosecutor and
lastly heard appellant in person, namely, Smt. Vijaya,
mother of deceased Pintu, in Criminal Appeal
Nos.55/2014 and 56/2014 preferred against acquittal
of accused nos. 2, 6, 7, 8, 12, 14 and 16 and for
enhancement of sentence of convicted accused.
17. Smt. Dangre, learned Public Prosecutor has
contended that to substantiate the charges levelled
against accused, prosecution in all examined 39
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32 apeal569.13 & others
witnesses, out of which P.W.1 to 13 and P.W.32 Ganesh
are panch witnesses, P.W.16 Gajraj, P.W.17 Umesh,
P.W.22 Head Constable Deepak, P.W.26 Vijaya, P.W.27
Hitesh, P.W.28 Pappu alias Narendra, P.W.29 Jugendra
and P.W.33 Shefali are eye witnesses while P.W.18 Anil
and P.W.19 Ramesh are Carriers and P.W.30
Dattatraya, P.W.31 Kumar, P.W.34 Narendra, P.W.35
Radheshyam, P.W.36 Yeshkhede, P.W.37 Nitnaware
and P.W.38 Kadu are the Investigating Officers.
18. To establish involvement of accused, who
came to be acquitted, learned Public Prosecutor has
invited our attention to material evidence of P.W.26
Vijaya, P.W.33 Shefali, P.W.22 Deepak along with his
report (Exh. 455), P.W.25 Dr. Dhawane, who
performed autopsy and issued post mortem report
(Exh. 495) so also report (Exh. 497) in reply to query
made by Investigating Officer vide Exh. 496, P.W.36
Yeshkhede and P.W.37 Nitnaware, both Investigating
Officers and has contended that evidence of all these
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33 apeal569.13 & others
witnesses establish involvement of accused, who are
acquitted and their involvement is further stated to be
established by other corroborative evidence of
recovery of weapon gupti from accused no.2 Mangesh,
knife from accused no.3 Sachin (now deceased), knives
from accused no.6 Mayur and accused no.7
Pandurang, gupti from accused no.12 Mahesh, knife
from accused no.13 Dinesh and knife from accused
no.16 Maroti along with their clothes consisting of full
shirt/T-shirt, full pant, etc.. She has further invited our
attention to report of P.W.25 Dr. Dhawane (Exh. 497)
and has contended that injuries sustained by deceased
Pintu were possible by weapons like gupti and knives.
19. To establish involvement of accused no.2
Mangesh, Smt. Dangre, learned Public Prosecutor has
invited our attention to the specific evidence of P.W.26
Vijaya, who has identified this accused with his name
though had identified accused no.4 Umesh as accused
no.2 Mangesh. By referring to evidence of P.W.22
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34 apeal569.13 & others
Deepak, it is submitted that his evidence clearly
establishes involvement of accused no.2, but he has
not identified said accused in test identification parade.
By referring to the evidence of P.W.33 Shefalli, it is
submitted that involvement of accused no.2 Mangesh
is established from her evidence as her evidence is not
shaken at all in the cross-examination and in fact,
corroborates version of P.W.26 Vijaya. Evidence of
P.W.26 Vijaya and P.W. 33 Shefali is also relied by the
learned Public Prosecutor to establish involvement of
accused no.7 Pandurang, accused no.8 Rajesh,
accused no.12 Mahesh, accused no.14 Sandeep and
accused no.16 Maroti and it is submitted that in view
of above available evidence, there are no cogent
reasons given by learned trial Court for acquitting
them. Before concluding her submissions, it is also
contended by the learned Public Prosecutor that
evidence of P.W.16 Gajraj, P.W.17 Umesh, P.W.21
Prabhakar, P.W.27 Hitesh, P.W.28 Pappu alias
Narendra and P.W.29 Jugendra establish the incident of
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35 apeal569.13 & others
assault, which took place on the sixth floor of the Court
building on 19/6/2002 though P.W.17 Umesh, P.W.27
Hitesh, P.W.28 Pappu alias Narendra and P.W.29
Jugendra did not support the case of prosecution.
Thus, sum and substance of the submissions of the
learned Public Prosecutor is that on considering above
evidence, prosecution can be said to have established
involvement of above accused beyond reasonable
doubt.
20. Shri Avinash Gupta, learned Counsel for
accused no.8 Rajesh and accused no.12 Mahesh, has
commenced submissions in the appeal against
acquittal and submitted that accused no.8 Rajesh and
accused no.12 Mahesh are rightly acquitted as their
case cannot be equated with that of convicted
accused. By referring to the trial Court's judgment, it
is submitted that the trial Court has rightly considered
evidence of P.W.26 Vijaya and P.W.33 Shefali and
while considering the same has relied upon their
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36 apeal569.13 & others
evidence against convicted accused only as neither of
these witnesses had named accused no.8 Rajesh in
their statements nor identified him in test identification
parade. The learned Counsel by referring to evidence
of P.W.26 Vijaya and P.W.33 Shefali has contended that
accused no.8 Rajesh was known to them even prior to
the incident. In support of plea of alibi raised by
accused no.8 Rajesh, evidence of D.W.1 Akhtar
examined by him is also relied and it is contended that
in view of evidence of this witness, it is impossible to
hold that at the time of incident, said accused was
present on the spot.
21. Learned Counsel Shri Avinash Gupta on
advancing submissions on behalf of accused no.12
Mahesh has contended that his identification before
the Court by P.W.26 Vijaya and P.W.33 Shefali as
having been armed with gupti at the time of incident is
false as there is nothing to establish that on what
basis, these two witnesses were aware of name of said
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37 apeal569.13 & others
accused. By referring to the evidence of P.W.22
Deepak, it is pointed out by the learned Counsel that
this witness is silent on identification of accused no.12.
It is thus contended that no test identification parade in
respect of said accused was held and, therefore, only
evidence against said accused is by way of his
identification in the Court by P.W.26 Vijaya and P.W.33
Shefali after lapse of about 10-12 years. On the case
of prosecution about seizure of clothes of said accused,
it is contended that there is no blood found on his
clothes as per Chemical Analyser's reports (Exhs. 53
and 54) and, therefore, the trial Court has rightly
disbelieved the evidence of P.W.26 Vijaya and P.W.33
Shefali against said accused.
22. Shri Gaikwad, learned Counsel for accused
no.2 Mangesh, has submitted that admittedly said
accused was not put to test identification parade and
on evidence of P.W.26 Vijaya and P.W.33 Shefali, has
contended that since said accused was one of the
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38 apeal569.13 & others
witnesses in a case tried against deceased Pintu in
respect of the incident of firing on accused no.1 Vijay
Mate, he is falsely implicated by them. It is submitted
that on the basis of copy of judgment placed on record
in the said case, it is established that accused no.2
Mangesh was examined as one of the witnesses
against accused in that case.
23. Shri Tiwari, learned Counsel for accused no.7
Pandurang, on similar lines, has contended that P.W.26
Vijaya and P.W. 33 Shefali have falsely implicated him
and no recovery of weapon is effected from said
accused, but for his clothes, which had no blood stains
and even otherwise, he came to be arrested on
21/6/2002, i.e. after two days of incident. By referring
to the evidence of P.W.26 Vijaya, it is contended that
she was admittedly not knowing said accused
personally and thus, it was necessary to put this
accused in test identification parade. However, there
was no test identification parade. It is further
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39 apeal569.13 & others
contended that presence of P.W.26 Vijaya and P.W. 33
Shefali on the place of incident itself is doubtful as
other witnesses, who are relied by prosecution to
establish the incident, have not deposed about
presence of any of these witnesses. By referring to the
evidence of P.W.26 Vijaya, it is pointed out as to how
she is not an eye witness as it was not possible for her
to reach the Hospital even before deceased Pintu was
brought to Hospital had she been present on the spot
on the day of incident. Evidence of P.W.26 Vijaya and
P.W.33 Shefali is further commented upon with
reference to their alleged visit to the Office of
Commissioner of Police, Nagpur. It is submitted that
conduct of both these witnesses rather establishes that
they had never visited the said Office. It is also pointed
out that though shirt and pant of said accused came to
be seized, no blood is detected on his clothes. By
referring to the copy of judgment placed on record
before trial Court in respect of trial, which was held
against deceased Pintu for attempt to commit murder
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40 apeal569.13 & others
of accused no.1 Vijay Mate, it is submitted that trial
Court has rightly acquitted accused no.7 Pandurang.
24. Shri Jaltare, learned Counsel for accused no.6
Mayur, has pointed out that name of said accused is
not mentioned in the first information report by P.W.22
Deepak and while referring to the evidence of P.W.26
Vijaya and P.W.33 Shefali, has submitted that their
presence on the spot itself is unnatural and for that
purpose, has relied upon evidence of P.W.16 Gajraj,
P.W.36 Yeshkhede and P.W.37 Nitnaware. On
unnatural conduct on the part of close relatives to
leave relative in pool of blood without taking to
Hospital and again on not immediately reporting to
Police, learned Counsel has relied upon judgment in
State of Maharashtra vs. Raju Bhaskar Potphode
(2007 (4) Crimes 193). It is also submitted that
P.W.26 Vijaya has admitted that before deposing she
had gone through her statement recorded by Police
and for that proposition, has relied upon judgment in
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41 apeal569.13 & others
Sharad s/o Namdeorao Shirbhate vs. State of
Maharashtra (2006 (2) Mh.L.J. (Cri.) 1210). On delay
in lodging first information report by P.W.22 Deepak,
learned Counsel has relied upon judgments in the case
of Ashraf Hussain Shah vs. State of Maharashtra
(1996 Cri.L.J. 3147) and Laxman Bapurao Ghaiwane
vs. State of Maharashtra (2012 (4) Bom. C.R. (Cri.)
580) and on delay in recording statements of P.W.26
Vjaya and P.W.33 Shefali, has relied upon judgment in
the case of State of Maharashtra vs. Abdul Kadar
@ Raj Mohd. Kadar Badshah and others (1997
Bom. C.R. (Cri.) 820).
25. Shri Trivedi, learned Counsel for accused
no.16 Maroti, by referring to the evidence of P.W.26
Vijaya and P.W.33 Shefali, has contended that their
evidence does not establish involvement of said
accused and that evidence of P.W.22 Deepak
establishes that he has wrongly identified said accused
in test identification parade.
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42 apeal569.13 & others
26. Accused no.14 Sandeep is absent and
Shri Tiwari, learned Counsel for accused no.7
Pandurang, has pointed out that there is nothing to
establish involvement of accused 14 Sandeep in the
crime except for evidence of P.W.26 Vijaya and P.W.33
Shefali, who have identified said accused in test
identification parade, which evidence, according to
learned Counsel, is not convincing in view of the fact
that neither of these witnesses has named him in their
Police statement.
It is thus contended by learned Counsel
appearing for respective accused in this criminal
appeal preferred by State that it being without any
merits, may be dismissed. Heard Shri Doifode, learned
Additional Public Prosecutor in reply for State.
27. On concluding hearing in above criminal
appeal of State of Maharashtra, we have heard criminal
appeals preferred by accused against their conviction.
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43 apeal569.13 & others
In Criminal Appeal No.570/2013, Shri Tiwari,
learned Counsel for accused no.11 Ayub Khan Pathan,
by referring to the evidence of P.W.26 Vijaya, has
contended that she claims to know some assailants
to be along with accused no.1 Vijay Mate as pointed
out by deceased Pintu earlier to her and submitted that
this evidence by itself is not sufficient for the said
witness to identify accused in test identification
parade, more particularly when the test identification
parade came to be held on 21/8/2002, i.e. after seven
weeks after his arrest on 28/6/2012. With reference to
involvement of said accused, on referring to the
evidence of P.W.33 Shefali, it is contended that her
evidence is full of material omissions and as such,
cannot be acted upon against said accused. It is also
contended that test identification parade was
conducted without observing the guidelines of this
Court referred in Criminal Manual and for that purpose,
has relied upon evidence of P.W. 39 Prakash, Special
Judicial Magistate, who had held the test identification
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44 apeal569.13 & others
parade. By referring to his cross-examination, it is
contended that his evidence establishes violation of
material guidelines required to be followed while
holding test identification parade.
28. By referring to evidence of P.W.26 Vijaya and
P.W.37 Nitnaware, Investigating Officer, it is submitted
by learned Counsel Shri Tiwari that there is every
possibility of photograph of accused no.11 Ayub Amir
Khan being shown to the identifying witnesses before
test identification parade was held. On the aspect of
test identification parade, learned Counsel has relied
upon judgments in Subash and Shiv Shankar vs.
State of U.P. (AIR 1987 SC 1222), Hari Nath and
another vs. State of U.P. (AIR 1988 SC 345), Akbar
s/o Nazir Ahmed and others vs. State of
Maharashtra (2004 (1) Mh.L.J. 365), Muthuswami
vs. State of Madras (AIR 1954 SC 4), Siddanki Ram
Reddy vs. State of Andhra Pradesh (2011 ALL SCR
49), State of Maharashtra vs. Rajesh alias Kaka
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45 apeal569.13 & others
Madanlal Soni (1997 Law Suit (Bom) 413) and
Ramcharan Bhudiram Gupta vs. State of
Maharashtra (1995 Cri.L.J. 4048). On delay in
recording statements and appreciation of evidence,
learned Counsel Shri Tiwari has relied upon judgments
in Vijaybhai Bhanabhai Patel vs. Navnitbhai
Nathubhai Patel and others (2004 SCC (Cri) 2032),
Laxman Bapurao Ghaiwane vs. The State of
Maharashtra (2012 ALL MR (Cri) 3605) and Kailash
Gour and others vs. State of Assam (AIR 2012 SC
786). It is thus contended that conviction of said
accused based on test identification parade alone is
bad. It is further submitted that on the contrary,
possibility of his false implication cannot be ruled out,
particularly when he had appeared in the case against
deceased Pintu when he was tried for attempt to
commit murder of accused no.1 Vijay Mate and copy of
judgment in the said case is placed on record by
P.W.26 Vijaya herself.
