Sunil Omprakash Both @ Chota vs The State Of Maharashtra
- Court
- Bombay High Court
CNR No : HCBM010225712016
2026:BHC-AS:45333-DB
APEAL-439-2016 & Ors.(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 439 OF 2016
WITH
INTERIM APPLICATION No.1689 OF 2026
IN
CRIMINAL APPEAL No.439 OF 2016
Jitendra Fakirchand Rana @ Chaina
Aged : 29 years, Occ. : Nil
R/o Room No.112, Hindu Muslim Chawl,
Anand Nagar, Behram Baug, New Road,
Jogeshwari West, Mumbai 400 062.
)
)
)
)
)
) .....Appellant
(Org.Accused No.1)
Versus
)
)
)
).....Respondent
WITH
INTERIM APPLICATION No.2617 OF 2025
The State of Maharashtra
At the instance of Sr. Inspector of Police,
D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011
IN
CRIMINAL APPEAL No.439 OF 2016
Valerie Santos
Aged 61 years,
All Residing at : 17, Kevni Pada, Amboli,
Next to Saint Blaise Church,
Andheri West, Mumbai
Mumbai Suburban, Maharashtra-400058
)
)
)
)
)
)
) .....Applicant
)
)
)
)
)
) .....Appellant
(Org.accused No.1)
In the matter between
Jitendra Fakirchand Rana @ Chana
Aged : 29 years, Occ. : Nil
R/o Room No.112, Hindu Muslim Chawl,
Anand Nagar, Behram Baug, New Road,
Jogeshwari West, Mumbai 400 062.
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Digitally signed
by RUPALI
RAJESH
WAKODIKAR
Date:
2026.11.05
21:16:31 +0530
RUPALI
RAJESH
WAKODIKAR
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Versus
)
)
)
).....Respondent
WITH
INTERIM APPLICATION No.768 OF 2025
The State of Maharashtra
At the instance of Sr. Inspector of Police,
D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011
IN
CRIMINAL APPEAL No.439 OF 2016
Valerian Santos
Aged 43 years,
Residing at : 17, Kevni Pada, Amboli,
Next to Saint Blaise Church,
Andheri West, Mumbai
Mumbai Suburban, Maharashtra-400058
)
)
)
)
)
)
) .....Intervenor
)
)
)
)
)
) .....Appellant
(Org.accused No.1)
In the matter between
Jitendra Fakirchand Rana @ Chana
Aged : 29 years, Occ. : Nil
R/o Room No.112, Hindu Muslim Chawl,
Anand Nagar, Behram Baug, New Road,
Jogeshwari West, Mumbai 400 062.
Versus
The State of Maharashtra
At the instance of Sr. Inspector of Police,
D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011
)
)
)
).....Respondent
WITH
CRIMINAL APPEAL No.381 OF 2016
Sunil Omprakash Both @ Chota
Aged 20 years, Indian Inhabitant,
Occ. : Service.
Permanent resident of Walmiki Nagar,
)
)
)
)
)
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)
)
)
).....Appellant
(Org.accused No.3)
Ceaser Road, Amboli, Andheri (W),
Mumbai 400 058
(Presently lodged at Arthur Road Central
Prison as convicted prison in the present
matter)
Versus
The State of Maharashtra
At the instance of D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011
)
)
).....Respondent
WITH
INTERIM APPLICATION No. 2778 OF 2026
IN
CRIMINAL APPEAL No. 381 OF 2016
Sunil Omprakash Both @ Chota
Aged 20 years, Indian Inhabitant,
Occ. : Service.
Permanent resident of Walmiki Nagar,
Ceaser Road, Amboli, Andheri (W),
Mumbai 400 058
(Presently incarcerated at Nashik Road Central
Prison as convicted prisoner)
)
)
)
)
)
)
)
)
).....Applicant
(Org. accused No.3)
Versus
)
)
).....Respondent
WITH
INTERIM APPLICATION No. 2618 OF 2025
The State of Maharashtra
At the instance of D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011
IN
CRIMINAL APPEAL No.381 OF 2016
Valerie Santos
Aged 61 years,
Residing at : 17, Kevni Pada, Amboli,
Next to Saint Blaise Church,
Andheri West, Mumbai
Mumbai Suburban, Maharashtra-400058
)
)
)
)
)
)
) ....Intervenor
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)
)
)
)
)
)
)
)
) ....Applicant
(Org. accused No.3)
In the matter between
Sunil Omprakash Both @ Chota
Aged 20 years, Indian Inhabitant,
Occ. : Service.
Permanent resident of Walmiki Nagar,
Ceaser Road, Amboli, Andheri (W),
Mumbai 400 058
(Presently lodged at Arthur Road, Central
Prison As convicted Prisoner in present matter)
Versus
The State of Maharashtra
At the instance of
D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011 .....Respondent
WITH
INTERIM APPLICATION No.1004 OF 2025
IN
CRIMINAL APPEAL No.381 OF 2016
Valerie Santos
Aged 43 years,
Residing at : 17, Kevni Pada, Amboli,
Next to Saint Blaise Church,
Andheri West, Mumbai
Mumbai Suburban, Maharashtra-400058
)
)
)
)
)
)
) ....Intervenor
)
)
)
)
)
)
)
)
) ....Applicant
(Org. accused No.3)
In the matter between
Sunil Omprakash Both @ Chota
Aged 20 years, Indian Inhabitant,
Occ. : Service.
Permanent resident of Walmiki Nagar,
Ceaser Road, Amboli, Andheri (W),
Mumbai 400 058
(Presently lodged at Arthur Road, Central
Prison As convicted Prisoner in present matter)
Versus
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The State of Maharashtra
At the instance of
D.N.Nagar Police Station,
Vide their C.R.No. 410 of 2011 .....Respondent
WITH
CRIMINAL APPEAL No.840 OF 2016
Deepak Ishwar Omprakash Piwal
Age : 22 years, Occ. : Education,
Residing at room No. 38, Walmiki Nagar,
Creaser road, Amboli, Andheri (W),
Mumbai 400 079.
)
)
)
)
)
).....Appellant
(Org. accused No.4)
Versus
)
)
).....Respondent
WITH
INTERIM APPLICATION No.1693 OF 2026
The State of Maharashtra
At the instance of Amboli Police Station,
Vide their C.R.No. 410 of 2011
IN
CRIMINAL APPEAL No. 840 OF 2016
Deepak Ishwar Omprakash Piwal
Age : 34 years,
Residing at room No. 38, Walmiki Nagar,
Creaser road, Amboli, Andheri (W),
Mumbai 400 079.
presently incarcerated at
Nashik Road Central Prison, Open Jail, District-
Nashik, PIN-422101.
)
)
)
)
)
)
)
)
).....Applicant
(Org. accused No.4)
Versus
The State of Maharashtra
At the instance of D. N. Nagar Police Station
Vide their C.R.No. 410 of 2011
)
)
).....Respondent
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WITH
INTERIM APPLICATION No.760 OF 2025
IN
CRIMINAL APPEAL No.840 OF 2016
Valerian Santos
Aged 43 years,
Residing at : 17, Kevni Pada, Amboli,
Next to Saint Blaise Church,
Andheri West, Mumbai
Mumbai Suburban, Maharashtra-400058
)
)
)
)
)
)
) .....Intervenor
)
)
)
)
)
) .....Appellant
(Org.accused No.4)
In the matter between
Deepak Ishwar Omprakash Piwal
Age : 34 years,
Residing at room No. 38, Walmiki Nagar,
Creaser road, Amboli, Andheri (W),
Mumbai 400 079.
At present Nashik Jail
Versus
)
)
)
).....Respondent
WITH
INTERIM APPLICATION No.2615 OF 2025
The State of Maharashtra
At the instance of Amboli Police Station, at
Mumbai, Dist-Maharashtra
Vide their C.R.No. 410 of 2011
IN
CRIMINAL APPEAL No.840 OF 2016
)
)
)
)
)
)
) .....Intervenor
Valerie Santos
Aged 61 years,
All Residing at : 17, Kevni Pada, Amboli,
Next to Saint Blaise Church,
Andheri West, Mumbai
Mumbai Suburban, Maharashtra-400058
In the matter between )
Deepak Ishwar Omprakash Piwal )
)
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)
)
) .....Appellant
(Org.accused No.4)
Age : 34 years,
Residing at room No. 38, Walmiki Nagar,
Creaser road, Amboli, Andheri (W),
Mumbai 400 079.
At present Nashik Jail
Versus
)
)
)
).....Respondent
The State of Maharashtra
At the instance of Amboli Police Station, at
Mumbai, Dist-Maharashtra
Vide their C.R.No. 410 of 2011
..…
Mr. Sudeep Pasbola, Senior Advocate a/w Mr.Sankalp Vichare,
Nagrees B. Tarade i/b. Mr. Rahul S. Arote, for the Appellant in
Appeal No.439/2016.
Dr. Yug Mohit Chaudhary a/w Mr. Dashrath Gaikwad, for the
Appellant in Appeal Nos.790/2016 and 840/2016.
Mr. Gaurav Bhawnani a/w Mr. Fardin Shaikh i/b. Mr. Khan Abdul
Wahab, for the Appellant in Appeal No.381/2016.
Ms. Gayatri Gokhale a/w Mr. Aakash Gupta a/w Mr. Amit Padwal,
Mr. Shane Santos, Mr. Anash Irani, for the intervener.
Mr. Aabad Ponda, Senior Advocate, Special PP a/w Mr. Bahraiz Irani,
Mr. P. P. Shinde, APP, for the respondent-State.
..…
CORAM : M. S. KARNIK &
SANDESH D. PATIL, JJ.
th
RESERVED ON : 18 SEPTEMBER 2026
th
PRONOUNCED ON : 5 NOVEMBER, 2026
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JUDGMENT [PER SANDESH D. PATIL, J]
For convenience of reference, this Judgment is arranged in the
following manner:-
INDEX
PARTICULARS PAGE NO.
SR. NO.
A. CASE OF THE PROSECUTION 11
B. PROSECUTION WITNESSES-PW-1 TO PW-29 14
C. DISCUSSION ON LD. TRIAL COURT’S JUDGMENT 83
D. 85
SUBMISSIONS ON BEHALF OF ACCUSED
NO.1 IN CR. APPEAL No.439/2016
E. SUBMISSIONS ON BEHALF OF ACCUSED NO.4 IN 94
CR. APPEAL No.840/2016
F. 100
SUBMISSIONS ON BEHALF OF ACCUSED NO.3 IN
CR. APPEAL No.381/2016
G. SUBMISSIONS OF LEARNED SPECIAL PUBLIC 102
PROSECUTOR
H. 116
SUBMISSIONS ON BEHALF OF INTERVENOR
I. REASONING AND ANALYSIS 116
(a) MOLESTATION
(b) DELAY IN RECORDING STATEMENTS AND F.I.R.
