Bombay High Court
Juber (Zuber Or Zubair) Bashir Ahmed ... vs The State Of Maharashtra on 10 December, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:55415-DB
Digitally signed
1/35 1 APPEAL 452-17.doc
ASHISH by ASHISH
SAHEBRAO
SAHEBRAO MHASKE
MHASKE Date: 2025.12.16
19:41:14 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.452 OF 2017
Juber (Zuber or Zubari) Bashir Ahmed .. Appellant
Idrisi
Versus
The State of Maharashtra and anr .. Respondents
WITH
CRIMINAL APPEAL NO.278 OF 2023
Yusuf Khwaja Usen Sayyed @ Salman .. Appellant
Versus
The State of Maharashtra and anr .. Respondents
WITH
CRIMINAL APPEAL NO.938 OF 2019
Kartik Pratap Kaunder .. Appellant
Versus
The State of Maharashtra .. Respondent
Dr. Yug Mohit Chaudhary a/w Mr. Anush Shetty for the Appellant in
Appeal No.452 of 2017.
Ms. Trupti Khamkar for the Appellant in Appeal No.278 of 2023.
Mr. Veerdhawal Kakade for Appellant in Appeal No.938 of 2019.
Ms. Sangeeta Shinde, APP for the State.
CORAM: BHARATI DANGRE &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 18th NOVEMBER, 2025
PRONOUNCED ON: 10th DECEMBER, 2025
JUDGMENT:- (PER BHARATI DANGRE J)
1. The three appeals are filed by the appellants (accused nos. 1, 2 and 3) calling in question the legality of the judgment delivered by Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 2/35 1 APPEAL 452-17.doc the Additional Sessions Judge, City Civil and Sessions Court at Mumbai on 27/02/2017, convicting them for the offences punishable under Sections 302 r/w Section 34, Section 397, Section 342 r/w Section 34, and 323 r/w 34 of IPC, and sentencing them to suffer imprisonment for life and other distinct sentences on being convicted for distinct offences, all sentences being directed to run concurrently.
In the trial, the accused no.4 Ajitkumar Fatehlal Bagecha Jain faced accusations under Section 411 of IPC, but was acquitted. Similarly, all the accused are acquitted of charge under Section 201 of IPC.
2. On the Appeals being admitted, they are taken up for final hearing.
Heard Dr. Yug Mohit Chaudhary for accused No.1, Adv. Tripti Khamkar for accused no.2, and Adv. Veerdhawal Kakade for accused no.3, and learned APP, Ms. Sangeeta Shinde, for the State.
3. Before we appreciate the rival contentions advanced on behalf of the appellants and the public prosecutor representing the State, we shall refer to the case of the prosecution in brief.
As per the prosecution, on 28/07/2011 at about 3:30 p.m., when Kumar Himanshu was present in the house along with his mother Aruna Pramod Pandey at around 3:30 p.m., and they were lying down in the hall on a mat, three persons barged into the house. One of those person told his mother that her husband had taken one and half lakh Rupees from him at a bar, and the name of the person was Ayan, but his mother responded by stating that her husband's name is not Ayan and he do not go to the bar. In the meanwhile, as per the Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 3/35 1 APPEAL 452-17.doc prosecution, one of the accused removed a knife from his pocket, and when his mother raised a shout, the accused threatened her to take out gold or he would kill her son. When his mother refused, two of the accused persons, put a towel around the neck of his mother in an attempt to strangulate her, and she became unconscious. Even, the young boy's hands, legs were tied by a bed-sheet and he was gagged. Thereafter, two of the accused persons took his mother to the kitchen, which was at the end of the two rooms and the accused no.1 kept holding him in the next room.
After 10 to 15 minutes, the two accused, who took Aruna inside came out and while they were leaving, one of them threatened Kumar Himanshu that he shall not disclose the incident to police. After a while he was able to free himself and went to the kitchen to find that his mother's neck was slit and she was lying in a pool of blood. He came down from his block and informed a neighbour about the incident, who called up the police.
4. In the wake of the aforesaid, the three accused face the charge of committing house trespass by entering into the house of Aruna, in furtherance of common intention, after having made preparation for causing hurt to her and thus of committing an offence punishable under Section 452 r/w 34 of IPC. They are also charged for strangulating Aruna by putting a scarf around her neck and then inflicting blows of knife on her throat resulting into her death and therefore, committing an offence punishable under Section 302 r/w 34 of IPC.
Since, they committed robbery by taking gold ornaments, and mobile phones from possession of Aruna, in furtherance of their Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 4/35 1 APPEAL 452-17.doc common intention, the three also faced the charge under Section 397 of IPC and for wrongfully restraining the young boy Himanshu by tying his hands and legs, they were accused of committing an offence punishable under Section 342 of IPC and for voluntarily causing injury were also charged under Section 323, read with Section 34 of IPC.
In the wake of an attempt to destroy the evidence for causing murder by throwing water over body of Aruna and also pouring water at the place of incidence, they were charged for destruction of evidence under Section 201 r/w 34 of IPC. It is the fourth accused Ajitkumar, who was accused of dishonestly purchasing gold ornaments belonging to deceased Aruna, knowing or having reason to believe that it is a stolen property and therefore, he was charged under Section 411 of IPC.
Since, the accused persons pleaded not guilty, they faced a trial before the Additional Sessions Judge, Greater Bombay, at Sewree.