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46 apeal569.13 & others
29. Shri Jaltare, learned Counsel appearing in
Criminal Appeal No. 573/2013 filed by accused no.10
Kamlesh, has contended that name of said accused is
not mentioned in the first information report. It is
submitted that accused no.10 Kamlesh was identified
in test identification parade by P.W.26 Vijaya and
P.W.27 Hitesh. However, P.W.27 Hitesh identified said
accused as one of the assailants in the case against
deceased Pintu and, therefore, for this reason,
identification as above does not inspire confidence. It
is also contended that alleged memorandum statement
of said accused does not bear his signature and for this
proposition, learned Counsel has relied upon the
decision in Jackaran Singh vs. State of Punjab
(1995 DGLS (Cri.) Soft 892). It is further contended that
even in the seizure panchanama of weapon, there is no
mention as to from which place in the house, it came
to be recovered.
30. Shri Gaikwad, learned Counsel for accused
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47 apeal569.13 & others
no.5 Ritesh in Criminal Appeal No.573/2013, has
submitted that there is no seizure of any weapon from
said accused and though shirt of said accused seized
is certified to have stained with human blood of Group
`A', panch has not supported prosecution on this
aspect. By referring to the evidence of P.W.22
Deepak, it is contended that he has not identified said
accused in test identification parade and by referring to
the evidence of P.W. 26 Vijaya and P.W.33 Shefali, it
is contended that said accused was already known to
these two witnesses by name and face and as such, no
test identification parade was held. It is further pointed
out that statement of P.W.26 Vijaya and P.W. 33
Shefali came to be recorded after two days of incident
and though it is the case of prosecution that these two
witnesses after the incident had visited the Office of
Commissioner of Police, Nagpur, statement of said
Officer is not recorded and for this proposition, learned
Counsel has relied upon judgments in Ashraf Hussain
Shah vs. State of Maharashtra (1996-EQ (BOM)-0-
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48 apeal569.13 & others
183) and State of Uttar Pradesh vs. Jaggo alias
Jagdish (1971-EQ(SC)-)-219). It is prayed by learned
Counsel that said criminal appeal may be allowed.
31. Shri Dable, learned Counsel for accused no.4
Umesh in Criminal Appeal No.573/2013, has submitted
similar arguments and pointed out that though accused
no.4 Umesh was arrested on the day of incident and
knife is alleged to be seized from him, his clothes
came to be seized on 22/6/2002 having no blood stains
as mentioned in seizure panchanama. It is contended
that in that view of the matter, though according to
Chemical Analyser's report, blood is stated to be found
on knife (Article 14) and clothes (Article 15) at serial
nos. 27 and 28 in Chemical Analyser's report, as there
is no convincing evidence led with reference to sealing
of these articles and as they were not immediately sent
to Chemical Analyser after their seizure, possibility of
tampering these articles by sprinkling human
blood upon them cannot be ruled out. On the point of
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49 apeal569.13 & others
identification of accused no.4 Umesh, by referring to
the evidence of P.W.26 Vijaya, it is contended that her
evidence does not inspire confidence as she failed to
identify accused no.4 Umesh as she had pointed out
finger towards accused no.2 Mangesh claiming him to
be Umesh Dahake. The learned Counsel for accused
no.4 Umesh, in the background of above submissions,
has relied upon decisions in Mohd. Hussain
Babamiyan Ramzan vs. State of Maharashtra
(1994 Cri.L.J. 1020) and Gopal Singh and another
vs. The State of M.P. and another (AIR 1972 SC
1557).
32. Shri Avinash Gupta, learned Counsel
appearing for accused nos.9 Kiran and 13 Dinesh in
Criminal Appeal No. 564/2013, with reference to
accused no.9 Kiran has submitted that apart from
involvement of said accused by P.W. 26 Vijaya and
P.W. 33 Shefali, prosecution has relied upon collection
of nail clippings of said accused and recovery of knife
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50 apeal569.13 & others
at his instance along with seizure of clothes being T-
shirt, full pant. It is contended that no blood is detected
in the nail clippings nor on the knife and full pant.
However, on T-shirt, human blood of group 'A' though
is certified to have been detected, it is of no
consequence in view of the fact that own blood group
of said accused could not be determined.
33. Similarly, while referring to evidence against
accused no.13 Dinesh, it is contended by learned
Counsel Shri Gupta that even on obtaining nail
clippings, no blood is detected therein while his own
blood is of Group `O' and no blood is detected on his
clothes (Articles 37 and 38) and though on spear blade
(article 37) human blood is certified to have been
detected, no grouping of blood is done. It is further
contended that as per evidence of P.W.26 Vijaya and
P.W.33 Shefali, knife is attributed to accused no.13,
however, according to alleged discovery statement and
seizure of weapon, spear is shown to be recovered at
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51 apeal569.13 & others
the instance of said accused.
34. On the aspect of identification of accused
no.13 Dinesh by P.W.26 Vijaya and P.W.33 Shefali, it is
submitted by learned Counsel Shri Gupta that during
the course of prosecution though deceased Pintu had
pointed out said accused to these witnesses along with
accused no.1 Vijay Mate and other assailants in the
Court, there is no convincing evidence on this aspect.
In that regard, it is further contended that in view of
evidence of P.W.26 Vijaya and P.W.33 Shefali to have
witnessed the incident for 2-3 minutes only in a
crowded place, identification of accused no.13 Dinesh
by said witnesses in test identification parade was
necessary. However, no such parade was held and as
such, identification by P.W.26 Vijaya and P.W.33 Shefali
first time in the Court after lapse of about 10-12 years
cannot be accepted.
35. Learned Counsel Shri Gupta has then
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52 apeal569.13 & others
submitted with reference to presence of P.W.26 Vijaya
and P.W.33 Shefali at the spot of incident that though
prosecution has examined other witnesses, whose
evidence establish incident of assault on deceased
Pintu, none of those witnesses deposed about presence
of either of these witnesses. It is also contended that
according to P.W.26 Vijaya, prior to incident, she made
a phone call to P.S.I. Bhese seeking protection for
deceased Pintu, which was claimed to be received by
said Officer, however, prosecution has not placed on
record Station diary entry in respect of such phone call
received by said Officer nor has collected mobile
phone from P.W.26 Vijaya to carry out investigation
referring to her location at the relevant time on that
day. It is also contended that Investigating Agency has
failed to record statement of Driver of P.W. 26 Vijaya
nor said witness has disclosed full name of her Driver
Ajay though worked with her from 2001 onwards, but
has given names and surnames of accused, who are
stated to be shown to her by deceased Pintu prior to
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53 apeal569.13 & others
incident in the Court along with accused no.1 Vijay
Mate and has thus referred to evidence of D.W.1 Ajay
and has submitted that his evidence establishes that at
the time of incident, P.W.26 Vijaya and PW 33 Shefali
were in the house wherefrom they directly went to
Hospital. On the alleged visit of P.W.26 Vijaya and
P.W.33 Shefali to the Office of Commissioner of Police,
Nagpur, it is submitted that nothing is brought on
record like visitor's register, etc. to establish their visit.
It is further contended that neither P.W.27 Hitesh nor
P.W.28 Pappu Malvi, who on the day of incident, were
produced in the Court by Police Constable Prabhakar
and are alleged witnesses, had named P.W.26 Vijaya
or P.W.33 Shefali though both of them claimed to know
above witnesses. It is also submitted that evidence of
P.W.21 Prabhakar in fact establishes that when he
reached the spot, incident of assault was already over.
It is also pointed out that evidence of P.W.26 Vijaya
and P.W.33 Shefali suffered from material omissions as
four unknown assailants are not stated in their
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54 apeal569.13 & others
statements recorded by Police, which omission is duly
got proved by P.W.36 Yeshkhede, Investigating Officer.
36. On commenting evidence of P.W.33 Shefali, it
is submitted by learned Counsel Shri Gupta that this
witness is unable to state any date when any of the
assailants or unknown accused were shown to her in
the Court by deceased Pintu nor said witness has
stated all the dates when she had attended the Courts.
With reference to evidence of P.W.26 Vijaya, it is also
submitted that though this witness thoughtfully states
minor details in her examination-in-chief, she did not
remember anything and forgets everything while she
was under cross-examination. It is also contended that
possibility of substitution of statement of P.W. 33
Shefali recorded under Section 161 of Code of Criminal
Procedure by Investigation Officer cannot be ruled out
as she claims to have duly signed the said statement
while no such signature is found on her statement
under Section 161 of Code of Criminal Procedure.
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55 apeal569.13 & others
While concluding submissions on behalf of accused
no.13, learned Counsel Shri Gupta has submitted that
evidence of P.W.26 Vijaya and P.W.33 Shefali on the
point of visit to the office of Commissioner of Police is
impossible to be believed in view of the fact that
Officer of the rank of Commissioner, on receiving
information with
ig reference to incident involving
commission of cognizable offences, will not take
necessary steps. It is further contended that
admittedly both these witnesses are close relations of
deceased Pintu and though their evidence cannot be
discarded on this count alone, the same needs to be
acted upon cautiously as possibility of their being got
up witnesses cannot be ruled out. For this proposition,
learned Counsel has relied upon judgment in Deoraj
Deju Suvarna vs. State of Maharashtra (1994
Cri.L.J. 3602).
37. Learned Counsel Shri Gupta appearing for
accused no.1 Vijay Mate in Criminal Appeal
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56 apeal569.13 & others
No. 569/2013 has contended that clothes of accused
no.1 being Articles 19 and 20 came to be seized on
22/6/2012 and as per Chemical Analyser's report, no
blood is found on his clothes nor his own blood
grouping is done. On recovery of gupti at the instance
of said accused on 22/6/2002, it is contended that said
weapon as per Chemical Analyser's report is stated to
have stained with human blood on its handle and not
on its blade. It is further contended that no specimen
of seal is obtained on proforma sent to the Chemical
Analyser and the seal used at the time of seizure of
articles. It is further contended that said evidence is,
even otherwise, not convincing as muddemal articles
were sent to Chemical Analyser on 22/7/2002, i.e. after
one month, of which no explanation is on record.
Learned Counsel Shri Gupta has further contended that
from the evidence, it has also not come on record that
gupti alleged to have been seized at the instance of
accused no.1 was immediately deposited in Malkhana.
For this purpose, learned Counsel has relied on
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57 apeal569.13 & others
judgment in the case of State of Maharashtra vs.
Prabhu Barku Gade (1995 Cri.L.J. 1432(1). With
reference to evidence of P.W.26 Vijaya about accused
no.8 attending marriage of deceased Pintu, learned
Counsel has relied on judgment in the case of S.K.
Kale, Major vs. State of Maharashtra (1976
LawSuit (SC) 507). ig It is thus submitted that criminal
appeal may be allowed.
38. Lastly, we have heard Shri Dharmadhikari,
learned Senior Counsel in Criminal Appeal No.561/2013
preferred by accused no.15 Raju Bhadre. He has
pointed out that said accused was arrested on
10/7/2002 though was never absconding and at his
instance, weapon kupri came to be seized on
14/7/2002 along with his full shirt and pant. However,
on neither of these articles, blood stains are said to
have been found. On the point of availability of
accused no.15 after the incident, learned Senior
Counsel has relied upon judgment in Dinkar Bandhu
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58 apeal569.13 & others
Deshmukh and another vs. State (AIR 1970
Bombay 438). It is further contended that though test
identification parades are held after arrest of accused
no.15, he was not put in test identification parade,
which was necessary as the event of alleged assault on
deceased Pintu lasted for 2-3 minutes in crowded place
involving 12-15 assailants.
ig On the count of test
identification parade, learned Senior Counsel has relied
upon judgments in Siddanki Ram Reddy vs. State
of Andhra Pradesh {(2010) 7 SCC 697}, State of
Maharashtra vs. Sukhdev Singh and another
{(1992) 3 SCC 700} and George and others vs.
State of Kerala and another {(1998) 4 SCC 605}.
39. It is further contended by learned Senior
Counsel Shri Dharmadhikari that foundation of case of
prosecution is that accused no.1 Vijay Mate while
attending Court was accompanied by assailants and
deceased Pintu had pointed out them to his mother
and sister, however, there is nothing to establish,
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59 apeal569.13 & others
which of the assailants was accompanying accused
no.1 Vijay Mate. It is thus contended that there is no
investigation on this aspect and for this purpose, for
appreciation of evidence of P.W.26 Vijaya and P.W.33
Shefali, learned Senior Counsel Shri Dharmadhikari has
relied upon judgments in Kailash Gour and others
vs. State of Assam {(2012) 2 SCC 34}, Jagjit Singh
alias jagga vs. State of Punjab {(2005) 3 SCC 689},
Vijaybhai Bhanabhai Patel vs. Navnitbhai
Nathubhai Patel and others {(2004) 10 SCC 583}
and Sunil s/o Chokhoba Shambarkar and another
vs. State of Maharashtra (2008 (2) Mh.L.J. (Cri.)