(c) CREDIBILITY OF PW-2 (SECURITY GUARD)
(d) CREDIBILITY OF PW-21 (PAAN VENDOR)
(e) NON-EXAMINATION OF SOME OF THE
WITNESSES.
(f) NON-PRODUCTION OF CCTV FOOTAGE
(g) INCONGRUITY IN NUMBER OF ASSAILANTS
(h) DELAY IN CONDUCTING TEST IDENTIFICATION
PARADE
(i) RECOVERY OF KNIFE
(j) CONSUMPTION OF ALCOHOL BY THE
COMPLAINANT
(k) SUDDEN FIGHT, PREMEDITATION & EXCEPTION
4 TO SECTION 300 OF IPC
(l) APPLICABILITY OF SECTION 302 R/W SECTION
34 OF IPC QUA ACCUSED NOS.3 AND 4
117
132
140
141
143
146
148
150
151
156
158
168
J. CONCLUSIONS 178
K. IMPOSITION OF SENTENCE ON ACCUSED NO.1. 180
L. ORDER 183
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The Challenge :
1. The genesis of the present proceedings lies in the gruesome
murder of two young persons namely Keenan Santos and Ruben
th
Fernandez on the fateful night of 20 October, 2011. The Appellants
are the accused. By the present appeal, the Appellants are
th
challenging the Judgment and Order dated 5 May, 2016 passed in
Sessions Case No.161/2012 passed by the Additional Sessions Judge,
City Civil and Sessions Court, Greater Mumbai (hereinafter referred
to as ‘The Trial Court’), whereby the Trial Court convicted the
accused No.1 – Jitendra Fakirchand Rana, accused No.2 – Satish
Nafesing Dulgaj, accused No.3 – Sunil Omprakash and accused No.4
Deepak Ishwar Piwal for the offence punishable under Section 302
r/w Section 34 of Indian Penal Code (hereinafter referred to as ‘IPC’
for short).
The sentences :
All accused were sentenced to suffer imprisonment for life i.e.
remainder of their life.
Accused No.1 Jitendra Rana and accused No.2 Satish Dulgaj
were convicted for the offence punishable under Section 354 of IPC
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and were sentenced to suffer rigorous imprisonment for two years
and fine of Rs.5,000/-, in default of which, they were sentenced to
suffer imprisonment for one month.
Accused No.1 Jitendra Rana and accused No.2 Satish Dulgaj
were convicted for the offence punishable under Section 509 of IPC
and were sentenced to suffer imprisonment for one year.
Accused No.1 Jitendra Rana and accused No.2 Satish Dulgaj
were convicted for the offence punishable under Section 504 of IPC
and were sentenced to suffer rigorous imprisonment for two years.
Accused No.1 Jitendra Rana and accused No.2 Satish Dulgaj
were convicted for the offence punishable under Section 506 (II) of
IPC and were sentenced to suffer rigorous imprisonment for five
years and fine of Rs.5,000/-, in default of which, they were
prescribed imprisonment for 15 days.
Accused No.1 Jitendra Rana and accused No.2 Satish Dulgaj,
accused No.3- Sunil Omprakash Both @ Chota and accused No.4-
Deepak Riwal were convicted for the offence punishable under
Section 37(1) r/w 135(1) of the Bombay Police Act and were
sentenced to suffer rigorous imprisonment for six months.
Accused No.3 Sunil and accused No.4 Deepak were convicted
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for the offence punishable under Section 323 of IPC and were
sentenced to suffer rigorous imprisonment for one year.
The substantive sentence were to run concurrently.
A. CASE OF THE PROSECUTION
2. The case of the prosecution is that the complainant Avinash
Solanki along with his friends, went to a restaurant namely, ‘Amboli
th
Bar and Kitchen Restaurant’, on 20 October 2011. They were
watching cricket match. After the match, they had dinner. The
group was three female and four male friends. The four male
friends, Keenan Santos, Ruben Fernandez, Benjamin Fernandez and
Avinash Solanki, went to the paan shop after having dinner. They
were standing on the footpath near the paan shop. Their female
friends went to the washroom. It is the case of the prosecution that
when the female friends were coming down from the staircase of the
hotel, one of the accused, who was wearing a white-coloured Pathani
dress, made a noise of “ shuk... shuk... ”, passed a derogatory
comment on one of the girls and blinked his eye. He further
molested the girl.
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3. The male friends of the girl confronted those persons,
and one of them, i.e. the deceased Keenan, asked them whether they
did not have mothers and sisters at home. Upon hearing this, the
accused started abusing them. One of the friends of the deceased,
Avinash Solanki (PW-17), slapped accused No.1. To this, accused
No. 1 reacted and asked whether he was acting as a hero because the
girls were with him. The accused persons threatened the deceased
and his friends that they would come back and left. The deceased
and their friends were at the paan shop. They consumed paan (betel
leaf) and were saying good night to each other. At that time, the
accused marched towards them. They were carrying weapons in their
hands. accused Nos. 1 and 2 were carrying knives, while accused No.
3 was carrying stump. Accused No.4 was carrying a Bamboo. The
girls got scared. They went towards the hotel and stood on the
staircase of the hotel.
4. Accused No. 1 assaulted the deceased Keenan with a knife.
Keenan was stabbed repeatedly in the stomach and on the arm.
Keenan fell down on the footpath. Ruben tried to help Keenan.
Accused No. 2 assaulted Ruben with a knife in his stomach, and he
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also fell down on the footpath. The first informant, Avinash Solanki,
took glasses which were lying there and threw them towards the
accused. One of the glasses hit the head of accused No. 1, and he
sustained a bleeding injury. After the injury to accused No. 1, all the
accused went towards the first informant and started assaulting him.
The first informant-Avinash threw a ladder which was there, towards
the accused persons. People gathered at the scene of the offence.
The accused ran away from the place.
5. Keenan and Ruben were lying in an injured condition on the
footpath. Keenan was profusely bleeding. The first informant lifted
him with the help of one of the waiters of the restaurant name
Mohsin and took him inside. He asked Mohsin to take the injured
person to Kokilaben Hospital in an autorickshaw. Thereafter, the first
informant went towards Ruben, who was also injured, and, with the
help of Benjamin, the brother of Ruben, Ruben was taken to Cooper
Hospital. The female friends of the informant went to Kokilaben
Hospital. The doctors gave treatment to Keenan, but they declared
him dead within 10 to 15 minutes of admission. Ruben, who was
initially taken to Cooper Hospital, was brought to Kokilaben
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Hospital. Thereafter, the first informant went to the police station at
about 2:40 a.m. and lodged a complaint against unknown persons.
B. THE PROSECUTION HAS EXAMINED THE FOLLOWING
WITNESSES:
6. PW-1 is an eye witness to the incident. She deposed that she
was friends with PW-17 – Avinash – the first informant, Priyanka,
Benjamin, PW-18 – Shobita, deceased Keenan and Ruben. On 20th
October, 2011, she and her friends went to Amboli Bar and Kitchen
to watch the India-England match. After having dinner, Avinash went
to buy paan at the paan shop. This witness, Shobita (PW-18) and
Priyanka went to the washroom. When they were coming out of the
restaurant, she saw four unknown persons (the accused persons)
standing near the paan shop. One of the persons who was wearing
Pathani dress (accused No. 1) made derogatory oral comments to
this witness. He said ‘Kya mast maal hai. Isko aaj rat ko uthake leke
jayenge...’ . Then the same person came closer to this witness and he
molested her. The other three persons started laughing. One of those
persons, wearing 3/4th pants, also molested her and passed filthy
comments. She pushed the molester and ran towards her friends
and told them about the incident. Keenan confronted all these 4
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unknown persons and told them to behave respectfully with girls.
Thereafter, all the 4 persons started abusing him. Avinash came
forward to pacify the situation. The person wearing white Pathani
said “ tumhare pass ladki hai islye jyada hero ban raha hai kya ” and
started abusing him. The person wearing 3/4th pants warned
Avinash that he shall come and kill him and said “himmat hai to ruk
ke bata” (if you have the guts, then wait here...)and the person
wearing white Pathani said “ chhodunga nahi, wapas ak ke batata
hoo” (I won’t spare you..) and those four unknown persons went
away.
7. This witness and her friends ate paan and were about to leave
when the unknown persons came back. The person who was
wearing white Pathani was carrying a big knife. The person wearing
3/4th pants also had a knife. One person was having a cricket stump
and the fourth person was having a bamboo stick. This witness,
along with Priyanka and Shobita, ran towards the steps. They stood
there. The four persons started attacking Avinash, Ruben and
Keenan. The person in the white Pathani stabbed Keenan on his
stomach multiple times and also on his left hand. The person
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wearing 3/4th pants and white t-shirt stabbed Ruben on his stomach.
The person with the stump and wooden stick attacked Benjamin and
Avinash. The witness and the girls screamed for help and dialed 100,
but nobody came forward to help. When the assailants came towards
Avinash, he threw a glass at them and it hit accused No.1 (the person
in white Pathani) on his head. When they were going to attack him,
Avinash picked up the ladder and threw it at them. A large crowd
gathered near the incident till then. The four persons ran away.
Thereafter, Benjamin and Avinash took Ruben and Keenan inside the
restaurant with the help of one waiter named Mohsin. Avinash and
Mohsin put Keenan in an autorickshaw. Avinash asked Mohsin to
take Keenan to Kokilaben Hospital. Avinash and Benjamin put Ruben
in an auto, and Avinash asked Benjamin to take him to a Hospital.
Thereafter, Avinash caught another rickshaw and left for Kokilaben
Hospital and told this witness and the girls to come to Kokilaben
Hospital. This witness called Keenan's father on mobile and narrated
to him the whole incident. Thereafter, the witness alongwith Shobita
and Priyanka, went to Kokilaben Hospital. After some time, the
doctor came out and declared that Keenan was dead due to serious
injuries. On 31.10.2011, she came to know that Ruben died in the
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same hospital.
