Bombay High Court
Sanaullah Khan Ahamad Khan And Others vs The State Of Maharashtra, Thr. P.S.O. ... on 18 June, 2019
Equivalent citations: AIRONLINE 2019 BOM 1635
Bench: Sunil B. Shukre, S.M. Modak
1 apeal.292.16.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.292 OF 2016
1.Sanaullah Khan Ahamad Khan,
Aged about 24 years.
2.Mohd. Washim @ Bhurya Mohd. Salim,
Aged about 28 years.
3.Mohd. Hasin Mohd. Salim,
Aged about 27 years.
4.Mohd. Naim Mohd. Salim,
Aged about 20 years.
All r/o. Walisaheb Nagar, Ner,
Tq.Ner, District. Yavatmal. ....APPELLANTS
// VERSUS //
The State of Maharashtra,
Through P.S.O., Ner,
Police Station, Ner, Tq.
Ner, District Yavatmal. ....RESPONDENT
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Parvez W. Mirza, Advocate for the Appellants.
Mrs.M.A.Barabde, A.P.P. for the Respondent/State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Date of reserving the Judgment : 05/04/2019.
Date of pronouncing the Judgment : 18/06/2019.
CORAM : SUNIL B. SHUKRE & S.M. MODAK, JJ.
J U D G M E N T :(Per S.M. Modak, J.) In this appeal, apart from regular issues about proof beyond reasonable doubt, we are supposed to ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 ::: 2 apeal.292.16.jud decide the core issues of (1) variances in between oral and medical evidence and (2) non-explanation of injuries to two appellants and its effect. Deceased Naushad Abdul Rahim and his brother injured Sheikh Irshad Sheikh Rahim were sitting near Walisaheb Darga on 17.6.2011 at about 6.00 p.m. They were not knowing that, after few hours, Naushad Sheikh Abdul Rahim will not be alive. Appellants are residents of village Ner. They were knowing the deceased and the injured.
2. Sanaullah Khan Ahamad Khan/appellant no.1 first quarrelled with the duo deceased and injured. Other appellants joined him and all assaulted the duo with iron pipes and sticks. At that time, three lady family members Gulnaz Parveen Sheikh Rizwan (PW-1), Malanbi Sheikh Rahim (PW-3) and their relative Zakira were present. They intervened. However, damage has already been done. The duo i.e. deceased Naushad and injured Irshad received head injuries. They were first taken to Ner Police Station. Gulnaz (PW-1) and family members accompanied them. Both were referred to Ner hospital. They were examined and referred to Civil Hospital, Yavatmal. During journey, deceased Naushad Sheikh expired. Injured ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 ::: 3 apeal.292.16.jud Shaikh Irshad was first treated at Civil hospital and then at the Private hospital at Nagpur.
3. There is a background to this incident. Appellant no.1 Sanaullah Khan trespassed in the house of deceased on 17.6.2011 at 6.00 p.m. He outraged modesty of Malanbi (PW-3) and threatened her. Other two ladies Gulnaz (PW-1) and relative Zakira were also present in the house, but in different room. The murderous assault took place when witnesses Gulnaz and Malanbi and Zakira went near the Dargah and told the duo about the incident of trespass when the duo questioned Sanaullah/appellant no.1 about unjustified entry in their house. On being annoyed, appellant no.1 got assembled other appellants and then murderous assault as mentioned above took place.
4. Gulnaz (PW-1) lodged complaint on 18.6.2011. Initially, it was registered under Sections 324, 504 r/w. 34 of the Indian Penal Code against these appellants. There is defence argument that the F.I.R. is not filed promptly and real F.I.R. is withheld. After death of Naushad and considering nature of assault on injured Irshad, police ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 ::: 4 apeal.292.16.jud added Sections 302, 307 of the Indian Penal Code. All the appellants found involved in the incident and they were tried for the offences punishable under Sections 302, 307 r/w. 34 of the Indian Penal Code. Whereas Sanaullah Khan/appellant no.1 was also tried for the offences punishable under Sections 448, 354, 506 of the Indian Penal Code for the first incident.
5. The trial Court found all the appellants guilty under Sections 302, 307 r/w. 34 of the Indian Penal Code. They were sentenced to life imprisonment apart from payment of fine. Sanaullah Khan/appellant no.1 was also found guilty for the offences punishable under Sections 448 and 354 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six months apart from payment of fine and to suffer rigorous imprisonment for one year apart from payment of fine respectively. The Appellants feeling aggrieved due to the verdict have appealed before us.
6. We have heard the arguments of learned Counsel Parvez Mirza for the appellants and learned Additional Public Prosecutor Smt. Barabde for the ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 ::: 5 apeal.292.16.jud respondent/State. Both have relied upon various judgments. We have gone through the various judgments filed by both the sides. The observations in them do guide us to consider the points raised before us. It includes broader issue of appreciation of evidence and its sub- topics like improvements in the evidence and its effect, background of enmity and its effect on reliability. It also includes effect on testimony of witnesses if F.I.R is delayed. It also includes variance in between oral and medical evidence and type of variance having material impact.
7. Daily constitutional Courts are delivering thousands of judgments. Every time there is no new interpretation of legal provisions. There is also reiteration of interpretation made earlier. So, if some one files plenty of judgments on same subject, does it serve any purpose, we do not think so. One can file an important/landmark judgments on that point and avoid filing judgments repeating interpretation of earlier principles. But, we are at pains to say that now a days, it is not happening. Defence first do this and it is followed by the prosecution. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 :::
6 apeal.292.16.jud We are not going to deal with every judgment except the judgment laying down basic principles.
8. We are constrained to say few words about trial court judgment. The impugned judgment consists of 88 pages. We find prosecution story, reproduction of evidence of witnesses, reproduction of arguments up to 65 pages. We find reasoning from page 65 to 84. It is also said that reasoning is the soul of the judgments. However, the focus on reasoning in the impugned judgment does not appear to be sharp.
9. We find that core issues involved are not addressed adequately. In this case, core issues are inter se corroboration amongst three eye witnesses, delay in lodging F.I.R. variance in oral and medical evidence, explanation about injuries on two accused.
10. We are not saying that trial Court ought to have accepted them/rejected them. But, trial Court ought to have given findings on them. Unfortunately, that has not happened. This does not prevent us from doing that exercise. When we have undertaken this exercise, we find ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 ::: 7 apeal.292.16.jud that outcome of the case is totally reverse than one arrived at by trial Court. Appellants need to be given benefit of doubt. Now, we will deal with the issues.
11. The defence attacked the correctness of the Judgment on the following points :
a) Appellant nos. 2 to 4 are not concerned with first incident of trespass.
b) inconsistency between oral and medical evidence.
c) non-explaining the injuries on the person of appellant no.1 & no.3.
d) no evidence of sharing of common intention by appellant nos. 2 to 4 with appellant no.1.
e) delay in lodging F.I.R. and real F.I.R. is withheld.
f) inconsistency in between evidence of material witnesses.
g) non-examination of independent witness, though available.
Whereas the learned Additional Public Prosecutor defended the Judgment for the reason that the ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:32 ::: 8 apeal.292.16.jud inconsistencies are minor, F.I.R. was filed promptly and there is more credence to the evidence of injured and evidence of independent witness is not required in the facts and circumstances of the case.
12. The murderous assault took place on the background of incident of trespass. There are two witnesses examined on happening of this incident and for that purpose, defence brought on record the location of the rooms in the house and surrounding.
13. No doubt, the second incident has taken place on the background of happening of first incident. In both these incidents, the victim, are from same side. That is to say, PW-1 Gulnaz is the victim of the first incident and PW- 2 Irshad and deceased Naushad (who are brothers-in-law of Gulnaz) are the victims of second incident. We do not know the motive for the first incident. Defence tried to bring on record the relationship between PW-1 Gulnaz and appellant no.1 Sanaullah. But, certainly when the duo questioned, Sanaullah got annoyed and attacked the duo with the assistance of other appellants. This is the motive for second incident.
