Full Judgment Text
Cri. Appeal No. 223/13 & Ors.
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 223 OF 2013
1. Rizwan Farooq Shaikh,
Age 27 years, Occu. Labourer,
R/o. Fakirwada, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
2. Shoheb @ Sayyad Usman Sayyad,
Age 30 years, Occu. Labourer,
R/o. Parimal Hsg. Society,
Ward No. 1, Shrirampur,
Dist. Ahmedganar. ....Appellants.
(Ori. Accused Nos. 1 & 2)
Versus
The State of Maharashtra
Through Complainant
P.I. Shrirampur City Police
Station, Tal. Shrirampur,
Dist. Ahmednagar. ....Respondents.
Mr. V.D. Sapkal, Advocate h/f. Mr. N.R. Bhavar, Advocate for
appellants.
Mrs. V.S. Choudhari, APP for respondent/State.
WITH
CRIMINAL APPEAL NO. 616 OF 2018
The State of Maharashtra
Through the P.I. Shrirampur
Police Station, Tal. Shrirampur,
Dist. Ahmednagar. ....Appellant.
(Ori. Complainant)
Versus
1. Juber Ashpak Shaikh,
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
2
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
2. Abdul @ Bhaiyya Abbaskhan Pathan,
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
3. Bala @ Ravindra Rajendra Tribhuvan,
Age 23 years, Occu. Labourer,
R/o. Sonwane Wasti, War No. 1,
Gondhavani Road, Shrirampur,
Dist. Ahmednagar.
4. Raju @ Rajendra Bhanudas Bhalerao,
Age 23 years, Occu. Labourer,
R/o. Opp. Church, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
5. Sandeep Baburao Waghmare,
Age 22 years, Occu. Labourer,
R/o. Near Water Tank, Gonddhavani
Road, Ward No. 1, Shrirampur,
Dist. Ahmedngar.
6. Nilesh Suresh Alhat,
Age 28 years, Occu. Labourer,
R/o. Mangalwar Peth, Pune,
Dist. Pune. ....Respondents.
(Ori. Accused Nos. 3 to 8)
Mrs. V.S. Choudhari, APP for appellant/State.
Mr. M.P. Shinde, Advocate for respondent No. 3.
Mr. N.V. Gaware, Advocate for respondent No. 4, 6, 7 & 8.
(Leave is granted against respondent Nos. 1 & 2 only to fle appeal
vide order dated 27.8.2018.)
WITH
CRIMINAL APPEAL NO. 617 OF 2018
Muzafar Papabhai Shaikh,
(PW5-Brother of deceased)
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
3
Age 49 years, Occu. Agri.,
R/o. “Sarkar”, Subedar Basti,
Ward No. 2, Shrirampur,
District Ahmednagar. ....Appellant.
Versus
1. Rizwan Farooq Shaikh,
Age 24 years, Occu. Labourer,
R/o. Fakirwada, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
2. Shoheb @ Sayyad Usman Sayyad,
Age 27 years, Occu. Labourer,
R/o. Near Municipal School No. 4,
Ward No. 1, Shrirampur,
Dist. Ahmedganar.
3. Juber Ashpak Shaikh,
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
4. Abdul @ Bhaiyya Abbaskhan Pathan,
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
5. Bala @ Ravindra Rajendra Tribhuvan,
Age 23 years, Occu. Labourer,
R/o. Sonwane Wasti, Ward No. 1,
Gondhavani Road, Shrirampur,
Dist. Ahmednagar.
6. Raju @ Rajendra Bhanudas Bhalerao,
Age 23 years, Occu. Labourer,
R/o. Opp. Church, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
7. Sandeep Baburao Waghmare,
Age 22 years, Occu. Labourer,
R/o. Near Water Tank, Gondhavani
Road, Ward No. 1, Shrirampur,
Dist. Ahmedngar.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
4
8. Nilesh Suresh Alhat,
Age 28 years, Occu. Labourer,
R/o. Mangalwar Peth, Pune,
Dist. Pune.
9. The State of Maharashtra
Through Complainant
P.I. Shrirampur City Police
Station, Tal. Shrirampur,
Dist. Ahmednagar. ....Respondents.
Mr. S.T. Shelke, Advocate for appellant.
Mr. V.D. Sapkal, Advocate h/f. Mr. N.R. Bhavar, Advocate for
respondent Nos. 1 & 2.
Mr. M.P. Shinde, Advocate for respondent No. 3.
Mr. N.V. Gaware, Advocate for respondent No. 4, 6, 7 & 8.
Mrs. V.S. Choudhari, APP for respondent No. 9/State.
(Appeal of respondent No. 1 & 2 is already admitted. Leave is
granted against respondent Nos. 3 & 4 only to fle appeal vide order
dated 27.8.2018.)
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
RESERVED ON : 21/11/2019.
PRONOUNCED ON : 12/12/2019
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The frst appeal bearing Criminal Appeal No. 223/2019 is
fled by accused Nos. 1 and 2 of Sessions Case No. 24/2010, which
was pending in the Court of learned Ad-hoc Additional Sessions
Judge, Shrirampur, District Ahmednagar. The Trial Court has
convicted and sentenced these accused/appellants for the ofences
punishable under section 302 r/w. 120-B etc. of Indian Penal Code
(hereinafter referred to as ‘I.P.C.’ for short) and also for the ofences
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
5
punishable under sections 3, 5 r/w. 25 of Arms Act. The sentence of
imprisonment of life is given and fne amount of Rs.10,000/- is
imposed on each of them. Criminal Appeal No. 616/2018 is fled by
the State against accused No. 3 Juber Ashpak Shaikh and accused
No. 4 Abdul @ Bhaiyya Abbaskhan Pathan as they are acquitted of
the aforesaid ofences. Criminal Appeal No. 617/2018 is fled by the
informant against accused Nos. 3 and 4 to challenge the acquittal
given to them. Both the sides are heard.
2) In short, the facts leading to the institution of the appeals
can be stated as follows :-
The incident in question took place on the night between
8.1.2010 and 9.1.2010 near Government godown wall which is
situated at Azad Chowk, Shrirampur, District Ahmedngar. Informant
Manoj Gupta (PW 1) sells snacks called as ‘Bhel’ on his hand cart
bearing name Laxmi Farsan in the evening at this spot. His cart
remains there from 1.00 p.m. onwards till late hours of night. As
usual, on that day also he was present with his hand cart at the spot
of ofence. Deceased Ayub Papabhai Shaikh was known to Manoj.
3) At about 11.30 p.m. of 8.1.2019 deceased Ayub came to
the hand cart of Manoj and he sat on the bench kept by Manoj. The
deceased started applying tobacco powder (Mishri) to his teeth. After
some time he asked Manoj to give a glass of water to rinse the
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
6
mouth. In the meantime, Iqbal Memon, another person, who was also
known to both Manoj and Ayub came there and there was some talk
between Iqbal and the deceased. After that the deceased rose from
the bench to rinse mouth. Within no time, two motorcycles came
from Gondhavani road towards the hand cart. There were three
persons on one motorcycle and there were two persons on second
motorcycle. These motorcycles stopped near the stall of Manoj.
4) Manoj (PW 1) knew accused No. 1 Rizwan Shaikh and
accused No. 2 Sayyad Usman out of the fve persons who had come
there on two motorcycles. Manoj noticed that the riders of the two
motorcycles remained on their seats and they kept the engines of
the motorcycles in running condition. The other three persons from
the two motorcycles got down from the two vehicles and they came
towards deceased Ayub. Then accused No. 1 Rizwan held neck of
Ayub and gave abuses to Ayub and said that he was there to fnish
Ayub. Then he shot bullet by using pistol on the abdomen of Ayub.
Accused No. 2 Sayyad was also there and he shot another bullet
from his pistol on the head of Ayub. When accused Nos. 1 and 2 were
fring bullets at Ayub, the third man, who was having little bit less
height and who was having medium built was showing his fre arm,
pistol to the shop owners of the vicinity and he was asking them to
leave the spot. When Ayub collapsed due to the aforesaid fring,
accused Nos. 1 and 2 and other three persons who were in their
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
7
company, left the spot on the same two motorcycles and their
motorcycles went towards Shivaji Chowk. Manoj could see the three
persons who were in the company of accused Nos. 1 and 2 though
they were not known to him prior to the date of incident. Manoj
noticed that one of the two motorcycles was of Unicorn Honda
Company.
5) When the aforesaid fve persons left the spot, Manoj
shouted for help. Ayub Poptiya and Maulana Akbar Ali were in the
vicinity and they rushed to the spot. They shifted Ayub to hospital on
motorcycle. They frst took Ayub to German Hospital and then to
other private hospital. But in both the hospitals, doctors were not
available and so, they took the deceased to Sakhar Kamgar Hospital.
After examining Ayub, the doctor from Sakhar Kamgar Hospital
declared that Ayub was already dead. Manoj (PW 1) gave report to
police about the incident and on the basis of his report, the crime
came to be registered in Shrirampur City Police Station at 1.30 a.m.
on 9.1.2010 at C.R. No. 8/2010.
6) Police Inspector Shri. Pardeshi (PW 17) took over the
investigation of the case. He prepared inquest panchanama in the
presence of panch witnesses in the aforesaid hospital. Police Ofcer
Shri. Nikam of this police station went to the spot for preparation of
spot panchanama and spot panchanama came to be prepared. From
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
8
the spot, two caps, empty cartridges and earth mixed with blood
were taken over and a pair of Chappals which were lying there also
were taken over under panchanama. Some investigation was made
by Police Inspector Shri. Padole (PW 16). The dead body was referred
for post mortem (P.M.) examination. The clothes of the deceased
were taken over under panchanama.
7) After making some investigation, and recording some
statements, Shri. Padole (PW 16) got information about some
persons, who were involved in the ofence like accused Ravindra
Tribhuwan (accused No. 5) and Rajendra Bhalerao (accused No. 6).
Steps were taken to collect C.D.R. record in respect of those persons.
Ravindra and Rajendra came to be traced on 12.1.2010 and they
came to be arrested.
8) On the basis of information collected by police on
13.1.2010 accused Nos. 1 to 4 came to be arrested after tracing
them at Chakan Phata, Talegaon Dhabhade Chowk, District Pune.
When personal search of accused Nos. 1 and 2 was taken in the
presence of panchas at this spot, two fre arms came to be recovered
from accused Nos. 1 and 2. These fre arms came to be seized under
panchanama. Two live cartridges were also recovered from the
possession of accused No. 2 and they were seized.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
9
9) During investigation police received information against
accused No. 8 Nilesh Alhat. It transpired that Nilesh was arrested in
Pune by Pune police as he was found in possession of fre arm and he
was history sheeter. Name of accused No. 7 Sandip Waghmare also
transpired during investigation. He also came to be arrested. It
transpired that Wasim Gulab Shaikh one more accused was involved
in the ofence in addition to the eight accused who came to be
arrested in the crime, but he could not be traced and he is shown as
absconding accused. C.D.R. record in respect of mobile phones of
these accused came to be collected.
10) Test identifcation (T.I.) parade came to be arranged to
give opportunity to witnesses who were present on the spot to
identify the arrested accused persons. It was held on 20.3.2010.
Some witnesses identifed accused No. 3 and some witnesses
identifed accused No. 4. The two motorcycles which were used for
going to the spot of ofence by accused, came to be discovered and
they came to be seized.
11) The articles seized during investigation came to be sent
to forensic laboratory and ballistic expert for getting opinion. After
completion of investigation, chargesheet came to be fled against
eight accused and the case was tried against eight accused.
Chargesheet was fled for the ofences punishable under sections
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
10
302, 143, 147, 148, 149, 120-B, 504, 506 etc. of I.P.C. and also for
the ofence punishable under sections 3, 5 r/w. Section 25 of Arms
Act. Charge was framed and plea was recorded. All the accused
pleaded not guilty. The prosecution examined in all 18 witnesses to
prove the ofences. Accused did not examine any witness and they
took the defence of total denial.
12) Manoj Gupta (PW 1) is the main witness of prosecution
and he was having the best opportunity to witness the entire
incident. The deceased was present at his stall at the relevant time.