5. In order to prove the charge against the accused, subjected to trial prosecution examined 16 witnesses, the star witness being Kumar Himanshu, who was present in the house along with deceased Aruna, he being examined as PW-1. The neighbour Umashankar Shukla is examined as PW-2. Dr. Pankaj Gajare attached to Cooper Hospital, who conducted postmortem and gave his opinion about the cause of death of Aruna is examined as PW-6. Dr. Prakash Pawar, the Medical Officer, who examined PW-1, Himanshu is examined as PW-8. The other witnesses examined are the panch witnesses, and the Investigating Officers. Another witnesses relevant is PW-12, the Principal of Anjuman Islam Girls High School, who confirmed the Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 5/35 1 APPEAL 452-17.doc document in form of SSC mark-sheet alleged to be belonging to one of the accused. The Nayab Tahasildar, who conducted T.I. parade of the accused persons at Arthur Road Jail is examined as P.W.-13.
6. Apart from this, the prosecution has also relied upon the documents in form of First Information Report (Exhibit-23), Inquest panchanama (Exhibit-106), spot panchanma of the house (Exhibit-
39), Copy of MLC of Himanshu (Exhibit-58), Memorandum of examination of deceased Aruna (Exhibit -41), seizure panchnama in pursuance of disclosure statement by the accused no.1 (Exhibit- 65) the arrest panchnamas of the accused, seizure panchnama at the instance of accused no.2 (Exhibit-52), disclosure panchnama by accused nos.3 and 7 other documents including the C.A. report regarding blood samples.
7. The prosecution also relied upon various articles, which included the bed-sheet, and the towel seized from the spot (Article and C). Knife seized from accused no.2 (Article D), along with seizure of one mobile from accused no.1 (Article K) and one gold chain and pairs of ear rings of deceased Aruna seized from accused no.2 (Article F).
The accused persons were confronted with the evidence brought on record by prosecution under Section 313, and they adopted a stand of denial.
8. As the star witness of the case is Kumar Himanshu, we are taken through his evidence recorded in trial, who at the relevant time was aged 12. He deposed about the incident by stating that he along with his mother at 3:30 p.m., were at home and they were lying down Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 6/35 1 APPEAL 452-17.doc in a hall on a mat. The home consists of two rooms, which comprises of a kitchen cum store. His school was over at 12:30 p.m., and when he was at home, he heard someone pushing the door and therefore, he and his mother got up.
According to PW-1, three persons entered the house and one of them told his mother that her husband has taken one and half lakh rupees from him and the money was given by him to a person named Ayan, who visited the bar. According to PW-1, his mother clarified that her husband's name is not Ayan and he never go to bar. At that time, according to Himanshu, another accused took out a knife from the trouser's pocket and directed his mother to take out the gold and threatened that he will kill her son, but when she refused to provide gold, two of the accused persons took out the towel and pulled it around her neck so as to strangulate her and because of this act, she became unconscious. As per PW-1, the third person present there tied his hands, legs and gagged his mouth with the bed-sheet, and his mother was taken into the kitchen by accused nos.2 and 3, while accused no.1 continued to hold him at the time.
After 10 to 15 minutes when they came out, and left the house, he went into the kitchen and to find his mother, with her neck slit lying in a pool of blood with water poured on the floor, he immediately came down to seek help and even he had sustained injuries on his face, hands and inside the mouth, as he was tied. He also noted that the gold necklace, gold ear rings and gold bangles were missing from the person of his mother and even four mobile phones were also missing.
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9. As per PW-1, he was called by police to a jail for identification of the accused in presence of one Tahasildar. He was called in the hall and he was asked to identify from the six persons standing in the row by touching the assailant. He identified the three persons, who visited his house and also identified the three accused persons before the Court, by stating that they are the same persons, whom he had identified in the jail. He also identified the bed-sheet, with which he was tied as well as the towel by which his mother was strangulated.
10. The child witness of 12 years is subjected to extensive cross- examination, but his credibility is not impacted as he categorically admitted that they were residing in a hutment locality and their house was on the first floor. He admit that his mother did not shout loudly and even when towel was rolled around her neck, she did not shout. He was unsure whether his mother was able to breathe and whether she was unconscious or not. He admit that his hands and legs were tied before his mother was taken inside the inner room. He also admit that he was frightened and therefore he did not shout. He denied the suggestion that after returning home from the school when he went to play and when he returned home, he noticed the body of his mother lying in the pool of blood.
He is also put to extensive cross-examination, as regards the aspect of test identification in the jail, but he remained consistent on his version that he identified all the three accused persons. He specifically denied the suggestion to the following effect:-
'It is true that my mother was assaulted in another room so personally I could not watch the actual nature of assault. I cannot say which of the accused inflicted blows. It is not true that I cannot say that who Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 8/35 1 APPEAL 452-17.doc pressed the throat of my mother. The person who was standing near me did not pressed throat of my mother.' The witness was again re-examined as a permission was sought to refer the muddemal articles and he identified the ornaments as well as other articles belonging to his mother.
11. PW-1 proved the FIR filed by him on 28/07/2011, while he was aged 11 years studying in Class VIII. While lodging the FIR, he gave the physical description of each of the accused, who entered into his house, with reference to the act committed, by specifically identifying the person, who was holding the knife and the one who pulled his mother in the kitchen and he gave the description of the person as between the age group of 20-25 with wheatish complexion and also with the description of appearance. He also identified another person accompanying him, who also pulled his mother and described him to be a person of 20-25 years, wearing specs and Red shirt with white design, and wearing a sandal. He also categorically gave the description of the person, who tied him, by saying that he was in the age group of 20-25 with long hair wearing surma and he was wearing black colour shirt and jeans pant and carrying a plastic bag.
12. Corroborating the version of PW-1, another witness examined is PW-2, a driver by profession. According to him while his vehicle was parked on Mahakali Road at Gate No. 2, he heard noise from behind and when he turned back, he noticed 4 to 5 persons. When he went to the place, he came to know that people were assaulting Aruna in the residential accommodation of upper portion of Sonolica shop. He visited the house and found Aruna lying on the ground with her Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 9/35 1 APPEAL 452-17.doc throat cut. Her son was on the ground floor and he informed that three persons had entered into the house and they cut her throat by knife. He thereafter called police, who reached on the spot.