8. A specific question was put to her as to the description of the
persons who had misbehaved with her and who had assaulted
Keenan and Ruben. She answered that the person who attacked
Keenan and who misbehaved with her was the same person and he
was wearing white Pathani and his height was around 5’7”. She
identified this person in the Court. The accused told his name as
Jitendra Rana. The person who killed Ruben and also molested her
was the person wearing 3/4th pants and white t-shirt and his height
was about 5’5”. She identified him in the Court. The accused told
his name as Satish Dulgaj. She identified the person who was having
a cricket stump in his hand. The accused told his name as Sunil
Omprakash Both. She also identified the person who was beating
Avinash and Benjamin with a bamboo stick. The accused told his
name as Deepak Ishwar Piwal. This witness had also identified these
persons on 16.11.2011, at Arthur Road Jail in the test identification
parade. The letter issued to her for Test Identification is exhibited at
Exhibit-37. She also identified the murder weapons, i.e. the knife
marked as Article-1, another knife marked as Article-2, the cricket
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stump marked as Article-3 and the bamboo marked as Article-4. The
clothes of the deceased were also identified by this witness. Keenan’s
clothes are marked as Article-5 (colly.) and Ruben’s clothes are
marked as Article-6.
9. This witness, in the cross-examination, admitted that she was
in Mumbai from the date of the incident to the date of recording of
the statement, i.e. 7th November, 2011. She admitted that she was
sick and therefore she could not come to police station after the
incident. She also admitted that she had not mentioned in her initial
statement that she was ill for 15 to 17 days. She could not assign
any reason for this omission. She further accepted that she had not
made any application to the company she was working with about
the said illness. She admitted that she had disclosed the misbehavior
by the accused persons to the informant, i.e. Avinash Solanki @ Bali,
and Benjamin at the spot of incident as well as at the Kokilaben
Hospital. A specific question was put to her in this respect. She
admitted that she did not inquire about her friend Ruben even when
she was sick. She admitted that nobody called her and informed her
that Ruben had expired on 31.10.2011. She also admitted the fact
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that she was not hospitalised during the said period when she was ill.
This witness, in cross-examination, admitted that none of her friends
had consumed alcohol and nobody from their group used to smoke.
This witness stated that she cannot assign any reason as to why it is
not mentioned in her statement that she saw 4 unknown persons
standing near the paan shop. She further admits that she cannot
assign any reason as to why the incident of molestation is not
mentioned in her statement. She admitted that they did not dial 100
number after the first incident. She did not tell the magistrate that
the accused persons had molested her. She stated that death of her
friends was more important than her molestation and therefore, she
did not mention it.
10. In the re-examination by the prosecution, this witness deposed
that when the accused persons initially gave her threats, they did not
pay much attention to it and she did not want to lodge a complaint
as she did not want her name to be spoiled being a girl. She also
deposed that she came to know about the death of Ruben as her
mother told her. She also indicated the spot through a photograph as
to where she, along with Shobita and Priyanka, were standing when
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the accused assaulted Keenan and Ruben.
11. PW-2, Surendra Soni Ray was the security Guard at the Amboli
Bar & Kitchen Restaurant. He deposed that he was on duty after
8.00 pm on 20th October, 2011. He saw Keenan, Ruben, Benjamin
and Bali getting out of the restaurant at about 10:30 pm and saw 3
girls getting out after them. He deposed that the four unknown
persons were smoking at the paan shop and passed filthy comments
and teased them. At that time, one of the girls screamed and rushed
towards their friend Bali and Benjamin. Thereafter Keenan
confronted those persons and asked them to be respectful to women.
Thereafter those four unknown persons started abusing Keenen and
Ruben. Bali, Avinash alongwith PW-17 went towards him and
slapped the person wearing white pathani. The person wearing
3/4th pants gave threats that he will kill all of them. Thereafter,
after 10 to 15 minutes, these four persons came back with weapons.
The three girls ran towards staircase and were shouting for help. He
deposed that the person wearing white pathani stabbed Keenan and
the person wearing white t-shirt and 3/4th pants assaulted Ruben
with a weapon. The third person was of about twenty-two year of
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age, had cricket stump in his hand and the fourth person had a
wooden stick. They assaulted all four friends. This witness
identified all the accused in Courtroom. On 16/11/2011, he
identified all four accused persons in Arthur road jail in test
identification parade. The letter issued to him for test Identification
is at Exhibit 43.
12. In cross-examination, this witness deposed that he did not help
the injured persons when they were brought in the hotel. He
admitted that he saw the accused persons for the first time on that
day. He admitted that even though he witnessed the girls shouting
for help, he did not inform about the assault to his manager or staff
as the incident took place on the footpath in front of the hotel and
not inside the hotel. He did not have any record to show that he was
on duty at Amboli Bar and Kitchen Restaurant neither he had any
proof that he was working for Vishal Security Force on the date of
incident. He could not assign any reason as to why he did not
mention that there existed a ladder adjacent to the wall of the hotel.
13. PW-3, Valentine John Silvera is a panch witness for spot
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panchanama. He deposed that Police brought him to the spot and
the complainant i.e. Avinash Solanki pointed out the exact place of
incident. In front of the staircase of the restaurant there were blocks
on the foothpath and blood stains were there. The blood stains were
dried. On the eastern side of the restaurant there was a paan shop.
There was a wooden stump near it. The complainant pointed out
that wooden stump was used for assaulting which was seized by the
police. Half wooden stump was recovered from nearby plant pot and
was seized. It is marked as Article-7. Blood stained slipper with
green stripes was found and seized. It is marked as Article–8. Police
took various measurements of the spot of incident and prepared the
panchanama. The said panchanama is exhibited at Exhibit- 46.
14. In cross examination he admitted that he did not see any
crowd of local residents on the spot of incident. He denied that he
signed the readymade panchanama. He denied that he had
identified the articles at the instance of the Police. Not much was put
to this witness in cross examination.
15. PW-4, Sarfaraz Gause Mouiddin Shaikh was a panch witness to
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inquest panchanama of Keenan. He deposed that he was standing
outside Kokilaben hospital as his friend’s daughter was ill when
police asked him to act as panch witness. He saw one dead body
kept on the stretcher covered with white cloth. PW-17 identified him
as Keenan. There were four marks on his body with sharp weapon.
Police took measurements of the wound marks and prepared the
panchanama. It is exhibited at Exhibit-48. Cross examination was
declined by all the accused.
16. PW-5, Savio Santan Mendes was a panch witness to the
inquest panchanama of Ruben. He deposed that on 31/10/2011 he
was at Kokilaben Hospital as his friend was ill due to food poisoning.
Mr. Benjamin identified the dead body as Ruben Fernandes. There
were injuries on the left side of his neck, abdomen and right knee,
accordingly a panchanama was drawn. It is marked as Exhibit-51.
Not much was put to this witness in cross examination.
17. PW-6, Regan D’souza was a panch witness for recovery
panchanama. On 25/10/2011 while he was passing through
Andheri, the police asked him to act as a panch witness. He deposed
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that in the police station the accused told his name as Satish
Naphesingh Dulgaj (accused No.2), who stated that he was ready to
produce the knife used in the said crime. The accused asked the
witness to come with him so that he can disclose where the churra is
concealed. Accordingly, memorandum statement was recorded and
memorandum panchanama was drawn. It is marked as Exhibit-53.
This witness along with the accused and police went near Hindu
Smashan Bhumi and entered the lane of Valmiki Nagar. At the dead
end of the lane, the were two houses opposite to one another, there
was a small passage between the two houses, the knife was
concealed under the small roof in the corner. The accused took out
the knife from that place and gave it to the police. There were blood
stains on it. It was having a plastic handle and three screws fitted to
it. The Knife is marked as Article–1. panchanama was drawn
accordingly. It is produced at Exhibit-54.
18. In the cross examination, the witness admitted that he had
asked the accused whether somebody had pressurized him to give
the statement. This question was not recorded in the panchanama.
He was not aware of the details of the crime and involvement of
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accused No. 2 in the crime. The accused person was not asked to put
his signature on the panchanama.
19. The learned S.P.P re-examined this witness. In re-examination,
this witness deposed that when he put the question to the accused
whether anyone had pressurized him in giving the statement, he
answered that he was willingly giving it.
20. PW-7, Yamin Yasin Shaikh is another panch witness. He
deposed that he was passing through the D. N. Nagar Police Station
when two police constables requested him to act as a panch witness.
Thereafter, Inspector Indalkar introduced him the accused No.1-
Jitendra Rana. This witness asked accused No.1 as to what he
wanted to state, the accused No.1–Jitendra Rana replied that he was
ready to produce knife from the place where he had concealed it,
and was also ready to show the place. The panchanama was
accordingly drawn and it bears the signature of this witness. It is
marked as Exhibit-56.
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21. Thereafter, a vehicle was arranged and this witness along with
police, the accused No. 1 and another panch witness went to the
location as per the say of the accused No. 1. The accused No. 1 took
them near Gulmohar building and near the electric pole, there was
an electric box. The accused No. 1 took out the knife from a hole
under the electric box. The hole was not visible. The knife was
having dry blood stains. It was about 12 inches – grip 7 inches and
blade 5 inches. Handle was of green colour. It is marked as Article-2
panchanama was drawn. He had signed the panchanama. It is
marked as Exhibit-56-A.
22. In cross-examination, this witness admitted that he was asked
by Mr. Indalkar to act as a panch witness. Mr. Indalkar only asked
him to listen whatever the accused is saying. Mr. Indalkar did not
tell this witness what panchanama had to be prepared. He admitted
that his interaction with the accused person is not mentioned in the
panchanama though he had spoken with the accused. The knife was
having green and red colour handle. He does not remember how
many blood stains were on the knife.
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23. PW-8, Bryan Rocky D’costa is a panch witness for cloth seizure
panchanama of deceased Keenan. On 21/10/2011, this witness was
in Kokilaben hospital for consultation with his mother when the
police asked him to act as a panch witness. A lady had produced
four clothes - one bloodstained blue jeans having brand name
“Desire”, bloodsoaked underwear of brown colour, one black
coloured t-shirt with a cut on the left sleeve and on the front right
side. The t-shirt was cut into two parts, one handkerchief soaked
with blood. The police seized these clothes and panchanama was
drawn. He identified the said clothes in Courtroom as Article-9
(colly). Panchanama was marked as Exhibit-59.
24. In cross, a specific question was put forth to this person as to
how the articles were sealed, the witness deposed that he does not
remember the process. Cross-examination was declined by accused
Nos. 1, 2 and 4.
25. PW-9, Vishal Ramchandra Vishwakarma was a panch witness
for the clothes seizure panchanama of Ruben. He deposed that on
22/10/2011, he went to Kokilaben Hospital to visit father of his
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friend when the police asked him to act as a panch witness. Police
took him to ICU ward and one nurse brought one blue coloured jeans
pants with bloodstains on the pocket having lable of bear denim.
This was handed over to the police and sealed by them. Panchanama
was drawn. It is at Exhibit-62. In cross-examination, he declined the
suggestions made to him that he was a habitual panch and no such
panchanama was prepared by the police in his presence. Cross
examination was declined by accused No.2, 3 and 4.