In view of this circumstance, the Trial Court has given more weight to
the evidence of Manoj (PW 1). There is another eye witness like
Maulana Sayyad (PW 2), but he had rushed to the spot after starting
of the incident. The Trial Court has held that only accused Nos. 1 and
2 were known to Manoj and evidence of Manoj on identifcation of
accused No. 3 is doubtful in nature. Manoj had not identifed accused
No. 4 even in T.I. parade. As there is inconsistency in the evidence
given by PW 1 and PW 2 with regard to role played by accused Nos. 3
and 4 and the evidence as regards the identifcation of these
accused is doubtful in nature, the beneft of doubt is given to
accused Nos. 3 and 4. As appeals are fled by accused Nos. 1 and 2
and appeals are fled against accused Nos. 3 and 4, this Court is
considering the evidence given only against these accused persons.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
11
13) Manoj (PW 1), the main witness of prosecution has given
evidence that the time of his business was 1.00 p.m. to 12 hours of
night. He has given evidence that on 8.1.2010 also he was present
on the spot of ofence with his hand cart for the business, selling
snacks, Bhel. He has deposed that the deceased came to his stall at
about 11.15 p.m. and after sitting on the bench, he started applying
Mishri to the teeth. He has deposed that Iqbal Memon came there
and he had some talk with the deceased. He has deposed that the
deceased then asked for a glass of water from him and when
deceased was rising from the bench, two motorcycles came from the
side of Gondhavani road to his stall. He has deposed that both the
motorcycles stopped near his stall and from these two motorcycles
three persons got down and came towards his stall. He has deposed
that the two persons who were riding the motorcycles remained on
the motorcycles and they had kept the engines of the motorcycles in
running condition. Manoj (PW 1) has deposed that from prior to the
date of incident he knew accused No. 1 Rizwan and accused No. 2
Sayyed. He has deposed that accused No. 1 held the deceased by his
neck and said that he had come there to fnish the deceased.
Abusive language which was used by accused No. 1 is given in the
deposition by Manoj and the words uttered are that, “ Tere Bahen Ki
Chut, Tuze Mar Dalunga’ ( ). Manoj (PW 1)
rsjs cgsudh pwr] rq>s ekj Mkyqaxk
has deposed that accused No. 1 then fred one shot of his pistol on
the abdomen of the deceased and then accused No. 2 Sayyed fred
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
12
one shot by using his pistol on the head of the deceased. Manoj (PW
1) has deposed that the third person who had also got down from the
motorcycle was holding another pistol and by showing that pistol, he
was giving threats to the persons in the neighbourhood including the
shop owners and he was asking them to leave the place by closing
their shops. Manoj has deposed that deceased Ayub collapsed due to
the aforesaid fring at him and then all the fve persons went away
on the same motorcycles.
14) Manoj (PW 1) has deposed that he shouted for help and
then persons like Ayub Popatiya and Maulana Akbar Ali rushed to his
stall and they shifted the deceased to hospital. His evidence shows
that he had not gone with these two persons. He has deposed that
when he learnt that Ayub was taken to Sakhar Kamgar Hospital, he
went there and there he learnt that Ayub was dead. He has deposed
that he then went to police station and he gave report about the
incident. His report is proved as Exh. 136.
15) In examination in chief, Manoj (PW 1) has stated that he
was knowing all the accused persons and he has further deposed
that accused Nos. 1 to 3 and accused No. 7 had come there along
with one more person for committing the ofence.
16) Exh. 136, the F.I.R. is consistent with substantive
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
13
evidence of Manoj (PW 1) so far as it is in respect of fring done by
accused Nos. 1 and 2. In the F.I.R. also, he has mentioned that he
knew accused Nos. 1 and 2 from prior to the date of this incident. In
F.I.R., Manoj had not given the names of other three persons who had
come there on two motorcycles. Though he had described the third
person who had got down from the motorcycle, his name was not
given. On the other hand, in F.I.R. it was specifcally disclosed by
Manoj (PW 1) that only accused Nos. 1 and 2 were known to him and
they had come there with three unknown associates. This portion of
F.I.R. was confronted to PW 1 during cross examination and he has
stated that he had wrongly mentioned in the F.I.R. that there were
three other persons, unknown associates of accused Nos. 1 and 2.
Thus, the evidence given in the Court that accused Nos. 3 and 4
were known to Manoj is hit by omission in F.I.R.
17) Manoj (PW 1) has deposed that in the past, there was
quarrel between accused No. 3 Juber and family of the deceased
over the transaction of sale of mobile hand set. He has given
evidence on other incident in which accused Nos. 1 to 3 were
involved and they had kidnapped one lady from other station for
ransom. He has given evidence that deceased Ayub had rescued that
lady and in that incident deceased Ayub and his persons had
assaulted accused Nos. 1 to 3. He has given evidence that due to
these incidents enmity was developed between the deceased on one
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
14
side and accused Nos. 1 to 3 on other. He has given evidence that
from prior to the date of incident, these accused had kept watch on
the movements of Ayub and the accused had vowed to fnish Ayub.
All this part of evidence is hit by omission in the F.I.R.
18) It appears that T.I. parade was held on 20.3.2010 after
about 70 days of the incident. In T.I. parade, opportunity was given
to many witnesses including PW 1 and PW 2 to identify the persons
involved in the incident. In the Court, Manoj has not given evidence
that he had identifed either accused No. 3 or accused No. 4 in T.I.
parade. Though for the reasons given afterwards, the record of T.I.
parade (Exh. 251) cannot be used in evidence, it can be said that the
record shows that Manoj could not identify accused No. 4 in T.I.
parade. As per the record he had identifed accused No. 3 in T.I.
parade.
19) The record of the case shows that record of T.I. parade,
Exh. 251, is not admitted by the defence. On Exh. 251, it is
mentioned that due to the order made by the Trial Court Judge dated
25.3.2013 the record was given exhibit. This Court has carefully seen
the record including the Roznama. As per the practice in Mofussil
Courts of this State, order could have been made on some
application or on chargesheet. There is no such order dated
25.3.2013. In Roznama, there is only mention that there was
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
15
direction of the Court to give exhibit to this record and so, Exh. 251
was given to this record. The ofcer before whom the T.I. parade was
conducted is not examined. Manoj (PW 1) has not referred the
incident of T.I. parade. As there is no evidence from Manoj (PW 1)
about T.I. parade and as there is no evidence even of the concerned
ofcer to prove the record, this record cannot be used as evidence
under section 3 of the Evidence Act.
20) There are more circumstances which make it necessary
to discard the record of T.I. parade. The evidence of Manoj (PW 1)
shows that on 25.1.2010 his supplementary statement was recorded
by police. The evidence given by PW 1 on the motive of accused
persons including accused Nos. 1 to 4 is already mentioned. There
was no mention of such motive in the F.I.R., but in supplementary
statement, such motive was collected and in that statement, Manoj
contended that he knew accused Nos. 1 to 4 and also the
absconding accused Wasim Shaikh from prior to the date of incident.
The circumstance that such supplementary statement came to be
recorded on 25.1.2010 and after that T.I. parade was held on
20.3.2010 shows that the investigation was not in competent hands.
In view of the supplementary statement dated 25.1.2010 it cannot
be said that there was any necessity for arranging T.I. parade to
enable Manoj (PW 1) to identify the accused persons.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
16
21) The evidence of Manoj (PW 1) shows that Iqbal Memon
was present at his stall just before the incident of fring. His evidence
shows that he had engaged labour to assist him at the stall. His
evidence shows that there were other hand carts of hawkers selling
eatables in the vicinity. Those witnesses are not examined. Maulana
Sayyad (PW 2) who had come in the vicinity by chance is examined
by prosecution as the other eye witness.
22) Maulana (PW 2) has deposed that he and Ayub Poptiya
were in the vicinity of the spot of ofence by chance. He has deposed
that prior to coming to the spot of ofence where he was sitting with
Poptiya, he had crossed the food stall of PW 1 and at that time, he
had said hellow to the deceased. Maulana (PW 2) has deposed that
at tea stall he heard noise of breaks applied by motorcycles and then
he paid attention towards the side of the stall of PW 1. He has
deposed that he noticed that one person was showing revolver and
asking to owners of the stalls to go away. He has deposed that he
then noticed that accused No. 1 was holding neck of deceased Ayub
and he was telling Ayub that he was there to fnish Ayub. He has
given the sentence uttered by accused no. 1 at that time on which
evidence is given by PW 1 also. Maulana (PW 2) has given evidence
that accused No. 1 then fred bullet in the abdomen of deceased. He
has deposed that accused No. 2 fred bullet on the head of the
deceased by using his fre arm. He has deposed that at the relevant
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
17
time, there were three persons sitting on two motorcycles on which
accused Nos. 1 and 2 had come there. This part is inconsistent with
the previous part of evidence in which he had stated that one person
was holding other revolver and he was keeping the shop keepers
away from the spot. Maulana (PW 2) has given evidence that he and
Ayub Poptiya rushed to the spot when fring was over and they
shifted the deceased frst to German Hospital and then to Anarase
Hospital and then to Sakhar Kamgar Hospital. The evidence shows
that as doctors were not available at German Hospital and Anarase
Hospital, the deceased was taken to Sakhar Kamgar Hospital and
there doctors declared that Ayub was dead. There is M.L.C. prepared
by Sakhar Kamgar Hospital showing that the time of death was
mentioned as 12.45 hours of that night.
23) In examination in chief itself, Maulana (PW 2) has
deposed that the person who was giving threat to stall owners was
accused No. 3. He has deposed that the accused who were sitting on
the motorcycles were Bhaiyya (accused No. 4) and Wasim
(absconding accused). Maulana identifed accused Nos. 1 to 4 in the
Court as the persons who were involved in the incident. Maulana has
given evidence that in T.I. parade he identifed the accused, but he
has not specifcally stated as to which accused was identifed by him.
24) Maulana (PW 2) has deposed that his supplementary
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
18
statement was recorded. Like in case of PW 1, he had not stated in
frst police statement recorded on 9.1.2010 that he knew accused
Nos. 3 and 4 and absconding accused. In supplementary statement
dated 25.1.2010 he took names of not only other three accused, but
also the remaining accused and he informed to police that there was
motive for the crime for all the accused. The omission in police
statement dated 9.1.2010 in respect of the name of accused Nos. 3
and 4 and absconding accused was confronted to Maulana. He
admitted the omission in respect of accused No. 3, but he did not
admit the omission in respect of accused No. 4 and absconding
accused. The record shows that the omission in previous statement
in respect of accused No. 4 and absconding accused was not proved
in the evidence of Investigating Ofcer (PW 18), who had recorded
the frst statement of Maulana. There are many other circumstances
showing that the APP and the defence counsel did not properly
conduct the matter and even the Trial Court did not follow the proper
procedure for giving exhibits to many documents.
25) Evidence of PW 1 and PW 2 shows that PW 1 took the
name of Sandeep (accused No. 7) as the ffth person when PW 2 took
the name of Wasim (absconding accused) as the ffth person. The
evidence of PW 1 shows that only when the incident of fring was
over, he shouted and after that Maulana and Poptiya came towards
his stall. These circumstances need to be kept in mind as it has not
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
19
come in the evidence of PW 1 that he had seen these two persons in
the vicinity when the fring had taken place.
26) The aforesaid evidence shows that the evidence as
against accused Nos. 3 and 4 is hit by material omission in the
previous disclosures made to police on 9.1.2010. While considering
the evidence given as against accused No. 4 by Maulana (PW 2),
more weight needs to be given to the evidence of PW 1 in view of
the aforesaid circumstances. Further, the evidence of Police Ofcers
also does not show that they had convincing information as against
accused Nos. 3 and 4 on 9.1.2010. It is already observed that the
investigating agency has virtually destroyed the important piece of
evidence like the evidence of T.I. parade by recording the statements
of the witnesses as supplementary statements on 25.1.2010.
27) There is circumstantial evidence to corroborate the
evidence of PW 1. To prove the spot panchanama, prosecution has
examined panch witness Shri. Dattatraya Vaidya (PW 3) and Police
Inspector Shri. Sopan Nikam (PW 13). Even photographs of the spot
were taken when the panchanama was prepared. But, unfortunately
that record is not proved. The spot panchanama is proved as Exh.