244).
40. To counter the submissions of learned Counsel
for accused, Smt. Dangre, learned Public Prosecutor
with reference to evidence of hostile witnesses relied
upon judgment in Paulmeli and another vs. State
of Tamil Nadu, through Inspector of Police
{(2014) 5 SCC 573}. To establish presence of eye
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60 apeal569.13 & others
witnesses, P.W. 26 Vijaya and P.W. 33 Shefali, our
attention is invited by learned Public Prosecutor Smt.
Dangre to limited evidence of P.W.16 Gajraj, P.W. 27
Hitesh, P.W. 29 Jugendra and P.W. 22 Deepak, which
establish incident and in the background of above, has
further referred to evidence of P.W. 26 Vijaya. It is
submitted that P.W.26 Vijaya
ig knew accused no.1
Vijaya Mate and from her evidence, she is found to be
aware of all the facts including of Court cases, which
were pending against deceased Pintu. Her presence in
the Court on the day of incident is submitted to be
most natural since she arrived in the Court to meet her
son, who was to be produced on that day in the case in
which he was being prosecuted. It is further contended
that from her evidence, it is clear that she identified
accused nos.3 Sachin (since dead), 8 Rajesh and 14
Sandeep in test identification parade and accused
no.11 Ayub Khan in the Court since she was knowing
them by their faces. It is also contended that from the
evidence of P.W. 26 Vijaya, it is proved that she was
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61 apeal569.13 & others
conversant with criminal cases pending against
deceased Pintu, which is claimed to be another factor
to establish her presence in the Court on the day of
incident.
41. On the aspect of evidence of D.W.1 Ajay, it is
submitted that he is a got up witness as earlier
summons issued were not served and thereafter he
was served and examined and his evidence, even
otherwise, is not convincing in view of the fact that he
could not depose anything of his previous employer,
however, while working with his subsequent employer
having tourist business has knowledge of all minor
details of incident. It is also contended that even
otherwise, D.W.1 Ajay is not confronted by P.W. 26
Vijaya nor any steps were taken to that effect to rule
out possibility that this is the same person, who was
working as Driver of P.W.26 Vijaya. For this purpose,
learned Public Prosecutor Smt. Dangre has relied upon
judgment in the case of State of Haryana vs. Ram
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62 apeal569.13 & others
Singh {(2002) 2 SCC 426).
42. On conduct of P.W.26 Vijaya keeping silence
from 19/6/2002 till 21/6/2002 when her statement
came to be recorded, it is contended by learned Public
Prosecutor Smt. Dangre that from her evidence, it is
established that on the day of incident, in the noon she
was in the Court and then went to Hospital where she
found her son to have died in brutal assault, upon
whom funeral came to be performed on the following
day and as such, her statement came to be recorded
on 21/6/2002 when her mental condition became
stable. It is, therefore, contended that such delay does
not materially affect the case of prosecution. It is
further submitted that all material suggestions are
denied by this witness and from the suggestions,
in fact, her presence is admitted on the spot. On this,
learned Public Prosecutor relied upon judgment in the
case of Rajesh Namdeo Mhatre vs. State of
Maharashtra (2002 (4) Mh.L.J. 266).
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63 apeal569.13 & others
43. With reference to accused no.13 Dinesh,
having armed with knife and of seizure of spear blade
at his instance, it is contended by learned Public
Prosecutor Smt. Dangre that size of such blade is 5.1"
and it is material to note that P.W.26 Vijaya had
witnessed the incident from the distance of 10-15 feet
and being a housewife, her evidence as above cannot
be doubted as spear blade involved in this case is
similar to knife.
44. While commenting upon evidence of P.W.33
Shefali, similar submissions are advanced by learned
Public Prosecutor Smt. Dangre as her evidence fully
corroborates evidence of P.W.26 Vijaya, whose
evidence establishes that she was knowing some
assailants by names and faces and has stuck up to her
evidence of her attending Court cases and she has
identified 11 accused in Court and 4 in test
identification parade. It is also contended that
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64 apeal569.13 & others
suggestions given to this witness also establish her
presence on the spot and, therefore, merely because
both these witnesses are close relations of deceased
Pintu, their evidence cannot be discarded on this
count. On this aspect and also on delay in recording
statement, learned Public Prosecutor has relied upon
judgment in Shyamal Ghosh vs. State of West
Bengal {(2012) 7 SCC 646}. On the issue of
appreciation of evidence, discrepancies in the evidence
and related witnesses, the learned Public Prosecutor
has relied upon judgments in State represented by
inspector of Police vs. Saravanan and another
(AIR 2009 SC 152(1), State of Uttar Pradesh vs.
Krishna Master and others {(2010) 12 SCC 324}
and Waman and others vs. State of Maharashtra
(AIR 2011 SC 3327). The learned Public Prosecutor has
then relied upon the judgment in Abdul Karim
Mohammed Shaban vs. State of Maharashtra and
another (2006 Cri.L.J. 3658) to the effect that there is
no necessity of eye witnesses to mark presence of
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65 apeal569.13 & others
other witnesses.
45. In reply to the arguments advanced by
learned Counsel Shri Jaltare for accused no.10 Kamlesh
that memorandum panchanama is of no consequence
since does not bear signature of that accused, learned
Public Prosecutor
ig Smt. Dangre has relied upon
judgment in State of Rajasthan vs. Teja Ram and
others (AIR 1999 SC 1776(1) and on the aspect of
panch witnesses not supporting the case of prosecution
and the relevant documents being panchanama since
got proved by Investigating Officer has relied upon
judgment in Mohd. Aslam vs. State of Maharashtra
{(2001) 9 SCC 362). On the aspect of delay in holding
test identification parade and non compliance of the
guidelines, learned Public Prosecutor Smt. Dangre has
relied upon judgment in the case of Chandra Prakash
vs. State of Rajasthan {(2014) 8 SCC 340).
46. On involvement of accused no.1 Vijay Mate, it
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66 apeal569.13 & others
is contended by learned Public Prosecutor that at his
instance weapon gupti came to be recovered, which is
stated to have stained with human blood and
according to medical evidence, injuries sustained by
deceased Pintu are possible by such weapon, which is
also identified by P.W.26 Vijaya and P.W.33 Shefali. On
the aspect of accused no.4 Umesh, it is pointed out
that he is involved by P.W.33 Shefali and was arrested
on the same day and knife came to be seized, which is
certified to be stained with human blood and to specific
question put to him under Section 313 of Code of
Criminal Procedure, he has simply denied it saying
false without giving explanation on this aspect.
47. On involvement of accused no.5 Ritesh, it is
contended by learned Public Prosecutor Smt. Dangre
that he was also arrested on the same day and his
blood stained full pant is certified to be stained with
human blood of group `A', which is of deceased Pintu
for which no satisfactory explanation is given by said
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67 apeal569.13 & others
accused and he is also involved by eye witnesses
P.W.26 Vijaya and P.W.33 Shefali.
48. On involvement of accused no.9 Kiran, it is
contended by learned Public Prosecutor Smt. Dangre
that he is stated to be arrested on the following day of
incident and knife is seized from his possession along
with his full shirt pant upon which human blood of
group `A', which is of deceased Pintu is found.
Similarly, according to medical report of P.W.25
Dr. Dhawane, 25 injuries sustained by deceased Pintu
are certified to be possible by such knife. No
explanation is given by this accused, who is also
involved by eye witnesses.
49. On involvement of accused no.10 Kamlesh,
who was arrested on the following day of incident and
weapon gupti is seized, learned Public Prosecutor Smt.
Dangre has submitted that though no blood is detected
on his clothes, his involvement is established by eye
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68 apeal569.13 & others
witnesses. It is further contended that involvement of
accused no.11 Ayub Khan is based on version of eye
witnesses, who came to be identified in test
identification parade. On involvement of accused no.13
Dinesh and accused no.15 Raju, it is contended by
learned Public Prosecutor Smt. Dangre that evidence
on record is recovery of weapon from said accused
though no blood is found on Kukri recovered at the
instance of accused no.15 Raju. It is also contended
that according to Medical Officer, injuries are possible
by such weapons like knife and kukri and these
accused are also involved by eye witnesses.
The learned Public Prosecutor by mentioning
aforesaid aspects of the case, concluded her
submissions praying that criminal appeals of convicted
accused may be dismissed.
Lastly, heard appellant-in-person in Criminal
Appeal No.55/2014 and Criminal Appeal No.56/2014.
She has adopted submissions advanced by the learned
Public Prosecutor for State.
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69 apeal569.13 & others
50. We have heard all the learned counsel for the
parties appearing before us in all these criminal
appeals at length.
CONSIDERATION :
51.
The learned counsel for the parties to these
appeals were asked to address on all the points as
framed by the learned Trial Judge, so also the points
they wanted to canvass before this Court. For
convenience we proceed to determine the appeals filed
by the convicted accused persons by the Trial Judge
before taking up the appeals against acquittal filed by
the State of Maharashtra and the private appeal by
Smt. Vijaya Dilipsingh Shirke, mother of the deceased
Pintu.
52. For convenience, we quote the details of the
Criminal Appeals by the convicts-appellants before us:-
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70 apeal569.13 & others
1. Criminal Appeal No. 569 of 2013 by
appellant Vijay Kisanrao Mate [Accused
No.1].
2. Criminal Appeal No. 561 of 2013 by Raju
Vitthalrao Bhadre [Accused No. 15].
3. Criminal Appeal No. 564 of 2013 by [1]
Kiran Umraoji Kaithe [Accused No.9] and
[2] Dinesh Devidas Gaiki [Accused No.13].
4. Criminal Appeal No. 573 of 2013 by [1]
Umesh Sampatrao Dahake [Accused No.4],
[2] Ritesh Hiramanji Gawande [Accused
No.5], and [3] Kamlesh Sitaram Nimbarte
[Accused No.10].
All the above Criminal Appeals against
conviction, except Criminal Appeal No. 570 of 2013 by
Ayub Khan Amirkhan Pathan [Accused No.11], are
being decided hereunder.
53. We have gone through the entire evidence
with the assistance of learned Counsel for the rival
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71 apeal569.13 & others
parties. We have also perused all the documents
proved by prosecution along with reasons recorded by
the learned trial Court for convicting accused nos.1, 4,
5, 9, 10, 11, 13 and 15 and for acquitting accused
nos.2, 6, 7, 8, 12, 14 and 16.
54. It is not in dispute and rather the defence has
not disputed that deceased Pintu died homicidal death
on sixth floor in the District Court complex with several
injuries on his person. We would not dilate on this issue
and rather we would concur with the finding about the
homicidal death recorded by the learned Trial Judge in
para 33 of his Judgment. We, thus, hold that the
prosecution has duly proved that deceased Pintu died
homicidal death.
55. The next question before us is as to whether
the prosecution has with requisite evidence proved that
there was a conspiracy hatched by the accused
persons in furtherance to which the crime in question
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72 apeal569.13 & others
took place and consequently whether the conviction
recorded by the learned Trial Judge against all accused
persons under Section 120-B of the Indian Penal Code
is justified. The learned Trial Judge has not recorded a
categorical finding based on the evidence and reasons
as to whether the conspiracy was proved or not. As a
matter of fact, we find from the impugned judgment
that there is no discussion about the proof of
conspiracy by the accused persons on the basis of
evidence led in the Court nay even by drawing any
inference. It would be appropriate for us to quote the
relevant portion from the Judgment of the Trial Judge in
that behalf beyond which there is no discussion. We
quote paragraphs 35, 36 and 37 as under:-
"35. The prosecution alleged that the
conspiracy had been hatched by the
assailants to eliminate deceased Pintu,
therefore the essential features of the
offence of conspiracy need to be noted.
36. Sec. 120-A of I.P.C. defines criminal
conspiracy and sec. 120-B provides for
punishment for an offence of criminal
conspiracy. The basic ingredients of the
offence of criminal conspiracy are : (1) an
agreement between two or more persons,
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(2) the agreement must relate to doing or
causing to be done either (a) an illegal act,
or (b) an act which is not illegal in itself but
is done by illegal means. Therefore, it is
plan that meeting of minds of two or more
persons for doing so causing to be done an
illegal act or an act by illegal means is sine
qua non of criminal conspiracy.
37. However, it is observed that
conspiracy is always hatched in secrecy and
it is impossible for the prosecution to
adduce direct evidence of the common
object of the conspirators. Therefore, the
meeting of minds of the conspirators can be
inferred from the circumstances proved by
the prosecution, if such inference is
possible. The prosecution need not
necessarily prove that perpetrators
expressly agree to do or cause to be done
the illegal acts. The existence of the
conspiracy and its objective can be inferred
from the surrounding circumstances and
conduct of the assailants."
In our opinion, the above reasons are not sufficient to
hold that the prosecution had established or proved the
conspiracy in this case.
We, however, find from reading of paragraphs
37 and 38 of the Trial Court Judgment that the Trial
Judge has mixed up the issue of conspiracy with the
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common object as specified in Section 141 of Indian
Penal Code. We have, therefore, gone through the
entire evidence tendered by the prosecution to find out
whether is any satisfactory evidence on record to prove
the offence of conspiracy punishable under Section
120-B of Indian Penal Code for which eight accused
persons have been convicted. It is true that it is difficult
to establish conspiracy by direct evidence and that is
the reason why we have also made attempt to find out
whether there is any satisfactory indirect evidence to
bring home the charge of conspiracy. We, however,
find that there is no evidence about the requirement
for proof of conspiracy as required by Section 120-A of
the Indian Penal Code. Section 120-A, Indian Penal
Code, reads thus;-
"120-A. Definition of criminal
conspiracy.- When two or more persons
agree to do, or cause to be done,-
(1) an illegal act, or
(2) an act which is not illegal by illegal
means, such an agreement is designated a
criminal conspiracy:
Provided that no agreement except an
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75 apeal569.13 & others
agreement to commit an offence shall
amount to a criminal conspiracy unless
some act besides the agreement is done by
one or more parties to such agreement in
pursuance thereof.