13. The version of the Himanshu, PW-1 finds corroboration in the panchanama to which Hemant Singh is a signatory, being examined as PW-5 and the spot panchanama being exhibited through him (Exhibit-39). The panchanama refers to the place, where the incident took place, which is a residential accommodation on upper floor, at the backside of the property. Referring to the two rooms, the panchanama record that beads of black colour Mangalsutra was lying scattered in the first room. It also refer to presence of a plastic bag with a tiffin inside along with a packet of cigarette. A mark sheet of 10th standard examination with the name of Idris Zuber Ahmed is also found in the plastic bag.
In the second room, the panchanama refer to the blood marks and water spilled over the room and there is also mention of pendent of Mangalsutra and pieces of red colour bangles.
The partition is a kitchen cabin and all the articles found on the spot were sealed and samples of blood lying on the floor were collected and sent for analysis.
14. Another corroboration of the prosecution case is in the form of the medical experts, which include PW-6, who conducted the postmortem on the body of the deceased and opined the cause of her death to be 'hemorrhage and shock due to the incise wound over (Rt) side of neck (unnatural).' Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 10/35 1 APPEAL 452-17.doc The time of death is given as within four to six hours after last meal. Clause no.17 of the postmortem report refers to the incised wound vertebral deep seen over anteroposterior of neck extending from medial border of left sterno cleidomastoid to centre of neck to (rt) lateral of neck to posterior of neck upto lateral border of (lt) trapezius muscles. The margins of the said injury are referred to as clear clean cut.
PW-6 admitted that if an injury is caused by sharp object, the margin of both sides of injury is clean cut deep injury and in column 17, he had mentioned that if they were incised wound it means they were clean cut deep wound, though this clarification is not mentioned in the postmortem report.
On being confronted with knife (Article-D), he admitted that if the weapon is sharp to its one end and the other side is blunt, the injury to one side would be clean cut and other side would be blunt in irregular shape.
15. Another Doctor, who examined Himanshu, stepped into witness box as PW-8, who found abrasion over his face, left elbow and contusion over right of the face and left lip, inner side, with size of 1x1 cm. He proved the certificate issued by him, when he examined Himanshu on 29/07/2011, at 1:50 a.m. PW-8 opined that the injuries are possible if fist blows are inflicted and this corroborate the version of PW-1, that he was tied and he had to struggle to free himself.
16. At the time of spot panchanama, one plastic bag was recovered, which was lying near the window carrying a cigarette Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 11/35 1 APPEAL 452-17.doc packet and mark-sheet of 10th Standard with the name of Idris Zuber Ahmed (accused no.1) being recorded therein.
In this regard, PW-12 the Principle of Anjuman Islam Girls High School and Junior college, Bandra, was examined when he deposed that accused no.1 was the private student of the school for the year 2003-2004 and his details were recorded in the Register of the school, though PW-12 was not working in the school at the relevant time. Clarifying that even the school was only for girls, male private students were also allowed to fill in the form from their school, the prosecution has attempted to establish the presence of the accused on the spot as he had dropped the bag which contained the certificate.
17. The prosecution has also attempted to establish that the knife used in the offence was purchased from PW-3, but he did not support the case of the prosecution and even on being cross-examined by the public prosecutor, his evidence do not leads credence to the prosecution case.
PW-7, is a witness, who is the panch for the search conducted by the police, when accused no.1 was found with a Nokia mobile phone which belonged to the deceased. Similarly accused no.2 was also found with a mobile along with one wrist ring and wrist watch. In the search conducted by police, accused no.3 was found to have sustained some injuries on his right finger and he led the police party to the place from where he produced the bag which had a pant and shirt with blood stains and a blanket which had concealed a knife. The canvass boots with blood mark was also recovered from the loft and the articles were seized by drawing a panchanama.
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PW-11 owner of a Jeweller shop is examined to estimate the valuation of the ornaments and who issued a valuation certificate of a gold chain and the ear rings belonging to the deceased.
18. Apart from this, PW-13 a Nayab Tahasildar in District Collector Office, Mumbai City, who conducted the Test Identification Parade (TIP), when Himanshu identified the three accused persons from different groups of people and prepared the identification panchnama and memorandum deposed that he can identify the three accused identified by Himanshu. Though, he admit that the way in which the accused were called and the description of the face is not mentioned in the panchnama, he admittedly has carried out the test identification parade, upon receipt of the letter from the District Collector, Mumbai City.
The other witnesses examined are the officers, who registered the FIR and conducted some part of investigation which include PW- 15 and PW-16.
19. It is in light of the aforesaid evidence being laid before the trial Judge, he determined the guilt of accused nos.1 to 3 and convicted them for the offence punishable under Sections 452, 302, read with Section 34 of IPC and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 25,000/- each, in default of payment of fine to undergo rigorous imprisonment for four months. In addition, the accused are also convicted under Section 397 and Section 342, read with 34 of IPC and are directed to undergo rigorous imprisonment for three months and one year respectively. They also stand convicted under Section 323 r/w 34 of IPC and sentenced to undergo rigorous imprisonment for a term of one year.
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All the accused however stood acquitted of section 201 and the 4 th accused Ajitkumar Fatelal Bagecha was acquitted of the offence punishable under Section 411 of IPC.
The Trial Judge, clearly rendered the finding based on the evidence of PW-1, Himanshu, since it inspired confidence and based on his deposition before the Court, coupled with the recovery of bed- sheet on the spot and the injury sustained by him in form of abrasion and contusion, with the specific evidence of PW-8 that they were caused within 24 hours of his examination and the injury to the lip i.e. inner side of face is possible if mouth of a person is gagged with a cloth, the court found that there is no reason to doubt his version as he being the eye witness.