148. The panchanama was drawn on 9.1.2010 between 1.45 p.m.
and 2.40 p.m. This evidence shows that blood was found on the spot
and the spot was shown by the informant Manoj (PW 1). A pair of
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
20
Chappal was lying there. Two caps of bullets, empty cartridges were
found on the spot. The description of the letters appearing on the
caps is mentioned in the panchanama. In view of the other
circumstances which this Court is discussing at proper place, this
Court is avoiding to burden the record by mentioning atleast
description of the caps and weapons. Map of scene of ofence was
prepared on Exh. 148. The evidence of spot panchanama is
consistent with the direct evidence given by PW 1 and PW 2.
28) The tenor of the cross examination of PW 1 made by the
defence counsel shows that the accused did not dispute that Ayub
was murdered on the spot shown in Exh. 148. It was suggested to
PW 1 that the time of his business was over at about 10.00 p.m. and
so, he could not have witnessed the incident. This suggestion is
denied. Nothing is on the record to show that it was not open to the
stall owners to do the business after 10.00 p.m. The F.I.R. was given
almost immediately after the incident. The evidence of PW 1 does
not show that he had deliberation with the relatives of the deceased.
It is already observed that he knew only two accused persons and he
gave the names of two persons in the F.I.R. and he described other
three persons as unknown associates. His evidence shows that he
was not that interested in the deceased and he had no reason to
falsely implicate accused Nos. 1 and 2. There is nothing on the
record due to which his evidence needs to be looked with suspicion
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
21
so far as his evidence given as against accused Nos. 1 and 2 is
concerned. There are more circumstances like medical evidence to
corroborate the version of PW 1.
29) Dr. Jame Bashir (PW 11) has given evidence on P.M.
examination. P.M. report is proved in his evidence as Exh. 173. The
P.M. was conducted on 9.1.2010 between 10.45 a.m. and 1.30 p.m.
Dr. Jame (PW 11) has deposed that the death took place 10 to 24
hours before the time of P.M. examination. He has given opinion
regarding cause of death as “death due to hemorrhagic shock due to
frearm injuries (unnatural)”. Injuries are described in column No. 17
in Exh. 173 and they are as under :-
“ 17 (1):- A single penetrating oval shaped injury
over anterior abdominal wall in left hypochondric
region with anterior end slightly lower than posterior
end, directed above downward towards umbilicus,
injury was located at a distance of 112 cms from heal,
18 cms below the left nipple, 13 cms below and lateral
to xiphoid, 12.5 cm from umbilicus and 17 cms above
anterior superior illiac spine. The margins of wound
are inverted with clots of blood seen in its depth. There
was an abrasion collar of 0.5 cms broad along the
posterior upper margin of the wound. The injury
penetrates anterior abdominal wall below the coastal
margin entered through the peritoneum then stomach
and from stomach to messentry, from messentry to
abdominal aorta and after leaving abdominal arota the
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
22
rd
bullet get lodged into the body of 3 lumber vertebra
from where it was recovered.
17 (2):- A single circular penetrating wound over
perietal region of left side, about 12 cms above the left
eye brow, 2.9 cms lateral and 22 cms anterior to mid
occipital protanence and 15 cms away from left
mastoid process, size of would is 1.7 cms in diameter X
cavity deep with punched out, lacerated margins,
through which small shattered piece of bone and brain
matter seen. Circular shaped fracture skull underneath
the wound above mentioned with subgial haematoma
around and margins of skull fracture well demonstated
with infltrated blood at margins and inner table there
is evidence of bevelling of size of 0.3 cms, then bullet
penetrates dura entered into the left parietal lobe
adjacent to above mentioned fractured skull passed
downwards, vertically upto the base of brain matter,
rd
turned horizontally through 3 ventricle to lower
margins of corpse callousm, then pones and lodged
into mid of medulla oblongata, 1.5 cm above foreman
magnum and bullet base was distorted and then whole
tract was haemorrhage and lacerated. (Injury No. 1
and 2 are antemortem injuries).”
Dr. Jame (PW 11) has deposed that injury No. 2 is sufcient to cause
the death in ordinary course of nature. If the description of injury No.
1 is seen, it can be said that this injury also would have caused the
death in ordinary course of nature. On overall medical record the
opinion is given that the fre arm injuries caused the death.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
23
30) In the cross examination of Dr. Jame (PW 11), it is
brought on the record that there was no gun powder or burn of skin
seen by the doctor at the entry point of both the bullet wounds. Not
much can be made out due to this circumstance. It was submitted
for the accused that this admission of the doctor creates a
probability that the fring was done from more distance than the
distance which is given by PW 1 and so, PW 1 cannot be believed.
This submission is not at all acceptable. Only as against accused No.
1 evidence is given that he had held the deceased by his neck and
then he had fred a bullet on abdomen of the deceased. This
evidence itself shows that accused No. 2 was not at close distance
when he fred at the head of the deceased. In any case, there is
convincing evidence of Dr. Jame (PW 11). There is record of aforesaid
nature to show that both the injuries were caused by fre arms and
the defence has not suggested that these injuries were not caused
by fre arms. In view of nature of injuries, it can be said that they
could have been caused only by pistol or revolver and not by gun or
riffle. This circumstance needs to be kept in mind. Thus, the medical
evidence gives necessary corroboration to the versions of PW 1 and
PW 2.
31) Shahid Khan Pathan (PW 7), panch witness and Bharat
Ballayya (PW 14), panch witness have given evidence on
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
24
panchanama of seizure of clothes of the deceased. This document is
proved as Exh. 62 and it was prepared on 9.1.2010. This evidence
shows that shirt, tea shirt and sando banian were on the person of
the deceased and at the side of abdomen on all the three clothes
holes were noticed. Thus, there were atleast three garments at the
place where fring was done by accused No. 1. It is already observed
that evidence does not show that the fring on the head was done
from close distance by accused No. 2. These pieces of circumstances
explain as to why the signs which could have been noticed if there
was fring from close distance could not appear on the dead body.
32) Shri. Padole (PW 16), the Investigating Ofcer has given
evidence that on 13.1.2010 he intercepted and arrested accused
Nos. 1 to 4 at Talegaon Dabhade Chowk near Chakan Phata. His
evidence shows that he picked them up when they were getting
down from a truck and he had gone there as there was specifc
information about the possibility of their arrival at this spot. He has
given evidence that after taking personal search of accused No. 1,
six bore revolver was recovered from his possession. After taking
personal search of accused No. 2, one pistol with maxim was
recovered from the possession of accused No. 2. He has deposed
that two live cartridges were also found with accused No. 2. Common
panchanama of seizure of these articles was prepared and it is at
Exh. 191. Prosecution has not examined any panch witness to prove
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
25
this incident and there is the evidence of only interested witness PW
16. In ordinary course, when PW 16 was taking action within
jurisdiction of other police station, he would have informed the other
police station and other police station would have created record in
respect of arrest of these accused at this spot and also about seizure
of articles as made necessary under the provisions of Criminal
Procedure Code (Cr.P.C.). Even the description of the truck is not
given by PW 16. In ordinary course, in such case police ofcer would
have recorded statements of truck driver and cleaner which could
have lend credence to the version of PW 16. There is no record like
such information was received, the entry of the accused was taken in
any record and entry of movement of PW 16 along with vehicle was
made in any register. Due to all these circumstances, this Court holds
that the evidence of seizure of two fre arms from accused Nos. 1
and 2 cannot be used against them.
33) Shri. Padole (PW 16) has given evidence that during
investigation, he collected C.D.R. record in respect of few mobile
numbers of the accused. The evidence on the record shows that no
sim card or no hand set was recovered from any of the accused.
Further, there was no compliance of provision of section 65-B of the
Evidence Act for making that record admissible. The Trial Court has
not touched that record and this Court holds that such record cannot
be considered. Such record ordinarily helps to prove the conspiracy,
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
26
but it appears that the investigating agency and the prosecution side
did not prosecute the matter properly.
34) Three weapons are shown to be seized in the present
matter and one weapon is shown to be recovered from accused No. 8
Nilesh Alhat. That weapon was shown as recovered in R.C.C. No.
1654/2010 which was fled in the Court of J.M.F.C. Pune against
Nilesh. Copy of the judgment of that matter is on the record and it
shows that on 18.2.2010 one country made pistol was found with
Nilesh and due to that, case was fled against him for ofence
punishable under section 3 r/w. 25 of Arms Act. By the decision dated
30.4.2012 this accused was acquitted by the learned J.M.F.C., Pune.
No evidence in respect of seizure of the weapon from possession of
Nilesh is given in the present matter, though this weapon is shown to
be sent to ballistic expert with empty cartridges recovered from the
spot of ofence.
35) Prosecution has examined one more witness like Imam
Shaikh (PW 4), a pan stall owner to give some circumstantial
evidence. This witness has deposed that his pan stall was situated
near Minar Hotel which is in the vicinity of the spot of ofence.
Evidence of Dattatraya (PW 3) already discussed shows that he was
present at the relevant time near the tea stall and this tea stall is
situated near Minar Hotel. On that basis the prosecution wants to
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
27
show that PW 4 was also present in the vicinity of the spot of ofence
at the relevant time.
36) Imam Shaikh (PW 4) has given evidence that at the
relevant time, he was present near his pan stall and his attention
was drawn to the spot when he heard sounds of shots which
appeared to him like the sounds of fre crackers. He has deposed that
then he noticed that two motorcycles passed by his shop and they
had come from the side from where he had heard the sounds of
frearms shots. He has deposed that three persons were present on
one motorcycle and two persons were present on the second
motorcycle. He has deposed that out of the three persons who were
present on one motor cycle, two were known to him like Juber
(accused No. 3) who was riding the motorcycle and accused No. 1
Rizwan who was on extreme backside. His evidence shows that he
did not know the third person who was sitting in the middle. He has
deposed that on the second motorcycle, there were two other
persons like Bhaiyya (accused No. 4) and Sayyad (accused No. 2). He
has vaguely stated in the evidence that these fve persons were
having two pistols. He has stated that Saydu (accused No. 2) was
saying that now it was the turn of Raju. The specifc words uttered by
Saydu are given by him as “Bhainchod Raju Ab Teri Bari Hai (
HkSupksn
). Imam (PW 4) has tried to say that he knew atleast
jktw vc rsjh ckjh gS
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
28
four persons out of fve who came on that day from the side of spot
of ofence on two motorcycles.
37) Imam (PW 4) has deposed that he had seen the pistol in
the hand of one man who was sitting in the middle of accused Nos. 1
and 3 and the other pistol was with accused No. 1. He has deposed
that accused No. 2 was holding a gun. This evidence of PW 4 is not
consistent with the evidence of PW 1 and PW 2. Their evidence on
the persons, who were riding the motorcycles is of diferent nature
and the evidence is also diferent in respect of the persons who were
holding the weapons. This inconsistency is in respect of accused No.
3 Juber.
38) Police statement of Imam (PW 4) was recorded on
11.1.2010 and it was late by two days. There is no explanation given
on this delay. The evidence on the record shows that this witness
was also called for T.I. parade. In the cross examination, he has
admitted that from prior to the date of incident he knew accused
Nos. 1 to 4. Thus, the evidence of PW 4 in respect of T.I. parade could
not have given corroboration to the evidence of PW 4. Like in cases
of PW 1 and PW 2 the supplementary statement of this witness was
recorded on 26.1.2010 and the relevant portions were confronted to
PW 4 and they are portions ‘B’ and ‘C’. Thus, in supplementary
statement which was recorded prior to T.I. parade, he had stated that
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
29
he knew all the accused including Wasim Shaikh. The evidence of PW
4 in the cross examination shows that he could not explain the things
and described many things asked to him and he could not stand to
the test of cross examination. This Court holds that the evidence of
this witness is of no use to the prosecution.
39) In addition to direct evidence and circumstantial
evidence discussed above, there is the evidence of one more
circumstance viz. motive. Shaikh Mujafar (PW 5), brother of
deceased is examined by the prosecution to prove the motive. Not
only the evidence of this witness, but the evidence of other witness
shows that the deceased was in politics and in social work. He was
corporator of the Local Body from the year 1996 to 2001. Wife of
deceased and wife of PW 5 were corporators from the year 2001 to
2006. The deceased was Director of Mula Pravara Electricity Society.
Evidence is given that in 1999 there was family matter of accused
Nos. 1 and 2 and in that matter, accused Nos. 1 and 2 had suspicion
that the deceased had taken the side of opposite side. Evidence is
given that from that time, a grudge was developed by accused Nos.