26. PW-10, Abbas Ramzan Ansari is a panch witness for the
production and seizure of Benjamin’s clothes. He deposed that on
22/10/2011, he was passing through D. N. Nagar Police Station,
when the constable called him to act as a panch witness. One person
named Benjamin produced clothes in his presence. One grey
coloured t-shirt and green coloured underwear and one towel. The
clothes were smeared with blood, and t-shirt was torn from front
side. Clothes were seized and sealed. panchanama was drawn. It is
marked as Exhibit 10 (colly). Cross examination was declined by all
the four accused.
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27. PW-11, Samsuddin Habib Khan, was a panch witness for the
cloth seizure panchanama for accused No. 4. He deposed that on
22/10/2011 while passing through the D. N. Nagar police station,
the police asked him act as a panch witness. He went inside the
police station. Accused Deepak was present there. He identified the
said accused in the Court as well. The accused No. 4 told that he
was ready to produce the clothes which he concealed. Police
prepared panchanama and he signed on it. It is marked as Exhibit-
65. Thereafter, the accused No.4 took them to, Amboli near
Smashanbhumi and there he took them to a hutment area.. He took
them in one room where his father was also present. The accused
No.4 pulled clothes from behind the refrigerator. It was a one black
coloured t-shirt and one hosiery full pant with two white stripes.
Police seized and sealed the clothes. The panchanama was drawn. It
is produced at Exhibit-66.
28. In the cross-examination, he deposed that he did not speak
with the accused when they were in the vehicle. He stated that he
was not aware of the responsibilities of a panch witness. The
hutment area was 5 minutes away form the smashanbhumi. The
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room was 10x12 ft. There was nothing except the fridge in the said
room. Accused Nos.1 and 2 declined the cross-examination.
29. PW-12, Narayan Swaminath Gupta is a panch witness to the
arrest panchanama. He deposed that on 21/10/2011, he was
passing through D. N. Nagar Police station and police asked him to
be a panch witness. He gave consent and entered the police station.
Three accused persons i.e. Jitendra Rana – accused No. 1, Satish
Dulgaj accused No. 2, Sunil Both – accused No. 3 were present there.
Jitendra Rana was wearing white Pathani Kurta and payjama. There
were blood stains on the neck and the payjama and also on the sando
banian and underwear. His clothes were seized and marked as
Article-12 (colly). Satish Dulgaj was wearing half sleeves white t-
shirt and half pant and brown underwear. Something written on his
t-shirt was smeared with blood. His clothes were seized and marked
as Article-14 (colly). Sunil Both was wearing a black t-shirt and
3/4th pant. The pants were having blood stains. His clothes were
seized and marked as Article-13 (colly). He identified all these
articles in the Court as well.
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30. In cross-examination, he admitted that he did not act as a
panch before. He admitted that he did not ask any questions to the
accused. He admitted that the police did not give him any
information as to how the accused persons were arrested. He took
physical search of the clothes of the accused persons, nothing was
found from the pockets of their clothes.
31. PW-13, Amit Sidram Tad, was the PSI attached to D.N. Nagar
Police Station. He deposed that on 20/10/2011, at about 11:50 pm,
while he was on night duty, he received a sick message from Cooper
hospital that in Amboli Bar and Kitchen Restaurant, unknown
persons assaulted Ruben and his brother brought him there.
Thereafter he went to Cooper Hospital. He found out that Ruben
was admitted in ICU and was unable to give a statement. He took
endorsement of Dr. Shanks about Ruben’s condition. The said
endorsement is marked as Article-15. He thereafter met his brother
Benjamin, he was busy in arrangement of ambulance and shifting
Ruben to Kokilaben Hospital, hence his statement was not recorded.
32. In cross examination, he deposed that EPR register is
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maintained in every hospital and EPR officer passes the message to
the concerned police station and the said message is noted in the
EPR register maintained in the Police Station. This witness deposed
that each and every sick message is noted in the sick register. He
deposed that he did not receive the message that ‘one person,
Keenan Santos, Christian, Age 25 was stabbed by one unknown
person in the stomach’. He admitted that he had received the sick
message that Ruben Fernandes was stabbed by chopper at 11 pm by
unknown persons. The names of the assailants were not disclosed in
the sick message. The EPR register was shown to this witness and
the same is marked as Exhibit-70. This witness admitted that he did
not record statement of any person in the hospital. He admitted that
he did not feel it necessary to lodge the complaint on behalf of the
State. He denied to have recorded the statement of Benjamin in the
hospital.
33. PW-14, Satish Panduranga Kadam is the Executive Magistrate
who conducted the Test Identification Parade (TIP) on 16th
November 2011 at the Central Jail of the four accused persons
namely, Deepak Piwal, Jitendra Rana, Satish Dulgaj and Sunil Bodh.
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There were 12 witnesses for the TIP. He deposed in detail the
procedure he followed while conducting the TIP. The notes of the
Test Identification are annexed at Exhibit- 72. In cross-examination
this witness deposed that he did not inquire about the backgrounds
of panch witnesses. He denied the suggestion that no witness had
identified the accused persons.
34. PW-15, Dilip Mukund Davane was the police Naik attached to
the D. N. Nagar Police station. He deposed that on 19/09/2011,
there was a proclamation of ban on keeping weapons and unlawful
assembly issued by the Police Commissioner and he complied with
the Order in the jurisdiction of D. N. Nagar Police Station. The Order
is annexed at Exhibit 76.
35. In the cross-examination he deposed that the said Order was
issued on 19/09/2011 and promulgation was published on
21/09/2011 at 10:30 am. The said Order was not published in
newspapers. This witness deposed that he had made an entry in the
police diary when he went for proclamation. He denied the
suggestion that he did not take the mega phone from PI Mr. Kate. He
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admitted that the said Order was announced in Marathi and the one
affixed was in English language.
36. PW-16, Dr. Vijay Nivrutti Tasgaonkar , Medical Officer had
conducted post mortem examination of Keenan Santos and Ruben
Fernandes. He states that post mortem of Keenan Santos was
st
conducted on 21 October, 2021. He found following 6 external
injuries on the dead body of Keenan:
(i) Surgically sutured wound seen on left side of abdomen 3cms.
from midline, 5 cm above oblique from umbilicus. Verticle length
5.5cms with 6 sutures of black thread in situ. (on removal of
sutures both angles acute).
(ii) Surgically sutured wound seen on right side of abdomen.
7Cm obliquely below umbilicus 6cm away from midline verticle.
Length 4.5cm with 3 sutures of black thread in situ. (on removal
of sutures both angles acute).
(iii) Perforating wound on left arm 12cm below A.C. region
verticle.
(a) Wound of entry size 6cm x 3cm upper angle acute lower
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irregular
(b) Wound of exit 4cms medical to entry wound on left arm
size 2cm x 1cm. Both angles-notched-(W)(M) shaped.
(iv) Abrasion on right eyebrow red size 2x1 cm.
(v) Contusion left anterior abdominal wall oblique size 6cm x
4cm x muscle deep, red.
(vi) Contusion red color 2 in nos. on right side of abdomen, A.P.
direction laterally.
(a) superior 19cm x 6cm
(b) interior parallel to above injury size 20 cm x 6cm. Both
muscle deep and red.
Internal injuries on the dead body of Keenan are as follows:
(i) Contusion on right frontal region corresponding external
injury No. (iv) red color size 6cm x 3 cm.
(ii) Abdominal wall red color due to external injury No. (v)
and (vi).
(iii) Peritoneum perforated due to external injury No. (i)
and (ii)
(iv) Abdomen cavity blood fluid 2000 CC clots 200 CC.
(v) Stomach perforated through and through at lesser
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curvature due to external injury No.(i). Stomach empty.
Mucosa congested. Sour smell.
(vi) Small intestine perforated at ileum corresponding to
external injury No. (i).
(vii) Left kidney capsule contused with retroperitoneal
hematoma over area 8 cm x 6 cm corresponding to external
injury No.(ii). Kidney substance pale.
37. He deposed that cause of death was due to hemorrhage stab
injuries (unnatural) and that external injuries at (i) and (ii) can
cause death in ordinary circumstances. The post-mortem
examination report is produced at Exhibit-77.
38. He further deposed that post-mortem examination of Ruben
Fernandes was conducted on 01.11.2011 by him and Dr. Abhijeet
Kondar. Following 10 external injuries were found on the body of
Ruben:
(i) E/o exploratory laprotomy present over abdomen. Wound
extends from epigastric region 33cms x 20.1 cm. Oval shape.
Wound covered with plastic stitched at margins with black
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catgut with 47 sutures in nos. Blood fluid oozes. Outer wound
at pubic region. Loops of intestines with peritoneum visible
from outside.
(ii) Incised stab wound on right iliac region 7cm medial to
right ant. Superior iliac spine/size 2cm x 0.5cm x ? deep with
medial angle acute.
(iii) Peeling of skin with multiple vesicles at left leg anteriorly.
These vesicles are pale.
(iv) Peeling of skin seen at right leg anteriorly.
(v) Abrasion covered with black scab on left shoulder over
area 3 cm x 2 cm.
(vi) Abrasion at left elbow lateral aspect covered with blackish,
greyish coloured scab size 4 cm x 3cm.
(vii) Graze abrasion 2c, below injury No.(vi) over area 3cm x 3
cm, covered with black scab size 2 cm x 1.5 cm.
(viii) Abrasion right knee anterior covered with black scap size
1.5 cm x 1 cm.
(ix) Whitish coloured multiple scar mark present on left side of
abdomen parallel to each other of various shape and size over
area 15cm x 3cm.
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Following internal injuries were found on the body of Ruben:
(i) Abdominal Peritoneum was inflamed at places, dark brown
to white color. Cavity reddish fluid about 1000CC present.
(ii) Gauze pieces 4 in number retrieved from at peritorial
cavity, inferior aspect.
(iii) Stomach blood about 100CC mucosa congested.
(iv) Loops of intestines stapled with pins at places with
mesentry.
(v) Visecra preserved.
39. He deposed that cause of death was shock due to incised stab
wound (unnatural). The post-mortem report in case of Ruben was
prepared by Dr. Abhijeet Kondar and same is Exhibit 78. He further
deposed that external injuries at (i) and (ii) caused to Keenan and
Ruben are possible due to Articles at Nos. 1 and 2 knives.
40. During the cross-examination, he stated that death of the
persons is caused due to stab injuries and that hemorrhage and
shock always follows stab injuries. External injuries at (i) and (ii) is
caused by weapon sharp on both the sides. He stated that in case of
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Ruben only injury No.(ii) is caused due to stab by weapon whereas
injury No.(i) is a therapeutic injury. Injury (i) has cut the stomach
and injury (ii) has damaged the kidney. He also stated that in case
of Keenan Santos profused bleeding at peritoneum cavity can be the
cause of death and is alone sufficient to cause death.