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14. We will scrutinize the evidence on the point of both the incidents separately. On careful consideration, we feel that the first incident has taken place and it is also proved. We are also satisfied about homicidal death of Naushad. But, we feel that there are certain lacunae and shortcomings in the prosecution evidence. We feel that the prosecution could not overcome the requirement of proving involvement of these appellants beyond shadow of doubt. Certain lacunae pertain to the evidence of eye witnesses and some of them pertain to Investigating Agency. With all our efforts, we find it difficult to reconcile these shortcomings and so going by the recognized and established principles of Criminal trial, we have to consider the possibility of giving benefit of doubt to applicants partly or fully.
FIRST INCIDENT
15. This incident took place inside the house on 17.6.2011 at 6.00 p.m. There were three ladies present in different rooms of the house. PW-1 Gulnaz was watching T.V. in the middle room. Whereas PW-3 Malanbi and Zakira (who is not examined) were cooking in the backside room. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
10 apeal.292.16.jud These names will come repeatedly. Hence, we will explain their relationship by way of chart.
Shaik Raheem - ZAKIRA
(brother) (SISTER)
| |
Shahanaz Bano Shaikh Saeed
(wife) (husband)
|
_______________________________________________________ | | | | Rizwan NAUSHAD IRSHAD MALANBI (son) (DECEASED) (INJURED PW-2) (PW-3) | GULNAZ (PW-1) (WIFE)
16. The trial Court has convicted Sanaullah/appellant no.1 for Criminal trespass (Section 448 of I.P.C.) and outraging modesty (Section 354 of I.P.C.). He was acquitted for the offence punishable under Section 506 of the Indian Penal Code. We agree with these findings. Gulnaz and Malanbi have said about utterances by Sanaullah as :
" do whatever you can do"
Certainly, these utterances do not fulfill the ingredients of Section 506 of the Indian Penal Code. There has to be threatening to injury to person, property or reputation. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
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17. If one enters into the house, catch hold hand of a lady, pulls her and teases her, he certainly insults the character of a lady. It must give a feeling of shyness to a lady. She will always dislike such acts. These acts must have outraged the modesty of Malanbi (PW-3). Sanaullah/ appellant no.1 does not claim that he did those acts with her consent. Sanaullah has breached the principles of decency. We negative all possible objections taken by Sanaullah in that behalf. The evidence of Malanbi and Gulnaz (PW-1) inspire confidence.
18. We will look into the evidence on the point of spot of incident in order to deal with defence objection about improbability of Sanaullah entering the house and leaving it.
SPOT OF FIRST INCIDENT
19. There is sufficient evidence adduced by the prosecution to bring on record the situation about place of first incident. The evidence of panch witness Shaikh Chand Shaikh Rasul (PW-4) is there. There is also rough sketch showing the location of the room attached to Crime Detail form. Police witness Police H.C. Ganesh Hirulkar ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 12 apeal.292.16.jud (PW-11 who carried out panchnama) is also examined. This panch-witness has also assisted in shifting deceased and injured to hospital. His statement was recorded. He arranged for the Ambulance. He denied those facts. But they were proved through I.O. PW-14 P.I. Waghu Khillare. It means he was acquainted with the family of deceased. This panch has also played part in Memorandum Panchanama. His evidence has to be scrutinized minutely.
ORAL EVIDENCE
20. The rough sketch attached to Crime form shows location of three rooms. They corroborate with the location given by PW-1, PW-2 and PW-3. There is an issue raised from where Sanaullah entered and from where he left from the house. PW-1 and PW-3 says from backside. There is no door on backside of the house as shown in the rough sketch. There can be slip of tongue for witnesses while answering the question. But it is not sufficient to doubt the entry of Sanaullah in the house. The improvements in the evidence of PW-1 and PW-3 are not material. We discard them.
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21. There are questions put to witnesses about relationship between Sanaullah and PW-3 Malanbi. Following are the relevant portions :
(Evidence of PW-2 Sk. Irshad Sk. Rahim) "I do not know that Malanbi and Sanaullah were on talking terms and for that reason we had scolded Malanbi. Again says that my Bhabhi had scolded Malanbi about it. I do not know that my Bhabhi was feeling bad about the talking terms of Malanbi and Sanaullah. It is not true that on the day of incident I had given two
- three slaps to Malanbi and there was rumors about it in mohalla".
(Evidence of PW-3 Malanbi Sk. Rahim) "I was knowing the accused Sanaullakhan since 2 to 3 months prior to incident. I was not in talking terms with Sanaullakhan"
These only suggest that there was previous interaction between them. But they are not sufficient to indicate that the first incident took place by consent. 22] It is the fault of police not to apply Section 448, 354 of I.P.C. when PW-1 Gulnaz lodged complaint. It is not ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 14 apeal.292.16.jud the job of PW-1 to verify whether proper Sections of Indian Penal Code were applied. What is sufficient is averment in F.I.R. There is reference of entering the house and outraging modesty. There cannot be any other intention (in entering the house) than to insult the sentiments of PW-3 by appellant no.1. We agree with the conclusion drawn by the trial Court. We affirm the conviction of appellant no.1 under Sections 448 and 354 of the Indian Penal Code.
SECOND INCIDENT
23. There are two issues involved. One is homicidal death and second is involvement of appellants.
HOMICIDAL DEATH
24. Considering the oral and medical evidence, one may feel that this is not the case of homicidal death. There was an argument about inconsistency in between oral and medical evidence. We will deal with them later on. There was unnatural death of Shaikh Naushad Sheikh Abdul Karim. As per oral evidence of PW-1 Gulnaz, he expired during a journey from Ner hospital to Yavatmal hospital. So he was taken to Yavatmal hospital in dead ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 15 apeal.292.16.jud condition. We have got testimony of two Medical Officers. One is Dr. Manish Bhimrao Nandeshwar (PW-12) attached to Ner hospital and second is Dr. Sachin Gyanbaji Gadge (PW-8) attached to Yavatmal hospital.
EVIDENCE OF DR. MANISH NANDESHWAR
25. From the spot deceased Naushad and injured Irshad were taken to Ner Police Station. P.S.O. present there has referred both of them to Ner hospital. The requisitions at Exh. Nos. 87 and 88 are duly proved through Police Head Constable Ashok Deshmukh (PW-9). Dr.Nandeshwar examined injured Irshad at 7.10 p.m. and deceased Naushad at 7.35 p.m. on 7.6.2011. He noticed three injuries on the person of Irshad. They are as follows :
a) Laceration of temporal bone over head.
b) Abrasion below lower lip.
c) Abrasion on both knee joints.
All were caused due to hard and blunt object. Whereas he noticed swelling on temporal bone of head of deceased Naushad.
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26. He has not noticed any injury other than mentioned above on the body of both persons. The above injuries are sufficiently proved through him.
EVIDENCE OF DR.SACHIN GADGE
27. He carried out post mortem on the body of Shaikh Naushad Sheikh Abdul Karim from 11.45 p.m. to 12.45 a.m. on 18.6.2011. Earlier to that, Inquest Panchanama was performed in Yavatmal hospital. PW-5 Ayubkhan Pathan is the panch witness. His evidence is reliable. Prima facie, opinion was 'due to injury to head'. After post mortem, Dr.Gadge has noticed the following internal injuries :
a) under scalp contusion over left temporal and high-parietal region.
b) undisplaced linear fracture from left temporal bone to anterior cranial fossa.
c) extra-dural hemorrhage over left temporal region.
d) sub-arachnoid hemorrhage over left parieto temporal and right parietal region.
28. He has opined head injury as to cause of death. In ordinary course of nature, it is sufficient to cause death. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
17 apeal.292.16.jud He has not noticed any other external injury. He has not noticed any swelling on the head of deceased.