Explanation. - It is immaterial whether the
illegal act is the ultimate object of such
agreement, or is merely incidental to that
object."
Thus, the essence of the offence of conspiracy is the
fact of combination by agreement. It is not enough
that two or more persons pursued the same unlawful
object at the same time and in the same place, but it is
necessary to show prior meeting of minds ' actus reus.'
The evidence in this case nowhere shows any meeting
of minds or agreement prior to the actual incident of
assault that took place. But the evidence is about
sudden appearance of the assailants on the scene like
a tidal wave moving towards the deceased Pintu in
tandem with deadly weapons showing 'common object'
namely to kill him. Thus, there is a marked distinction
between 'conspiracy' and 'common object.' We,
therefore, hold that the finding holding the accused
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76 apeal569.13 & others
persons guilty of offence punishable under Section 120-
B, Indian Penal Code, is illegal and will have to be set
aside.
56. The next aspect, which is important and as
argued by the defence counsel in all these appeals is
that the learned Trial Judge has utilized the evidence of
hostile witnesses to hold that there was evidence to
show that the accused persons had committed the
offence in question. According to the counsel for the
appellants in all these appeals, learned Trial Judge
could not have relied upon the evidence of these
hostile witnesses, namely PW 22 - HC Deepak Trivedi,
PW 28 Pappu Malviya, PW 27 - Hitesh Uike and PW 16 -
Gajraj Mahato, when, as a matter of fact, the Trial
Judge has ignored the cross-examinations in which they
have denied that they had seen the assailants or the
accused persons making assault. The further
submission advanced by the defence that PW 26 -
Vijaya Shirke and PW 33 - Shefali Shirke, the two eye-
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witnesses, on whom reliance has been placed by the
prosecution were held to have been seen on the scene
of offence by these hostile witnesses which is again in
ignorance of the cross-examination of these witnesses.
For that purpose, the defence counsel took us through
the cross-examination of these witnesses. Upon
reading of the
ig entire evidence, including cross-
examinations of these hostile witnesses, we find merit
in the submissions made by the learned defence
counsel in that behalf. All these hostile witnesses in
their cross-examination clearly denied what they had
stated in favour of prosecution in the Examinations-in-
Chief point-wise.
57. The next question is about the evidence of the
eye-witnesses accompanying the deceased Pintu who
were examined before the Trial Judge by the
prosecution. We regret to find that the police escorts,
in whose custody deceased Pintu was brought to the
District Court building complex, so also other accused
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persons with deceased Pintu, have not supported the
prosecution at all and have turned hostile. There is one
witness by name PW 17 Umesh Raut, who is said to be
the cousin of deceased Pintu. He also turned hostile.
We need not reiterate here the tendency of the
witnesses, eye-witnesses to keep away from such type
of incidents, instead of speaking the truth before the
Court. This is one of such cases.
In so far as these hostile witnesses are
concerned, we find that all these hostile witnesses,
namely PW 16 Gajraj Mahato, PW 27 - Hitesh Uike, PW
28 - Pappu Malviya and PW 22 HC Deepak Trivedi have
deposed that large number of assailants had come on
the spot with weapons and assaulted deceased Pintu
and that is the only evidence which the Court could
take into consideration. But then fact remains that all
these hostile witnesses have refused to identify a
single accused person before the Court as assailant.
58. With the above preface, it is necessary to go to
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the evidence of PW 26 Vijaya Shirke and PW 33 -
Shefali Shirke, her daughter. Obviously, forceful
arguments hve been made by the defence that they
are interested witnesses being the mother and sister of
the deceased Pintu and that, therefore, their evidence
cannot be accepted. The next argument is that when
in the broad daylight the murder took place in a busy
place like District Court complex, the prosecution is
unable to prove its case through the evidence of
independent witness or witnesses. We have already
stated that the prosecution did examine independent
eye-witnesses not one in number, but in multiple,
including the cousin of deceased Pintu. But then, none
supported the prosecution. Since defence counsel in
all these appeals have objection in accepting the
evidence of these two interested witnesses, namely PW
26 and PW 33 Vijaya and Shefali respectively, we have
kept in mind after going through several decisions of
the Apex Court the trite law that the evidence of such
witnesses should be scrutinized with full care and
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caution and to be careful that they are not allowed to
take revenge against innocent accused person. It is
with this settled legal principles, we now proceed to
scrutinize, analyze and marshal the evidence of these
two eye-witnesses - PW 26 Vijaya Shirke and her
daughter PW 33 Shefali Shirke.
59.
PW 26 Vijaya Dilipsingh Shirke deposed about
the motive in the instant case. We have seen her
evidence on the point of motive and we have also seen
the finding recorded by the learned Trial Judge on the
aspect of motive in para 44 which we quote
hereunder:-
"44. The legal position regarding proof
of motive is an essential requirement for
bringing home the guilt of accused. Proof
of motive is itself constitute a link of chain
of circumstances upon which the
prosecution may rely. It has come on
record that there is property dispute
between the family of deceased Pintu and
Accused No.1 Vijay Mate. However it is well
settled that when there is direct evidence
regarding the offence committed, the
evidence regarding the motive will not pale
into significance. Certainly the proof of
motive in such a situation helps the
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prosecution and supports the eye
witnesses. The case at hand rests upon the
deposition of eyewitnesses to the
occurrence. Therefore, even absence of
motive, would not by itself make any
material difference."
By and large, we find that the above finding regarding
motive is legal, correct and proper.
60. PW 26 Vijaya Shirke then deposed in para 4 of
her evidence that on 18th July, 2001, some unknown
had opened fire on Accused No.1 - Vijay Mate, but he
expressed suspicion on her son and two others. An
offence was registered against her son and as such
Pintu remained in jail till the incident took place. She
stated that on 5th June, 2002, when her son Pintu was
brought in custody to attend the marriage of her other
elder daughter Rajashree, Jitu Gawande and his three
associates opened fire towards her son, in which he got
injured about which complaint was lodged with Police
Station and offences were registered against them.
She then deposed that on the date of incident, namely
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19th June, 2002, as usual, she along with her daughter
PW 33 Shefali went to the Court since her son Pintu
was to be brought for attending the criminal case with
two friends of her son by names Umesh Raut and Jugen
Shukla, and reached in the particular court room
between 10.30 and 10.45 a.m., and asked the
concerned clerk as to when her son's case would come
up and she was told that the case would come up
between 12.30 and 1.00 p.m., and she then along with
her daughter and others came out of the court room
and started waiting near a corner. She noticed
Accused No.1 - Vijay Mate and his associates and
sensing some danger, she made a phone call to
Sakkardara Police Station, when Mr. Bais, Police
Inspector received the phone call to whom she
informed about the presence of Accused no.1 - Vijay
Mate and others and, therefore, she requested him to
provide security to her son. Mr. Bais stated that the
concerned Police Station was Sadar Police Station and
to seek security from Sadar Police Station, but she had
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no contact number of Sadar Police Station and,
therefore, she started writing an application. By that
time, around 11.15 a.m., she heard Vijay Mate shouting
"Maro Sale Ko Zinda Nahi Bachana Chahiye".. She
then saw Accused No.1 and his associates numbering
around 14 to 15 assaulting her son Swapni alias Pintu
with sharp weapons. He son fell down and Police
Constable Deepk Trivedi and another accused Pappu
Malviya were trying to rescue her son, but they were
also assaulted by accused no.1 Vijay Mate and his
associates. She knew some of the assailants by names
and some by faces, because whenever she used to
attend the Court, Vijay Mate along with those
assailants used to come to the Court and her son used
to tell her about them and she was always seeing them
in the Court. She and her daughter along with two
friends of her son then rushed to save her son, but
three to four boys with weapons came towards them
running and, therefore, all of them ran away from back
side and then came down. Thereafter, she went to
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Mure Memorial Hospital and asked the doctor as to
where was her son and she saw him dead on a
stretcher. She stated that she could identify the
assailants and then in the Court, she was asked to
identify. We reproduce the relevant para of her
evidence as under:-
"7. ig.......................................................
..............I can identify the assailants. As
the incident had occurred 10 years back,
so I will try my level best to identify the
assailants. The witness pointed point finger
towards accused Vijay Mate and identified
him and stated that he was having Gupti in
his hand. The witness pointed out the
finger towards accused [Mahesh Bante]
and identified him and stated that he was
having Gupti in his hand. The witness
pointed out the finger towards accused
Ritesh Gawande and identified him and
stated that he was having Gupti in his
hand. Witness pointed out finger towards
accused Umesh Dahake and identified him
as [Mangesh Chauhan]. The witness
pointed out the finger towards accused
[Mayur Chauhan] and identified him and
stated that he was having knife. The
witness pointed out the finger towards
accused [Maruti Nawwa] and identified
him and stated that he was having big
knife in his hand. The witness pointed out
the finger towards accused Dinesh Gaiki
and identified him and stated that he was
having knife in his hand. The witness
pointed out the finger towards accused
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Raju Bhadre and identified him and stated
that he was having kukari in his hand. The
witness pointed out the finger towards
accused Kiran Kaithe and identified him
and stated that he was having knife in his
hand. The witness pointed out the finger
towards accused Kamlesh Nimbarte and
identified him and stated that he was
having knife in his hand. The witness
pointed out the finger towards accused
[Pandurang Injewar] and identified him
and stated that he was having big knife in
his hand. The witness stated that last
person she has to identify by name and
pointed out the finger towards accused
[Mangesh Chauhan] and identified him
and stated that he was having Gupti in his
hand. I know rest of the accused person by
their faces."
[Names of acquitted accused are indicated
in bracket]
61. In so far as her evidence about identification in
the parade is concerned, she deposed in para 8 as
under:-
"8. On 21-06-2002, Police recorded
my statement. On 21-08-2002, I was called
in Jail for T.I. Parade. First I was made to
sit alone in the room. Thereafter I was
called out and taken to place where the
boys were standing in one row. One
Magistrate was there. I was told to identify
the assailants to whom I know by face. In
first round, I had identified two person as
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assailants. Thereafter I was sent out and
after some time, I was again called to the
place of for T.I. Parade and in second
round, I identified two person as assailants.
The four person to whom I identified in T.I.
Parade as assailants, today they are
present in the Court. In first round, two
person which were identified as assailants,
witness pointed out the finger towards
accused Sachin Gawande and Rajesh Kadu
and identified them in the Court. In the
second round, two persons which were
identified as assailants, witness pointed out
the finger towards accused Sandeep Sanas
and Ayub Khan and identified them in the
Court. The witness identified her signature
at page nos. 4 and 13 of T.I. Parade
Panchanama dated 21.08.2002. The said
signatures are now marked at Exhs. 508
and 509. "
She stated, she saw the incident from a distance of
about 10 to 15 feet. She is B.A. In English Literature
and was married in the year 1971 and is fully
conversant with Nagpur and its geography.
62. Now turning to the evidence of PW 33 her
daughter Shefali Shirke, her evidence is similar to the
evidence as deposed by her mother PW 26 Vijaya
Shirke. After describing preliminaries to the actual
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incident that took place, she deposed that Vijay Mate
and his 12 to 15 associates rushed upon her brother
Swapnil alias Pintu and started assaulting him. She
then pointed out and identified the accused persons
before the Court, also describing the weapons with
them. We quote para 11 from her evidence which
reads thus:-
"11. Witness pointed out the finger
towards accused - Vijay Mate and said that
he was having Gupti in his hand. Witness
pointed out the finger towards accused -
[Mahesh Bante] and identified him and
said that he was having Gupti in his hand.
Witness pointed out the finger towards
accused - [Mangesh Chauhan] and
identified him and said that he was having
Gupti in his hand. Witness pointed out the
finger towards accused Ritesh Gawande
and identified him and said that that he
was having Gupti in his hand. Witness
pointed out the finger towards accused -
Kiran Kaithe and identified him and said
that he was having Knife in his hand.
Witness pointed out the finger towards
accused - Dinesh Gaiki and identified him
and said that he was having knife in his
hand. Witness pointed out the finger
towards accused - Banti Chauhan and
identified him and said that he was having
knife and his hand. Witness pointed out
the finger towards accused Raju Bhadre
and identified him and said that he was
having Kukari in his hand. Witness pointed
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out the finger towards accused [Maroti
Nawwa] and identified him and said that
he was having Big Knife in his hand.
Witness pointed out the finger towards
accused - Umesh Dahake and identified
and said that he was having Katyar in his
hand. Witness pointed out the finger
towards accused [Pandurang Injewar]
and identified him and said that he was
having Big Knife in his hand. Witness
pointed out the finger towards accused
Kamlesh Nimbarte and identified him and
said that he was having Knife in his hand.
The witness pointed out the finger towards
four accused person and identified them by
their faces as assailants. On being asked
the names from the said accused persons.
Their names are Ayub Khan, [Sandeep
Sanas], Sachin Gawande, [Rajesh
Kadu]."
[Names of acquitted accused are indicated
in bracket].