1 and 2 against the deceased. Evidence is given that nephew Danish
had dispute with accused No. 3 Juber as in the year 2007 a mobile
hand set was sold by Danish to Juber and the price was not paid by
Juber. Due to that transaction, there was quarrel and so, Juber had
grudge against the family of deceased. Evidence is given that in the
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
30
year 2009 one lady was kidnapped by accused Nos. 1 to 3 for
extortion and the deceased had intervened in that incident also and
after rescuing that lady, the deceased and his persons had given
beating to accused Nos. 1 to 3. Evidence is given that after the last
incident, accused Nos. 1 to 3 had taken vow and they had decided
not to have hair cut till Ayub was fnished. There is such evidence of
PW 1, PW 2 and PW 5 also. The tenor of the cross examination shows
that it is not disputed that the relations between the deceased and
accused Nos. 1 to 4 were strained. Due to these circumstances, this
Court holds that there is no reason to disbelieve the prosecution
evidence on motive. Thus, there was reason for atleast accused Nos.
1 to 3 to fnish the deceased.
40) Discussion of evidence given as against accused Nos. 1
to 4 shows that there is specifc evidence as against accused Nos. 1
and 2 and it can be safely relied upon to base the conviction. The
evidence given as against accused Nos. 3 and 4 is hit by material
omissions and there are also inconsistencies in the evidence given as
against them which are already quoted. It is already observed that
the evidence on circumstances like discovery of weapons by
investigating agency cannot be used even as against accused Nos. 1
and 2. Even if that part of evidence is discarded, there is direct
evidence as against accused Nos. 1 and 2 which has corroboration of
medical evidence, evidence of spot panchanama and the evidence
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
31
on motive. When there is such direct evidence and no other
possibility is there, conviction can be safely based on the direct
evidence even if there is no recovery of weapons used in the
incident. The law developed on this point is discussed at proper
place on the basis of case laws cited by both the sides.
41) The conviction is given as against accused Nos. 1 and 2
for the ofence of conspiracy also. In the case reported as
Bhagwandas Keshwani etc. Vs. State of Rajastan [1974
CRI.L.J. 751 SC] and also in the case reported as Mohammad
Usman Mohammad Hussain Maniyar and Anr. Vs. The State of
Maharashtra [AIR 1981 SUPREME COURT 1062] , the Apex Court
has made it clear that conspiracy is often hatched in secrecy and so
in most of the cases direct evidence on conspiracy is not available. It
is observed that conspiracy needs to be inferred from the acts,
statements and the conduct of the parties to the conspiracy. The
Apex Court has laid down that if it is proved by the prosecution that
all the accused pursued by their acts, the same object by the same
means, then it is open to the Court to infer that all of them acted to
efect the same object. It is observed that during execution of
conspiracy, one accused may take one responsibility and other
accused may take other responsibility and if they had completed the
act or they had attained the object all of them, all of them are
responsible for ofence of conspiracy. Unfortunately, in the present
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
32
matter as already observed the investigating agency did not collect
the material properly and the prosecution has also not conducted the
case properly. There are other circumstances also due to which it is
not possible to believe that accused Nos. 3 and 4 were part of
conspiracy. As against accused Nos. 1 and 2, there are many
circumstances due to which the conspiracy can be inferred against
them and they are as under :-
(i) The incident took place at about 11.30 p.m. in
the night time at snack stall and it was not routein of the
deceased to go there. The evidence on the record shows
that watch was kept by accused and after learning that
deceased was there, accused had gone to the spot.
(ii) Accused Nos. 1 and 2 had carried weapons, fre
arms with them. Thus, they had procured the fre arms
already and they had taken decision to fnish the deceased.
(iii) Accused Nos. 1 and 2 fred the shots at the
head and abdomen when the deceased was helpless and
this circumstance shows that they had come there only to
fnish the deceased and they left the spot only when they
accomplished their object.
(iv) Accused Nos. 1 and 2 had come on motorcycles
to the spot and so, they had taken care to see that they can
escape from the place of ofence immediately after the
incident was over.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
33
(v) Accused Nos. 1 and 2 had motive for the crime
and they had taken decision to fnish the deceased. The
deceased was proving to be obstacle in their activities.
42) On the basis of aforesaid circumstances, this Court holds
that conspiracy can be safely inferred atleast as against accused
Nos. 1 and 2 and the Trial Court has not committed any error in
inferring conspiracy against accused Nos. 1 and 2.
43) There is some evidence which can be called as not
deserving the discussion. The evidence is given on the recovery of
two motorcycles. Panchanamas of seizure of two motorcycles were
prepared. PW 1, eye witness had given the description of company of
one motorcycle, but the number was not noted by him. Though the
motorcycles are shown to be seized, no prosecution witness has
identifed these motorcycles by giving substantive evidence. Further,
one motorcycle was taken over from open space, though the other
motorcycle was traced on the basis of information given by one
accused, not by accused Nos. 1 to 4.
44) There is evidence of Irfan Pathan (PW 10) as against
accused Sandeep (accused No. 7). As appeal is not as against this
accused, this evidence need not be considered. Similarly, he has
given evidence against other accused like Bala (accused No. 5) and
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
34
Raju (accused No. 6) and that evidence need not be discussed. That
evidence is given only to show that they were seen in the company
of accused on 9.1.2010 and 10.1.2010. There is evidence of
Dhananjay (PW 12) which is to the efect that he knew accused
Sandeep Waghmare and Raju Tribhuvan and he had given mobile
hand set to Raju Tribhuvan on 8.1.2010 and it was returned to him by
Mahesh Ingale on the next day.
45) For the reasons already given there is no need to discuss
in detail evidence of C.D.R. C.D.R. record in respect of some sim
cards is produced. But the record shows that there was no
compliance of provision of section 65-B of the Evidence Act.
Surprisingly, the Trial Court has given exhibits to covering letter
which was sent to the concerned company for supplying the C.D.R.
record and also to the entire C.D.R. record and that record is
exhibited as 217 and 218.
46) There is C.A. report in respect of clothes of the deceased
at Exh. 236 and ballistic report at Exhs. 237 and 238. This Court is
not burdening the record of decision by describing the report of
experts. It is already observed that the recovery of weapons from the
possession of accused Nos. 1 and 2 is not satisfactorily proved and
no evidence at all is given for the recovery of third weapon.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
35
47) The learned counsels of the appellants placed reliance on
some reported cases. Similarly, the learned APP placed reliance on
observations made in some reported cases and they are as under :-
(i) Soni Vs. State of Uttar Pradesh [1983 SCC (Cri)
4901] :- This case is on T.I. parade and the efect of delay
in holding T.I. parade. In the present matter, this Court has
already observed that there are many circumstances in the
present matter due to which the record of T.I. parade
cannot be used against the accused. So more discussion of
the observations is not necessary.
(ii) Joginder Singh Vs. State of Haryana [AIR 2013
(SCW) 6169] :- This case is on the power of the High Court
when the High Court is considering the appeal against the
decision of acquittal. In this case, the Apex Court has laid
down that appellate Court is expected to give proper
weight to following things :-
(a) The views of the Trial Court on credibility of the
witnesses.
(b) The presumption of innocence in favour of
accused continues in appeal also.
(c) The right of beneft of doubt to accused needs to
be considered and if the Trial Court has given such
beneft, Appellate Court should not interfere lightly in
that decision.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
36
(d) The Appellate Court should be slow in interfering
the decision of the Trial Court Judge as the Trial Court
has advantage of seeing the witnesses.
There cannot be dispute over these propositions made by
the Apex Court. This Court holds that in the present matter
also, it is not desirable to interfere in the decision given by
the Trial Court.
(iii) Chandrappa & Ors. Vs. State of Karnataka (AIR
2007 (SC) 111] :- This case is also on the power of the
High Court when High Court is considering the appeal
against acquittal and the observations are similar to the
observations in the case of Jogindar Singh cited supra.
(iv) State of Punjab Vs. Rajinder Singh [AIR 2010
SUPREME COURT 1428] :- The matter is mainly on factual
aspects. There were discrepancies in the description of
weapons used. The weapon described was shot gun when it
was riffle. There was medical evidence which was not
consistent with the weapon which was said to be used. The
facts were diferent and in the present matter, weapons of
diferent kind like pistol or revolver were used and so, the
observations made in this reported case cannot be used in
the present matter.
(v) The State Vs. Motia and Ors. [1995 CRI.L.J. 835]
RAJASTAN HIGH COURT :- In the case, the linking
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
37
evidence in respect of articles shown to be recovered and
articles examined by expert was doubtful in nature. This
Court has already observed that the evidence and opinion
given by Chemical Analyser and also the ballistic expert
cannot be used and that evidence is not considered by this
Court.
(vi) Bhanudas Bagaji Salve Vs. State of
Maharashtra [2006 ALL M.R. (Cri) 67] :- In this case
this Court has discussed the efect of circumstances of not
sealing the articles at the time of seizure. In the present
matter, this Court has not used such expert evidence and
so, no more discussion is necessary.
(vii) Maniram Vs. State of U.P. [1994 SCC, Supl. (2)
289] :- In this case, when direct evidence was not
supported by expert evidence in the most material part, the
Court held that it was difcult to base conviction.
In the present matter relevant evidence is discussed and the
weapons are described as pistol and the medical evidence shows
that the injuries were caused only by such weapons and it it cannot
be said that medical evidence is not supporting the direct evidence
in the present matter.
48) The learned APP placed reliance on the observations
made by the Apex Court in the case of Kehar Singh and Ors. Vs.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
38
The State (Delhi Admn.) [AIR 1988 SUPREME COURT 1883] .
This case is on the conspiracy hatched, on the requirements of
proving conspiracy. The requirements are already quoted by this
Court and so, more discussion is not necessary. The learned APP
placed reliance on the case of Bharat Singh and Ors. Vs. State of
U.P. [AIR 1999 (SC) 717] . In that case, there was possibility that
the shooting by using fre arm was not done from the close range. In
that case, guns were said to be used, but there were no
circumstances like scorching, blackening and tattooing. There is no
need to use these observations in view of the nature of weapons
used in the present matter and nature of direct evidence available. In
the case of Kali Prasad Singh Vs. State of Uttar Pradesh [2019
(6) Scale 670] , there were gun shots, but clothes like jacket were
on the person of deceased and due to that it was held that the
absence of blackening of skin was not a circumstance which could
have crated doubt about the evidence of witnesses. In the case
reported as Paramjit and Ors. Vs. State of Haryana [AIR 2000
(SC) 2038] , there was use of double barrel gun. In this case, the
Apex Court has laid down that when one trustworthy witness is
examined, the circumstance of non examination of other possible
eye witness cannot be considered against the prosecution and that
circumstance can be ignored.
49) It was submitted for accused persons that before
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
39
registration of crime police had rushed to the spot and so, the F.I.R.
given by PW 1 cannot be used for corroboration purpose under
section 157 of the Evidence Act. On this point, the learned APP
placed reliance on the observations made in the case of Animireddy
Venkata Ramana & Ors. Vs. Public Prosecutor, H.C. of A.P.
[2008 DGLS (SC) 373] . In this case, the Apex Court has laid down
that it is not necessary that police should take step only after receipt
of F.I.R. if cognizable ofence is committed. If somehow police
received information and proceeded to the spot, the report given by
the frst informant after this moment of police cannot be discarded
by presuming that this was not the frst information about the crime.
In the present matter also, police had rushed to the spot frst and
thereafter, the crime came to be registered. There was use of fre
arms and many persons were in the vicinity and immediately after
the incident, the persons to whom the deceased was known had
shifted the deceased to the hospital to save his life and so,
somebody must have informed to police that there was incident of
fring. F.I.R. was also given immediately and as already observed this
circumstance cannot take away the importance of F.I.R. given by PW
1 in the present matter and F.I.R. can be used for corroboration
purpose in the present matter.
50) In view of the discussion made above, this Court holds
that there is no reason for this Court to interfere in the decision given
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
40
by the Trial Court. The conviction given to accused Nos. 1 and 2 is
based on sufcient and satisfactory evidence. Similarly, the view
taken by the Trial Court in favour of accused Nos. 3 and 4 is a
possible view. In the result, all the appeals stand dismissed.