29. All the three eye witnesses have deposed about assault on deceased by the appellants with the help of sticks and iron pipes. About inconsistency between oral and medical evidence, we will deal later on. But what we feel is that there was hemorrhage in the parietal and temporal region of the brain. This increases the pressure on the brain and that is how death took place. Nature of injuries will depend upon type of weapon used, the manner of assault, the impact of blow and several other factors. In certain cases, there may be external bleeding injuries to the head and may or may not be corresponding internal injuries, still the patient survives. At the same time, there may be external injuries not involving bleeding injuries and still disruption in the organism of the body resulting into death. The present case falls under second category. There is every reason to believe that Skeikh Naushad died of homicidal death.
30. Dr. Gadge has not mentioned "injuries are sufficient in the ordinary course of nature caused death" in ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 18 apeal.292.16.jud the Post Mortem report. These wordings find place in clause 'thirdly' of Section 300 of the Indian Penal Code when there is intention to cause bodily injury (not accompanied by knowledge to assailant as is likely to cause death) and such bodily injury is sufficient in the ordinary course of nature to cause death.
31. There is swelling on the temporal bone of deceased whereas internally there is fracture, contusion and hemorrhage in temporal and parietal region. Intention to cause death cannot be inferred. Because, there is no external bleeding. So the blow must not have been with great force. So we find clause Firstly (intention to cause death) and clause Secondly (intention to cause bodily injury coupled with knowledge that injury may cause death) will not be applicable. Clause Thirdly requires following ingredients -
a] there is intention to cause bodily injury to any person, and b] such injury in ordinary course is sufficient to cause death.
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32. When deceased Naushad was assaulted with stick & pipes, there is certain intention to cause bodily injury. As already said, blow must not have been with great force. The assailants might not have predicted the internal injuries may cause death. It is the expert only who can tell about the -
a] internal injuries, b] its connection with weapon used & c] likelihood of death due to these injuries. Medical Officer Dr. Gadge had seen the injuries and also opined about cause of death as head injury. Not mentioning in the Post Mortem report as mentioned above does not weaken the prosecution case. We conclude that clause Thirdly is satisfied and offence under Section 300 is proved.
MURDEROUS ASSAULT ON INJURED IRSHAD SHAIKH RAHIM
33. He was being treated at three hospitals,
1) Ner hospital,
2) Yavatmal Civil hospital and
3) Private hospital at Nagpur.
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20 apeal.292.16.jud There are Certificates available about second and third hospital. But, prosecution could not prove them by examining the concerned witnesses. So we have got only certificate of Ner hospital and the oral evidence. So also we have got opinion of same Medical Officer about examination of seized weapon and possibility of injuries by use of those weapons.
34. Seizure of weapon is always not essential. Every hurt is not required before an act will fall within the purview of Section 307 of the Indian Penal Code. There is enhanced punishment when hurt is caused. What is important is the intention to cause death. It can be inferred from the circumstances including part of the body, nature of injuries, nature of weapon etc.
35. We have already reproduced the injuries on the person of Irshad noticed by Dr. Nandeshwar. His opinion about examination of weapon is also proved. He has examined one Lathi and three iron rods. Injuries noticed by him were possible due to these weapons. Injuries to Irshad were simple in nature. He has not noticed any injury on his back.
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36. Injury No.1 laceration is on vital part of the body that is on brain. No doubt, it is a simple injury. We are not deciding the issue, who is the author of this injury and the weapon used while giving these findings. There are no serious external injuries. So intention to commit murder can not be inferred. But we can certainly infer knowledge on the part of assailant about possible death of injured. So, the circumstances justify us to draw an inference that there was an attempt to commit murder of the injured Irshad.
INVOLVEMENT OF ACCUSED
37. Now, we will deal with the involvement of these appellants. It can be decided on the background of objections raised by the defence. It can be classified as follows :
a] Evidence of three eye-witnesses and inconsistency, if any.
b] Delay in lodging the F.I.R.
c] Oral and medical evidence.
d] Injury to appellant No.1 Sanaullah and
appellant No.3 Hasin.
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e] Non-examination of independent
witnesses.
f] Discovery and C.A. Report.
38] There are two points raised on behalf of
defence. One is inter se corroboration amongst witnesses and second is improvements in the evidence of witness. Both the sides also relied upon various judgments on this aspect.
39] The defence also criticized on over all approach of prosecuting agency in two ways. One is examining only family members and secondly not examining independent witness though available. Whereas prosecution contend that in fact evidence of injured inspires confidence and it is not a cardinal rule that independent witness need to be examined. Prosecution relied upon certain judgments.
JUDGMENTS ON INTERESTED WITNESSES
40. Hon'ble Supreme Court dealt with the issue of reliability of testimony of interested/partisan/woman witnesses. It is true that there may be a tendency for interested witness to drag a innocent person against whom ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 23 apeal.292.16.jud he has a grudge. The bondage of relationship may in some cases have the effect of losing impartiality of the witness.
There are certain factors to be considered while appreciating such evidence. It includes -
"[a] Whether or not, there are discrepancies in the evidence.
[b] Whether or not the evidence strikes the Court as genuine.
[c] Whether or not the story disclosed by the evidence is probable".
Further Hon'ble Supreme Court observed -
"Mechanical rejection of such evidence on the sole ground that it is partisan witness would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
41. These are the observations in case of Masalti vs. State of Uttar Pradesh, reported in AIR 1965 SC 202 ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 24 apeal.292.16.jud (para 14). Whereas, Hon'ble Supreme Court in case of Dalip Singh vs. State of Punjab reported in AIR 1953 SC 364 rejected the defence argument about unreliability of the evidence of women just because fate of persons depends upon her testimony. There is a fallacy still prevailing (during arguments) to consider the evidence of interested witnesses with suspicion (para 25) (Both the judgments are relied upon by the prosecution).
42. In nutshell, the evidence of interested witness cannot be discarded at first brush. If neither can be accepted blindly. It has to be scrutinized by applying the settled parameters. On this background, we will scrutinize the evidence.
EVIDENCE OF THREE EYE-WITNESSES ABOUT ASSAULT ON DECEASED NAUSHAD AND INJURED IRSHAD.
43. For better understanding the entire incident is classified into following events :-
(a) telling the first incident by PW-1 and (by other two ladies to PW-2 and deceased);
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(b) giving a call by A-1 to other appellants;
(c) appellants assaulting the injured and deceased Apart from this, there are secondary events of intervention of Sk Gulab, shifting the duo to police station and so on. We will consider the eye-witness's account on main incident. For better understanding, we have reproduced them in a tabular format.
TELLING THE INCIDENT TO INJURED AND DECEASED PW-1 Gulnaz / PW-2 Sk. Irshad / PW-3 Malanbi First Informant Injured 1 1 1
- This witness, Zakira
- On the day of - After the first and Malanbi [PW-3] incident i.e. on 17th incident, PW-1 Gulnaz went near Walisaheb June, 2011, at 6:00 opened the first door Dargah. p.m., he and his and went out and told younger brother Irshad [PW-2} and
- Irshad and Naushad were near Naushad (deceased) Naushad were sitting Walisaheb Dargah. that Sanaullah near the Dargah. entered their room.
- She narrated the - Gulnaz [PW-1], - Witness and Zakira incident to them. Zakira and Malanbi accompanied her.
[PW-3] came to
them.
- Gulnaz told them
that Sanaullah -
appellant No.1
caught the hand of
Malanbi and teased
her when she was
watching T.V. and
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Malanbi shouted,
Zakira scolded
Sanaullah and he
ran away.
Answers Given During Cross-Examination PW-1 Gulnaz / PW-2 Sk. Irshad / PW-3 Malanbi First Informant Injured
-She has told the - For absence of the - No discrepancy is name of her Phupu name of Zakira pointed out.