As regards Identification Parade that was held,
she stated about it in para 13 of her oral evidence. We
quote Para 13 as under:-
"13. On 21st of August, 2002, I was
called for T.I. Parade in Jail. My mother was
also called in Jail for T.I. Parade. During T.I.
Parade in two round, I identified two
assailant in each round. The said four
assailants to whom I identified as
assailants during T.I. Parade are today
present before the Court. The witness
pointed out the finger towards Ayub Khan,
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Sandeep Sanas, Sachin Gawande, Rajesh
Kadu and identified them. The T.I. Parade
dated 21-8-2002 now shown to me. It
bears my signature at page No. 5 and 14. I
put these signatures in the Central Jail at
the time of T.I. Parade."
63. The cross-examination of both these witnesses
is almost same, so also the arguments and criticism
levelled by the defence counsel before us for all the
accused persons.
64. Counsel for the appellants in all these appeals
have argued that the statements of both PW 26 Vijaya
Shirke and PW 33 Shefali Shirke were recorded two
days late for which there is no explanation and that
they being the interested witnesses, there is a reason
to believe that manipulations were made for bringing
all these accused in the fold for describing them as the
assailants. This Court should, therefore, treat the late
recording of statements of both these witnesses as a
strong doubtful circumstance. We have carefully
considered this submission. What we find is that the
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incident took place on 19th June, 2002 at about 11.00-
11.15 am, that too in most violent and grisly manner
and both these ladies were looking at the assault from
a distance of 10-15 feet. When they tried to go nearer,
the assailants rushed towards them along with
weapons and both these ladies had to run away from
the spot. Thereafter, they went to hospital. The body
was sent for post-mortem. Several formalities were
completed and thereafter the dead body was handed
over to them. The funeral was held on the next day,
i.e., 20th June, 2002 in full Police Bandobast.
Thereafter, their statements were recorded on 21st
June, 2002, i.e., immediately on the next day of the
funeral. It is further noteworthy that PW 36 PI Vinod
Yeskade specifically deposed and which evidence has
gone unchallenged that he having visited them, found
their mental status not so sound till their statements
were recorded and that he could not have insisted for
recording their statements. The Trial Court has
accepted this explanation. We also agree with the said
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finding that both these ladies must not have been in
such mental status that they would have given their
statements on 19th June, 2002 or on 20th June, 2002,
on which day, the funeral was held. At any rate,
according to us, in this factual background, in no case,
it can be said that the statements recorded on 21st
June, 2002 were belated statements so as to look at
their evidence with any suspicion or doubt.
65. The next submission made by learned counsel
for the appellants is about the identification of the
accused persons in the Court after the lapse of period
of about ten years. In the first place, one must keep in
mind the factual background regarding the motive
about which we have quoted the evidence of PW 26
Vijaya earlier and then her acquaintance with almost all
the accused persons also when the criminal case was
being attended by PW 26 Vijaya Shirke and her
daughter [PW 33 - Shefali] for over a period of one year
when several dates were given in the Court and
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deceased Pintu was brought in the Court in custody.
These witnesses describe that on or about ten to
eleven occasions, they had been made aware by
deceased Pintu about the accused persons whenever
these accused persons used to visit the Court and Pintu
used to point out the details about these accused
persons to them.ig The evidence that these two
witnesses were attending the Court whenever the
deceased Pintu was brought in custody for appearance
in the Court is trustworthy and we believe it. The
evidence that Accused No.1 Vijay Mate and his
associates used to make rounds in the Court on the
dates of appearance of deceased Pintu while he was
brought in custody is equally trustworthy. Further, as a
natural conduct, we have no doubt that deceased Pintu
used to tell his mother and sister about Accused No.1 -
Vijay Mate and his associates including the accused
persons who used to make rounds in the Court.
Consequently, we have reason to believe that both
these witnesses very well knew the names and faces
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of the accused persons who they named at the first
blush when their statements were recorded on 21st
June, 2002 and also as described by deceased Pintu.
66. The next question is about the passage of ten
years when the evidence began. In the first place, we
find that the trial was not held immediately after the
incident because of the provision of stay under the
Maharashtra Organized Crime Act as told by the
learned counsel for the defence before us which took
about seven years and thereafter recording of evidence
commenced in 2011. That apart, as held by the Apex
Court in the cases of Pargan Singh Vs. State of
Punjab & another with Harminder Singh Vs. State
of Punjab [(2014) 14 SCC 619], there is no reason to
discard the identification even if it is made after ten
years. We rely upon the said decision by quoting
following paragraphs from the said judgment. We are,
therefore, unable to accept the submission that it was
impossible for these two witnesses to identify the
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accused persons in the Court when they knew after ten
years and that the Court should not rely upon such
identification in the Court:-
"18. Before entering upon the discussion on
this aspect specific to this case, we would
like to make some general observations on
the theory of "memory". Scientific
understanding of how memory works is
described by Geoffrey R. Loftus while
commenting upon the judgment dated 16-1-
2002 rendered in the case of Javier Suarez
Medina v. Janie Cockrell by United States
Court of Appeals. He has explained that a
generally accepted theory of this process
was first explicated in detail by Neisser
(1967) and has been continually refined
over the intervening quarter-century. The
basic tenets of the theory are as follows:
18.1 First, memory does not work like a
video recorder. Instead, when a person
witnesses some complex event, such as a
crime, or an accident, or a wedding, or a
basketball game, he or she acquires
fragments of information from the
environment. These fragments are then
integrated with other information from other
sources. Examples of such sources are:
information previously stored in memory
that leads to prior expectations about what
will happen, and information-both
information from external sources, and
information generated internally in the form
of inferences- that is acquired after the
event has occurred. The result of this
amalgamation of information is the person's
memory for the event. Sometimes this
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memory is accurate, and other times it is
inaccurate. An initial memory of some
event, once formed, is not "cast in
concrete." Rather, a memory is a highly
fluid entity that changes, sometimes
dramatically, with the passage of time.
Every time a witness thinks about some
event-revisits his or her memory of it-the
memory changes in some fashion. Such
changes take many forms. For instance, a
witness can make inferences about how
things probably happened, and these
inferences become part of the memory.
New information that is consistent with the
witness's beliefs about what must have
happened can be integrated into the
memory. Details that do not seem to fit a
coherent story of what happened can be
stripped away. In short, the memory
possessed by the witness at some later
point (e.g., when the witness testifies in
court) can be quite different from the
memory that the witness originally formed
at the time of the event.
18,2 Memory researchers study how
memory works using a variety of
techniques. A common technique is to try to
identify circumstances under which memory
is inaccurate versus circumstances under
which memory is accurate. These efforts
have revealed four major sets of
circumstances under which memory tends
to be inaccurate. The first two sets of
circumstances involve what is happening at
the time the to-be-remembered event is
originally experienced, while the second two
sets of circumstances involve things that
happen after the event has ended.
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18.3 The first set of circumstances
involves the state of the environment at the
time the event is experienced. Examples of
poor environmental conditions include poor
lighting, obscured or interrupted vision, and
long viewing distance. To the degree that
environmental conditions are poor, there is
relatively poor information on which to base
an initial perception and the memory that it
engenders to begin with. This will ultimately
result in a memory that is at best
incomplete and, as will be described in
more detail below, is at worst systematically
distorted.
18.4 The second set of circumstances
involves the state of the observer at the
time the event is experienced. Examples of
suboptimal observer states include high
stress, perceived or directly inflicted
violence, viewing members of different
races, and diverted attention. As with poor
environmental factors, this will ultimately
result in a memory that is at best
incomplete and, as will be described in
more detail below, is at worst systematically
distorted.
18.5 The third set of circumstances
involves what occurs during the retention
interval that intervenes between the to-be-
remembered event and the time the person
tries to remember aspects of the event.
Examples of memory-distorting problems
include a lengthy retention interval, which
leads to forgetting, and inaccurate
information learned by the person during
the retention interval that can get
incorporated into the person's memory for
the original event.
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18.6 The fourth set of circumstances
involves errors introduced at the time of
retrieval, i.e., at the time the person is
trying to remember what he or she
experienced. Such problems include biased
tests and leading questions. They can lead
to a biased report of the person's memory
and can also potentially change and bias
the memory itself.
19. While discussing the present case,
it is to be borne in mind that the manner in
which the incident occurred and description
thereof as narrated by PW-2, has not been
questioned on the ground that narration
should not be believed because of lapse of
time. Instead, the appellants have joined
issue on a very limited aspects viz. their
identification on the ground that faces of
the culprits could not have been
remembered after 7½ years of the
occurrence as memory fades by that time.
20. We are of the opinion that under
the given circumstances and keeping in
view the nature of incident, 90 seconds was
too long a period which could enable the
eye-witness (PW-2) to watch the accused
persons and such a horrible experience
would not be easily forgotten. Death of a
friend and near death experience by the
witness himself would be etched in the
memory for long. Therefore, faces of
accused persons would not have been
forgotten even after 7½ years.
21. Whether a particular event or the
faces of a person could be remembered
would depend upon the circumstances
under which those faces are seen. One
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cannot lose sight of the fact that here is a
case where the two accused persons are
the assailants who had shot dead Varun
Kumar, companion of PW-2. Thereafter,
they had fired at PW-2 as well. For PW-2, it
was clearly a horror scene resulting into
traumatic experience. In a case like this,
even when these two assailants had
remained before his face for 90 seconds,
these 90 seconds was sufficiently long time
to observe them closely and the person
encountering such an event would not
forget those faces even for a life time, what
to talk for 7½ years that have elapsed in
between. We would like to support our
hypothesis with an anecdote. Once a friend
of Einstein, the renowned scientist who
invented the theory of relativity, asked him
to explain that theory. Mr. Newton
explained it in a simple manner for
common man's understanding as under: If
a boy is sitting with his girlfriend/lover, he
would feel the time fly away and 60
minutes would seem as 60 seconds. On the
other hand, if a person puts his finger in a
hot boiling water, 60 seconds would feel
like 60 minutes. This is the theory of
relativity."
67. The next submission that was made before us
is that all the independent witnesses, though had
turned hostile before the Court, did not at all speak
about the presence of PW 26 and PW 33 at the time of
incident in the District Court building complex and that
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by itself shows that these two witnesses were not
present or rather their presence is highly doubtful as
claimed by them. Not only that these witnesses are got
up witnesses with a view to rope in as many as accused
persons as possible. Further, the conduct of these two
witnesses was criticized that though they had gone to
the Commissioner of Police, they had not disclosed to
the Commissioner of Police that they were the eye-
witnesses to the incident. The Commissioner of Police
would have caused recording of their statements
immediately when they had visited him immediately
after the incident nor did they lodge First Information
Report to the Police Station. Neither the Commissioner
of Police was examined, nor anybody from his office
was examined to corroborate their version that they
had really visited the office of Commissioner of Police
immediately after the incident. This is, therefore, a
clear lie on their part and it is impossible that the
Commissioner of Police would not cause recording of
their statement or get the FIR registered immediately,
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they being the alleged eye-witnesses. We have
carefully considered these submissions. At the outset,
we find that non-mention by the hostile witnesses
about the presence of PW 26 and PW 33 in their
evidence before the Court would not be a relevant
circumstance. Even if the same is taken to be of some
value, the fact remains that the prosecution declared
them hostile and does not want to rely upon their
testimony. The non-mention about the presence of
these two witnesses by the hostile witnesses by itself
would not make any difference while testing their
evidence or the case of prosecution. At any rate, the
Trial Court on the anvil of Section 145 of the Evidence
Act tested this submission and given sound reasons
with which we agree.
68. The submission that the Commissioner of
Police was not cited as a witness and further that these
two witnesses are telling lie about their visit to the
Office of Commissioner of Police does not appeal to us.
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In the first place, there is no need of recording of
statement of Commissioner of Police that these two
ladies had visited his office. Secondly, the law was
already set in motion immediately after the incident
when the police came to know about it and to say that
these two ladies did not lodge FIR immediately
thereafter is too idle. We are not impressed with these
submissions. Consequently, the submission that their
presence on the spot is doubtful or they are got up
witnesses does not appeal to us looking to their sworn
testimony before the Court which inspires confidence
and is trustworthy.
69. The criticism levelled by the counsel for the
Accused No. 2 - Mangesh Chavan, Accused No. 7
Pandurang Injewar and Accused No.11 - Ayub Amir
Khan that these accused were the witnesses in the
prosecution launched against deceased Pintu and had
deposed in that trial and, therefore, they were being
falsely involved in the present crime also does not
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appeal to us. We do not think that this could be a
reason to involve these accused in such a serious
charge of murder. We think these two witnesses would
never allow the real culprits to go scot free and involve
innocents. Further, the statements of these two
witnesses were recorded immediately on 21st June,
2002 and the name of accused persons were disclosed
as assailants. There was no scope left for any
manipulations, since the statements were immediately
recorded. We, therefore, do not agree with the
submission in that behalf.
70. The counsel for the appellants in these appeals
in respect of the Identification Parade that was held
were critical about holding of the parade on the ground
that it was a farce and in total violation of the
guidelines given in the Criminal Manual of the Bombay
High Court. Next ground was that the parade itself was
held belatedly, i.e., it was delayed by about seven
weeks and, therefore, such a parade was required to be
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rejected. Counsel pointed out to us the discrepancies
in holding the parade on the ground that the various
provisions of Manual were not followed by the person
conducting the Test Identification Parade. Right from
the beginning of parade, the guidelines were violated.