41. He stated that in case of Ruben Fernandes injury No.(ii)- blood
in abdominal cavity, that injury is sufficient to cause death of a
person. He deposed that he did not remember calling for indoor
medical papers of Ruben and that the said papers are necessary to
rule out the possibility of death due to medical negligence. He
further has also deposed that in case of Ruben, penis and scrotum
was swollen and stated that same could also be the cause of death.
42. PW-17, Avinash Surendrasingh Solanki @ Bali, was the first
informant and an eye witness to the incident. He deposed that he
was friends with the deceased and that he had accompanied all the
friends for the dinner and to watch Indian cricket match on the
evening of the incident. He deposed that around 10:30pm after
dinner and match, when 3 female friends went to use the washroom,
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he along with the deceased and Benjamin went to the paan shop,
and after placing order went to the footpath. Four persons
(accused) were already there at the footpath. After sometime when
girls were coming, he saw accused going towards them. He deposed
that PW1 screamed and came towards him and his friends, and she
reiterated the incident of harassment by accused to them. After
hearing the same, Keenan went towards the accused and questioned
them about misbehaving with the girls and that whether they did
not have mother and sister. All the accused came towards them and
started abusing him and his friends. When accused wearing white
pathani said that the PW-17 and his friends were being hero in front
of girls, then PW-17 slapped him. Then the deceased and Benjamin
tried to give them an understanding, accused abused them and one
of the accused wearing t-shirt and 3/4th pant threatened that they
would come back and all the accused went away.
43. After 10-15 minutes, all the accused persons came back
wherein person wearing white pathani (accused No.1) carried knife,
person wearing white t-shirt and 3/4th pant (accused No.2) had
knife, person with long hair (accused No.3) had stump in his hand
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and fourth person (accused No.4) had bamboo (wooden stick).
Accused No.1 assaulted Keenan with knife and accused No.2
assaulted Ruben with knife, and accused Nos.3 and 4 beat Ruben
and PW-17. He deposed that that in order to save himself he took
two glasses from near the staircase and threw at the accused
persons. Accused No.1 and another accused were hurt by the same,
and they ran towards him so he started running as well, and found a
ladder. He took the ladder and threw at them and then all the
accused persons ran away with the weapons.
44. He further deposed that afterwards he with the help of waiter
took Ruben and Keenan inside the restaurant, and as intestine of
Keenan had come out he with the help of the waiter put the intestine
inside the stomach and tied the same with towel, and then with the
help of Mohsin (waiter) and other waiters put Keenan in the auto
and asked one of the waiters to accompany Keenan to Kokilaben
Hospital. Then, he and Benjamin put Ruben in another auto and
Benjamin took Ruben to the hospital and then Avinash himself went
to Kokilaben Hospital in another auto. On his arrival at the hospital,
Keenan was being treated and after sometime was declared dead.
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Ruben was initially admitted in the Cooper Hospital and later on was
shifted to Kokilaben Hospital on the same day, and treatment was
given, but on 31.10.2011 Ruben passed away.
45. He deposed that on the day of incident he went to D. N. Nagar
Police Station from the hospital and lodged a complaint. He
identified all the accused persons in the Court. He deposed that
while lodging complaint he had not mentioned about sexual
harassment to the girls to avoid their defamation but same was
mentioned in supplementary statement. The FIR in question is
produced at Exhibit-83.
46. He deposed that he was called on 16.11.2011 at Arthur Road
Jail for identification. He identified all of them, and Tehsildar Kadam
along with 2 panch witnesses were present at the time of TI Parade.
He further deposed that on 31.10.2011 he went to police station and
showed the spot of incident. Spot panchnama was conducted in
presence of 2 panch witnesses. At the time of panchnama six articles
were seized by the police from the spot and same were sealed in his
presence.
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47. During cross-examination, he deposed that after lodging of FIR,
as per the instructions of the police he went to Cooper Hospital for
medical checkup. Police had not accompanied him. Upon being asked
by the doctor about the injuries, he did not mention about the assault
by accused persons. After check-up, he went to the police station. He
deposed that he had reached Kokilaben Hospital around 11:00 pm
and was there for 30-45 minutes and Mohsin along with other
waiters were present there. Ruben was brought to Kokilaben hospital
after the death of Keenan. Police had not come to the hospital till the
time he was there in the hospital. He deposed that he had not
disclosed to anyone of the injuries sustained by him including the
doctors at the Kokilaben hospital.
48. He further deposed that as he helped to put the deceased in
auto after assault there were blood stains on his clothes-pant and
shirt and that he had not produced them to the police. He further
voluntarily added that despite the stains being visible to the police,
the police had not asked him to produce the same. He deposed that
house of Keenan, Ruben, Benjamin and Priyanka were near to
Amboli Bar and Kitchen Restaurant. He further deposed that he
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went to the police station from Kokilaben Hospital to inform about
the incident. He had asked Benjamin and Priyanka whether they had
informed the police about the incident to which they had answered
in the negative, and told them that he shall inform the police about
it. He further added that he had not asked anyone else about
informing the police as his mind was not stable. He had not
informed his friends that his mind was not stable. When he went to
the police station his mind was stable. The police informed him that
they had received information about the incident and van was
already sent to the spot. He was at the police station for around 1
hour till 6 am on 21st October, 2011. During his visit to Ruben’s
house, he met Benjamin and informed about the lodging of FIR. And
did not inform father of Keenan about the FIR when he visited
Keenan’s house.
49. He deposed that he gave supplementary statement on
22.10.2011 and informed about the harassment of the girls at the
hands of the accused on the day of the incident considering the same
to be defamatory. He wasn’t aware of the four arrests made by the
police. He deposed that none of the friends were present at the time
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of lodging the complaint and that he asked police whether they had
received any call. He had not seen Mohsin and any other waiters
after the incident except on the day of TI Parade. He deposed that
Keenan and Ruben were his sports friends and they would play
hockey together, and that he was friends with girls. He deposed that
he had slapped one of the four accused persons. They had seen the
four accused persons for the first time. He deposed that he had
heard PW1’s shout ‘ouch’, and that nobody followed the girls. He
agreed to the suggestion that he had not seen anything at the time.
He deposed that he had no bleeding injury.
50. He deposed that only one person had assaulted Keenan and
three people assaulted Ruben and both were assaulted on footpath.
When he had assaulted the person with glass, the accused person
had sustained head injury and blood was oozing from the head and
that nobody assaulted him after he hit the accused with glass.
51. He deposed that while lodging complaint he had given
description of the clothes worn by the accused persons. The accused
had ran away with the knives and police never showed him the
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knives after the incident. There is omission in FIR about the time
when match was over and in the statement of PW-17 there is
omission about that the girls wanted to go to the washroom and that
he shall order paan from the paan shop and the boys went to paan
shop, and after placing their order they went to the footpath. There
are omissions in respect of the certain physical descriptions of the
accused persons viz . in case of accused No.1, his height 5’7” is
omitted, in case of accused No.2 there is omission to the extent that
he was bald from front side, in case of accused No.3 omission is to
the extent that the person was wearing pant and accused No.4 who
was holding wooden stick, the omission is to the extent of his age i.e.
20 years. He deposed that he has worked as panch witness for
Oshiwara Police station in 2005. During the test identification
parade he identified the accused persons. Upon being asked, he
denied being a police informant of the police.
52. In the cross-examination taken by the advocate for the accused
No.3 he deposed that, when he went to hospital for medical check-up
for his treatment, he met his friend Amir and he did not inform him
about how he had sustained the injuries. The injury certificate issued
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to him is at Exhibit-85 and the same mentions that injury was
sustained due to assault by sticks by three known person and
voluntarily adds that the doctor has wrongly mentioned it as known
persons as he has mentioned to the doctor as ‘unknown persons’. He
deposed that Benjamin never informed him that Ruben was assaulted
by 15 persons with knife. He further deposed that there were no
blood stains on the clothes of the girls as they had not helped to put
the deceased into auto. He deposed that he never went to the police
station after 22.10.2011 and that he did not sign FIR after
22.10.2011. He also deposed that the story of misbehaving with girls
is not made up after 7th November, 2011.
53. During the cross-examination taken by advocate for accused
No.2 he deposed that, he had not taken police inside the Amboli Bar
and Kitchen Restaurant. He further deposed that injured were taken
inside the hotel and there was blood on the floor of the restaurant.
He deposed that he does not remember the name of the police who
had recorded his statement on 22.10.2011 and that the police who
recorded his statements on 21st October, 2011 and 22.10.2011 were
not the same persons. He deposed that quarrel did not happen
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inside the hotel due to cricket betting. He further deposed that
Amboli Bar and Kitchen Restaurant is closed since the incident.
54. In the cross-examination on behalf of accused No.4 he deposed
that, he had not described the wooden stick in his statement to the
police. He had accompanied the police to the spot. He deposed that
when Ruben was assaulted with knife, simultaneously he was
assaulted with bamboo and stick.
55. PW-18, Shobhita Singh, who accompanied PW-1 to the Amboli
Bar and Kitchen Restaurant with Priyanka, Benjamin, PW-17 and the
deceased for watching cricket match and dinner. She is an
eyewitness to the incident. She narrated the incident similar to PW-
17. She deposed that PW1 dialed 100 number from her phone but
the call responded as ‘waiting’. After Keenan and Ruben were taken
to the hospital, PW1 called Keenan’s father and informed about the
incident, after which Keenan’s father came to the spot of incident and
PW-1 informed him to come to Kokilaben Hospital. After which, PW-
1, PW-18 along with Priyanka went to Kokilaben Hospital. After
sometime they were informed that Keenan had passed away due to
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severe injuries. She deposed that Benjamin had initially taken Ruben
to Cooper Hospital, but as his condition was deteriorating, he was
brought to Kokilaben Hospital and after few days Ruben too passed
away. She identified all the accused and the weapons. She deposed
that on 16.10.2011 she identified the accused persons in T.I. Parade
held at Arthur Road jail in presence of the Magistrate and two panch
witnesses.
56. During cross-examination on behalf of accused No.1 she
deposed that, she came to know about the friends through PW1 and
started accompanying them 3-4 months prior to date of incident and
that Amboli Bar and Kitchen Restaurant was their favourite place.
She deposed that PW-1 and herself were working at the same place,
but all stayed separately. PW-18 would stay as a paying guest. She
deposed that on the afternoon of the date of the incident PW-1 had
informed her about going to said restaurant. She further deposed
that she always carried her mobile phone and that she did not call
anyone after the said incident neither did she receive call from
anyone after the incident. She deposed that she was at Kokilaben
Hospital till 3:30 am and till then no police personnel had visited the
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hospital. She had attended the funeral of both Keenan and Ruben.