Zakira accompanying accompanying to
her while narrating two ladies, he - During chief, she
the incident. cannot assign any said by opening the
reason. door, she went out
- The F.I.R. are at and told the incident
Exh.30 and Exh.31. - There is inconsis- to brothers.
tency from which
- We can find that place the first - During cross, she
name of Zakira is not incident is narrated. disowned about
there. opening of door
- During chief, he (Portion B). But, it is
- About narrating the said by going near not proved through incident, there is no Dargah. Whereas, I.O.
dispute. during cross, he
disowned portion "A"
- The dispute is by from his state. It is
giving a call or by proved through I.O.
going near Dargha is PW-15 PSI Mahure
an issue. (Exh.134). It says
PW-1 Gulnaz called
- During chief, she both brothers by
said by going giving a call and
towards the Dargah told.
(this fact finds place
in F.I.R.).
- During cross, she
admitted that "by
giving call she
narrated the
incident".
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Conclusion
44. Anyhow we have not to believe presence of Zakira. She is also not examined. If evidence of PW-1 Gulnaz is perused, we find inconsistency in between answer during chief-examination and cross-examination (by going towards Dargah and by giving call). During chief-examination, she said by going near Dargah, whereas during cross-examination, she admits by giving call (para 16). We also find inconsistency in between chief-examination and cross-examination of PW-2 Irshad. During chief-examination, he says by going near Dargah and before police, he says by giving call (Exh.134). Whereas PW-3 Malanbi disowned answer giving during chief-examination "by opening the door PW-1 Gulnaz told about the incident". But, during chief-examination, she never said PW-1 told the incident by going near Dargah. So issue is which version is to be believed that is to say by callying the brothers from the house or by going near the Dargah.
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28 apeal.292.16.jud Giving a call by Accused No.1 to other appellants PW-1 Gulnaz / PW-2 Sk. Irshad / PW-3 Malanbi First Informant Injured
- Sanaullah, appellant - Witness saw - Sanaullah came No.1 came there. Sanaullah on the road. on road from front side.
- Deceased Naushad - He and deceased asked Sanaullah, why Naushad asked him as - Naushad and he went to his house. to why he entered in Irshad asked the house and teased Sanaullah as to why
- Sanaullah called Malanbi. he entered their other three house in the appellants. - Sanaullah went near presence of a girl the house of his alone.
brother and gave call.
- Sanaullah gave a call to his paternal brother i.e. other three appellants.
45. There is inconsistency in between answers given by PW-1 during chief-examination and cross- examination. During chief-examination she says Sanaullah called other accused, whereas during cross-examination she says "by going to house, he called other three accused persons (para 17). Further she denies, Sanaullah never called other accused by giving a call. In the evidence of PW-2 Irshad, inconsistency is pointed out. During chief-examination, he said Sanaullah went near the house of his brother and gave a call. Whereas during cross, he was asked whether Sanaullah gave a call by ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 29 apeal.292.16.jud going near the house. But this was not proved through PW-15 PSI Mahure. But this is minor inconsistency. During chief-examination PW-3, Malanbi said appellant No.1 gave a call to other appellants. No inconsistency in her evidence is pointed out. So issue is which version is to be believed that is to say A-1 called his brothers or going near the house and then calling.
46. Whether it is possible to call his brothers by standing on a road in front of Dargah and whether it is possible to call the two brothers sitting near Dargah from the house of first informant are the questions.
Other circumstances about spot.
47. There is a wall of 5 feet behind the house and it has collapsed. From Dargah, one can see who is going behind his house (para 15 PW-2). If one looks from door of my house, his voice can reach up to Dargah. If one looks from door of my house, he can see persons near Dargah (para 15 PW-12). There is chapari of 3 rooms to the house and there is a tin shed. There is a compound wall of six feet height and from Chapari one cannot see ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 30 apeal.292.16.jud beyond road (PW-2 Para 6). There is cement bench outside Dargah (para 9 PW-2). PW-1 Gulnaz cannot tell the distance between Dargah and her house. There is open space of 10-15 feet from the compound of Dargah to road.
48. The house of Sanaullah is situated at a distance of 7-8 feet from Dargah, whereas the house of father of appellant Nos.2 to 4 is at a distance of 100-150 feet from the house of PW-2. And house of Sanaullah/appellant No.1 is after the house 2/3 houses behind those houses.
SPOT MAPS
49. In addition to that we have got two rough sketches about the spot of incident. They are at Exh.50 (attached to crime detail form) and another at Exh.108 (proved through circle officer PW-13 Satyan Bhoyar). Admittedly Dargah is not shown in both of them. What is shown is road going towards Dargah. Furthermore, houses of appellants were not shown in them.
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31 apeal.292.16.jud
50. So, if these answers (on location) are considered, on one hand and answers given by these three witnesses (about the incident) on the other hand are considered, it is difficult to believe that PW-2 Irshad and deceased Naushad are in a position to hear call from house. From this perspective, when we have scrutinized the inconsistencies, we realized the reason. Inconsistencies occur in between whatever stated before police and whatever deposed in evidence. Particularly, PW-1 and PW-2 have realized (during the time gap of police statement and giving evidence) that PW-2 cannot hear (by sitting near Dargah) what PW-1 has said from the house so that is why PW-1 and PW-2 have improved their version by saying coming near Dargah (while giving evidence). So, this inconsistency is not minor. Trial Court was wrong in disregarding it. It throws doubt on veracity of witness PW-1 & PW-2 about manner of happening of incident.
51. So also, it is difficult to believe that appellant Nos.2 to 4 can hear the call from co-accused appellant No.1 Sanaullah by standing in front of Dargah. As such, we do not find material inconsistencies in between the ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 32 apeal.292.16.jud evidence of PW-1, PW-2 and PW-3 on this issue. Still we find this theory improbable. We say because of the factors distance in between Dargah and house of appellant Nos.2 to 4, appellant Nos.2 to 4 immediately reached the spot and that too with weapons. So there is every reason to doubt this part of the incident. Trial Court appreciated the evidence with some presumption and overlooked these factors.
Assault by Appellants PW-1 Gulnaz PW-2 Irshad PW-3 Malanbi Chief Examination PW-2 Irshad PW-3 Malanbi
- Accused No.1 was Chief-Examination - Chief-Examination :
possessing a stick and accused Nos.2 , 3 Accused No.1 came - All three & 4 were possessing with stick and other appellants came iron pipes. appellants with iron with iron pipes and pipes. accused No.1 came
-Naushad (deceased) with stick. Accused Nos.2, 3 & 4 -Nothing inconsis- beat him by iron tency was brought Cross-Examination :
pipes and accused during cross-
No.1 beat him by examination. - Accused No.1
stick. came with stick was
Naushad : stated to police.
Cross-Examination
- Accused No.2 asked - it was not put to
-Nothing deceased why he I.O. PW-14 Khilare. inconsistency was scolded his brother.
pointed out. Chief-Examination
- Accused No.2
Irshad (injured) : assaulted deceased - They fell on
- He went to rescue on his head with pipe. Irshad and Naushad ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
33 apeal.292.16.jud and he was beaten by - Other three by assaulting them four appellants. appellants assaulted with pipes and him by sticks and sticks.
Cross-Examination : pipes on both legs.
-I.O. PW-14 admits Cross-Examination :
that this fact is not Cross-Examination :
stated. - This was put
- All these during cross, but
Chief-Examination : improvements were was not put to I.O.
brought to the notice PW-14.
- Irshad was of witness
assaulted on head - Three ladies went
and he sustained - But they were not to save them.
injury. put to I.O. PW-15 P.S.I.
Mahure. Chief-Examination :
Cross-Examination :
Chief : - Accused No.2
- I.O. admits about came on these
this omission by the - Witness went to ladies by raising a
witness. rescue Naushad and pipe.
accused No.2
Chief-Examination : assaulted him by pipe - Nothing was put
on head and other during cross-
- Naushad also appellants by pipes examination.
sustained head and sticks.
injury, he was also
beaten on his body. Cross not put during
cross-examination.
Cross-Examination :
Chief :
- Improvement
pointed out but not - Witness fell down proved through I.O. accused Nos.3 & 4 beat him on back and 3 Ladies : waist.