[ S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 223 OF 2013
1. Rizwan Farooq Shaikh,
Age 27 years, Occu. Labourer,
R/o. Fakirwada, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
2. Shoheb @ Sayyad Usman Sayyad,
Age 30 years, Occu. Labourer,
R/o. Parimal Hsg. Society,
Ward No. 1, Shrirampur,
Dist. Ahmedganar. ....Appellants.
(Ori. Accused Nos. 1 & 2)
Versus
The State of Maharashtra
Through Complainant
P.I. Shrirampur City Police
Station, Tal. Shrirampur,
Dist. Ahmednagar. ....Respondents.
Mr. V.D. Sapkal, Advocate h/f. Mr. N.R. Bhavar, Advocate for
appellants.
Mrs. V.S. Choudhari, APP for respondent/State.
WITH
CRIMINAL APPEAL NO. 616 OF 2018
The State of Maharashtra
Through the P.I. Shrirampur
Police Station, Tal. Shrirampur,
Dist. Ahmednagar. ....Appellant.
(Ori. Complainant)
Versus
1. Juber Ashpak Shaikh,
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
2
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
2. Abdul @ Bhaiyya Abbaskhan Pathan,
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
3. Bala @ Ravindra Rajendra Tribhuvan,
Age 23 years, Occu. Labourer,
R/o. Sonwane Wasti, War No. 1,
Gondhavani Road, Shrirampur,
Dist. Ahmednagar.
4. Raju @ Rajendra Bhanudas Bhalerao,
Age 23 years, Occu. Labourer,
R/o. Opp. Church, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
5. Sandeep Baburao Waghmare,
Age 22 years, Occu. Labourer,
R/o. Near Water Tank, Gonddhavani
Road, Ward No. 1, Shrirampur,
Dist. Ahmedngar.
6. Nilesh Suresh Alhat,
Age 28 years, Occu. Labourer,
R/o. Mangalwar Peth, Pune,
Dist. Pune. ....Respondents.
(Ori. Accused Nos. 3 to 8)
Mrs. V.S. Choudhari, APP for appellant/State.
Mr. M.P. Shinde, Advocate for respondent No. 3.
Mr. N.V. Gaware, Advocate for respondent No. 4, 6, 7 & 8.
(Leave is granted against respondent Nos. 1 & 2 only to fle appeal
vide order dated 27.8.2018.)
WITH
CRIMINAL APPEAL NO. 617 OF 2018
Muzafar Papabhai Shaikh,
(PW5-Brother of deceased)
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
3
Age 49 years, Occu. Agri.,
R/o. “Sarkar”, Subedar Basti,
Ward No. 2, Shrirampur,
District Ahmednagar. ....Appellant.
Versus
1. Rizwan Farooq Shaikh,
Age 24 years, Occu. Labourer,
R/o. Fakirwada, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
2. Shoheb @ Sayyad Usman Sayyad,
Age 27 years, Occu. Labourer,
R/o. Near Municipal School No. 4,
Ward No. 1, Shrirampur,
Dist. Ahmedganar.
3. Juber Ashpak Shaikh,
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
4. Abdul @ Bhaiyya Abbaskhan Pathan,
Age 23 years, Occu. Labourer,
R/o. Near Municipal School No.4,
Ward No. 1, Shrirampur,
Dist. Ahmednagar.
5. Bala @ Ravindra Rajendra Tribhuvan,
Age 23 years, Occu. Labourer,
R/o. Sonwane Wasti, Ward No. 1,
Gondhavani Road, Shrirampur,
Dist. Ahmednagar.
6. Raju @ Rajendra Bhanudas Bhalerao,
Age 23 years, Occu. Labourer,
R/o. Opp. Church, Ward No. 1,
Shrirampur, Dist. Ahmednagar.
7. Sandeep Baburao Waghmare,
Age 22 years, Occu. Labourer,
R/o. Near Water Tank, Gondhavani
Road, Ward No. 1, Shrirampur,
Dist. Ahmedngar.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
4
8. Nilesh Suresh Alhat,
Age 28 years, Occu. Labourer,
R/o. Mangalwar Peth, Pune,
Dist. Pune.
9. The State of Maharashtra
Through Complainant
P.I. Shrirampur City Police
Station, Tal. Shrirampur,
Dist. Ahmednagar. ....Respondents.
Mr. S.T. Shelke, Advocate for appellant.
Mr. V.D. Sapkal, Advocate h/f. Mr. N.R. Bhavar, Advocate for
respondent Nos. 1 & 2.
Mr. M.P. Shinde, Advocate for respondent No. 3.
Mr. N.V. Gaware, Advocate for respondent No. 4, 6, 7 & 8.
Mrs. V.S. Choudhari, APP for respondent No. 9/State.
(Appeal of respondent No. 1 & 2 is already admitted. Leave is
granted against respondent Nos. 3 & 4 only to fle appeal vide order
dated 27.8.2018.)
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
RESERVED ON : 21/11/2019.
PRONOUNCED ON : 12/12/2019
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The frst appeal bearing Criminal Appeal No. 223/2019 is
fled by accused Nos. 1 and 2 of Sessions Case No. 24/2010, which
was pending in the Court of learned Ad-hoc Additional Sessions
Judge, Shrirampur, District Ahmednagar. The Trial Court has
convicted and sentenced these accused/appellants for the ofences
punishable under section 302 r/w. 120-B etc. of Indian Penal Code
(hereinafter referred to as ‘I.P.C.’ for short) and also for the ofences
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
5
punishable under sections 3, 5 r/w. 25 of Arms Act. The sentence of
imprisonment of life is given and fne amount of Rs.10,000/- is
imposed on each of them. Criminal Appeal No. 616/2018 is fled by
the State against accused No. 3 Juber Ashpak Shaikh and accused
No. 4 Abdul @ Bhaiyya Abbaskhan Pathan as they are acquitted of
the aforesaid ofences. Criminal Appeal No. 617/2018 is fled by the
informant against accused Nos. 3 and 4 to challenge the acquittal
given to them. Both the sides are heard.
2) In short, the facts leading to the institution of the appeals
can be stated as follows :-
The incident in question took place on the night between
8.1.2010 and 9.1.2010 near Government godown wall which is
situated at Azad Chowk, Shrirampur, District Ahmedngar. Informant
Manoj Gupta (PW 1) sells snacks called as ‘Bhel’ on his hand cart
bearing name Laxmi Farsan in the evening at this spot. His cart
remains there from 1.00 p.m. onwards till late hours of night. As
usual, on that day also he was present with his hand cart at the spot
of ofence. Deceased Ayub Papabhai Shaikh was known to Manoj.
3) At about 11.30 p.m. of 8.1.2019 deceased Ayub came to
the hand cart of Manoj and he sat on the bench kept by Manoj. The
deceased started applying tobacco powder (Mishri) to his teeth. After
some time he asked Manoj to give a glass of water to rinse the
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
6
mouth. In the meantime, Iqbal Memon, another person, who was also
known to both Manoj and Ayub came there and there was some talk
between Iqbal and the deceased. After that the deceased rose from
the bench to rinse mouth. Within no time, two motorcycles came
from Gondhavani road towards the hand cart. There were three
persons on one motorcycle and there were two persons on second
motorcycle. These motorcycles stopped near the stall of Manoj.
4) Manoj (PW 1) knew accused No. 1 Rizwan Shaikh and
accused No. 2 Sayyad Usman out of the fve persons who had come
there on two motorcycles. Manoj noticed that the riders of the two
motorcycles remained on their seats and they kept the engines of
the motorcycles in running condition. The other three persons from
the two motorcycles got down from the two vehicles and they came
towards deceased Ayub. Then accused No. 1 Rizwan held neck of
Ayub and gave abuses to Ayub and said that he was there to fnish
Ayub. Then he shot bullet by using pistol on the abdomen of Ayub.
Accused No. 2 Sayyad was also there and he shot another bullet
from his pistol on the head of Ayub. When accused Nos. 1 and 2 were
fring bullets at Ayub, the third man, who was having little bit less
height and who was having medium built was showing his fre arm,
pistol to the shop owners of the vicinity and he was asking them to
leave the spot. When Ayub collapsed due to the aforesaid fring,
accused Nos. 1 and 2 and other three persons who were in their
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
7
company, left the spot on the same two motorcycles and their
motorcycles went towards Shivaji Chowk. Manoj could see the three
persons who were in the company of accused Nos. 1 and 2 though
they were not known to him prior to the date of incident. Manoj
noticed that one of the two motorcycles was of Unicorn Honda
Company.
5) When the aforesaid fve persons left the spot, Manoj
shouted for help. Ayub Poptiya and Maulana Akbar Ali were in the
vicinity and they rushed to the spot. They shifted Ayub to hospital on
motorcycle. They frst took Ayub to German Hospital and then to
other private hospital. But in both the hospitals, doctors were not
available and so, they took the deceased to Sakhar Kamgar Hospital.
After examining Ayub, the doctor from Sakhar Kamgar Hospital
declared that Ayub was already dead. Manoj (PW 1) gave report to
police about the incident and on the basis of his report, the crime
came to be registered in Shrirampur City Police Station at 1.30 a.m.
on 9.1.2010 at C.R. No. 8/2010.
6) Police Inspector Shri. Pardeshi (PW 17) took over the
investigation of the case. He prepared inquest panchanama in the
presence of panch witnesses in the aforesaid hospital. Police Ofcer
Shri. Nikam of this police station went to the spot for preparation of
spot panchanama and spot panchanama came to be prepared. From
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
8
the spot, two caps, empty cartridges and earth mixed with blood
were taken over and a pair of Chappals which were lying there also
were taken over under panchanama. Some investigation was made
by Police Inspector Shri. Padole (PW 16). The dead body was referred
for post mortem (P.M.) examination. The clothes of the deceased
were taken over under panchanama.
7) After making some investigation, and recording some
statements, Shri. Padole (PW 16) got information about some
persons, who were involved in the ofence like accused Ravindra
Tribhuwan (accused No. 5) and Rajendra Bhalerao (accused No. 6).
Steps were taken to collect C.D.R. record in respect of those persons.
Ravindra and Rajendra came to be traced on 12.1.2010 and they
came to be arrested.
8) On the basis of information collected by police on
13.1.2010 accused Nos. 1 to 4 came to be arrested after tracing
them at Chakan Phata, Talegaon Dhabhade Chowk, District Pune.
When personal search of accused Nos. 1 and 2 was taken in the
presence of panchas at this spot, two fre arms came to be recovered
from accused Nos. 1 and 2. These fre arms came to be seized under
panchanama. Two live cartridges were also recovered from the
possession of accused No. 2 and they were seized.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
9
9) During investigation police received information against
accused No. 8 Nilesh Alhat. It transpired that Nilesh was arrested in
Pune by Pune police as he was found in possession of fre arm and he
was history sheeter. Name of accused No. 7 Sandip Waghmare also
transpired during investigation. He also came to be arrested. It
transpired that Wasim Gulab Shaikh one more accused was involved
in the ofence in addition to the eight accused who came to be
arrested in the crime, but he could not be traced and he is shown as
absconding accused. C.D.R. record in respect of mobile phones of
these accused came to be collected.
10) Test identifcation (T.I.) parade came to be arranged to
give opportunity to witnesses who were present on the spot to
identify the arrested accused persons. It was held on 20.3.2010.
Some witnesses identifed accused No. 3 and some witnesses
identifed accused No. 4. The two motorcycles which were used for
going to the spot of ofence by accused, came to be discovered and
they came to be seized.
11) The articles seized during investigation came to be sent
to forensic laboratory and ballistic expert for getting opinion. After
completion of investigation, chargesheet came to be fled against
eight accused and the case was tried against eight accused.
Chargesheet was fled for the ofences punishable under sections
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
10
302, 143, 147, 148, 149, 120-B, 504, 506 etc. of I.P.C. and also for
the ofence punishable under sections 3, 5 r/w. Section 25 of Arms
Act. Charge was framed and plea was recorded. All the accused
pleaded not guilty. The prosecution examined in all 18 witnesses to
prove the ofences. Accused did not examine any witness and they
took the defence of total denial.
12) Manoj Gupta (PW 1) is the main witness of prosecution
and he was having the best opportunity to witness the entire
incident. The deceased was present at his stall at the relevant time.