Reliance was also placed upon the spot panchana (Exhibit-39), which found exact corroboration from the version of PW-1.
In the wake of the evidence brought on record, it was concluded that the prosecution had established that the ornaments and mobiles belonging to Aruna were robbed by the accused persons, by using deadly weapon like knife and they caused death of Aruna and there is no explanation coming from the accused as to the possession of the mobile phones or the ornaments. Recording that the prosecution has established its case beyond reasonable doubt and, the finding of guilt was recorded against the three accused persons.
20. Dr. Chaudhary appearing for the accused no.1, has urged vehemently that Himanshu - PW-1, cannot be trusted and the prosecution has failed to examine any other independent witness including the husband of the deceased, which create doubt in its Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 14/35 1 APPEAL 452-17.doc version. It is his submission that the prosecution case rests upon uncorroborated and unreliable evidence of a child witness who is capable of being easily tutored and it is unsafe to rely upon such evidence in its entirety in absence of corroboration of material particulars. He would also express his doubt over the presence of Himanshu at the relevant time, as according to his own version, he used to go out to play in the afternoon after coming back from the school, but on the said date, he did not have his meal and happened to be at home, which is rather unusual. According to Dr. Chaudhary, his testimony is unreliable for serval reasons, which he has enumerated thus:-
"(a) The evidence of PW-1 is contradicted by medical evidence undermining his presence at the spot. PW-1 states in his evidence that his deceased mother was strangulated with a towel by A2 and A3. However, the autopsy report Ex.41 does not mention any external signs on the deceased such as ligature marks indicating strangulation of the deceased.
(b) Strangulation results in certain internal injuries such as fracture of hyoid bone, congestion in lungs, larynx and trachea, presence of frothy, blood-stained mucus in bronchial tubes, none of which are seen in the deceased's autopsy report.
(c) The towel with which the deceased was allegedly strangulated was not sent for forensic examination. Neither the bedsheet with which PW-1 was allegedly bound and gagged thereby causing him injuries to his face, hands and mouth was sent for forensic examination. Further, that no blood stains were noticed on the bedsheet in the panchnama, thus undermining PW1's evidence that abrasions on his hands and feet were caused by him being tied and gagged with a bedsheet. The bedsheet has been not shown to the PW1's treating doctor PW-8.
(d) Even though PW-1 attributes the injuries on his face to him being gagged with a bedsheet, the Prosecution has advanced an entirely different explanation for PW1's injuries from medical doctor PW10 who has stated that the injuries could be caused by fist blos.
(e) There exists a strong suspicion that PW-1 was shown A1's photographs as PW-1 was in the police station when A1's photograph was obtained and sketches were made of the other accused on 29.7.2011.
(f) The evidence of PW-1 gives strong indication that he has been tutored.
After twice referring in his chief examination to "Tahsildar" who was Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 15/35 1 APPEAL 452-17.doc conducting the TIP, PW-1 admitted that he does not understand the meaning "Tahsildar" and he does not know who is "Tahsildar". The Prosecution's case is that PW1's FIR was registered at 5:45 pm, but PW1 admits that his statement was recorded in the night hours. This shows that the FIR was ante-timed. His maternal uncle was with him through his police inquiry. PW1 admits that the valuation provided by him in his FIR was provided by him by his uncle. This shows that recitals in his FIR were not his own words.
(g) PW1's presence at home was unusual and abnormal because as per his own admission, he normally went to play after returning from school. PW1 has claimed that he used to eat with his mother after returning from school. However, strangely, on the day of the incident, he claims to have not eaten lunch until the time of the incident, i.e., 3.30 pm which is very unusual for a child of his age. The autopsy report however states that the deceased's stomach contained pasty meal.
(i) There is no evidence to corroborate PW1's presence at the spot. His account of the incident is contradicted by the medical evidence. There is no evidence to show that the deceased was strangulated as claimed by PW 1 and that he was bound and gagged with a bedsheet. Therefore, his evidence ought to be discarded."
21. Dr. Chaudhary would also call in question the evidentiary value of the Test Identification parade, as according to him it is full of infirmities violating several provisions in the guidelines as regards its conduct set out in the Criminal Manual. The foremost, according to him being PW-13 had not ensured similarity of dummies during the TIP as mandated under para 16(3)(v) of the Criminal Manual and by citing an illustration he would submit that FIR states that accused no.1 had long hair, but none of the dummies had long hair. Further, according to him, none of the dummies were wearing spectacle, whereas according to FIR one of the accused was wearing spectacles. Further it is his submission that the three of six dummies were much more in age than accused no.1 and therefore, the ingredients of conducting the TIP are not satisfied. He would rely upon the decision of the Apex Court in case of Gireesen Nair and ors vs. State of Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 16/35 1 APPEAL 452-17.doc Kerala1, where it is held that the guidelines issued to conduct TIP must be mandatorily adhere to.
Apart from this, it is also the submission of Dr. Chaudhary that there is no recovery of stolen ornaments from the accused no.1 and the prosecution has failed to establish that the phones recovered from him was a stolen property, as the PW-1's identification of the mobile phone (Article -E) is of no significance, as such mobile phones were commonly in use and it could not have been identified by mere visual identification as there was no unique identifying features on the phones recovered from him. Apart from this, according to Dr. Chaudhary the recovery of appellant's clothes do not incriminate him as no blood stains were found on the clothes.
22. Another relevant factor on which Dr. Chaudhary would lay his emphasis is about recovery of the SSC Certificate (Article -A) allegedly recovered from the spot, but according to him it was not sealed and therefore, the seizure is not reliable. He would also submit that it is rather highly improbable and unrealistic that an accused who come to the spot to commit an offence would carry his SSC certificate and leave the same on the spot after committing robbery and murder, when he is accused of committing an offence under Section 201, for destruction of evidence.