Chief : When 3 ladies - PW-1, PW3 and
went to rescue, Zakira came to rescue
accused No.2 rushed him.
towards PW-1 with
iron pipe and he - Accused No.2 rushed
pushed her and on them with pipe.
threatened her to kill.
Cross-Examination :
Cross - Improvement
pointed out but not - These improvements proved through I.O. were put to witness, but all were not ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
34 apeal.292.16.jud proved through I.O.
PW-15 PSI Mahure.
- Only improvement of
PW-1 coming to
rescue is proved.
- Accused No.3 rushed
towards on them with
pipe by saying that he
will also fell them
down.
- Nothing was put
during cross-
examination.
Further answers during cross-examination.
- Witness disowned - No major answer. - Witness cannot tell
Portion "A" (marked about how many
as Exh.128) stated in injuries were
her statement. sustained by Irshad
and Naushad.
- It says - both were
calling 'Bachav - Cannot tell
Bachav' after felling number of assaults
down. made by accused
on Naushad on
- There were pipe palm and thigh.
injury marks on both
the hands of - Cannot tell which
Naushad. accused made
assault on which
- Cannot tell number part of body on
of injuries on his legs Naushad.
up to foot.
- Cannot tell whether
there were injuries
from waist to neck of
Naushad.
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35 apeal.292.16.jud
CONCLUSION
52. In above scrutiny, we can find three major incidents. Chronologically they are as follows :
a] assault on Naushad b] assault on Irshad c] threatening three ladies, when they intervene.
53. PW-3 Malanbi has not given minutes details of these three incidents what she plainly stated all appellants fell on Naushad and Irshad and beaten them. She admits she cannot tell which appellant beat Naushad and number of injuries on body of Naushad. Whereas, the evidence of PW-1 and PW-2 about assault of Naushad is consistent. Accused No.1 assaulted by stick and accused Nos.2 to 4 assaulted by pipes, whereas evidence of PW-1 is general in nature about assault of Irshad. She made omnibus statement about assault by all appellants. PW-2 specifically mentions the name of accused No.2 and use of pipe and reference of accused Nos.3 and 4. When three ladies went to rescue two male members, accused No.2 ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 36 apeal.292.16.jud rushed on them with iron pipe. There is consistency in the evidence of three witnesses.
Intervention of Sk. Gulab.
PW-1 Gulnaz PW-2 Irshad PW-3 Malanbi Chief : - Sk. Gulab Chief - Panthela Chief - Sk. Gulab came there and tried owner Sk. Gulab obstructed the to convince the pacified them and accused and then appellants. hence appellants they went away.
went away.
Cross : Nothing Cross - Sk. Gulab
inconsistent was put. Cross- Nothing came after the
But we do not find inconsistent was incident was over.
reference of Glulab brought during
in F.I.R. Exh.30 & 31. cross-examination.
CONCLUSION
54. The trial Court has not felt his evidence necessary. But, it is not supported by reasoning (para 115). There is a consistency in above evidence about intervention by Sk. Gulab in the incident and all appellants leaving the spot. Admittedly, he is not examined. Even this Sk. Gulab visited the house of PW-1 on the night of incident. He was there for half an hour. (portion above para 21 of PW-1). PW-1 and PW- 3 wants to suggest that Sk. Gulab came to the spot after the incident was over (above para 21 PW-1 and Para 14 PW-13). ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
37 apeal.292.16.jud Fact remains, Sk. Gulab had come to the spot either during happening of incident or after incident was over.
55. The prosecution relied upon the judgments in the case of Bhajan Singh Alias Harbhajan Singh & others vs. State of Haryana, reported in (2011) 7 SCC 421 and in the case of Vaman Jaidev Raval vs. State of Goa , reported in 2007 ALL MR. (Cri) 1268. In these judgments, issues were raised about non-examination of other available witnesses. Those objections were turned down. There was an emphasis on reliability of an injured witness, as there is a implicit guarantee in his evidence. There is unlikely hood of false implication. There is also a rider to these observations. If there are major contradictions and discrepancies, when evidence of injured witness cannot be relied upon.
56. It depends upon facts and circumstances. Generally the Court has to start with an assumption that injured witness will speak the truth. However, there are also other factors which Court has to consider while believing such testimony in toto. These factors are whether there are material omissions and contradictions, whether defence have put in a special defence just like injury to them, whether the ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 38 apeal.292.16.jud testimony is materially different from what has been stated before the police. So, in a given case, examination of an independent witness will be very much essential.
57. On going through the entire evidence, we feel that prosecution ought to have examined Sk. Chand or any other person who has witnessed the assault. This has not been done by the prosecution and there is no explanation for that.
DELAYED F.I.R. AND WITHHOLDING REAL F.I.R.
58. Prompt lodging of F.I.R. has got importance from different perspective. From witness point of view, if F.I.R. is lodged at an earliest opportunity, if gives weightage to the veracity of the incident. Delayed F.I.R. without explanation is viewed from suspicion. Once F.I.R. is registered, police gets power to investigate into the offence and use all powers laid down in the Code of Criminal Procedure. In this case defence argument is three fold -
1. Even though two injured and first informant visited Ner Police Station after the incident (must be earlier to 07:00 p.m.). F.I.R. was not registered at that time.
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39 apeal.292.16.jud
2. F.I.R. is registered (as per record) at 00:32 of 18/06/2011 (i.e. intervening night of 17/06/2011 and 18/06/2011) (whereas incident took place on 17/06/2011 at 06:00 p.m.), that is after delay of six hours.
3. First informant PW-1 Gulnaz says about lodging complaint on 18/06/2011 at 07:30 to 08:00 a.m. (during cross-examination, portion above para 21), whereas record shows PW-7 says F.I.R. was registered at 00:32 of 18/06/2011 and thus F.I.R. referred by PW-1 is not forthcoming.
JUDGMENTS RELIED UPON BY BOTH THE SIDES Delay in sending copy of FIR
59. Both the sides relied upon judgments on the point of delay in sending copy of F.I.R. to the Court of J.M.F.C. and its effect. Prosecution relied upon judgments in case of :-
1. Brahm Swaroop & another vs. State of Uttar Pradesh, reported in (2011) 6 SCC 288.
2. Marudanal Augusti vs. State of Kerala, reported in (1980) 4 SCC 425.
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40 apeal.292.16.jud Whereas, defence relied upon the judgments in the case of :-
1. State of Rajasthan vs. Teja Singh and others, reported in (2001) 3 SCC 147.
In the judgments relied upon by the prosecution, such delay itself was not considered fatal when other factors are considered. Whereas in the judgments quoted by defence such delay was considered as one of the factor doubting prosecution case. Ultimately, it is a question of fact. Otherwise also this issue is germane to the issues involved before us. There is no grievance that copy of F.I.R. was sent late to jurisdictional Magistrate.
Not recording F.I.R.
60. Defence relied upon three judgments on the point of not recording the first information received as F.I.R. They are -
1. State of A.P. vs. Punati Ramulu & others, reported in 1993 CRI.L.J. 3684.
2. Deepak Manikrao Andhare vs. The State of Maharashtra, reported in 2002 ALL MR (Cri) 1930. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
41 apeal.292.16.jud
3. Balu @ Bala Subramaniam & anr. vs. State (U.T. of Pondicherry), reported in IV (2015) CCR 181 (SC). We have gone through facts of these judgments minutely. Though information was given to police station, police either not taken F.I.R. or only taken an entry in station diary and preferred to visit the spot. F.I.R. came to be recorded after returning to the police station. On these facts, the in action of police was deprecated and F.I.R. was held inadmissible.