No respectable person was brought for witnessing the
parade. The age group of the accused persons was
not considered and the dummies were not properly
selected. It was not verified whether the accused were
seen by the witnesses earlier. There was a reason to
believe that the photographs of Accused No.11 Ayub
were shown before the parade was held and the
descriptive particulars of the parade were not
mentioned or recorded. In this connection, we have
gone through all the relevant documents regarding
holding of the parade. We have also seen the evidence
of the witness holding the parade. We have also seen
the finding recorded by the learned Trial Judge in
relation to the criticism about holding of the parade. It
would be important to note that accused persons who
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were named in 161 Statement, were known to the
witnesses. But for those four not named, Identification
Parade could be relevant. Trial Court has recorded
findings in following paragraphs of its Judgment which
we reproduce below:-
"79. In the present case, in order to
support to its case, the prosecution has
examined (PW 39) SJM Somkuwar, who has
conducted Test Identification Parade on Dt.
21.8.2002, 22.8.2002 and 23.8.2002. He
prepared Test Identification Memorandum
(Exh.718 to 720) but he admitted that he
did not ask the identifying witnesses
whether they were shown either accused
person or their photographs before
conducting Test Identification Parade and
he did not mention the said facts in these
Memorandum Panchanamas. Therefore, the
defence heavily placed reliance upon the
cases of Mohd. Iqbal Vs. State of
Maharashtra 2007 ALL MR Cri.361, Vijay
Bhosale Vs. State of Maharashtra 2006 ALL
MR Cri. 3390 and Soni Vs. State of U.P. 1983
S.C.C. (Cri.) 49, wherein it has been held
that inordinate and un-explained delay in
holding T.I. Parade is fatal to the
prosecution case. The said cases were
appears to be squarely rest upon the
evidence of test identification parade.
80. It is true that T.I. Parade has to be
held at the earliest opportunity to ensure
that the investigation is proceeding on right
line and memory of the witnesses does not
fade away. But there is no exact timing is
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mentioned within which the investigating
agency has to conduct the T.I. Parade.
However, when the witness had plenty of
time to see the accused in the broad day
light, identification of the witness in the
court even for the first time is acceptable.
81. However it is pertinent to note that
(PW 26) Vijaya Shirke and (PW 33) Shefali
Shirke have categorically deposed that they
knew some of the offenders by their names
and some of the offenders by their faces.
Therefore, if the witnesses knew the
offenders since prior to the incident, it may
not be necessary to hold test identification
parade. As such identification parade do
not constitute substantive evidence and
these parades are essentially governed by
sec. 162 of code of criminal procedure. The
code of criminal procedure does not oblige
the investigating agency necessarily to hold
a Test Identification Parade nor is there any
provision under which the accused may
claim a right to the holding of Test
Identification Parade. Test Identification
Parade is conducted with a view to
strengthening the trustworthiness of the
evidence. Such a TIP then provides
corroboration to the witness in the court
who claims to identify the accused person.
82. It is fairly well settled that
identification of accused in the court by the
witness constitute the substantive evidence.
There is nothing on record to disclose that
the faces of accused were totally unknown
to both these eye witnesses (PW 26 & 33).
On the contrary reading of entire
testimonies of these two eye witnesses
discloses that they knew the accused even
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prior to the incident. The crime was
perpetrated in broad daylight and witnesses
had sufficient opportunity to observe the
features of the accused persons. This is not
a case where the witnesses had only a
fleeting glimpse of the assailants on a dark
night. The witnesses had reason to
remember their faces as assailants had
committed ghastly crime. Now what weight
should be attached to such an identification
is a matter which will have to determine in
the peculiar facts and circumstances of the
case."
71. Having examined the above reasons in relation
to the Test Identification Parade and in respect of
identification of the accused in the court as substantive
evidence, we agree with the above legal position
recorded by the learned Trial Court. There are
decisions and decisions of the Apex Court that the
evidence of the Test Identification Parade does not
constitute substantive evidence and what constitutes
substantive evidence is the evidence before the Court.
We, however, do not want to dilate on this issue any
further as we would discuss later about the
trustworthiness of substantive evidence of these two
eye-witnesses as regards accused Nos. 6,8,11 and 14
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who were not at all named in 161 statements.
72. The next submission that was made before us
was that in order to find out whether PW 26 Vijaya was
really a truthful witness who claimed that she had
made a mobile phone call to Sakkardara Police Station
for providing security to her son when she saw the
assailants marching towards her son, her mobile phone
should have been seized and call details record ought
to have been produced by the Investigating Officer .
Similar is the submission regarding non-examination of
Mr. Bais, the Police Inspector at Sakkardara Police
Station who is said to have received her phone call and
advised her to contact Sadar Police Station for security.
We are unable to agree with this submission, since the
so called admission to collect such additional evidence
would not necessarily adversely affect the case of the
prosecution in the wake of substantive evidence which
we have already discussed. There may be some pieces
of evidence, minor or major, not collected by the
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prosecuting agency; but then omission to do so cannot
result into the prosecution case being thrown out.
73. The next submission made by learned counsel
for the appellants is that it is impossible that these two
witnesses could remember the names of the accused
persons or their faces and the weapons which they had
allegedly used for committing the crime. It is
important to note that statements of these two
witnesses were immediately recorded on 21st June,
2002, and in those statements, there is absolutely no
omission about the names and identification of the
assailants - accused persons, so also about the
weapons. The minor variations about the weapons
here and there in those statements would make no
difference in view of the attack in tandem by a large
number of persons armed with various types of
weapons. At any rate, we have already found that
these two witnesses were knowing the assailants for
the reasons already given by us. The submission that
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the witnesses have not given the details as to how they
knew the assailants, why they knew the assailants, is
not disclosed by them is nothing but a faint attempt.
These witnesses have asserted in their evidence about
identification of the assailants and also about the
weapons they had used. We are, therefore, unable to
accept the submissions to that effect.
74. The criticism on the testimony of PW 26 Vijaya
Shirke and PW 33 Shefali Shirke about their conduct
and the manner in which they behaved at the time of
incident and thereafter is not based on any pragmatic
foundation. The Trial Court has given answer to this
criticism on well settled norms of human behaviour.
Instead of repeating or putting the same in different
words, we would like to quote the following paragraphs
from Trial Court's Judgment with which we fully agree:-
"98. In my opinion, there is no
presumption that all the person would act
similarly in similar situation all the time.
Individual reaction to any incident depends
upon various factor. It is neither uniform
nor similar. Merely because one person
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reacts in a particular situation, it does not
necessarily mean that all others persons
would all the time react in the similar nature
in similar situation. In the instant case, it
has come in the evidence of aforesaid
prosecution witnesses that they rushed and
tried to save deceased Pintu but at the
relevant time, 3 to 4 assailants armed with
the weapons rushed towards them, they ran
away from the back side. Admittedly, PW
22 HC Deepak Trivedi and PW 28 Pappu
Malvi had sustained the injuries in the
incident as they were not armed with the
weapons, therefore, the aforesaid witnesses
felt apprehension that they also would be
assaulted as they were un-armed with the
weapons, hence they took back. It is trite to
say that criminal courts should not expect a
set reaction from any eye witness on seeing
an incident like murder. It is fallacious to
suggest that eye witness would have done
this or that on seeing the incident. A doubt
was also thrown by defence about the
veracity of the aforesaid eye witnesses on
the ground that entire incident took place
within 2 to 3 minutes and these witnesses
could not have seen what was happening in
such short time. This argument, in my
opinion, is apparently misconceived. When
10 to 12 persons armed with weapons
attacked a single individual in the broad day
light and even the incident took place in a
very short span of time, it odes not mean
that eye witnesses could not have observed
the same.
99. It is vivid that witnesses to certain
crimes may run away from the scene and
may also leave the place due to fear. Some
witnesses get a shock, some becomes
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perplexed and some who have courage
comes forward either to lodge the FIR or get
themselves examined immediately. There
cannot be uniformity in human reaction.
Considering this varying nature of human
being, merely because (PW 26) Vijay Shirke
and (PW 33) Shefali Shirke had not reacted
in a particular manner that itself cannot be
a ground to discredit their testimony. Albeit
their testimony will have to be scrutinized
carefully and it has to be ascertained
whether the testimony finds corroboration
from other material on record."
75. Now, turning to the specific submissions in
relation to the convicted accused persons separately,
arguing for Accused No. 11 - Ayub Khan, Mr. Tiwari,
learned Adv., argued that PW 26 and PW 33 stated by
way of omission that deceased Pintu used to tell them
about the names of the accused persons and was
pointing out their faces on the dates of appearance of
Pintu. He then submitted that no details about colour,
built up, complexion etc., of this accused or others who
were said to have been made known by deceased Pintu
to them were even described by these witnesses. We
have checked up the submission about the omission
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about which learned counsel made the submission
before us. We find from page 414 of the paper book
that there is no such omission in the evidence of PW 26
Vijaya, so also in the evidence of PW 33 Shefali. The
only omission appears to be that of last portion of para
11 of Shefalii's evidence where she pointed out finger
towards four persons and identified them by their faces
as assailants and also gave the names. This act of
pointing out a finger was made in the court and we do
not think that in law the same could be treated as
omission in the statement under Section 161, Criminal
Procedure Code, which could be asked to the
Investigating Officer. The submission about colour,
built up, complexion made by Mr. Tiwari does not
appeal to us, as no cross-examination was made in that
behalf. We would, however, deal with the substantive
evidence about Accused No.11 Ayub Khan, as said
earlier at a later point of time and the evidence about
Test Identification Parade may become insignificant.
The further submission that even these two
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eyewitnesses did not describe specifics about the overt
act by Accused No.11 Ayub Khan, as to what weapon
he had and what role he played and that there is no
corroboration will be considered at a later part of this
judgment.
81. Arguing for Accused No. 10 Kamlesh Nimbarte,
learned counsel Mr. A.M. Jaltare submitted that neither
the name of Accused No.10 Kamlesh nor of any
accused appears in FIRs [Exhs.106 and 614] when the
eye-witnesses claim to know all of them, including
Accused No.10 Kamlesh. He then pointed out that
there was omission in holding of knife by Kamlesh and,
in fact, a Gupti was recovered by the police from the
house of his uncle which shows falsity of the
prosecution case. We have considered the submission
and we find no merit therein, since FIR was lodged by
PW 22 HC Deepak Trivedi and had turned hostile,
though he had, according to prosecution, given names
of all the accused persons in the supplementary
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statement. The description of knife in his hand as a
weapon and recovery of Gupti is not a material
anomaly, as several accused had different types of
weapons.
82. Mr. R.V. Gaikwad, learned counsel then argued
for Accused No.5 - Ritesh Gawande and submitted that
no weapon was seized from him though the clothes
were recovered and his shirt was having stain of 'A'
blood group, but then Panch was not examined and,
therefore, it was not safe to rely on the evidence of
blood stains on clothes. No Test Identification Parade
of Ritesh was held and, therefore, prosecution case
against him was not proved. We find that there is
substantive evidence of two witnesses - PWs 26 and 33
against him about his role and there was no need to
hold parade because he was known to the witnesses.
83. Arguing for Accused No. 4 - Umesh Dahake,
learned Adv. Mr. Dable submitted that he was arrested
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on 19th June, 2002 and his clothes though seized on
22nd June, 2002, no blood was found thereon. The
knife was seized on the same day, but there is no blood
found thereon. He, therefore, submitted that there is
no corroborative evidence in relation to Accused No.4 -
Umesh Dahake. PW 26, according to him, failed to
identify Accused No.4 - Umesh Dahake and she also
did not say about any weapon with him. The seizure of
knife and clothes will have to be rejected and the
evidence thereto will have to be discarded in the
absence of proper sealing etc. We find that in the
substantive evidence of PWs 26 and 33, Accused No.4
has been named as assailant who actually participated
in the assault that was made and at any rate CA report
shows blood on Exh.14 - knife and Exh.15 clothes,
which is the corroborative evidence apart from the
substantive evidence.
84. Mr. A.V. Gupta, learned Senior Adv., for
Accused No. 9 Kiran Kaithe and Accused No.13 Dinesh
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Gaiki, submitted that the police had seized nails, knife
T-shirt, full pant from Accused No.9 and T-shirt shows
blood of Group 'A' while no blood is detected on knife
and nails. In the absence of proper sealing of the
articles, it cannot be said that the C.A. Report could be
reliable. He then submitted with reference to Accused
No.13 Dinesh Gaikee that his nails were also seized and
the spear blade was seized from him shows to have
human blood, while the clothes had no blood. But both
eye-witnesses described that accused no.13 was
having knife and they do not speak of any spear blade
which was seized by the police. All this shows,
according to Mr. Gupta, that there is falsity in the
evidence of these witnesses and the seizures made.
He then submitted that Identification Parade was
necessary for these two accused persons, but PWs 26
and 33 were not called to identify them. We have
considered the submissions made by Mr. Gupta and we
find that the T-shirt seized from Accused No. 9 Kiran
Kaithe had stains of Blood Group 'A' while the spear
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blade seized from Accused No.13 had human blood.
While the Blood Group of Accused No.13 is 'O', that of
deceased is 'A'. Whether the witnesses have described
spear blade as 'knife' would make no difference
looking to the incident that took place in a short time
with several assailants making assault. However, the
witnesses haveig clearly identified these accused
persons - Accused Nos. 9 and 13 and given their
names also immediately on 27th June, 2002, about
which there is no omission in their evidence before the
Court, apart from the fact that they identified them in
the Court. Since their names were already given and
they were known, question of holding the parade did
not arise and their identification in the Court as a
substantive evidence was good enough.