23. In addition to the aforesaid grounds raised in general about the evidence brought on record by the prosecution to establish his guilt, Dr. Chaudhary would urge that assuming for a moment that the prosecution case is taken to be true, as far as accused no.1 is concerned, he could not have been convicted for committing an 1 (2023) 1 SCC 180.
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offence under Section 302 r/w 34 of IPC, as he is not the culprit, who has caused death of Aruna and even it is not the case of the prosecution that it is he who inflicted injuries on her, which resulted into her death.
Referring to the version of PW-1, the star witness in the case, Dr. Chaudhary would submit that even according to his own version, accused no.1 remained with him, whereas accused nos.2 and 3 pulled Aruna to the next room and after some time, when they came out, they left the spot along with accused no.1, with a clear case of the prosecution that it is accused nos.2 and 3, who carried Aruna to the inner room and caused the injuries to her which were responsible for her death, as even according to Himanshu, accused no.1 continued to be with him in the outside room.
By relying upon the decision of the Apex Court in case of Pandurang vs. State of Hyderabad2, it is his submission that when Section 34 is involved, it is well established that common intention presupposes prior concert and it is necessary to have a prior meeting of minds, which involve a prearranged plan and premeditated concert, and it is not enough to have the same intention independent of each other. According to him, the inference of common intention should never be reached, unless it is a necessary inference deducible from the circumstances of the case. He would also place reliance upon the decision in case of Mohan Singh vs. State of Punjab3, which has categorically held as below:-
2 A.I.R (1955) SC 216
3 A.I.R. (1963) SC 174
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"The essential constituent of vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. The acts may be different; may vary in their character, but they are all actuated by the same common intention."
24. In light of the aforesaid legal position flowing from the authoritative pronouncement, according to Dr. Chaudhary, it is not the case of the prosecution that, the three accused entered the house with a prearranged plan to murder and rather the intention was to commit extortion by recovery of money owed to accused no.2 by deceased's husband. According to him, the prosecution case at its highest could be that the plan to murder the deceased developed later at the spot and even as per PW-1, only accused nos.2 and 3 dragged his mother to the kitchen and assaulted her with the knife and they could be implicated with the aid of Section 34, but as far as Juber, accused no.1 is concerned, he was not a party to their plan which developed at the spot between them and there was no evidence which could establish that this plan was communicated to him in any manner and that he had consented to it or that he had knowledge about it.
According to the learned counsel, the only act attributed to accused no.1 by the prosecution is restraining PW-1, while accused Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 19/35 1 APPEAL 452-17.doc nos.2 and 3 were trying to recover the money owed to them by the husband of Aruna, during which accused nos.2 and 3 threatened to kill PW-1. In any case, this act attributed to his client according to Dr. Chaudhary is only an attempt to commit extortion by threatening to harm PW-1, if the lady did not pay of. Merely because, accused no.1 tied PW-1 with a bedsheet do not lead to a necessary inference to fasten liability on him for committing an act of murder in the kitchen, which was exclusively done by accused nos.2 and 3 with no participation of accused no.1. It is his submission that there is nothing brought on record by prosecution that accused no.1 was even aware of their intention to murder and Aruna was murdered in an inside room, where accused no.1 did not even entered nor she was killed in his presence and according to him, it is not even the case of the prosecution that he was carrying any weapon or there is any recovery of weapon from him.
It is the specific contention of Dr. Chaudhary that in absence of any indication given by accused nos.2 and 3 of their intention to kill the deceased or he being made a party to the same, he cannot be made responsible for the overacts of others and in absence of any meeting of minds of accused nos.2 and 3 with accused no.1 for murdering the deceased, the inference of common intention shall not be reached, since it is not deducible from the circumstances brought on record. At the most accused no.1 may be guilty of trespass and wrongful confinement and causing hurt to the child witness, but definitely he cannot be made guilty of the murder of Aruna, the mother of the child witness.
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25. We have considered the said submissions in light of the evidence placed by the prosecution before the Trial Judge and we have also appreciated the position in law revolving around Section 34 of the IPC, which carve out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he has the 'common intention' to commit the offence.
'common intention' implies a prearranged plan and acting in concert pursuant to the said plan. The ingredient of Section 34 of IPC being, that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in facts and circumstances of each case.
26. In Mahbub Shah vs Emperor4, the principle underlying Section 34 of the Penal Code, was succinctly rolled out, with reference to the original wording of Section by emphasizing upon the clear object of the Section as it was held thus:-
"In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of s.34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; of this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not possible to procure 4 A.I.R. (32) 1945 Privy Council 118 Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 21/35 1 APPEAL 452-17.doc direct evidence to prove the intention to an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case."
In the wake of absence of evidence, leading to a conclusion that there were no circumstances from which it might be inferred that the appellant must have been acting in concert, in pursuance of a concerted plan, and when no evidence was found to indicate that the accused was aware that the complainant party had been cutting reeds from his uncle's lands, or that the appellant and Wali Shah had been kept behind the bush to come and help him when called to do so. It was therefore recorded thus:-
'In their Lordships view, the inference of common intention within the limit of the terms in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case'.
27. In case of Abdul Sayeed Vs. State of M.P 5 the Apex Court observed thus:-
"51. Undoubtedly, the ingredients of Section 34 i.e. that the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case.
52. In Gopi Nath v. State of U.P. this Court observed as under :
8... Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action--be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence.
5 (2010) 10 SCC 259
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The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
53. In Krishnan v. State, this Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard- and-fast rule can be made out regarding applicability or non-applicability of Section 34.