EVIDENCE
61. In case before us, it is admitted fact that when deceased Naushad and injured Irshad went to Ner Police Station, initially police neither recorded their statements nor of accompanying person including PW-1 Gulnaz. Both the injured were referred to Ner Hospital. The forwarding letters (Exh.87 & 88) are proved through PW-9 PHC Ashok Deshmukh (who took them to hospital). Defence heavily relied on contents of these letters. These letters were given by Station House Officer. He is not being examined. We do not know the reason for that. The police present there must have been told something about the incident. Then, why ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 42 apeal.292.16.jud F.I.R. was not registered. The witnesses cannot be blamed for that. It may be due to approach of concerned Station House Officer to wail till receipt of medico legal certificate or it may be due to urgent necessity of sending injured to hospital or due to error of judgment also.
62. No doubt F.I.R. could have been registered of PW-1 Gulnaz though not of two injured persons. Due to inaction of police, whether their action can be criticized. During cross- examination of the material witnesses, it was not pointed out that deliberately, at that time F.I.R. was not taken. It was not pointed out that PW-1 Gulnaz lodged F.I.R. subsequently with deliberations. So, we are not inclined to give benefit of those observations to the appellants.
Withholding of F.I.R.
63. If there are different versions about lodging of F.I.R., it has got damaging effect on prosecution case. Defence relied upon the judgments in case of Ravi Daulat Mohade vs. State of Maharashtra, reported in 2001 ALL MR(Cri) 1109. In that case, there were different versions as to whether F.I.R. was lodged first in the police station or after ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 43 apeal.292.16.jud returning from hospital, actually who lodged F.I.R. and at which place F.I.R. was lodged. Accordingly, F.I.R. produced at the trial was not considered as F.I.R.
EVIDENCE
64. PW-1 Gulnaz lodged the report at night (Exh.30 & Exh.31). She had not specifically told the timing (para 40). During cross-examination, at two places, she had given the timing. She went to police station at 12:00 in midnight (that is on second occasion on the date of incident). She was there for one hour. Her two signatures were obtained (paras 9 &
10). Whereas during subsequent cross-examination, her attention was brought to F.I.R. at Exh.30 & 31. Police obtained those signatures on the next day at about 07:30 to 08:00 a.m. (above para 21).
65. PW-7 H.C. Eawanate recorded the complaint of PW-1 and registered it as an offence (Exh.30, 31). It was at 00:32 hours in the intervening night of 17/06/2018 and 18/06/2018. We do not think that there is any inconsistency in between the evidence of PW-1 Gulnaz on one hand and the written F.I.R. at Exh.30 & 31 on the other hand. Though PW-1 ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 44 apeal.292.16.jud gave a different timing of F.I.R. that is to say at 12:00 midnight and 07:30 a.m. to 08:00 a.m. (During cross- examination), there is every possibility that she gave the timing of 07:30 a.m. to 08:00 a.m. as that of spot- panchnama. So, we do not find that there is withholding of F.I.R. or F.I.R. is anti-dated.
Lodging of Complaint with S.P. & Delay in F.I.R.
66. This was brought during cross-examination of PW- 1 by defence. Such complaint is at Exh.32. She was cross- examined by confronting to her the contents of that letter. She admits her signature. She gave instructions and father- in-law got it written. Exh.32 contains name of assailants in addition to four appellants. However, she disowned contents of Exh.32. The new assailants named in Exh.32 did not instigate four appellants. This complaint is lodged on 22/08/2011. It was filed for opposing bail to four appellants. The approach of PW-1 Gulnaz is of double standard. For opposing bail, she tried to involve more persons. Whereas, when it comes at the stage of giving of evidence, she had chosen to resile from the contents.
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45 apeal.292.16.jud
67. We do not find delay in lodging of F.I.R. F.I.R. filed in the midnight of 17/06/2011 and 18/06/2011 (00:32 hours) when incident took place at 06:00 p.m. of 17/06/2011, it is not filed belatedly (after 6 hours). We are rejecting all other objection taken by defence. PW-1 Gulnaz only made attempt to serious the issue by filing complaint to S.P. implicating new accused persons.
Delay in Recording Statement of PW-2
68. There is a defence objection that statement of injured Sk. Irshad was recorded belatedly after the incident. In order to substantiate this ground, the defence relied upon judgment in the case of Laxman Bapurao Ghaiwane vs. The State of Maharashtra, reported in 2012 ALL MR. (Cri) 3605. In all cases, delay is not fatal. It depends upon the facts and circumstances. Statement of Sk. Irshad was recorded on 27 th June, 2011 in Gautam Hospital. It means 10 days after the incident. As said earlier, except the Medical Certificate of Ner Hospital, Certificates of other two hospitals were not proved by the prosecution. Hospitalization could have been a good ground for not recording the statement earlier. This could not have been enough. There ought to have been more material ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 46 apeal.292.16.jud to show that apart from hospitalization, the injured was not in a position to give statement. Either, the necessary material has not been collected and the collected material is not proved through evidence. So, there is a reason to believe that his statement is recorded belatedly.
VARIANCE IN ORAL & MEDICAL EVIDENCE
69. Defence relied upon in as much as seven authorities. We will not discuss all the authorities except one. It is in case of Kapildeo Mandal & others vs. State of Bihar , reported in (2008) 16 SCC 99. There was oral version about firing by bullet. But, Medical evidence completely rules out firearm injury (para 27). Hence, the conviction was set aside. In para 26, the observations in case of Thaman Kumar vs. State of Union Territory of Chandigarh AIR 2003 SC 3975 were reproduced. Broadly, three categories of such variance were shortlisted. They are as follows :
[a] Total absence of injury - Then oral evidence about use of that weapon is not trustful.
[b] Injuries are possible by Then oral evidence about that weapon but size and use of that weapon is not dimension does not tally trustful. with weapon.
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47 apeal.292.16.jud
[c] Injuries are not found on
that part of body which
are deposed by the
witness.
70. Contingency 2 & 3 is regulated by various factors like manner of assault, position of victim, resistance etc. There is a rule to give predominance to oral evidence because evidence of doctor is opinionative. Every such variance does not weaken the prosecution case.
EVIDENCE
71. Those are two injured. One is PW-2 Irshad and second is deceased Naushad. Both were examined initially at Ner hospital. Irshad was taken from Ner hospital to Yavatmal Hospital and from there to private hospital at Nagpur. The injury certificates of later two hospitals were not proved. Dr Nandeshwar PW-12 examined Irshad. He noticed following injuries :-
Swelling on temporal bone 3 x 3 cm. By hard and blunt object.
Nature of injury was simple. Except this there was no injury, so let us see the oral evidence.
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48 apeal.292.16.jud ORAL EVIDENCE
72. Summary of PW-1, PW-2 and PW-3 is that appellant No.2 assaulted him on his head by pipe and other three appellants assaulted him by sticks and pipes on both the legs, back, waist whereas four appellants beat him by sticks and pipes. There was a swelling on temporal bone. Admittedly swelling is not on injury. There was not a bleeding injury. No marks of weapon on his body. Number of assailants is four and pipes and stick are the weapon used, can there only be swelling. This is not a case wherein witnesses say assault on particular part of body whereas injury is on another part of body. This is not the case wherein the dimensions of the injury do not tally with the measurement of the weapon. This is the case where there is assault by multiple persons and by multiple weapons. Still there are no corresponding injuries.
ASSAULT ON NAUSHAD
73. As per PW-12 Nandeshwar there are three injuries :-
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49 apeal.292.16.jud
(a) laceration on temporal bone 4 x 2 x 1 cm.
(b) Abrasion below lower lip 2 x 2 cm.
(c) Abrasion on knee point 2 x 2 cm.
These are the external injuries. There are no contused wound. There are no bleeding injuries. Initially PW-8 Dr. Godge noticed contusion, fracture, hemorrhage to temporal and parital bone. Head injury is the cause of death. So internal injuries are serious than the external injuries.
Because they were caused to vital part of the body. Hemorrhage stops the functioning of the brain and unless treated urgently, patient is likely to die. Naushad died while on his journey from Ner Hospital to Yavatmal Hospital.