She deposed that on the advice of her boss she went to the D. N.
Nagar Police Station on 21st October, 2011 i.e. the next day of the
incident and that she was not aware that complaint was already
lodged. She did not go to her office on 21st October, 2011 and did
not contact any of the friends from the incident as all were under
shock due to the incident. She deposed that everyone except PW1
attended the funeral of Keenan. She only met PW-1 directly on
16.11.2011 as till then PW-1 had not attended the office as well since
the incident. At the police station, PW-23-Mr. Indalkar the police
Inspector had not informed her that the FIR in said case was already
lodged. He recorded her statement. She deposed that she does not
remember whether PW-17 informed her about lodging of the
complaint at the police station. She agreed that her attention was
drawn to the noise of ‘shook shook’ and ignored the same. When PW-
1, PW-18 and Priyanka were walking towards Benjamin, Avinash and
the deceased, the accused persons were at 10-15 feet away and the
friends were 20-25 feet away and eventhough the accused persons
used derogatory words they did not shout and ignored them. She
further reiterated the sexual harassment incident with PW-1, and still
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they did not scream for any help, and went to the friends and
informed about the incident. She deposed that during the altercation
and assault though the crowd had gathered at the place neither any
person from the crowd chased the four accused persons nor any
person helped the injured during and after the assault. She deposed
that for the T.I. parade nobody was present from the D. N. Nagar
Police Station at the jail.
57. In the cross-examination on behalf of accused No.3, she
deposed that she does not remember whether she had noticed any
injury marks on Avinash. She deposed that except knives all other
articles were at the spot of incident till the time she left and that she
had not described the knife while giving her statement. She deposed
that Avinash, Benjamin and both deceased were not under the
influence of liquor on the day of the incident.
58. During the cross-examination on behalf of accused No.2, she
deposed that she was not aware whether PW-17 was in close
association with the officers of the D N Nagar Police Station and that
he was not running cricket betting racket and scuffle had not taken
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place due to cricket betting. She deposed that after the deceased
(then injured) were taken inside the hotel after the assault and there
was blood on the floor of the hotel due to blood oozing out of their
bodies.
59. PW-19, Dr. Sunil Mukund Pai, was attached to critical care unit
of the Kokilaben Hospital in the month of October, 2011. He deposed
that Ruben was admitted on 21st October, 2011 around 1:45 am in
critical condition in ICU, on ventilator and kept under observation.
He deposed that he had issued the certificate accordingly. He further
th
deposed that Ruben died on 30 October, 2011 and during the
entire period until death his health remained critical and could not
th
speak. He deposed that certificates dated 21st October, 2011-25
th st
October, 2011 and 27 October, 2011- 31 October, 2011 issued by
him and his co-doctors viz . Dr. Smita Digrajkar and Dr. Madhav, were
issued only after the examination of the patient. The same are at
Exhibit Nos. 89,90,91, 92 (Colly), 93 (Colly) and 94. Certificates
issued by his co-doctors were issued in his presence. During cross-
examination he deposed that the history of assault was given to him
and that the police had never recorded his statement but were in
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touch with him from 21.11.2011 to 31.10.2011.
60. PW-20, Dr. Ruchi Nitish Khambadia, working as Junior
Consultant in ICU at the Kokilaben Hospital deposed that Ruben
Fernandes was admitted and was under critical condition. She had
issued the certificate dated 26.10.2011 which is at Exhibit -96.
During cross-examination she deposed that police had not recorded
her statement.
61. PW-21, S. Kumar Chaurasia was working at a paan stall near
the Amboli Bar and Kitchen Restaurant. He is an eyewitness to the
said incident. He deposed that he worked from 11.00 am to 11:30
pm on the said stall and was the only person working at the stall. He
deposed that said paan stall is closed since the incident. He deposed
that on 20th October, 2011 around 10:30pm he was at the stall, and
he knows Bali (PW-17) as he would visit frequently at his stall, and
that 4 persons had taken paan and cigarettes from his stall. The
order was placed by the person wearing white pathani and they were
smoking standing on the footpath. He deposed that after that PW-17
along with his 3 friends came from restaurant and ordered paan and
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were waiting at the footpath.
62. He further deposed that then he saw three girls coming there
and were scared while telling something to PW-17, and felt that the
boys smoking on footpath must have misbehaved with the girls. He
was specifically asked as to why did he feel that boys must have
misbehaved with the girls, to which he answered that the girls were
frightened and were pointing at the boys while talking. He deposed
that after that an altercation took place between the boys and person
wearing white pathani said that the boys were trying to be hero in
front of the girls and then PW-17 slapped him. He further deposed
that the person wearing white t-shirt and 3/4th pant said to them
“ agar dam hain to ruko, ham aake janse mar denge ”. After 10-15
minutes those 4 persons came back, and person wearing white
pathani had knife and stabbed one of the friends of PW-17 in the
stomach and his intestine came out, person wearing white t-shirt and
3/4th pant who was also carrying knife stabbed other friend of PW-
17 on his waist and other two persons carrying stump and bamboo in
their hands assaulted all four boys. Three girls were frightened and
standing at the staircase of the restaurant were shouting for help but
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nobody helped them. He deposed that PW-17 threw two glasses and
they hit persons wearing white pathani, and white t-shirt and 3/4th
pant, and later threw ladder towards them. People had gathered at
the spot and those 4 persons ran away from there. He further
deposed that PW-17 then took the injured friends inside the hotel
with the help of waiter, and he being frightened closed the stall, went
to house and came back the next day. His statement was recorded on
21st October, 2011. He deposed that he had identified all the
accused persons during the Test Identification Parade at Arthur Road
Jail on 16.11.2011. He identified all the accused persons in Court
and all the weapons shown to him.
63. During cross-examination on behalf of the accused No.2, he
stated that there was no crowd at the spot and barely 1-2 persons
were there. He deposed that that he did not give paan to those 4
accused persons due to the incident and the said incident had
happened within 10-15 minutes of giving them cigarettes. He also
deposed that he had not given paan to PW-17 and his friends. He
deposed that distance between the paan stall and footpath is 6-7 feet
and PW-17 and his friends were standing on the footpath. He
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described the clothes worn by PW-17 and his friends except for the
th
4 person. He volunteered that those persons misbehaved with the
girls after placing order for paan. He further disposed that PW-17
had slapped one of the persons before the incident.
64. He deposed that the staircase and the gatekeeper of the hotel
cannot be seen from the paan stall. He added that after coming
down the staircase until a person takes a turn towards his shop, that
person cannot be seen. He went to D. N. Nagar Police Station on
21st October, 2011 at 12:30pm until then he had not informed
anyone about the incident. He deposed that he had received a letter
regarding TI Parade but he did not go to the police station regarding
the same, whereas he went to Arthur Road jail for the test
identification parade. He deposed that during the TI Parade the
persons were standing in circular position beside each other in a
group of seven persons standing in single line. He deposed that he
had not helped the injured persons and that injured persons were
taken in one auto. The ladder thrown by PW-17 was lying opposite
the paan stall and after throwing the same the incident was over.
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65. During cross-examination on behalf of the accused No.4, he
deposed about the test identification parade and assault by accused
No.4 by bamboo.
66. During cross-examination on behalf of the accused No.3, he
deposed that his paan shop is on footpath and does not have any
license for the same. He went to police station on his own around
12:30pm on 21st October, 2011 after opening of his paan shop. He
deposed that on the day of incident he had closed his shop on the
day of incident around 10:45pm. He deposed that he had not
disclosed about the incident to anyone until the next morning when
he informed his brothers. After opening of the shop on the next day,
he did not inquire with the hotel owner and waiters of the hotel. He
deposed that there was blood on the staircase of the hotel and there
were glass pieces lying on the spot. He also deposed that there were
no blood stains on his clothes.
67. PW-22, Shivaji Vishnu Ghadge, was the Investigating Officer.
He deposed that around 11:45 pm on 20th October, 2011 he
received call from the supervisor named Mr. Gupta from the
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Kokilaben Hospital informing him that an injured unknown person
stabbed by an unknown person in the stomach by knife at the Amboli
Bar and Kitchen Restaurant has been admitted in the hospital by the
waiter of the said restaurant and he took an entry of the same in the
station diary. The said extract of the station diary is at Exhibit-99.
Thereafter, he informed the same to PW-23 and went to the hospital
for verification of the information. The doctor at the hospital
informed him that the person admitted was in ICU and not in a
condition to speak and mentioned the spot. The IO proceeded to the
spot of incident and asked the beat marshall to safeguard the spot.
On returning back to the police station, he was informed by PW-23-PI
Indalkar to register the complaint in the said crime as the
complainant had come to the police station. Accordingly, complaint
was registered and the same was produced at Exhibit-83, and was
noted in the station diary which is at Exhibit-100. The crime came to
be registered bearing FIR No.410 of 2011 and Accidental Death
Report (ADR) No.78 of 2011 was registered. He then went to the
hospital and dead body kept in the adjacent room to the ICU was
recognised by the Complainant as of Keenan Santos and then Inquest
panchnama was conducted of the said dead body in presence of the 2
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panch witnesses and the same is at Exhibit 48. He deposed that he
further instructed the police constable 1291 to take the body to
Cooper Hospital for post mortem. The clothes of the deceased were
handed over by the sister of the hospital viz . chocolate colour
underpant with blood, black colour t-shirt smeared with blood, blue
colour jeans smeared with blood and off-white handkerchief smeared
with blood. The same were seized, labelled and signed by him in
presence of the 2 panchas, and the seizure panchnama of clothes was
prepared which is at Exhibit- 59.
68. He deposed that thereafter he went to the spot and conducted
spot panchnama. The spot panchnama is at Exhibit-46. He took
blood samples from the spot and also of blood mixed with mud. He
seized stump of about 2.5 ft, one broken stump, one bamboo of 3.2ft,
broken glasses and pair of slippers stained with blood and the stumps
were labelled as Article 3, 4 and 7, and slippers as Article 8. He
deposed that API More and PSI Tad had brought accused persons at
the police station. He had arrested them, searched and seized their
clothes. He recognised 3 of them present in the Court.
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69. He deposed that at the accused No.1 was wearing full sleeves
white color pathaani kurta and there were blood stains at the back of
the collar and on payjama, one sando baniyan and maroon colour
underwear. The clothes were marked as Article 12 (colly). Accused
No.2 wore half-sleeves white colored t-shirt and white colour 3/4th
pant, both smeared with blood stains. They were marked as Article-
14 (colly). Accused No.3 was wearing black colour round neck t-
shirt and light blue colour jeans pant, and the same were marked as
Article-13 (colly). These clothes were seized in the presence of two
panchas. Arrest panchnama was prepared and same is at Exhibit-68.
st
Accused No.4 was arrested on 21 October, 2011. He deposed that,
on 22.10.2011 he handed over the investigation to PI Indalkar.