85. Mr. A.V. Gupta, learned Adv., further criticized
the evidence of PWs 26 and 33 and submitted that
cross-examination about details about the driver
engaged by her was made and it is noteworthy that
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these witnesses were unable to tell the surname of the
driver. He submitted that it was impossible that the
surname of the driver, who was working with these
witnesses, was not even known to them. Therefore, the
story about the presence of these two witnesses at the
time of incident in the District Court complex is falsified
and that is the reason why defence examined PW 26's
driver Ajay as DW 1. Taking us through the evidence of
driver Ajay, Mr. Gupta argued that his evidence is
trustworthy and it is a well settled legal position that
the evidence of a defence witness should be given the
credibility at par with the evidence of prosecution
witnesses. He, therefore, submitted that the evidence
of DW 1 - Driver Ajay will have to be accepted and if
his evidence examined, it is clear from his evidence
that at the time of incident, both the eye-witnesses -
PW 26 and PW 33 had not even reached the District
Court building complex from their house much less had
at all seen the incident. We have carefully considered
the submission as well as the evidence of DW 1 Ajay.
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The learned Trial Judge has given reasons in paragraph
no. 116 at page 1476, which we quote hereunder:-
"116. Now, so far as the defence witness
DW-1 Ajay Dhurve is concerned, the
accused person submitted that defence
witness is entitled for equal treatment. No
doubt, I do not agree with their submission
but before looking to his testimony, I must
mention the material fact that one Ajay was
the driver of [PW 26] Vijaya Shirke, she did
not mention his full name. Defence had first
issued witness summons to one Ajay
Dasture as driver, who was resident of
Sahkar Nagar, near Gajanan Mandir,
Nagpur, but report Exh.858 shows that he
had left the place 8-10 years back.
Thereafter, on the request of accused
person, defence witness summons was
issued to another person namely Ajay
Bhanudas Dhurve, r/o Vidiya Layout, Plot
No. 117, Beltarodi, Nagpur. He was
examined by the accused person in their
defence. According to him, on the day of
incident, he took the (PW 26) Vijaya Shirke
and (PW 33) Shefali Shirke from their house
directly to the hospital. However, the
manner in which he had given the evidence
is very difficult to believe. He did not place
any document on record to show that he
was working as driver with (PW 26) Vijaya
Shirke. Even the accused persons did not
feel it necessary to place his driving licence
on record. He did not know the dates of
material events occurred in his family. Even
he do not know the date of marriage of his
brother. Now, he is working as a Travels
Agent since couple of years with one Guddu
Pathan but he do not know family
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background of Guddu Pathan. Therefore,
the incident which occurred around 11
years back, how would he recollect it,
without noting that fact at any where that is
very crucial aspect. Therefore, in my
humble opinion, it is very unsafe to act
upon his testimony."
The criticism was levelled on the reasons recorded by
the learned Trial Judge that it was impossible to have
documentary evidence
ig about his employment as
nobody keeps such documentary evidence. We have
ourself carefully perused the evidence of DW 1 Ajay
Dhurve. At the outset, we find from the evidence of
this witness that this witness did not at all give any
details about his employment/engagement as a driver,
about his house where he was engaged, when he was
engaged and what salary or on what terms and
conditions he was engaged, how he was paid in cash or
by cheque and in what manner, i.e., weekly, biweekly
or monthly and what was the amount of salary that was
paid to him, who paid the salary. As a matter of fact,
on reading of Examination-in-Chief and cross-
examination of this witness PW 1 - Ajay, we have very
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serious doubt whether he is the same person who was
engaged as a driver by PW 26. His evidence does not
at all inspire confidence, nor one would believe him to
be the same person working as a driver with PW 26.
He has not shown any satisfactory material to say so.
He never went to police to give his statement. Thus, we
find that the evidence of this witness is full of falsity
and as a sequel, we agree with the trial court. We,
therefore, reject the evidence of DW 1 - Ajay.
86. We are then unable to accept the submissions
made by Mr. Gupta that both the eye-witnesses were
not able to give surname of the driver or his address
etc. We do not find anything surprising in this, as such
drivers are engaged and the women like PWs 26 and
33 are not expected to know the surname of the driver
or his address, particularly when it is the case of the
defence that the driver was engaged by deceased Pintu
himself and not by these women.
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87. Arguing for Accused No. 15 Raju Bhadre, Mr.
S.P. Dharmadhikari, learned Senior Adv., submitted
that the Accused No.15 was arrested on 10th July, 2002
and what is said to have been discovered by him is
Kukri having no blood stains so also on clothes seized
by the police. No Identification Parade was held and
there was no evidence, whatsoever, that Accused
No.15 was any time absconding. The prosecution did
not bring any evidence about abscontion of this
accused. The vague evidence about association with
Accused No.1 Vijay should not be accepted to involve
Accused No.15 and, therefore, the evidence of PWs 26
and 33 is required to be rejected as against this
accused. We have considered the submissions made
by learned Sr. Adv., Mr. Dharmadhikari and we find that
the reason given by the learned Trial Judge that
Accused No.15 was arrested quite late and, therefore,
it cannot expect to find blood stains on the weapons or
the clothes. We further find that there was no need to
have parade held because Accused No.15 was known
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to the witnesses and they had stated accordingly
immediately in their statements that were recorded on
21st June, 2002. At that point of time, there was no
reason for the witnesses to falsely name this Accused
No.15 in the statement under Section 161 and there
was no scope for any manipulation. The description
about the associates of Accused No.1 - Vijay will have
to be read in the context of entire evidence that was
ultimately tendered. Both the eye-witnesses have
given full details about the incident, including the
names and identification made in the Court. We are,
therefore, unable to accept the submission made by
Mr. Dharmadhikari. We, however, agree that there is
no evidence about abscontion of Accused No.15, but it
would make no difference in view of direct evidence.
Citations :
Learned counsel for rival sides cited before us
decisions of the Bombay High Court as well as the
Supreme Court. We find that many of these decisions
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were cited before the Trial Judge who considered
almost all citations and recorded reasons. We have
seen those reasons. We have still gone through each
and every decision cited before us. We have, thus,
thoroughly refreshed our memory about the extant
legal position. Keeping in mind the legal
pronouncements on various points, we have written the
Judgment. We, therefore, think, we need not cite and
discuss these decision over here.
88. To sum up, we find that the appellants-
accused persons, except Accused No.11 - Ayub who
have been convicted by the Trial Judge, had formed an
unlawful assembly and with the common object of
committing the murder of Pintu, had entered the
District Court premises, ensnared him and assaulted
him, causing about 44 injuries. The ocular evidence of
PW 26 Vijaya Shirke and PW 33 Shefali Shirke
understood in juxtaposition appeals to our conscience
as natural, trustworthy, honest and without any
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infirmities. We believe the said evidence, and we find
no reason to have any doubt in our mind about the
evidence of these eye-witnesses. They have had no
enmical feeling about the accused persons. The same
inspires confidence and particularly when their
statements were immediately recorded, leaving no
scope for any manipulation or adding the names of any
innocent. The common object of the unlawful assembly
is clearly proved, though we have held that the
prosecution failed to prove the conspiracy within the
meaning of Section 120-A of Indian Penal Code.
However, Accused No.1 Vijay Mate clearly led the
unlawful assembly by making his propitious choice of
choosing the place, namely District Court Complex with
full disdain for the 'temple of justice' and created terror
and trepidation.
89. The upshot of the above discussion is, all these
Criminal Appeals filed by the convicted accused
persons, except Accused No.11 Ayub Khan, must fail
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and, therefore, will have to be dismissed which we do
herein.
-0-0-0-0-
Criminal Appeal No. 570 of 2013 [Ayubkhan
Amirkhan Pathan Vs. State of Maharashtra]
Criminal Appeal No. 56 of 2014
with
Criminal Appeal No. 73 of 2014 :
01. These two Criminal Appeal Nos. 56 of 2014
and 73 of 2014 have been filed by the State of
Maharashtra and the complainant - Smt. Vijaya
Dilipsingh Shirke against the Judgment and Order of
acquittal of Accused Nos. 2,6,7,8,12, 14 and 16.
02. Learned Public Prosecutor Mrs. B.H. Dangre
submitted that the learned Trial Judge has recorded
reasons which are clearly perverse in recording the
acquittal of these accused persons. Referring to the
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entire evidence that was read over to us by the counsel
for both the parties, she submitted that on the same
evidence on which eight accused persons have been
convicted, these accused have been acquitted for the
reasons which are perverse, flimsy and has, thus,
caused miscarriage of justice to the State. She then
submitted that in the substantive evidence of PW 26
and PW 33, these accused have been specifically
named and even then learned Trial Judge has for no
good reasons recorded the order of acquittal. The
Public Prosecutor relied on the arguments made by her
in reply to the appeals filed by the convicted accused.
03. Per contra, learned counsel appearing for
these accused persons, who have been acquitted,
vehemently opposed these appeals against acquittal
and submitted that this Court should not interfere with
the order of acquittal looking to the settled legal
principles in relation to the appeal against acquittal.
The High Court would not substitute its view merely
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because second view is possible. All the defence
counsel then submitted that it is not that the acquittal
was recorded by the learned Trial Judge for any flimsy
reasons and on the contrary as specifically pointed out
by Mr. A.V. Gupta, learned Adv., for the defence, that
the acquittal was recorded by the learned Trial Judge
for want of other material and corroborative evidence
and circumstances, since, according to Trial Court,
testimony of PW 26 and PW 33 was not supported by
other material circumstances or corroborative
evidence. All the learned Counsel for the respective
respondents - acquitted accused, therefore, prayed for
dismissal of these appeals against acquittal.
REASONS:
04. We have considered these appeals against
acquittal and the grounds raised therein. We have
heard learned counsel for the rival parties. We have
seen the reasons recorded by the learned Trial Judge
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for recording acquittal of Accused Nos. 2,3,6,7,8, 12, 14
and 16. It is important to point out at this stage that
the Accused No.3 - Sachin Gawande died during trial
and, therefore, we are concerned with the acquittal of
Accused Nos. 2,6,7,8,12,14 and 16 who are now seven
in number. The Trial Judge recorded the following
reasons for making an order of their acquittal:-
"117. ........................................................
..............Similarly her evidence against A/7
Pandurang Injewar, A/12 Mahesh Bante,
A/14 Sandeep Sanas and A/16 Maroti Walke
does not inspire confidence."
"125. In the case in hand, accused nos.
1,4,5,9,10, 11, 13 and 15 along with some
other un-identified assailants armed with
deadly weapons came on the spot and
belaboured the deceased Pintu on account
of previous enmity. The facts and
circumstances of the case unequivocally
prove the existence of their common object
forming unlawful assembly and attacked
the deceased Pintu. The evidence so far as
against rest of accused persons in question
creating doubts to reveal their complicity in
the alleged crime and hence, I record my
finding accordingly against point no.5."
05. We find from the careful reading of the entire
Judgment that except the above reasons, no reasons
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appear in the Judgment for recording the order of
acquittal of these accused persons. In fact, it is
paradoxical. We have already discussed the evidence
of the witnesses including the witnesses PW 26 and PW
33 and also indicated the names of these acquitted
accused in bracket for emphasis. We have discussed in
detail about the trustworthiness of the evidence of
these two eye-witness in so far as convicted accused
persons are concerned. Upon careful perusal of the
entire evidence over and again for the purposes of
deciding the appeals against acquittal and keeping in
mind the set principles in the matter of appeal against
acquittal, we find that from the evidence which we
have carefully pondered over while deciding the
criminal appeals filed by the appellants-accused
persons, Trial Judge has recorded no reasons as to why
he recorded the order of acquittal of these accused
persons. There is, thus, a clear perversity in our
opinion and, in fact, the High Court is entitled to
interfere if there is perversity on the part of Trial Judge
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in recording order of acquittal, or rather High Court is
under a duty to interfere when there is voluminous
evidence against these acquitted accused persons. We
find in the instant case that as we have already
extracted evidence in our judgment while deciding the
criminal appeals filed by the accused persons from
which it is clear that out of these acquitted accused
persons, except Accused No.6 - Mayur Chauhan,
Accused No.8 Rajesh Kadu and Accused No.14 - Sandip
Sanas, all the others, I.e., Accused Nos. 2 - Mangesh
Chavan, 7 - Pandurang Injewar, 12 - Mahesh
Damodhar Bante, and 16 - Maroti alias Navva Walake
have been duly named, identified on 21st June, 2015
itself by PW 26 and PW 33 whom we have believed as
the eye-witnesses.
In so far as Accused No. 6 - Mayur Chauhan,
Accused No. 8 - Rajesh Kadu and Accused No.14 -
Sandeep Sanas are concerned, their acquittal by the
Trial Judge deserves to be confirmed for the following
reasons:-
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PW 26 Vijaya named Accused No.6 - Mayur
Chauhan in her evidence before the Court, but the
Investigating Officer - PW 36 Vinod on page No. 419 of
the paper-book stated that she had not stated the
name of Accused No.6 - Mayur Chauhan when he
recorded her statement under Section 161, Criminal
Procedure Code and, thus, proved the said omission
about him. PW 33 Shefali did not state the name of
Accused No.6 - Mayur Chauhan, but stated the name
as "Bunti Chauhan", which nickname was never
admitted by anybody, nor proved by the prosecution.