54. In Girija Shankar v. State of U.P., it is observed that Section 34 has been enacted to elucidate the principle of joint liability of a criminal act :
'Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.'"
28. Section 34 of the Indian Penal Code does not create any distinct offence, but it lays down the principle of constructive liability and it necessarily contemplate that the act must have been done in furtherance of a common intention.
In order to incur a joint liability for an offence, there must be a prearranged and premeditated concert between the accused persons for doing the actual act, though there might not be long interval between the act and the premeditation and the plan and the intention may develop suddenly. Section 34 of IPC is intended to cover a case, where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove as to which of the persons, Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 23/35 1 APPEAL 452-17.doc who acted together actually committed the crime. Section 34 therefore can invoke even those cases, where some of the co-accused may be acquitted, provided it can be proved either by direct evidence or inference that the accused along with others have committed an offence in pursuance of the common intention of the group.
29. Totality of circumstances therefore must be taken into consideration in arriving at a conclusion, whether the accused had a common intention to commit the offence, for which they could be convicted. What must be necessarily established by the prosecution is meeting of minds and the common intention of all the accused person in committing the offence. A conscious meeting of minds is the essence of liability under Section 34 and common intention implies prearranged plan. The question whether there was any common intention or not would depend upon the inference to be drawn from proved facts and the circumstances of each case, and the totality of the circumstances must be taken into consideration to render such a finding.
30. In Krishnamurthy and ors vs. State of Karnataka 6 , the Apex Court observed thus:-
"17.... A criminal act in Section 34 IPC includes omission to act. Thus, a co-perpetrator who has done nothing but has stood outside the door, while the offence was committed, may be liable for the offence since in crimes as in other things "they also serve who only stand and wait". Thus, common intention or crime sharing may be by an overt or covert act, by active presence or at distant location but there should be a measure of jointness in the commission of the act. Even a person not doing a particular act but only standing as a guard to prevent any prospective aid to the victim may be guilty of common intention.
18. Normally, however, in a case of offence involving physical violence, physical presence at the place of actual commission is considered to be 6 (2022) 7 SCC 521 Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 24/35 1 APPEAL 452-17.doc safe for conviction but it may not be mandatory when prearranged plan is proved and established beyond doubt. Facilitation in execution of the common design may be possible from a distance and can tantamount to actual participation in the criminal act. The essence and proof that there was simultaneous consensus of mind of co-participants in the criminal action is however, mandatory and essential. In Krishnan v. State of Kerala it has been observed that an overt act is not a requirement of law for Section 34IPC to operate but prosecution must establish that the persons concerned shared the common intention, which can be also gathered from the proved facts.
19. In Suresh case, this Court also examined whether a passive co- perpetrator can be liable under Section 34IPC. This case quotes with approval the following passage from the judgment of Richardson, J. in King Emperor v. Barendra Kumar Ghose:
"It appears to me that Section 34 regards the act done as the united act of the immediate perpetrator and his confederates present at the time and that the language used is susceptible of that meaning. The language follows a common mode of speech. In R. v. Salmon [R. v. Salmon, (1880) LR 6 QBD 79] [R. v. Salmon was followed in R. v. Morgan, 1909 SCC OnLine Cal 150 : (1908-09) 13 CWN 362. Curiously enough, however, the learned Judges expressly disclaimed the aid of Section 34, I do not know what section other than Section 34 made both the accused soldiers liable. With respect, the Court would seem to have been unnecessarily puzzled over the question of their "common intention".] three men had been negligently firing at a mark. One of them--it was not known which--had unfortunately killed a boy in the rear of the mark. They were all held guilty of manslaughter. Lord Coleridge, C.J., said:'The death resulted from the action of the three and they are all liable.' Stephen, J., said:'Firing a rifle' under such circumstances 'is a highly dangerous act, and all are responsible for they unite to fire at the spot in question and they all omit to take any precautions whatever to prevent danger'. Moreover, Sections 34, 35 and 37 must be read together, and the use in Section 35 of the phrase 'each of such persons who joins in the act' and in Section 37 of the phrase, 'doing any one of those acts, either singly or jointly with any other person' indicates the true meaning of Section 34. So Section 38 speaks of 'several persons engaged or concerned in a criminal act'. The different modes of expression may be puzzling but the sections must, I think, be construed as enunciating a consistent principle of liability. Otherwise the result would be chaotic. To put it differently, an act is done by several persons when all are principals in the doing of it, and it is immaterial whether they are principals in the first degree or principals in the second degree, no distinction between the two categories being recognised. This view of Section 34 gives it an intelligible content in conformity with general legal notions. The opposing view involves a distinction Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 25/35 1 APPEAL 452-17.doc dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads nowhere."
31. In Jasdeep Singh vs. State of Punjab7, the Apex Court held that mere sharing of common intention per se may not attract Section 34 of IPC, sans an action or omission in furtherance thereof because there may be cases, where a person despite being an active participant in formal common intention to commit a crime may actually withdraw from it later. It would be appropriate to reproduce the observations of the Apex Court in regards to the proof of common intention, where their Lordships observed thus:-
"20. Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him on a par with the one who actually committed the offence.
21. What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.
22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime."
32. The common intention qua its existence is a question of fact and also require an act 'in furtherance of the said intention'.
7 (2022) 2 SCC 545
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The word 'furtherance' is indicative of existence of aid or assistance in producing an effect in future and only those acts which are done in furtherance of common intention having connectivity would fall within the purview of Section 34. The intention necessarily has to be the one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence and such an act can be in form of any assistance, encouragement, promotion and facilitating the commission of a crime with requisite knowledge. The Court is therefore duty bound to analyse and assist the evidence before implicating a person under Section 34 of IPC.