70. During the cross-examination on behalf of accused No.3, he
deposed that he went to the Kokilaben Hospital on 20th October,
2011 and PSI Tad was relieving officer and that the PW- 22 worked
as PSO after coming to the police station. He deposed that the PSI
Tad had not accompanied him at the Kokilaben Hospital, it was
Police Constable 1291. The paan shop was closed and wireless
mobile van present at the spot. He had directed Police Constable
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22902 to safeguard the spot and PW- 22 had conducted the spot
panchnama. He deposed that he had not recorded the statement of
the police constable 22902 and had not met him. At the spot, Mr.
Hankare with Dantos was safeguarding the spot but had not
recorded statement of Dantos in this crime. He deposed that there
was no one at the spot and there were no chaos or riots at the spot.
FIR No. 411 of 2011 was registered for riots. He deposed that
during his investigation he neither inquired about the hotel nor
investigated the hotel from inside. He did not inquire with people
leaving in zopadpatti near Mayflower building and added that there
was no zopadpatti near the building. He further deposed that he had
arrested 15-16 persons in FIR No.411/2011.
71. No station diary entry is required to be made to use the seal
and that with the consent of night PI Indalkar he had taken the seal
while leaving the police station. Private photographer-Shekhar was
called by him at the spot and with the directions of PW-22 he had
taken photographs at the spot and he saw the photos after 2-3 days
and gave it PI Indalkar. He had not verified the phone numbers and
addresses of the friends of the complainant and had not entered
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them in the station diary. He deposed that he had not filed fake case
against the accused to save the management of the Amboli Bar and
Kitchen Restaurant. He further deposed that he had registered CR
No. 411 of 2011 on 21st October, 2011 which is at Exhibit-112 and
had conducted spot panchnama which is at Exhibit-113. He further
deposed that he had recorded statement of 6 witnesses who were
eyewitnesses to the incident and filed final report which is at Exhibit-
114. He deposed that he had met PW-23 at the Kokilaben hospital.
He had met PW-17 at the hospital and PW-17 had narrated the
incident to him.
72. He deposed that he had taken into custody 21-22 persons
around 00:45 hours and does not remember whether 17 out of them
were shown as accused in CR No.411 of 2011. He deposed that he
was not SHO when he returned from the Kokilaben hospital and that
he had not sent complainant and his companion for alcohol test and
does not remember sending the accused persons for the alcohol test.
He deposed that the Complainant had not taken any medical
treatment till he came to the police station for the injuries sustained
by him. He does not remember whether the complainant’s clothes
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were seized in his presence and whether there were blood stains on
the clothes of the Complainant. Medical papers are produced at
Exhibit-116(Colly).
73. During the cross-examination on behalf of accused No.3, he
deposed that he had not seized the knives from the spot and had
seen them first in the Court, and he had not interrogated the accused
from whom the knives were seized as alleged by the prosecution and
that none of the accused had produced knives in his presence and if
anything mentioned about the same in panchnama is incorrect. He
deposed that accused No.1 had not given any statement on
22.10.2011 in his or panch witnesses’ presence, and that accused
No.1 had not produced clothes in his presence. He further deposed
that neither had accused No.4 given his Memorandum statement in
his or panch witnesses’ presence, and that accused No.4 had not
produced clothes in his presence. He deposed that if anything
mentioned in case of either of the 2 aforesaid accused in panchnama
is incorrect.
74. When Exhibit Nos. 65 and 66, 55 and 56, 53 and 54 were
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shown to him he deposed that he did not know whether his name
was wrongly mentioned as no instructions were given by him to
mention his name. He deposed that he had not met Benjamin
Fernandes and no clothes were produced by Benjamin in his presence
at the police station, and mention of it in panchnama is incorrect;
and that clothes of the deceased were not seized in his presence. He
added that as he was present in the police station, hence his name
had been mentioned. While deposing about the EPR, he had
mentioned that in the EPR received by him there was one assailant in
which information was given by supervisor Gupta from Kokilaben
hospital. Another EPR written by Mr. Jawale from Cooper Hospital
wherein the information was of injured Ruben Fernandes and there
were 3-4 assailants. He after receiving EPR inquired about the
incident at the Kokilaben Hospital and it was then cognizable offence
was disclosed. He deposed that he could have lodged complaint on
behalf of the State but had not done the same as he had not felt it
necessary. He visited the spot at 12:15 am, upon inquiry with the
passerby cognizable offence was disclosed. He deposed that he had
recorded the complaint and taken 17 people in custody. Photocopy of
the station diary entry in this regard is produced at Exhibit-101.
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75. He deposed that he went to Kokilaben Hospital at 12 midnight
and reached the spot of incident around 12:30 am from the hospital,
and went back to hospital. There he had met the Complainant and
upon inquiring the Complainant (PW-17) agreed to give information,
but his statement was not recorded in writing at the hospital and was
told to come to the police station for the same. He deposed that he
does not remember about the investigation of Crime No.411 of 2011
and has also stated that he filed the chargesheet in Crime No.411 of
2011. After Keenan Santos was declared dead, he returned to police
station along with PW-17. He deposed that he did not inquire with
PW-17 as PW-23 had inquired with him beforehand and not in
presence of PW-22. Accused No.4 adopted cross-examination of
accused No.3.
76. During cross-examination on behalf of the accused No.1, he
deposed that he reached hospital around 12 midnight and there was
one injured person by the name Keenan Santos brought there by
Mohsin, waiter. He had spoken with the doctor treating Keenan and
further deposed that there were no relatives of Keenan at the
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hospital. Entry in EPR register is at Exhibit 70. The information
received through EPR by him was verified from the sister of the
hospital. He deposed that when he went to spot of the incident, no
police officer was present, only beat marshal was present and that he
neither met Mohsin nor inquired about him at the spot. No eye
witness, no public was present on the spot. Even the beat marshal
had not given any information about the incident on the spot. He
deposed that from the spot of the incident he went to Kokilaben
hospital and then he had not received information about the other
injured, and further deposed that he had not met the Complainant
and friends of Keenan even on his second visit to the hospital. On his
third visit to the hospital, he met Keenan’s father and other relatives.
He deposed the girls were present in the hospital after recording of
the FIR, and that he had inquired about the girls and other people
who were named in the FIR.
77. He deposed that when he went back to the police station, PI
Indalkar (PW-23) was inquiring PW-17 and PI Indalkar (PW-23)
instructed PW-22 to record the statement of PW-17 and it was then
when PW-22 got to know about the second injured person. He
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deposed that he had not made any arrangement to send the police on
the spot of the incident. Photographer was present at the spot. He
further deposed that he returned to the police station along with the
Complainant around 10:00 pm. He deposed that the complainant
went for medical check up alone and had submitted the medical
certificate with the police. He deposed that he had not contacted any
nd rd
girl named in FIR, and had investigated on this FIR on 22 and 23
and later on had handed over the investigation to PW-23.
78. PW-23, Bhimrao Shivram Indalkar, was Police Inspector (PI)
attached to DN Nagar Police Station from 2009- May, 2012. He
deposed that on the day of the incident he was on night duty and PSI
Ghadge was the SHO and PSI Tad was the Relief Officer. Around
11:30pm PSI Ghadge informed PW-23 that Keenan was assaulted in
front of the Amboli Kitchen Bar and Restaurant, and that Keenan has
sustained stab wounds in stomach and he has been admitted in
Kokilaben Hospital, and then PSI Ghadge went to Kokilaben hospital
with staff. After informing the senior officers and Control Room, he
also went to the Kokilaben Hospital. At the hospital, Keenan was
admitted in ICU and he was informed by the doctor that Kennan is
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not in a condition to speak and can’t be inquired, after that PW-23
went to the spot of the incident. He safeguarded the spot and after
verification of the slot, went back tot he hospital and met PW-17
there, who gave brief information about the incident and he told PW-
17 to come to the police station and lodge complaint with SHO. He
deposed that he informed API Devrukhkar and PI Atyale of Main
Control Room. He deposed that investigation was handed over to
him on 22.10.2011 by the senior officer. PW-17 voluntarily came to
the police station to give details of the incident which he had not
given at the time of lodging of the FIR and the same were recorded
as supplementary statement. He deposed that he seized the clothes
of Ruben Fernandes which were produced by his brother Benjamin in
presence of the panchas. The clothes included grey color t-shirt
stained with blood, green color underwear, handkerchief stained
with blood and panchnama to that effect was drawn and the same is
produced at Exhibit-67 and the clothes are at Article 10 (colly). He
deposed that four accused were already arrested before investigation
was handed over to him. He identified the accused in the Court.
Memorandum statement of the accused No.4 was recorded in
presence of the two panchas and is produced at Exhibit-61. He
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deposed that after that the accused No.4 took them to Caesar Road,
Walmiki Nagar at hutment where his father was present. Accused
No.4 produced clothes and they were concealed at the back side of
the fridge and had blood stains on them. Said clothes were seized in
presence of the 2 panchas and panchanama was prepared which is at
Exhibit-66. Black color jersey, black color pant having white stripes
are marked as Article 11(colly).
79. He deposed that on 25.10.2011, he recorded the statement of
accused No.1 in presence of 2 panchas and the memorandum
statement is produced at Exhibit-56. He further deposed that accused
No.1 took them to electric box near Gulmohar building and he
produced knife which was kept under the gap of wire. Knife (Article
2) had blood stains on it and memorandum panchanama was
prepared which is at Exhibit-56-A. SHO Ghadge and Tad were
present and panchnama was recorded by SHO Ghadge in his own
handwriting.
80. He deposed that accused No.2 memorandum statement was
recorded in presence of the 2 panchas and the same is at Exhibit-53.
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He further deposed that accused No.2 took them to the hutment area
at Caesar Road, Walmiki Nagar and from the roof of one of the two
rooms adjacent to each other, the accused No.2 produced knife which
was stained in blood. Memorandum panchnama was prepared and is
at Exhibit-54. Knife recovered is at Article-2. The viscera, blood
sample and nail clipping of Keenan were sent to FSL and CA reports
received are marked as Exhibit-119(colly). Clothes of deceased and
accused were sent to FSL on 01.11.2011 and CA reports received are
marked as Exhibit-121(colly). Blood samples of Ruben were sent to
Kalina and CA report received is marked as Exhibit-122. Viscera of
Ruben were sent to Kalina and CA report received is marked as
Exhibit-124.