But then she admitted that she did not state [paper
book page no. 351] about him in her statement
recorded by police as assailant which omission was
duly proved by PW 36 - Vinod on page no. 414 [para 21
of the paper-book]. In so far as Accused No. 8 - Rajesh
Kadu is concerned, PW 26 - Vijaya in her substantive
evidence before the Court did not at all name him as
assailant, and also admitted that she had not stated his
name when her statement was recorded by Police vide
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page 228 para 36 of the paper book and accordingly
the Investigating Officer proved the said omission. PW
33 Shefali took the name of Rajesh Kadu in her
substantive evidence before the Court, but then
admitted in the cross-examination that she did not
state his name when her statement was recorded by
police [page 364 of the paper-book].
ig As regards
Accused No.14 Sandeep Sanas, PW 26 Vijaya did not
say a word about Accused No.14 as assailant in her
evidence before the Court. PW 33 Shefali, however,
named Accused No.14 Sandeep Sanas in her evidence.
It is, thus, clear that in so far as Accused No.6 Mayur
Chavan and Accused No.8 Rajesh Kadu are concerned,
the evidence of both these eye-witnesses suffers from
serious infirmity and we think it is risky to convict
them. In so far as Accused No.14 Sandeep Sanas is
concerned, Vijaya has not named him at all in her
substantive evidence before the Court and PW 33
Shefali has only named him, resulting into want of
corroboration for Accused No.14 Sandeep Sanas from
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PW 26 Vijaya. We feel it risky to convict Accused No.14
Sandeep Sanas on the singular testimony of PW 33
Shefali who identified him before the Court for the first
time and her evidence not being corroborated by her
mother about him.
06. In so far as other acquitted accused persons,
i.e., Accused Nos. 2,7,12, and 16 are concerned, we
find that so far as Accused No. 2 - Mangesh is
concerned, initially PW 26 Vijaya had stated by pointing
out Umesh Dahake as "Mangesh". But then at the end
of same paragraph, she again identified Mangesh
Chavan as the assailant. Similarly, both these eye-
witnesses - PW 26 and PW 33 in their sworn
testimonies which we have already quoted earlier,
identified all the other acquitted accused persons,
namely Accused Nos. 2, 7, 12, and 16. The submission
made by learned counsel for the respondents -
acquitted accused persons that the weapons seized
from them or the clothes seized from them did not
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have any blood stains and, therefore, order of acquittal
is justified does not appeal to us. In the first place, the
evidence regarding finding of blood on shirt or weapon
is in the form of a corroborative evidence and is not the
substantive evidence. Substantive evidence before the
Court is that of PW 26 and PW 33 which the Trial Court
has believed, so also we. Though Trial Court believed
their evidence in entirety, without recording any
reasons, Trial Court recorded the order of their
acquittal. We, therefore, find that there is a clear
perversity on the part of Trial Judge in recording the
order of acquittal in relation to all these accused
persons who were acquitted, except Accused No.6
Mayur Chavan, Accused No. 8 Rajesh Kadu and
Accused No.14 - Sandeep Sanas. That being so, we
have no other alternative, but to reverse the Judgment
and Order of acquittal of the above accused [Accused
Nos. 2,7,12, and 16] persons which we do herein and
convict them of the offences punishable under Sections
147, 148, 149 and 302 read with Section 34 of Indian
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Penal Code and under Section 4 r/w Section 25 of the
Arms Act and u/s 135 of the Bombay Police Act.
07. In so far as four accused by names Sachin
Gawande [Accused No.3] [dead], Rajesh Kadu [Accused
No.8], Sandeep Sanas [Accused No.14] and Ayub Khan
[Accused No.11] ig [convicted] are concerned, their
names were never given by PW 26 - Vijaya and PW 33
- Shefali when their statements under Section 161,
Criminal Procedure Code, were recorded. They were
identified in Test Identification Parade held on 21st
August, 2002, i.e., after two months of the incident.
Both these witnesses have not said a word about these
four persons as to whether they had any weapon in
their hands and it was vaguely stated that they were
assailants. The relevant portion from the evidence of
PW 33 - Shefali in this contest is reproduced below:-
"11. ........................................................
..............The witness pointed out the finger
towards four accused person and identified
them by their faces as assailants. On being
asked the names from the said accused
person. Their names are Ayub Khan,
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Sandeep Sanas, Sachin Gawande, Rajesh
Kadu."
"13. On 21st of August, 2002, I was
called for T.I. Parade in Jail. My mother was
also called in Jail for T.I. Parade. During T.I.
Parade in two round, I identified two
assailant in each round. The said four
assailants to whom I identified as assailants
during T.I. Parade are today present before
the Court. The witness pointed out the
finger towards Ayub Khan, Sandeep Sanas,
Sachin ig Gawande, Rajesh Kadu and
identified them. The T.I. Parade dated
21.08.2002 now shown to me. It bears my
signature at page No.5 and 14. I put these
signatures in the Central Jail at the time of
T.I. Parade."
This is the evidence of both these witnesses.
In other words, the prosecution is relying only on the
evidence of identification of these four persons in the
Test Identification Parade and there is no other
evidence against them. Evidence in the Test
Identification Parade, as stated earlier, is not a
substantive evidence but is corroborative collected
during investigation of a crime. In the substantive
evidence, the identification of these four persons is on
the basis of Test Identification Parade without any
description about the weapons they had overt act, or,
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as the case may be, as these witnesses specifically
described about the weapons in respect of other
accused persons. The delay of two months in holding
the parade in respect of these four persons may
become a material aspect, particularly because all
these four persons have not been named in the
statements under Section 161, Criminal Procedure
Code on 21st June, 2002. That apart, in so far as these
four persons, who are said to have been identified as
assailants by faces are concerned, the evidence of PW
26 Vijaya is infirm, examined in the light of one of
them, namely Accused No.8 - Rajesh Kadu. We quote
the following portions from paras 35 and 36 of PW 26 -
Vijaya's evidence:-
"35. It is true Rani Annapurnadevi was
residing in Chhota Tajbag area till her
death. It is true some time, I also resided in
the area of Chhota Tajbag. My both
brother-in-law are still residing in Chhota
Tajbag Area. I was visiting Rani
Annapurnadevi and my both the brother-in-
law after leaving the said area. Even after
the death of Rani Annapurnadevi, I was
visiting Chhota Tajbag area. It is true
Dayaram Kadu was the servant of Rani
Annapurnadevi. He used to look after the
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work of Rani Annapurnadevi and used to sit
with her. I was having good relation with
Dayaram Kadu as he being servant of Rani
Annapurnadevi. It is true at the time of
marriage of my elder daughter, I had invited
Dayaram Kadu. It is true I had also invited
him at the time of marriage of my son
Swapnil. It is true the children of Dayaram
Kadu used to call me and my husband as
maternal Uncle and Aunt. I do not
remember if accused Rajesh Kadu had
attended the marriage of my son -
Swapnil."
"36. It is true I did not state to the Police
while recording my statement the number
of the assailants to whom I identified by
faces. I do not remember whether I did
state to the Police while recording my
statement, the total number of the
assailants were 14 to 15. I cannot assign
any reason as to why the said fact is not
recorded by the Police in my statement. I
did not state the name of the accused
Rajesh Kadu to the Police while recording
my statement. I did not state age, colour,
built, complexion, height, clothes worn and
the weapons possessed by the assailants of
which I did not give names to the Police
while recording my statement. ....."
It is, thus, impossible to believe that Accused
No.8 - Rajesh Kadu was not known to the mother and
daughter [PWs 26 and 33 respectively] when Dayaram
Kadu was their servant looking after Rani
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Annapurnadevi and the children of Dayaram Kadu,
namely Rajesh Kadu and others used to call PW 26
Vijaya and her husband "Mama and Mami." It is in this
background, we find it very risky to convict Accused
No. 8- Rajesh Kadu, Accused No.11 - Ayub Khan, and
Accused No. 14 - Sandeep Sanas, In so far as Accused
No.11 Ayub Khan is concerned, he was, however,
convicted by the Trial Court and, therefore, as a result
of this discussion, the benefit of doubt will have to be
extended to Ayub Khan and consequently Criminal
Appeal No. 570 of 2013 filed by him will have to be
allowed and he will have to be acquitted, which we do
hereunder.
08. Having, thus, decided to allow Appeal against
Acquittal against the above accused persons, except
Accused No.6 - Mayur Chavan, Accused No.8 Rajesh
Kadu and Accused No.14 - Sandip Sanas for the
reasons recorded by us, we will have to hear the
accused persons [Accused No.2 - Mangesh Chavan,
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141 apeal569.13 & others
Accused No. 7 - Pandurang Injewar, Accused No. 12 -
Mahesh Damodhar Bante, and Accused No. 16 - Maroti
alias Navva Walake] on the question of sentence to be
awarded to them. Hence we post these two appeals
against acquittal for hearing on the point of sentence
on 26th June, 2015. Counsel appearing for them shall
address the Court on the above date.
ig -0-0-0-0-
Criminal Appeal No.56/2014 :
01. This appeal has been filed by Smt. Vijaya wife
of Dilipsingh Shirke, complainant, i.e., mother of
deceased Pintu Shirke, for enhancement of sentence by
converting life imprisonment into death for the
convicted accused persons - the appellants.
02. We have heard Mrs. Vijaya Shirke in person
who was present in the Court on the date of hearing
along with learned Public Prosecutor Mrs. Dangre. Mrs.
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Vijaya Shirke submitted that by making a diabolical
plan, her son was murdered in broad daylight in the
District Court building complex which terrorized one
and all. According to her, punishment of death
sentence is the only punishment they deserved in order
to have deterrence for such type of accused persons
who dared to igenter District Court premises for
attacking the deceased who was in the Magisterial
Custody brought by the police for production before
court and who was helpless having no means to resist
the attack. She, therefore, submitted that this is the
most heinous crime committed in the public place, that
too in the temple of justice and, therefore, the
punishment of death is required to be awarded to the
convicted accused persons.
03. The defence counsel for all the convicted
accused persons have opposed the appeal for
enhancement of sentence and submitted that there is
no element of rarest of rare case as contended by her.
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04. Upon hearing Mrs. Vijaya Shirke, the appellant
in person before us and the defence counsel and
having given our careful thought to the entire matter,
we think that the act of the accused persons was
dastardly creating trepidation in the temple of justice in
a broad daylight by committing the murder of the
person in custody of the court. But it cannot be said
that it is the rarest of rare case for awarding the
sentence of death to the convicted accused persons.
That being so, we do not find any merit in the appeal
for enhancement of sentence to death filed by Mrs.
Vijaya Shirke, the Appellant in Criminal Appeal No. 56
of 2014.
05. In the result, her appeal will have to be
dismissed which we do.
06. As a sequel, we make the following order:-
ORDER
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144 apeal569.13 & others [a] Criminal Appeal No. 569 of 2013 filed by Vijay Kisanrao Mate is dismissed.
[b] Criminal Appeal No. 561 of 2013 filed by Raju Vitthalrao Bhadre is dismissed.
[c] Criminal Appeal No. 564 of 2013 filed by [1] Kiran Umraoji Kaithe and [2] Dinesh Devidas Gaiki is dismissed.
[d] Criminal Appeal No. 573 of 2013 filed by [1] Umesh Sampatrao Dahake, [2] Ritesh Hiramanji Gawande and [3] Kamlesh Sitaram Nimbarte is dismissed.
[e] Criminal Appeal No. 56 of 2014 filed by Smt. Vijaya Dilipsinghraje Shirke is dismissed.
[f] Criminal Appeal No. 73 of 2014 and Criminal Appeal No. 55 of 2014 filed by State of Maharashtra and Smt. Vijaya Dilipsinghraje Shirke respectively, both are partly allowed, and the following respondents-accused persons, namely :-
[i] Accused No.2 - Mangesh Shivajirao Chavan, [ii] Accused No. 7 - Pandurang Motiramji Injewar, ::: Downloaded on - 29/06/2015 23:59:24 ::: 145 apeal569.13 & others [iii] Accused No. 12 - Mahesh Damodhar Bante, and [iv] Accused No. 16 - Maroti alias Navva Santoshrao Walake are hereby convicted of the offences punishable under Sections 147, 148, 149 and 302 read with Section 34 of Indian Penal Code and under Section 4 r/w Section 25 of the Arms Act and under Section 135 of the Bombay Police Act, except for offence punishable under Section 120-
B of Indian Penal Code.
These appeals are, however, dismissed against other respondents - Accused No. 6 - Mayur alias Banti Shivajirao Chavan, Accused No. 8 - Rajesh Dayaramji Kadu and Accused No. 14 - Sandeep Nilkanthrao Sanas.
[g] Those accused persons who are on bail, their bail bonds stand cancelled and all the convicted accused persons are given eight weeks to surrender.
[h] Criminal Appeal No. 570 of 2013 filed by Accused No. 11 - Ayubkhan son of Amirkhan Pathan against State of Maharashtra is allowed and the impugned Judgment and Order convicting him of offences punishable under Sections 147, 302 120
(b) read with Section 149 of Indian Penal Code is set aside only qua him, and he is acquitted of the ::: Downloaded on - 29/06/2015 23:59:24 ::: 146 apeal569.13 & others charges for which he was convicted by the learned Trial Judge. He be set at liberty forthwith, if not required in any other crime.
06. As Counsel for accused no.2 is not present, we would like to post these appeals on 26th June, 2015 at 2.30 p.m. for hearing on sentence for Accused Nos. 2,7, 12 and 16.
Judge Judge
-0-0-0-0-
|jeswani & hedau|
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