In view of this circumstance, the Trial Court has given more weight to
the evidence of Manoj (PW 1). There is another eye witness like
Maulana Sayyad (PW 2), but he had rushed to the spot after starting
of the incident. The Trial Court has held that only accused Nos. 1 and
2 were known to Manoj and evidence of Manoj on identifcation of
accused No. 3 is doubtful in nature. Manoj had not identifed accused
No. 4 even in T.I. parade. As there is inconsistency in the evidence
given by PW 1 and PW 2 with regard to role played by accused Nos. 3
and 4 and the evidence as regards the identifcation of these
accused is doubtful in nature, the beneft of doubt is given to
accused Nos. 3 and 4. As appeals are fled by accused Nos. 1 and 2
and appeals are fled against accused Nos. 3 and 4, this Court is
considering the evidence given only against these accused persons.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
11
13) Manoj (PW 1), the main witness of prosecution has given
evidence that the time of his business was 1.00 p.m. to 12 hours of
night. He has given evidence that on 8.1.2010 also he was present
on the spot of ofence with his hand cart for the business, selling
snacks, Bhel. He has deposed that the deceased came to his stall at
about 11.15 p.m. and after sitting on the bench, he started applying
Mishri to the teeth. He has deposed that Iqbal Memon came there
and he had some talk with the deceased. He has deposed that the
deceased then asked for a glass of water from him and when
deceased was rising from the bench, two motorcycles came from the
side of Gondhavani road to his stall. He has deposed that both the
motorcycles stopped near his stall and from these two motorcycles
three persons got down and came towards his stall. He has deposed
that the two persons who were riding the motorcycles remained on
the motorcycles and they had kept the engines of the motorcycles in
running condition. Manoj (PW 1) has deposed that from prior to the
date of incident he knew accused No. 1 Rizwan and accused No. 2
Sayyed. He has deposed that accused No. 1 held the deceased by his
neck and said that he had come there to fnish the deceased.
Abusive language which was used by accused No. 1 is given in the
deposition by Manoj and the words uttered are that, “ Tere Bahen Ki
Chut, Tuze Mar Dalunga’ ( ). Manoj (PW 1)
rsjs cgsudh pwr] rq>s ekj Mkyqaxk
has deposed that accused No. 1 then fred one shot of his pistol on
the abdomen of the deceased and then accused No. 2 Sayyed fred
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
12
one shot by using his pistol on the head of the deceased. Manoj (PW
1) has deposed that the third person who had also got down from the
motorcycle was holding another pistol and by showing that pistol, he
was giving threats to the persons in the neighbourhood including the
shop owners and he was asking them to leave the place by closing
their shops. Manoj has deposed that deceased Ayub collapsed due to
the aforesaid fring at him and then all the fve persons went away
on the same motorcycles.
14) Manoj (PW 1) has deposed that he shouted for help and
then persons like Ayub Popatiya and Maulana Akbar Ali rushed to his
stall and they shifted the deceased to hospital. His evidence shows
that he had not gone with these two persons. He has deposed that
when he learnt that Ayub was taken to Sakhar Kamgar Hospital, he
went there and there he learnt that Ayub was dead. He has deposed
that he then went to police station and he gave report about the
incident. His report is proved as Exh. 136.
15) In examination in chief, Manoj (PW 1) has stated that he
was knowing all the accused persons and he has further deposed
that accused Nos. 1 to 3 and accused No. 7 had come there along
with one more person for committing the ofence.
16) Exh. 136, the F.I.R. is consistent with substantive
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
13
evidence of Manoj (PW 1) so far as it is in respect of fring done by
accused Nos. 1 and 2. In the F.I.R. also, he has mentioned that he
knew accused Nos. 1 and 2 from prior to the date of this incident. In
F.I.R., Manoj had not given the names of other three persons who had
come there on two motorcycles. Though he had described the third
person who had got down from the motorcycle, his name was not
given. On the other hand, in F.I.R. it was specifcally disclosed by
Manoj (PW 1) that only accused Nos. 1 and 2 were known to him and
they had come there with three unknown associates. This portion of
F.I.R. was confronted to PW 1 during cross examination and he has
stated that he had wrongly mentioned in the F.I.R. that there were
three other persons, unknown associates of accused Nos. 1 and 2.
Thus, the evidence given in the Court that accused Nos. 3 and 4
were known to Manoj is hit by omission in F.I.R.
17) Manoj (PW 1) has deposed that in the past, there was
quarrel between accused No. 3 Juber and family of the deceased
over the transaction of sale of mobile hand set. He has given
evidence on other incident in which accused Nos. 1 to 3 were
involved and they had kidnapped one lady from other station for
ransom. He has given evidence that deceased Ayub had rescued that
lady and in that incident deceased Ayub and his persons had
assaulted accused Nos. 1 to 3. He has given evidence that due to
these incidents enmity was developed between the deceased on one
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
14
side and accused Nos. 1 to 3 on other. He has given evidence that
from prior to the date of incident, these accused had kept watch on
the movements of Ayub and the accused had vowed to fnish Ayub.
All this part of evidence is hit by omission in the F.I.R.
18) It appears that T.I. parade was held on 20.3.2010 after
about 70 days of the incident. In T.I. parade, opportunity was given
to many witnesses including PW 1 and PW 2 to identify the persons
involved in the incident. In the Court, Manoj has not given evidence
that he had identifed either accused No. 3 or accused No. 4 in T.I.
parade. Though for the reasons given afterwards, the record of T.I.
parade (Exh. 251) cannot be used in evidence, it can be said that the
record shows that Manoj could not identify accused No. 4 in T.I.
parade. As per the record he had identifed accused No. 3 in T.I.
parade.
19) The record of the case shows that record of T.I. parade,
Exh. 251, is not admitted by the defence. On Exh. 251, it is
mentioned that due to the order made by the Trial Court Judge dated
25.3.2013 the record was given exhibit. This Court has carefully seen
the record including the Roznama. As per the practice in Mofussil
Courts of this State, order could have been made on some
application or on chargesheet. There is no such order dated
25.3.2013. In Roznama, there is only mention that there was
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
15
direction of the Court to give exhibit to this record and so, Exh. 251
was given to this record. The ofcer before whom the T.I. parade was
conducted is not examined. Manoj (PW 1) has not referred the
incident of T.I. parade. As there is no evidence from Manoj (PW 1)
about T.I. parade and as there is no evidence even of the concerned
ofcer to prove the record, this record cannot be used as evidence
under section 3 of the Evidence Act.
20) There are more circumstances which make it necessary
to discard the record of T.I. parade. The evidence of Manoj (PW 1)
shows that on 25.1.2010 his supplementary statement was recorded
by police. The evidence given by PW 1 on the motive of accused
persons including accused Nos. 1 to 4 is already mentioned. There
was no mention of such motive in the F.I.R., but in supplementary
statement, such motive was collected and in that statement, Manoj
contended that he knew accused Nos. 1 to 4 and also the
absconding accused Wasim Shaikh from prior to the date of incident.
The circumstance that such supplementary statement came to be
recorded on 25.1.2010 and after that T.I. parade was held on
20.3.2010 shows that the investigation was not in competent hands.
In view of the supplementary statement dated 25.1.2010 it cannot
be said that there was any necessity for arranging T.I. parade to
enable Manoj (PW 1) to identify the accused persons.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
16
21) The evidence of Manoj (PW 1) shows that Iqbal Memon
was present at his stall just before the incident of fring. His evidence
shows that he had engaged labour to assist him at the stall. His
evidence shows that there were other hand carts of hawkers selling
eatables in the vicinity. Those witnesses are not examined. Maulana
Sayyad (PW 2) who had come in the vicinity by chance is examined
by prosecution as the other eye witness.
22) Maulana (PW 2) has deposed that he and Ayub Poptiya
were in the vicinity of the spot of ofence by chance. He has deposed
that prior to coming to the spot of ofence where he was sitting with
Poptiya, he had crossed the food stall of PW 1 and at that time, he
had said hellow to the deceased. Maulana (PW 2) has deposed that
at tea stall he heard noise of breaks applied by motorcycles and then
he paid attention towards the side of the stall of PW 1. He has
deposed that he noticed that one person was showing revolver and
asking to owners of the stalls to go away. He has deposed that he
then noticed that accused No. 1 was holding neck of deceased Ayub
and he was telling Ayub that he was there to fnish Ayub. He has
given the sentence uttered by accused no. 1 at that time on which
evidence is given by PW 1 also. Maulana (PW 2) has given evidence
that accused No. 1 then fred bullet in the abdomen of deceased. He
has deposed that accused No. 2 fred bullet on the head of the
deceased by using his fre arm. He has deposed that at the relevant
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
17
time, there were three persons sitting on two motorcycles on which
accused Nos. 1 and 2 had come there. This part is inconsistent with
the previous part of evidence in which he had stated that one person
was holding other revolver and he was keeping the shop keepers
away from the spot. Maulana (PW 2) has given evidence that he and
Ayub Poptiya rushed to the spot when fring was over and they
shifted the deceased frst to German Hospital and then to Anarase
Hospital and then to Sakhar Kamgar Hospital. The evidence shows
that as doctors were not available at German Hospital and Anarase
Hospital, the deceased was taken to Sakhar Kamgar Hospital and
there doctors declared that Ayub was dead. There is M.L.C. prepared
by Sakhar Kamgar Hospital showing that the time of death was
mentioned as 12.45 hours of that night.
23) In examination in chief itself, Maulana (PW 2) has
deposed that the person who was giving threat to stall owners was
accused No. 3. He has deposed that the accused who were sitting on
the motorcycles were Bhaiyya (accused No. 4) and Wasim
(absconding accused). Maulana identifed accused Nos. 1 to 4 in the
Court as the persons who were involved in the incident. Maulana has
given evidence that in T.I. parade he identifed the accused, but he
has not specifcally stated as to which accused was identifed by him.
24) Maulana (PW 2) has deposed that his supplementary
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
18
statement was recorded. Like in case of PW 1, he had not stated in
frst police statement recorded on 9.1.2010 that he knew accused
Nos. 3 and 4 and absconding accused. In supplementary statement
dated 25.1.2010 he took names of not only other three accused, but
also the remaining accused and he informed to police that there was
motive for the crime for all the accused. The omission in police
statement dated 9.1.2010 in respect of the name of accused Nos. 3
and 4 and absconding accused was confronted to Maulana. He
admitted the omission in respect of accused No. 3, but he did not
admit the omission in respect of accused No. 4 and absconding
accused. The record shows that the omission in previous statement
in respect of accused No. 4 and absconding accused was not proved
in the evidence of Investigating Ofcer (PW 18), who had recorded
the frst statement of Maulana. There are many other circumstances
showing that the APP and the defence counsel did not properly
conduct the matter and even the Trial Court did not follow the proper
procedure for giving exhibits to many documents.
25) Evidence of PW 1 and PW 2 shows that PW 1 took the
name of Sandeep (accused No. 7) as the ffth person when PW 2 took
the name of Wasim (absconding accused) as the ffth person. The
evidence of PW 1 shows that only when the incident of fring was
over, he shouted and after that Maulana and Poptiya came towards
his stall. These circumstances need to be kept in mind as it has not
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
19
come in the evidence of PW 1 that he had seen these two persons in
the vicinity when the fring had taken place.
26) The aforesaid evidence shows that the evidence as
against accused Nos. 3 and 4 is hit by material omission in the
previous disclosures made to police on 9.1.2010. While considering
the evidence given as against accused No. 4 by Maulana (PW 2),
more weight needs to be given to the evidence of PW 1 in view of
the aforesaid circumstances. Further, the evidence of Police Ofcers
also does not show that they had convincing information as against
accused Nos. 3 and 4 on 9.1.2010. It is already observed that the
investigating agency has virtually destroyed the important piece of
evidence like the evidence of T.I. parade by recording the statements
of the witnesses as supplementary statements on 25.1.2010.
27) There is circumstantial evidence to corroborate the
evidence of PW 1. To prove the spot panchanama, prosecution has
examined panch witness Shri. Dattatraya Vaidya (PW 3) and Police
Inspector Shri. Sopan Nikam (PW 13). Even photographs of the spot
were taken when the panchanama was prepared. But, unfortunately
that record is not proved. The spot panchanama is proved as Exh.