74. There are two aspects. Whether the outcome of death is the resultant criterion or whether exercise of corroboration of oral evidence with injuries need to be done. One cannot say what will the effect of a blow on a person. It depends upon type of blow force, used, type of weapon, part of the body. Initially, we find fracture, contusion, hemorrhage. But externally only we find laceration on temporal bone. This injury is opined as simple by Dr. Nandeshwar. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
50 apeal.292.16.jud
75. Summary of oral evidence of these witnesses is appellant 1 beat him by stick and other appellant by sticks and pipes. It is also strange when there is multiple assault by multiple weapons, how there can be a laceration only on external side.
CONCLUSION
76. The trial Court observed "though PW-1 to PW-3 stated that deceased Naushad was beaten on his leg and PW- 8 and PW-12 Medical officers stated that they did not find injury on any part of the body except head, but it does not mean that deceased Naushad not beaten on his leg. Because the evidence of ocular witnesses remained unshaken". As said above, this case involves theory of assault on certain parts of the body, but not corroborated by corresponding medical injury. It goes to the root of the matter. Trial Court has overlooked this basic issue. There is every reason to conclude that PW-1, PW-2 and PW-3 have exaggerated about the type of assault, weapons used and number of appellants involved. No serious injuries were noticed externally to PW-2 Irshad and deceased Naushad. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
51 apeal.292.16.jud INJURIES TO ACUSED NO.1 SANAULLAH & ACCUSED NO.3 MOHD. HASIN
77. Law on this point is settled. Prosecution case do not suffer just because they fail to explain each and every injury caused to accused persons. It depends upon type of injury, time of injury, place of causing of injury. There is sufficient evidence brought on record by defence which suggest injury caused to appellant No.1 Sanaullah and appellant No.3 M. Hasin. They were taken to hospital by police constable B. No. 1825. (Cross-Examination Of PW-9 H.C. Deshmukh)
78. PW-1 Gulnaz saw A-1 Sannaullah at Ner Hospital when they reached there (Para 5). PW-2 Irshad has expressed ignorance about injuries to A-1 Sannaullah. He had not seen him in the police station and in the hospital (para 10). Any explanation during statement under section 313 of Cr.P.C. is not brought to our notice.
79. Trial Court refused to consider the circumstance of non-explanation of injuries to them by the prosecution. Trial Court gave two reasons - (1) none of the accused have lodged any case and (2) there is neither counter version nor ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 52 apeal.292.16.jud plea of defence. Trial Court overlooked the basic principles of criminal trial. There is no burden on the accused and even if there is burden, it is not heavy and it will be governed by probabilities. We can only infer about injuries to two appellants. We can also draw an inference that the injury caused during the same incident. We can draw no inference about nature of injuries, who caused it and weapon used. Now whether they were caused while assaulting the duo, while defending them or whether the duo in turn assaulted two appellants in right of private defence. It is difficult to get an answer. We got an answer whom we verified after corroborative material of report of C.A. CORROBORATIVE MATERIAL
80. It is in the form of discovery of places of concealment of weapons by appellant :-
(a) Seizure of three iron pipes through A-2 Wasim.
(b) Seizure of bamboo through A-1 Sannaullah.
Apart from this certain articles from the spot, clothes of the duo and of A-1 to A-4 and blood samples of the duo and the appellants were also seized.
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53 apeal.292.16.jud JUDGMENTS RELIED UPON BY BOTH SIDES
81. Due to lapse of time the blood group could not be classified successfully. Such benefit cannot be given to the accused if the recovery is proved in pursuance to the disclosure statement. There may be various reasons for not ascertaining the blood group from the objects recovered. These are the observations in case of R. Shaji vs. State of Kerala, reported in 2013 ALL MR(Cri) 1469 relied upon by the prosecution. Whereas, on the point of importance of proper sealing and it's reservation till receipt by Chemical Analyzer, the defence relied upon the judgment in the case of Kiran Ashok Jadhav vs. The State of Maharashtra , reported in 2014 ALL MR(Cri.) 3850 and judgment in the case of Mahendra Madansingh Thakur & Anr. vs. The State of Maharashtra , reported in 2011 ALL MR (Cri) 3849. There is a emphasis on sealing of the articles at the spot itself because in it's absence, it is going to affect its probative value.
82. Before going into the oral evidence, the corroborative evidence is discussed. PW-6 constable Pund took 17 samples to chemical analyzer. The necessary documents are proved. The forwarding letter is given by PW- ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
54 apeal.292.16.jud 14 - PSI Khillare Exh.114. The reports of chemical analyzer are as follows :
ARTICLES SEIZED FROM THE SPOT (EXH.115)
(i) Coal tar mixed with concrete - mixed with blood.
(ii) Coal tar mixed with concrete - no blood.
They were seized from the spot as mentioned in Exh.50.
CLOTHES OF APPELLANTS (EXH.115) (I) Jean pant and shirt of A-2 - Blood Group on Jean pant is 'A' group.
(ii) Full Pant and shirt of A-3 Haseen - There was human blood on full pant.
(iii) Full pant and shirt of A-4 - No blood on full pant and human blood on shirt.
(iv) Full pant and T-shirt of A-1 Human blood of 'A' group.
CLOTHES OF DECEASED AND INJURED (EXH.115)
(i) Shirt of deceased - Human blood.
(ii) Full pant, T-Shirt and Sando Banian of injured- Human blood 'A' group. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
55 apeal.292.16.jud WEAPONS SEIZED (EXH.115)
(i) three iron pipes from A-2 - One iron pipe with blood 'A' group.
(ii) Bamboo stick from A-1 - Human blood.
BLOOD GROUPS OF APPELLANTS
(i) Blood group of A-1 - 'B' (Exh.119)
(ii) Blood group of A-2 - could not be determined (Exh.116)
(iii) Blood group of A-3 - 'B' (Exh.117)
(iv) Blood group of A-4 is inconclusive (Exh.118) BLOOD GROUP OF NAUSHAD Exh.120 - Blood group could not be determined. It is inconclusive.
83. On this background and on the basis of defence objection, we have scrutinized the oral evidence on the point of seizure of blood samples of the injured Irshad, we have got the evidence of panch-witness Sk. Chand PW-4 (panch to various panchnama) and the evidence of a seizure officer PW- 15 PSI Mahure. This blood sample was collected by PSI Mahure from Darda Hospital, Nagpur and seized in the Police Station by drawing the panchnama. No doubt panch Sk. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
56 apeal.292.16.jud Chand has supported the prosecution, but apart from PSI Mahure, the Medical Officer who took out that blood sample and gave it to PSI Mahure was not being examined.
84. On the point of seizure of clothes of deceased Naushad and of injured Irshad, We have got the evidence of same panch PW-4 Sk. Chand and a different Officer PSI Khilare.
85. On the point of seizure of blood samples of the appellants, we have got the evidence of three witnesses. One is PW-10 ASI Kar, Seizure Officer, Medical Officer PW-10 Dr. Nandeshwar and same panch-witness PW-4 Sk. Chand. So, ASI Kar took all the appellants to Rural Hospital, Ner and Dr. Nandeshwar took out their samples by filling B-Forms. ASI Kar brought them back to Police Station and I.O. Khilare seized them.
86. On the point of seizure of articles from the spot, we have got the evidence of panch-witness Sk. Chand and Investigating Officer PW-11 Hirulkar. Coal tar mixed with concrete was seized from spot in front of a Dargah. Human blood was found in it. Question arises, to whom this blood ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 57 apeal.292.16.jud belongs. There are two views for that. One is, blood belonging to deceased and/or Irshad and second is, blood belonging to appellant No.1/appellant No.3. The first possibility will not be there. The reason is, none of the two Doctors have stated about any bleeding injury to deceased and injured Irshad. But, we cannot come to a concrete conclusion that this blood belongs to these two injured appellants. Their blood group was of 'B'. This circumstance also fortifies the grievance that there is injury to these three appellants and during the incident only. Furthermore, prosecution agency during trial has overlooked this anomaly and this circumstance certainly goes against them.