33. In Pandurang and ors vs. State of Hyderabad (supra), with reference to the applicability and scope of Section 34 and pronouncing upon the nature of evidence of prior consent, it was observed thus:-
"34. In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack- not even immediately before. Pandurang is not even of the same caste as the others. Bhilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram is a Maratha. It is true prior concert and arrangement can and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again. 'the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case' But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, 'the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 27/35 1 APPEAL 452-17.doc reasonable hypothesis'."
34. In Mohan Singh (supra), the same question as to whether there can be conviction under Section 302/34 again arose for consideration when it was held thus:-
"13... Like Section 149, Section 34 also deals with cases of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charges, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of Section 34 is different from the common object which is the basis of he composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclosed an element of a participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King- Emperor common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
35. In light of the above legal position emerging, revolving around Section 34, we have perused the evidence of Himanshu, PW-1.
While appreciating the same, in the light of arguments advanced by Dr. Chaudhary, it has emerged with clarity that when he Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 28/35 1 APPEAL 452-17.doc was present in the home along with his mother, three persons entered and one of them, accused no.2, Yusuf, apprised her that her husband had taken some money from him. Another accused then took knife from his trouser and asked his mother to hand over gold ornaments and threatened that if she do not do so, he would kill her son. At that time, another person whom he recognized as accused no.3, took a towel and with the help of accused no.2 attempted to strangulate his mother.
With clarity PW-1 deposed that while accused nos.2 and 3 were pulling opposite ends of the towel around the neck of his mother his mother became unconscious, but the third person whom he identified in the Court as Juber Bashir Ahmed, accused no.1, tied his hands, legs and gagged his mouth by bedsheet.
Thereafter, accused nos.2 and 3 took his mother to the kitchen, he was continued to be held by accused no.1.
As per his version, after 10 to 15 minutes they came out of the kitchen and all of them left and accused no.2 was holding the knife. When he freed himself and went into the kitchen, he found his mother lying on the floor with her neck slit.
36. With this evidence brought on record by prosecution, one thing emerges with clarity that the three accused persons entered the house with an intention of recovery of some money and they continued to share the common intention to recover the money, by posing threat to Aruna and also threatening her that, if she did not part with gold, her son would be harmed. To create fear in the mind of the lady, accused nos.2 and 3 attempted to strangulate and accused no.1 tied Himanshu.
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Till this time, it can be said that they shared the common intention of obtaining some money/gold from the lady. However, when the accused nos.2 and 3 dragged Aruna in another room and they inflicted injuries on her and caused her death, accused no.1 was unaware of their intention, as when they barged into the house, it was not decided to kill Aruna or her son. It is accused no.2, who was carrying knife in his pocket, but for the purpose of strangulating Aruna, a towel in the house was used and for tying the hands of Himanshu, the bedsheet was picket up.
Accused nos.2 and 3 came outside the inner room after 10 to 15 minutes and all the while Himanshu was confined by Juber and he was completely unaware, what was transpiring in the second room, as the happenings in the said room were not visible to him. There was no conversation struck between him and the other two accused nor did they indicate or consulted accused no.1 about doing her to death.
The accused no.1 thus shared the common intention in trespassing into the house of Aruna and also in causing injury to PW- 1, but he did not used any deadly weapon nor did he caused grievous hurt to Aruna and ultimately he is not the cause of her death, as this role by the key witness is only attributed to accused nos.2 and 3. The prosecution has therefore failed to establish any prearrangement between the three accused nor it has established any prior concert which could be determined from the subsequent conduct of the accused no.1.
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37. In order to bring home the charge of common intention, the prosecution has to establish by evidence, either direct or circumstantial, that there was plan or meeting of minds to commit the offence for which they are charged with the aid of Section 34, be it prearranged or having developed at the spur of the moment but it must necessarily be present before the commission of the crime. There should be no room of doubt left that the act is committed subsequent to the meeting of minds and that the intention was shared by all the accused persons, which is an outcome of an understanding to commit the offence and this must be inferred from the evidence placed by the prosecution.
As far as accused no.1 is concerned, since the prosecution has failed to bring on record that he shared the common intention with accused nos.2 and 3, who pulled Aruna in the inner room, and killed her. After causing her death they came out after 10 to 15 minutes, while the accused no.1 continued to be in the outside room with the child. The meeting of minds and fusion of ideas, which is the necessary ingredient to attract the liability under Section 34 is conspicuously absent and therefore in our view the accused no.1 cannot be made to answer the charge under Section 302 r/w 34 of IPC Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 31/35 1 APPEAL 452-17.doc and the learned Judge has failed to consider this aspect, while he tried and convicted him under Section 302 of IPC.
38. As regards the other points pressed into service by Dr. Chaudhary specifically raising doubt about the credibility of PW-1, we do not find merit in his submission. There is no reason to dispute the presence of PW-1, on spot as he has also sustained injury and the Doctor has clearly opined that this injury could have been possible by force being applied and as per Himanshu he was tied by the bedsheet and was gagged.
Merely because, there was no strangulation marks on the body of the deceased is also not sufficient ground to disbelieve PW-1 and definitely not merely on the ground that the towel was not sent for forensic examination as her cause of death is not strangulation.
Dr. Chaudhary has also argued on the infirmity in conduct of test identification parade, but it being settled law that test identification parade is not a substantive evidence, but only assures the prosecution of establishing the identity of the accused in an offence and to lead credence to the investigation process, however, identification of an accused in the Court of law is substantive evidence. The evidence of identification in TIP, though, is primary evidence, but is not substantive and the same is to be used only to corroborate the identification of the accused by the witness in the Court of law. Merely because no identification parade was conducted and the witness identified the accused for the first time in the Court, the evidence regarding identification in the Court of law does not ipso facto becomes inadmissible and cannot be discarded on the ground that it was not preceded by a test identification parade.