148. The panchanama was drawn on 9.1.2010 between 1.45 p.m.
and 2.40 p.m. This evidence shows that blood was found on the spot
and the spot was shown by the informant Manoj (PW 1). A pair of
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
20
Chappal was lying there. Two caps of bullets, empty cartridges were
found on the spot. The description of the letters appearing on the
caps is mentioned in the panchanama. In view of the other
circumstances which this Court is discussing at proper place, this
Court is avoiding to burden the record by mentioning atleast
description of the caps and weapons. Map of scene of ofence was
prepared on Exh. 148. The evidence of spot panchanama is
consistent with the direct evidence given by PW 1 and PW 2.
28) The tenor of the cross examination of PW 1 made by the
defence counsel shows that the accused did not dispute that Ayub
was murdered on the spot shown in Exh. 148. It was suggested to
PW 1 that the time of his business was over at about 10.00 p.m. and
so, he could not have witnessed the incident. This suggestion is
denied. Nothing is on the record to show that it was not open to the
stall owners to do the business after 10.00 p.m. The F.I.R. was given
almost immediately after the incident. The evidence of PW 1 does
not show that he had deliberation with the relatives of the deceased.
It is already observed that he knew only two accused persons and he
gave the names of two persons in the F.I.R. and he described other
three persons as unknown associates. His evidence shows that he
was not that interested in the deceased and he had no reason to
falsely implicate accused Nos. 1 and 2. There is nothing on the
record due to which his evidence needs to be looked with suspicion
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
21
so far as his evidence given as against accused Nos. 1 and 2 is
concerned. There are more circumstances like medical evidence to
corroborate the version of PW 1.
29) Dr. Jame Bashir (PW 11) has given evidence on P.M.
examination. P.M. report is proved in his evidence as Exh. 173. The
P.M. was conducted on 9.1.2010 between 10.45 a.m. and 1.30 p.m.
Dr. Jame (PW 11) has deposed that the death took place 10 to 24
hours before the time of P.M. examination. He has given opinion
regarding cause of death as “death due to hemorrhagic shock due to
frearm injuries (unnatural)”. Injuries are described in column No. 17
in Exh. 173 and they are as under :-
“ 17 (1):- A single penetrating oval shaped injury
over anterior abdominal wall in left hypochondric
region with anterior end slightly lower than posterior
end, directed above downward towards umbilicus,
injury was located at a distance of 112 cms from heal,
18 cms below the left nipple, 13 cms below and lateral
to xiphoid, 12.5 cm from umbilicus and 17 cms above
anterior superior illiac spine. The margins of wound
are inverted with clots of blood seen in its depth. There
was an abrasion collar of 0.5 cms broad along the
posterior upper margin of the wound. The injury
penetrates anterior abdominal wall below the coastal
margin entered through the peritoneum then stomach
and from stomach to messentry, from messentry to
abdominal aorta and after leaving abdominal arota the
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
22
rd
bullet get lodged into the body of 3 lumber vertebra
from where it was recovered.
17 (2):- A single circular penetrating wound over
perietal region of left side, about 12 cms above the left
eye brow, 2.9 cms lateral and 22 cms anterior to mid
occipital protanence and 15 cms away from left
mastoid process, size of would is 1.7 cms in diameter X
cavity deep with punched out, lacerated margins,
through which small shattered piece of bone and brain
matter seen. Circular shaped fracture skull underneath
the wound above mentioned with subgial haematoma
around and margins of skull fracture well demonstated
with infltrated blood at margins and inner table there
is evidence of bevelling of size of 0.3 cms, then bullet
penetrates dura entered into the left parietal lobe
adjacent to above mentioned fractured skull passed
downwards, vertically upto the base of brain matter,
rd
turned horizontally through 3 ventricle to lower
margins of corpse callousm, then pones and lodged
into mid of medulla oblongata, 1.5 cm above foreman
magnum and bullet base was distorted and then whole
tract was haemorrhage and lacerated. (Injury No. 1
and 2 are antemortem injuries).”
Dr. Jame (PW 11) has deposed that injury No. 2 is sufcient to cause
the death in ordinary course of nature. If the description of injury No.
1 is seen, it can be said that this injury also would have caused the
death in ordinary course of nature. On overall medical record the
opinion is given that the fre arm injuries caused the death.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
23
30) In the cross examination of Dr. Jame (PW 11), it is
brought on the record that there was no gun powder or burn of skin
seen by the doctor at the entry point of both the bullet wounds. Not
much can be made out due to this circumstance. It was submitted
for the accused that this admission of the doctor creates a
probability that the fring was done from more distance than the
distance which is given by PW 1 and so, PW 1 cannot be believed.
This submission is not at all acceptable. Only as against accused No.
1 evidence is given that he had held the deceased by his neck and
then he had fred a bullet on abdomen of the deceased. This
evidence itself shows that accused No. 2 was not at close distance
when he fred at the head of the deceased. In any case, there is
convincing evidence of Dr. Jame (PW 11). There is record of aforesaid
nature to show that both the injuries were caused by fre arms and
the defence has not suggested that these injuries were not caused
by fre arms. In view of nature of injuries, it can be said that they
could have been caused only by pistol or revolver and not by gun or
riffle. This circumstance needs to be kept in mind. Thus, the medical
evidence gives necessary corroboration to the versions of PW 1 and
PW 2.
31) Shahid Khan Pathan (PW 7), panch witness and Bharat
Ballayya (PW 14), panch witness have given evidence on
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
24
panchanama of seizure of clothes of the deceased. This document is
proved as Exh. 62 and it was prepared on 9.1.2010. This evidence
shows that shirt, tea shirt and sando banian were on the person of
the deceased and at the side of abdomen on all the three clothes
holes were noticed. Thus, there were atleast three garments at the
place where fring was done by accused No. 1. It is already observed
that evidence does not show that the fring on the head was done
from close distance by accused No. 2. These pieces of circumstances
explain as to why the signs which could have been noticed if there
was fring from close distance could not appear on the dead body.
32) Shri. Padole (PW 16), the Investigating Ofcer has given
evidence that on 13.1.2010 he intercepted and arrested accused
Nos. 1 to 4 at Talegaon Dabhade Chowk near Chakan Phata. His
evidence shows that he picked them up when they were getting
down from a truck and he had gone there as there was specifc
information about the possibility of their arrival at this spot. He has
given evidence that after taking personal search of accused No. 1,
six bore revolver was recovered from his possession. After taking
personal search of accused No. 2, one pistol with maxim was
recovered from the possession of accused No. 2. He has deposed
that two live cartridges were also found with accused No. 2. Common
panchanama of seizure of these articles was prepared and it is at
Exh. 191. Prosecution has not examined any panch witness to prove
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
25
this incident and there is the evidence of only interested witness PW
16. In ordinary course, when PW 16 was taking action within
jurisdiction of other police station, he would have informed the other
police station and other police station would have created record in
respect of arrest of these accused at this spot and also about seizure
of articles as made necessary under the provisions of Criminal
Procedure Code (Cr.P.C.). Even the description of the truck is not
given by PW 16. In ordinary course, in such case police ofcer would
have recorded statements of truck driver and cleaner which could
have lend credence to the version of PW 16. There is no record like
such information was received, the entry of the accused was taken in
any record and entry of movement of PW 16 along with vehicle was
made in any register. Due to all these circumstances, this Court holds
that the evidence of seizure of two fre arms from accused Nos. 1
and 2 cannot be used against them.
33) Shri. Padole (PW 16) has given evidence that during
investigation, he collected C.D.R. record in respect of few mobile
numbers of the accused. The evidence on the record shows that no
sim card or no hand set was recovered from any of the accused.
Further, there was no compliance of provision of section 65-B of the
Evidence Act for making that record admissible. The Trial Court has
not touched that record and this Court holds that such record cannot
be considered. Such record ordinarily helps to prove the conspiracy,
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
26
but it appears that the investigating agency and the prosecution side
did not prosecute the matter properly.
34) Three weapons are shown to be seized in the present
matter and one weapon is shown to be recovered from accused No. 8
Nilesh Alhat. That weapon was shown as recovered in R.C.C. No.
1654/2010 which was fled in the Court of J.M.F.C. Pune against
Nilesh. Copy of the judgment of that matter is on the record and it
shows that on 18.2.2010 one country made pistol was found with
Nilesh and due to that, case was fled against him for ofence
punishable under section 3 r/w. 25 of Arms Act. By the decision dated
30.4.2012 this accused was acquitted by the learned J.M.F.C., Pune.
No evidence in respect of seizure of the weapon from possession of
Nilesh is given in the present matter, though this weapon is shown to
be sent to ballistic expert with empty cartridges recovered from the
spot of ofence.
35) Prosecution has examined one more witness like Imam
Shaikh (PW 4), a pan stall owner to give some circumstantial
evidence. This witness has deposed that his pan stall was situated
near Minar Hotel which is in the vicinity of the spot of ofence.
Evidence of Dattatraya (PW 3) already discussed shows that he was
present at the relevant time near the tea stall and this tea stall is
situated near Minar Hotel. On that basis the prosecution wants to
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
27
show that PW 4 was also present in the vicinity of the spot of ofence
at the relevant time.
36) Imam Shaikh (PW 4) has given evidence that at the
relevant time, he was present near his pan stall and his attention
was drawn to the spot when he heard sounds of shots which
appeared to him like the sounds of fre crackers. He has deposed that
then he noticed that two motorcycles passed by his shop and they
had come from the side from where he had heard the sounds of
frearms shots. He has deposed that three persons were present on
one motorcycle and two persons were present on the second
motorcycle. He has deposed that out of the three persons who were
present on one motor cycle, two were known to him like Juber
(accused No. 3) who was riding the motorcycle and accused No. 1
Rizwan who was on extreme backside. His evidence shows that he
did not know the third person who was sitting in the middle. He has
deposed that on the second motorcycle, there were two other
persons like Bhaiyya (accused No. 4) and Sayyad (accused No. 2). He
has vaguely stated in the evidence that these fve persons were
having two pistols. He has stated that Saydu (accused No. 2) was
saying that now it was the turn of Raju. The specifc words uttered by
Saydu are given by him as “Bhainchod Raju Ab Teri Bari Hai (
HkSupksn
). Imam (PW 4) has tried to say that he knew atleast
jktw vc rsjh ckjh gS
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
28
four persons out of fve who came on that day from the side of spot
of ofence on two motorcycles.
37) Imam (PW 4) has deposed that he had seen the pistol in
the hand of one man who was sitting in the middle of accused Nos. 1
and 3 and the other pistol was with accused No. 1. He has deposed
that accused No. 2 was holding a gun. This evidence of PW 4 is not
consistent with the evidence of PW 1 and PW 2. Their evidence on
the persons, who were riding the motorcycles is of diferent nature
and the evidence is also diferent in respect of the persons who were
holding the weapons. This inconsistency is in respect of accused No.
3 Juber.
38) Police statement of Imam (PW 4) was recorded on
11.1.2010 and it was late by two days. There is no explanation given
on this delay. The evidence on the record shows that this witness
was also called for T.I. parade. In the cross examination, he has
admitted that from prior to the date of incident he knew accused
Nos. 1 to 4. Thus, the evidence of PW 4 in respect of T.I. parade could
not have given corroboration to the evidence of PW 4. Like in cases
of PW 1 and PW 2 the supplementary statement of this witness was
recorded on 26.1.2010 and the relevant portions were confronted to
PW 4 and they are portions ‘B’ and ‘C’. Thus, in supplementary
statement which was recorded prior to T.I. parade, he had stated that
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
29
he knew all the accused including Wasim Shaikh. The evidence of PW
4 in the cross examination shows that he could not explain the things
and described many things asked to him and he could not stand to
the test of cross examination. This Court holds that the evidence of
this witness is of no use to the prosecution.
39) In addition to direct evidence and circumstantial
evidence discussed above, there is the evidence of one more
circumstance viz. motive. Shaikh Mujafar (PW 5), brother of
deceased is examined by the prosecution to prove the motive. Not
only the evidence of this witness, but the evidence of other witness
shows that the deceased was in politics and in social work. He was
corporator of the Local Body from the year 1996 to 2001. Wife of
deceased and wife of PW 5 were corporators from the year 2001 to
2006. The deceased was Director of Mula Pravara Electricity Society.
Evidence is given that in 1999 there was family matter of accused
Nos. 1 and 2 and in that matter, accused Nos. 1 and 2 had suspicion
that the deceased had taken the side of opposite side. Evidence is
given that from that time, a grudge was developed by accused Nos.