87. On the point of seizure of clothes of all the appellants, we have got the evidence of PSI Khilare and the same panch Sk. Chand. It happened on 18 th June, 2011 from 20:25 hours up to 20:55 hours. The defence challenged these seizures mainly on two grounds. First, sealing of those clothes is not mentioned in those seizure memos and second the Investigating Officer sought for police custody remand on 18th June, 2011 itself on the ground of seizing the clothes of the appellants. The Investigating Officer admits about non- mentioning the fact of sealing in seizure memos (para 13). ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
58 apeal.292.16.jud He was confronted with police custody report at Exh.126. We have perused it. One of the grounds was to seize the clothes of the accused. It bears the date as 19 th June, 2011, whereas all appellants were arrested on 18th June, 2011.
88. There are two options either to believe seizure of the clothes on 18th of June, 2011 or to believe the reason quoted in the remand application. Both cannot be true. There is every reason to believe that these seizure forms were prepared in hurry and that is why the important fact of sealing the clothes is not mentioned in them. There is every reason to believe that these seizure forms were prepared subsequently. The interpretation which is favourable to the accused needs to be accepted. Trial Court observed that "even then due to remissness in the investigation does not affect the case of prosecution" . We do not agree to this. Because, it goes to the root of the matter.
89. In above two referred judgments, importance of sealing the articles was reiterated. Actual sealing is required as well as its documentation. For these reasons, the evidence of seizure of clothes from the appellants goes away. ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
59 apeal.292.16.jud
90. On the point of seizure of the weapon at the instance of appellant No.1 and appellant No.2, we have got the evidence of panchwitness Sk. Chand and PSI Khilare. Appellant No.1 Sanaullah produced one stick from his house on 22nd June, 2011 whereas appellant No.2 Wasim produced three iron pipes from his house. The testimony of Sk. Chand is challenged on the ground of close intimacy with the deceased and his overall involvement in the incident apart from a panch-witness. There is a sufficient evidence on record to suggest that this Sk. Chand is related to the deceased and apart from being a panch, he has participated in post incident events. He admits that police recorded his statement. Though, he has disowned some of the portions from his statements, they were duly proved through Investigating Officer PSI Khilare.
91. It shows his relationship with the deceased, helping the deceased and injured in a shifting them to Yavatmal Hospital by arranging an Ambulance of one Jagdish Telange. It deals with attending the funeral of deceased Naushad. There is nothing wrong in helping your relative or your neighbour or your villagers. But, when all these facts comes on the background of such a witness deposing as a ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 60 apeal.292.16.jud panch, Court has to appreciate such evidence with care and caution.
92. Trial Court has considered these facts as immaterial. Though it may be true from the point of view of the incident, but from the point of view of trustworthiness of witness, they are important. It is surprising why the police called him to act as a panch to as much as 9 panchnamas. Some of them may be considered as a formal, but at least two of them are material. These two panchnamas pertains to seizure of weapon from two appellants. When we have perused his evidence, we find that he had given all the details of all the panchnamas. Sometimes giving minute details also suggests tutoring. He had attended the Court while giving evidence along with the complainant party. So, even though we have not found out material shortcomings in his evidence, we are treating his evidence with great suspicion.
CONCLUSION
93. We do not find any difficulty to believe the evidence on the point of seizure of clothes of injured and the seizure of blood samples of four appellants. Blood group of ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 61 apeal.292.16.jud appellant Nos.1 and 3 was of B group, whereas Blood Group found on clothes of injured was of A group. However, for above discussions, we are not inclined to believe the evidence on the point of seizure of clothes of appellants. So also, we are not inclined to believe the evidence of seizure of weapons from appellant Nos.1 and 2. So we are discarding this evidence.
Applicability of Section 34 of I.P.C.
94. Admittedly, appellant Nos.2 to 4 were not party to the first incident of entering the house. It is only appellant No.1 who entered the house. The role of appellant Nos.2 to 4 starts only when appellant No.1 was questioned by deceased and injured about his entry in the house and subsequent help taken by appellant No.1. The trial Court convicted all the appellants for the offence under Sections 302, 307 read with Section 34 of the I.P.C. Defence has got a serious objection to this and they relied upon the judgments in the following cases :
1. Mahbub Shah vs. King-Emperor, reported in AIR 1945 PC 118.
2. Balu @ Bala Subramaniam & Anr. vs. State (U.T. of Pondicherry), reported in IV (2015) CCR 181 (SC). ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::
62 apeal.292.16.jud
3. Kanwarlal and another vs. State of M.P., reported in (2002) 3 SCC 152.
4. Babu Ram and Anr. vs. State of U.P., reported in 2002(6) SCC 518.
5. Dinesh s/o Ganesh Deshpande & Ors. vs. State of Maharashtra, reported in 2005 ALL MR(Cri) 155.
As said above, we are not discussing the ratios laid down in all the judgments. The principles which emerges on their reading are - there is a per-arrange plan, overt act committed either by all or some of them, it can be deduced from the circumstances, common intention can be developed at the spot also.
95. If these principles are considered and applied to the evidence before us, we can find that admittedly there is no evidence adduced to show that earlier to the incident, all appellants have planned to assault the duo. What it gathers is that, appellant Nos.2 to 4 came to the spot only when called by appellant No.1. Considering the time spent in between a call by appellant No.1 and arrival of appellant Nos.2 to 4 at the spot, it is surprising as to how other three appellants were ready with weapons. There is no evidence which suggests that there was an interaction in between ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 63 apeal.292.16.jud appellant No.1 on one hand and appellant Nos.2 to 4 on the other hand. There is no evidence to show that they have formed a common intention at the spot itself. So, the evidence is short to show that all the appellants shared a common intention to assault the deceased and the injured. The learned trial Court has invoked the provisions of Section 34 wrongly. In nutshell, if offence is proved, each of the appellants will be guilty of individual act and not for vicarious liability.
FINAL CONCLUSION
96. For the above discussions, though the prosecution has proved the homicidal death and a culpable homicide amounting to murder of Naushad and a life attempt on injured Irshad, the prosecution is unable to prove guilt of these appellants beyond reasonable doubt. We find the evidence of PW-1 to PW-3 improbable on the point of narrating the first incident and taking the help of appellant Nos.2 to 4 by appellant No.1. We are giving benefit to the appellants for the reason that PW-1 to PW-3 have attempted to exaggerate the incident. Even PW-1 went to the extent of adding the names of assailants when she filed a complaint to ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 ::: 64 apeal.292.16.jud the Superintendent of Police after the incident. However, when question of explaining the injuries to appellant No.1 and appellant No.3, these witnesses have remained silent. We are inclined to give benefit also for the reason of certain defects in the investigation. The Investigating Agency have not tried to collect the materials showing how there were injuries to these two appellants. Further more, we find that there was a lapse on the part of prosecuting agency to examine the independent witness during the trial though available. The trial Court has overlooked these facts and convicted all the appellants. We are only confirming the conviction of appellant No.1 for the offences punishable under Sections 354 and 448 of I.P.C. The conviction for all the appellants for the offences punishable under Sections 302, 307 read with Section 34 of I.P.C. needs to be set aside. So we are allowing the appeal partly and proceed to pass the following order :
ORDER I. The appeal is partly allowed.
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65 apeal.292.16.jud II. The conviction and sentence of appellant Nos.1 to 4 for the offences punishable under Sections 302, 307 read with Section 34 of I.P.C. is set aside. III. They are acquitted for those offences. Fine amount paid, if any, imposed for those offences, be returned to them.
IV. They may be set at liberty from jail, if not required in any other case.
V. The conviction of appellant No.1 for the offence punishable under Sections 354 & 448 of I.P.C. is maintained.
(S.M. MODAK, J.) (SUNIL B. SHUKRE, J.) [hedau/jaiswal/sandesh/yadav] ::: Uploaded on - 18/06/2019 ::: Downloaded on - 19/06/2019 05:21:33 :::