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Identification of the accused first time in the dock without TIP is admissible if the Court finds it trustworthy.
It is equally true that the evidence of identification of the accused before the Court of law should not ordinarily form the basis of conviction unless and until it is corroborated by previous identification in the TIP or through some other evidence. In any case, the TIP being a part of the investigation process under Section 162 of the Code of Criminal Procedure, the purpose being to find out whether or not the suspect is the perpetrator of crime, particularly when the accused is not known to the eye witness of the incident but, still by recalling the scene of crime and his physical features, the eye witness is able to identify the suspect and confirm his identity, that leads credence to the process of investigation.
39. In the present case, the only discrepancy on which Dr. Chaudhary rely upon is the version of PW-1 that he was called inside for identification on three occasions, whereas as per the memorandum of test identification, prepared by PW-13 (Exhibit- 54), all the three sets of accused were made to stand in a queue and the identification took place at one go.
There may be some discrepancy as regards the sequence in which the accused persons were identified but what is relevant is that PW-1 clearly identified all the three accused persons amongst the dummies and he also identified all the accused in the Court on he entering the witness box, we do not find any legal lacuna in conduct of the TIP or identification of the accused persons.
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40. We have also heard learned counsel Ms. Trupti Khamkar for the accused no.2, Yusuf Sayyed and learned counsel Mr. Veerdhawal Kakade for Kartik Kaunder, accused no.3.
Arguments similar to the one of Dr. Chaudhary are advanced on behalf of accused no.2 in Appeal No. 278 of 2025 and Mr. Veerdhawal Kakade in Appeal No.938 of 2019 appearing for accused no.3.
41. Ms. Khamkar, learned counsel representing appellant - Yusuf Khwaja Usen Sayyed @ Salman, in Criminal Appeal No. 278 of 2023 (accused no.2) has urged that the prosecution has failed to establish the motive behind the alleged incident. Apart from this, it is her submission that there is no eye witness to the incident and the blood reports are inconclusive and similarly the fingerprint expert report is not a part of the charge-sheet. She would also submit that the identification parade is faulty being in violation of mandatory protocol and therefore the accused no.2 is entitled for acquittal.
In the light of the prosecution case, which has surfaced on record through the key witness PW-1, and since we find the said witness to be credible as his evidence being corroborated by the other evidence, specifically the evidence of Medical Officer PW-8 who found PW-1, to have sustained injuries on his face and lip and with the opinion that the injuries are possible if the fist blows are inflicted. Apart from this, the presence of the accused persons and specifically the accused no.1 is established on the spot, as the bag containing the SSC certificate is recovered from the spot and PW-12 has been examined to establish that the certificate was issued from Anjuman Islam Girls High School and Junior College, the prosecution case is Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 34/35 1 APPEAL 452-17.doc established.
The injuries on the deceased are also fortified by PW-6, who certified that the deceased died due to hemorrhage and shock due to incised wound on right side of her neck.
42. As regards the appellant - Kartik Kaunder, in Criminal Appeal 938 of 2019 (accused no.3), the learned counsel Mr. Kakade, has also submitted that the conduct of PW-1, is unnatural that he did not shout for help during occurrence of alleged incident.
We do not find any merit in the submission, as PW-1 has categorically deposed that he was gagged and therefore there was no scope for he raising any noise. As far as accused no.3 is concerned, though he gave a memorandum statement expressing his willingness to show the shop from which he had purchased the button operated knife, the weapon of murder, and the shop owner identified the accused nos.2 and 3, that they had purchased the knife from him, he has turned hostile and the said evidence cannot be considered to be incriminating him. However, in the light of the prosecution case which has been established through PW-1, whose evidence remains unshaken on material aspects and which is corroborated through the other prosecution witnesses, we do not find any factual or legal infirmity in the impugned judgment, convicting the accused nos.2 and 3 for the offence under Sections 302, 323, 452, and Section 397 r/w 34 of IPC. The sentences imposed upon rendering the finding of conviction has been directed to run concurrently.
43. When the evidence of Himanshu, an eye witness who has assigned specific role to accused nos.2 and 3, and hold them Ashish ::: Uploaded on - 16/12/2025 ::: Downloaded on - 19/12/2025 21:58:23 ::: 35/35 1 APPEAL 452-17.doc responsible for causing death of his mother as it is these accused who pulled his mother in the inside room and when they left the place, he found her lying in pool of blood. From the evidence of PW-1, which is corroborated by the evidence of the Doctor who conducted the post mortem, giving the cause of her death and also ascertaining the timing of her death, we find that the prosecution has proved its case with cogent evidence and with no gaps in its case, the finding rendered by the trial Judge about the guilt of the accused nos.2 and 3, under Section 302, 323, 452, 397 r/w Section 34 of the IPC, we uphold the impugned judgment and the finding rendered therein as regards accused nos.2 and 3 in totality.
44. As a result of the aforesaid discussion, we partly allow Criminal Appeal No. 452 of 2017, by setting aside the conviction of appellant (accused no.1) Juber (Zuber or Zubari) Bashir Ahmed Idrisi under Section 302 r/w 34 of IPC. However, we maintain the conviction imposed against him under Sections 452, 397, 342, 323, r/w 34 of IPC , along with the sentence imposed. If the appellant has undergone the sentence imposed on him on being convicted under Section 452, 397 of IPC, he is entitled to be set at liberty, if he is not required to be detained in any other case.
45. As far as the Appeal No. 278 of 2023 and Appeal No.938 of 2019 filed by accused nos.2 and 3, is concerned, finding no merits and substance by upholding the finding of conviction and the sentence imposed, the Appeals are dismissed.
(SHYAM C. CHANDAK,J) (BHARATI DANGRE, J.)
Ashish
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