1 and 2 against the deceased. Evidence is given that nephew Danish
had dispute with accused No. 3 Juber as in the year 2007 a mobile
hand set was sold by Danish to Juber and the price was not paid by
Juber. Due to that transaction, there was quarrel and so, Juber had
grudge against the family of deceased. Evidence is given that in the
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
30
year 2009 one lady was kidnapped by accused Nos. 1 to 3 for
extortion and the deceased had intervened in that incident also and
after rescuing that lady, the deceased and his persons had given
beating to accused Nos. 1 to 3. Evidence is given that after the last
incident, accused Nos. 1 to 3 had taken vow and they had decided
not to have hair cut till Ayub was fnished. There is such evidence of
PW 1, PW 2 and PW 5 also. The tenor of the cross examination shows
that it is not disputed that the relations between the deceased and
accused Nos. 1 to 4 were strained. Due to these circumstances, this
Court holds that there is no reason to disbelieve the prosecution
evidence on motive. Thus, there was reason for atleast accused Nos.
1 to 3 to fnish the deceased.
40) Discussion of evidence given as against accused Nos. 1
to 4 shows that there is specifc evidence as against accused Nos. 1
and 2 and it can be safely relied upon to base the conviction. The
evidence given as against accused Nos. 3 and 4 is hit by material
omissions and there are also inconsistencies in the evidence given as
against them which are already quoted. It is already observed that
the evidence on circumstances like discovery of weapons by
investigating agency cannot be used even as against accused Nos. 1
and 2. Even if that part of evidence is discarded, there is direct
evidence as against accused Nos. 1 and 2 which has corroboration of
medical evidence, evidence of spot panchanama and the evidence
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
31
on motive. When there is such direct evidence and no other
possibility is there, conviction can be safely based on the direct
evidence even if there is no recovery of weapons used in the
incident. The law developed on this point is discussed at proper
place on the basis of case laws cited by both the sides.
41) The conviction is given as against accused Nos. 1 and 2
for the ofence of conspiracy also. In the case reported as
Bhagwandas Keshwani etc. Vs. State of Rajastan [1974
CRI.L.J. 751 SC] and also in the case reported as Mohammad
Usman Mohammad Hussain Maniyar and Anr. Vs. The State of
Maharashtra [AIR 1981 SUPREME COURT 1062] , the Apex Court
has made it clear that conspiracy is often hatched in secrecy and so
in most of the cases direct evidence on conspiracy is not available. It
is observed that conspiracy needs to be inferred from the acts,
statements and the conduct of the parties to the conspiracy. The
Apex Court has laid down that if it is proved by the prosecution that
all the accused pursued by their acts, the same object by the same
means, then it is open to the Court to infer that all of them acted to
efect the same object. It is observed that during execution of
conspiracy, one accused may take one responsibility and other
accused may take other responsibility and if they had completed the
act or they had attained the object all of them, all of them are
responsible for ofence of conspiracy. Unfortunately, in the present
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
32
matter as already observed the investigating agency did not collect
the material properly and the prosecution has also not conducted the
case properly. There are other circumstances also due to which it is
not possible to believe that accused Nos. 3 and 4 were part of
conspiracy. As against accused Nos. 1 and 2, there are many
circumstances due to which the conspiracy can be inferred against
them and they are as under :-
(i) The incident took place at about 11.30 p.m. in
the night time at snack stall and it was not routein of the
deceased to go there. The evidence on the record shows
that watch was kept by accused and after learning that
deceased was there, accused had gone to the spot.
(ii) Accused Nos. 1 and 2 had carried weapons, fre
arms with them. Thus, they had procured the fre arms
already and they had taken decision to fnish the deceased.
(iii) Accused Nos. 1 and 2 fred the shots at the
head and abdomen when the deceased was helpless and
this circumstance shows that they had come there only to
fnish the deceased and they left the spot only when they
accomplished their object.
(iv) Accused Nos. 1 and 2 had come on motorcycles
to the spot and so, they had taken care to see that they can
escape from the place of ofence immediately after the
incident was over.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
33
(v) Accused Nos. 1 and 2 had motive for the crime
and they had taken decision to fnish the deceased. The
deceased was proving to be obstacle in their activities.
42) On the basis of aforesaid circumstances, this Court holds
that conspiracy can be safely inferred atleast as against accused
Nos. 1 and 2 and the Trial Court has not committed any error in
inferring conspiracy against accused Nos. 1 and 2.
43) There is some evidence which can be called as not
deserving the discussion. The evidence is given on the recovery of
two motorcycles. Panchanamas of seizure of two motorcycles were
prepared. PW 1, eye witness had given the description of company of
one motorcycle, but the number was not noted by him. Though the
motorcycles are shown to be seized, no prosecution witness has
identifed these motorcycles by giving substantive evidence. Further,
one motorcycle was taken over from open space, though the other
motorcycle was traced on the basis of information given by one
accused, not by accused Nos. 1 to 4.
44) There is evidence of Irfan Pathan (PW 10) as against
accused Sandeep (accused No. 7). As appeal is not as against this
accused, this evidence need not be considered. Similarly, he has
given evidence against other accused like Bala (accused No. 5) and
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
34
Raju (accused No. 6) and that evidence need not be discussed. That
evidence is given only to show that they were seen in the company
of accused on 9.1.2010 and 10.1.2010. There is evidence of
Dhananjay (PW 12) which is to the efect that he knew accused
Sandeep Waghmare and Raju Tribhuvan and he had given mobile
hand set to Raju Tribhuvan on 8.1.2010 and it was returned to him by
Mahesh Ingale on the next day.
45) For the reasons already given there is no need to discuss
in detail evidence of C.D.R. C.D.R. record in respect of some sim
cards is produced. But the record shows that there was no
compliance of provision of section 65-B of the Evidence Act.
Surprisingly, the Trial Court has given exhibits to covering letter
which was sent to the concerned company for supplying the C.D.R.
record and also to the entire C.D.R. record and that record is
exhibited as 217 and 218.
46) There is C.A. report in respect of clothes of the deceased
at Exh. 236 and ballistic report at Exhs. 237 and 238. This Court is
not burdening the record of decision by describing the report of
experts. It is already observed that the recovery of weapons from the
possession of accused Nos. 1 and 2 is not satisfactorily proved and
no evidence at all is given for the recovery of third weapon.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
35
47) The learned counsels of the appellants placed reliance on
some reported cases. Similarly, the learned APP placed reliance on
observations made in some reported cases and they are as under :-
(i) Soni Vs. State of Uttar Pradesh [1983 SCC (Cri)
4901] :- This case is on T.I. parade and the efect of delay
in holding T.I. parade. In the present matter, this Court has
already observed that there are many circumstances in the
present matter due to which the record of T.I. parade
cannot be used against the accused. So more discussion of
the observations is not necessary.
(ii) Joginder Singh Vs. State of Haryana [AIR 2013
(SCW) 6169] :- This case is on the power of the High Court
when the High Court is considering the appeal against the
decision of acquittal. In this case, the Apex Court has laid
down that appellate Court is expected to give proper
weight to following things :-
(a) The views of the Trial Court on credibility of the
witnesses.
(b) The presumption of innocence in favour of
accused continues in appeal also.
(c) The right of beneft of doubt to accused needs to
be considered and if the Trial Court has given such
beneft, Appellate Court should not interfere lightly in
that decision.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
36
(d) The Appellate Court should be slow in interfering
the decision of the Trial Court Judge as the Trial Court
has advantage of seeing the witnesses.
There cannot be dispute over these propositions made by
the Apex Court. This Court holds that in the present matter
also, it is not desirable to interfere in the decision given by
the Trial Court.
(iii) Chandrappa & Ors. Vs. State of Karnataka (AIR
2007 (SC) 111] :- This case is also on the power of the
High Court when High Court is considering the appeal
against acquittal and the observations are similar to the
observations in the case of Jogindar Singh cited supra.
(iv) State of Punjab Vs. Rajinder Singh [AIR 2010
SUPREME COURT 1428] :- The matter is mainly on factual
aspects. There were discrepancies in the description of
weapons used. The weapon described was shot gun when it
was riffle. There was medical evidence which was not
consistent with the weapon which was said to be used. The
facts were diferent and in the present matter, weapons of
diferent kind like pistol or revolver were used and so, the
observations made in this reported case cannot be used in
the present matter.
(v) The State Vs. Motia and Ors. [1995 CRI.L.J. 835]
RAJASTAN HIGH COURT :- In the case, the linking
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
37
evidence in respect of articles shown to be recovered and
articles examined by expert was doubtful in nature. This
Court has already observed that the evidence and opinion
given by Chemical Analyser and also the ballistic expert
cannot be used and that evidence is not considered by this
Court.
(vi) Bhanudas Bagaji Salve Vs. State of
Maharashtra [2006 ALL M.R. (Cri) 67] :- In this case
this Court has discussed the efect of circumstances of not
sealing the articles at the time of seizure. In the present
matter, this Court has not used such expert evidence and
so, no more discussion is necessary.
(vii) Maniram Vs. State of U.P. [1994 SCC, Supl. (2)
289] :- In this case, when direct evidence was not
supported by expert evidence in the most material part, the
Court held that it was difcult to base conviction.
In the present matter relevant evidence is discussed and the
weapons are described as pistol and the medical evidence shows
that the injuries were caused only by such weapons and it it cannot
be said that medical evidence is not supporting the direct evidence
in the present matter.
48) The learned APP placed reliance on the observations
made by the Apex Court in the case of Kehar Singh and Ors. Vs.
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
38
The State (Delhi Admn.) [AIR 1988 SUPREME COURT 1883] .
This case is on the conspiracy hatched, on the requirements of
proving conspiracy. The requirements are already quoted by this
Court and so, more discussion is not necessary. The learned APP
placed reliance on the case of Bharat Singh and Ors. Vs. State of
U.P. [AIR 1999 (SC) 717] . In that case, there was possibility that
the shooting by using fre arm was not done from the close range. In
that case, guns were said to be used, but there were no
circumstances like scorching, blackening and tattooing. There is no
need to use these observations in view of the nature of weapons
used in the present matter and nature of direct evidence available. In
the case of Kali Prasad Singh Vs. State of Uttar Pradesh [2019
(6) Scale 670] , there were gun shots, but clothes like jacket were
on the person of deceased and due to that it was held that the
absence of blackening of skin was not a circumstance which could
have crated doubt about the evidence of witnesses. In the case
reported as Paramjit and Ors. Vs. State of Haryana [AIR 2000
(SC) 2038] , there was use of double barrel gun. In this case, the
Apex Court has laid down that when one trustworthy witness is
examined, the circumstance of non examination of other possible
eye witness cannot be considered against the prosecution and that
circumstance can be ignored.
49) It was submitted for accused persons that before
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
39
registration of crime police had rushed to the spot and so, the F.I.R.
given by PW 1 cannot be used for corroboration purpose under
section 157 of the Evidence Act. On this point, the learned APP
placed reliance on the observations made in the case of Animireddy
Venkata Ramana & Ors. Vs. Public Prosecutor, H.C. of A.P.
[2008 DGLS (SC) 373] . In this case, the Apex Court has laid down
that it is not necessary that police should take step only after receipt
of F.I.R. if cognizable ofence is committed. If somehow police
received information and proceeded to the spot, the report given by
the frst informant after this moment of police cannot be discarded
by presuming that this was not the frst information about the crime.
In the present matter also, police had rushed to the spot frst and
thereafter, the crime came to be registered. There was use of fre
arms and many persons were in the vicinity and immediately after
the incident, the persons to whom the deceased was known had
shifted the deceased to the hospital to save his life and so,
somebody must have informed to police that there was incident of
fring. F.I.R. was also given immediately and as already observed this
circumstance cannot take away the importance of F.I.R. given by PW
1 in the present matter and F.I.R. can be used for corroboration
purpose in the present matter.
50) In view of the discussion made above, this Court holds
that there is no reason for this Court to interfere in the decision given
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
Cri. Appeal No. 223/13 & Ors.
40
by the Trial Court. The conviction given to accused Nos. 1 and 2 is
based on sufcient and satisfactory evidence. Similarly, the view
taken by the Trial Court in favour of accused Nos. 3 and 4 is a
possible view. In the result, all the appeals stand dismissed.
[ S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
::: Uploaded on - 12/12/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::