81. During cross-examination on behalf of accused No.1, he
deposed that except the girls, none of the relatives or friends of the
injured were present at the hospital. He deposed that he has not
made any entry regarding the presence of the girls at the hospital. He
also deposed that that he did not know that CR No.411 of 2011 was
registered. He deposed that he had told PW-17 to call girls and he
himself had not contacted the girls. On 22.10.2011 none of the 3
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girls came to the police station and he voluntarily added that one girl
came to the police station on 22.10.2011. He deposed that
investigation was with him till 05.11.2011 and till then he tried to
contact PW-1 and Priyanka but he was informed that PW1 was
unwell and Priyanka was not at her home. He deposed that after
producing PW-18’s statement to the senior officer, he was not
informed to add Section 354 of IPC. He deposed that he sent the
remand on 03.11.2011 and 04.11.2011 and he did not feel it
necessary to register offences u/s 506(II) and 509 of IPC. He deposed
that after recording statement of PW-18, he did not feel it necessary
to record further statement of PW-17. He deposed that statement
given by PW-18 about Sections 506 and 354 of IPC were not
mentioned as PW-17 had requested him orally, to do so. He deposed
that he had not inquired about liquor consumption by the deceased,
injured and other eye-witnesses and also had not collected blood
samples of the injured and the witnesses including PW-17-the
Complainant for contents of alcohol in their blood. He deposed that
he did not enter compound of Gulmohar building, which is at Ceasar
road 30-30 feet away from the spot of the incident. there was no lock
on the meter box and there were no blood stains on the place but
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were on the weapon.
82. During the cross-examination on behalf of accused No.2,
nothing substantial was brought out. During cross-examination on
behalf of accused No.3, he deposed that station diary entries for
offences u/s 506(II) and 509 of the IPC were registered on 7th
November, 2011. He had recorded supplementary statement of PW-
17. Accused No.4 adopted cross-examination of accused No.3.
83. PW-24, Lingappa Rama Attayar, was the PI of the date of the
incident and incharge of control room, PSI Devrukhkar and PN
Bandarkar were with him. He deposed that on 21st October, 2011
around 2 am he was informed by PW-23 from D.N Nagar Police
Station that on 20th October, 2011 three boys and two girls in front
of Amboli Kitchen Bar and Restaurant around 11:00 pm quarrel had
taken place between one boy and three boys of the group and that
person had uttered bad words with the girls. He further deposed
that he was informed that boy thereafter went and came back with
knives and chopper, two were injured and one of them named
Keenan Santos was taken to Kokilaben Hospital and later on during
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the treatment was declared dead and the other injured was admitted
in Cooper hospital and accordingly the entry was made of the
incident by PW-24. The station diary entry is at Exhibit-134.
84. During cross-examination on behalf of accused No.3, he
deposed that on 21st October, 2011 PW-23 had informed PSI
Devrukhkar who informed PW- 24, and that Mr. Devrukhkar had
informed that four boys had assaulted the other boys. The number
of boys was not mentioned in the station diary. Accused Nos.1, 2 and
4 adopted the cross-examination of accused No.3.
85. PW-25, Mr. Dyanesh Devde, Investigating Officer, was attached
to D.N.Nagar Police Station from July, 2011 to March, 2014. On
04.11.2011 charge of investigation was handed over to PW-25 from
PW-23. He deposed that on 05.11.2011, on perusal of case papers he
found that statements of PW-1 and Priyanka were not recorded and
PW-1’s mother had informed the constable that PW-1 is unwell and
will be unable to attend the police station; and Priyanka had stated
that she shall attend the police station on the next date. Both their
statements were recorded on 7th November, 2011. He deposed that
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ADR of Keenan and Santos were filled up by PSI Ghadge and are
marked at Exhibits 138 and 139 respectively.
86. During cross-examination on behalf of accused No.2, he
deposed that he had recorded statements of 2 girls on 7th November,
2011. During cross-examination on behalf of accused No.1, he
deposed that remand which is marked at Exhibit 142 was filed by
him without perusing the papers and that remand application was
not prepared by him. He further deposed that he did not feel it
necessary to record further statement of PW-17 after registering of
offences u/s 354 and 506 of IPC. He deposed that he had neither
issued summons to hotel owner nor recorded his statement. He
deposed that he did not feel it necessary to collect bills of witnesses
of hotel. During the cross-examination on behalf of accused No.3,
nothing substantial was brought out. Accused No.4 adopted cross-
examination of accused No.1 to 3.
87. PW-26, Dr. Prakash Umaji Pawar, Medical Officer, was attached
to Cooper Hospital from 2009 to 2015 as Casually Medical Officer.
He deposed that on 21st October, 2011 three perbuttocksons viz.
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Jitendra Rana (accused No.1), Satish Dulgaj (accused No.2) and
Sunil (accused No.3) were brought by D.N. Nagar Police Station to
the hospital. He deposed that he had examined Jitendra Rana and
there were 2 old injuries to scalp at left parital and they were CLW,
injuries were 12 hours old. Following injuries were found on accused
No.1:
(i)Measurement of 2 injuries were: 3x1x1 cm and 2x1x1cm
respectively;
(ii) Contusion below right eye;
(iii) Contusion to right chin 2x1 cm
All the above injuries were simple in nature and injury at skin
was infected. The medical certificate was issued by him and is
produced at Exhibit-158.
88. He deposed that the history of the injury by the accused was
mentioned in the medico-legal register, wherein it was mentioned by
the accused that assault was by glass and hand. He further deposed
that injury No.1 can be possible if hit by glass. The copy of the
certificate is at Exhibit-159. He deposed that he had examined
accused Nos.2 and 3 and no injuries were sustained by them, and
accordingly medical certificate was issued by him. As there were no
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injuries to them, he did not ask them about any history. The medical
certificates issued are at Exhibit-160 (Colly).
89. During cross-examination on behalf of accused No.1, he
deposed that he does not agree with the time mentioned as 4:05 pm
is Exhibit-158- Medical certificate issued to accused No.1 and agreed
that there is overwriting on time in Exhibit 159- copy of the medical
certificate issued to accused No.1. He deposed that medical
certificate was issued as per the entry in medico legal register.
Photocopy of the medico legal register is at Exhibit-161. He deposed
that his statement was not recorded by the police. He further
disclosed that injury below the eye was possible by glass, but the
glass pieces were not found during the examination of the injury. He
deposed that age of injury is determined on the basis of surrounding
tissues and in the present case injuries were 6-12 hours old, but he
also deposed that he had not mentioned the stages of infection.
Accused Nos. 2, 3 and 4 adopted cross-examination of accused No.1.
90. PW-27, Dr. Prajesh Bhuta, was attached to Kokilaben hospital
as a consultant and general surgeon. He deposed that Ruben
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Fernandes was admitted to Kokilaben hospital around 1:45am on
21st October, 2011. He deposed that when Ruben was admitted to
the hospital there was a big open wound on his abdomen. He further
deposed that it was an external injury and lacerated wound in left
iliac foss measuring 5x3 cm with evisceration of bowel and the said
injury was possible with knife. Ruben was not in a position to speak
and was directly taken by him to operation theatre. During the
operation following internal injuries were found:
(i) perforation though mesentrery
(ii) small bowel perforation 2 x 1 cms in the ileum
(iii) Rent (hole) in external iliac artery (left) 1x1 cm +
branches
(iv) complete transaction of the bifurcation of the left iliac
veins including small veins.
(v) multiple lacerations to pelvic plexis of veins.
91. He deposed that the aforesaid injuries were corresponding to
external injuries and injuries (iii), (iv) and (v) are fatal injuries
sufficient to cause death. Ruben since admitted in the hospital till
his death was in ICU and died on 31.10.2011 at 5:52pm and
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certificate in that regards was issued by him on 16.11.2011 which is
Exhibit-164. He deposed that Ruben was brought to Kokilaben
hospital from Cooper hospital and further deposed that considering
the nature of injuries he was not treated there as the injuries were
open and bowels were outside.
92. During cross-examination on behalf of accused No.1, he
deposed that neither his statement was recorded by police nor had
he handed over any medical papers and injury certificate to police,
and that he had taken operation notes and day to day notes while
monitoring Ruben. He deposed that throughout his stay at the
hospital, Ruben was unstable, but he also deposed that he did not
have any documentary proof to show that he was unconscious and
unstable. He deposed that death was caused due to injury and post
operation complications and further that doctors do not disclose post
operation complications; only the injuries are mentioned in the
certificate. He deposed that after considering both external and
internal injuries, direction of injury was from top to bottom and that
injury was not caused by one single blow. He deposed that there was
only one external injury as lacerated injury thereby meaning that the
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cut was not very sharp. He deposed that Ruben would have survived
had there been no post operational complications but further
deposed that he did not pass away due to post operational
complications and therefore had not produced any documents.
During cross-examination on behalf of accused No.2, he deposed that
patient would not have survived even if proper treatment was given
and that Ruben had not died due to negligence on part of the
hospital. Accused No.3 adopted cross-examination of accused
No.1. Accused No.4 declined cross-examination.
93. PW-28, Dr. Sameer Rathi, was attached to Kokilaben Hospital
as Consultant Emergency Medicine. He deposed that on 20th
October, 2011 around 11:10 pm Keenan Santos was admitted in
hospital and was unconscious and unresponsive, and he admitted
Keenan in Emergency Department and upon examination following
injuries were observed:
(i) Stabbed wound over right lower quadrant of abdomen
approximately 8cm x 4 cm with full thickness abdominal wall
with bowel protruding through wound.
(ii) Stabbed wound over left upper quadrant of abdomen
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approximately 4 cm x 2 cm with full thickness abdominal wall
with bowel protruding through wound.
(iii) incised wound over left arm approximately 4 cm x 2 cm ×
1.5 cm medial side of arm, muscle exposed.
(iv) incised wound over left arm approximately 3cm × 1.5 cm
× 1.5 cm medial side of previously mentioned wound muscle
exposed.
94. He further deposed that injuries were ante-mortem and as
patient was critical, life saving treatment was started by the hospital
and Keenan’s heart stopped within 10 minutes and died due to said
injuries. He deposed that as bowel was protruding out, it was
pushed in abdomen and wound was sutured to prevent blood loss
and CPR was given throughout till 12:30 am, and Keenan was
declared dead at 12:30 am and his body was handed over for post-
mortem. He issued injury certificate and the same is at Exhibit 166.
He deposed that injury nos. (i) and (ii) are on vital parts and
therefore, are sufficient to cause death and the injuries can be caused
due to sharp objects.
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95. During cross-examination on behalf of accused No.1, he
deposed that there is no date on Exhibit 166 and that he does not
remember the date he issued the injury certificate but was issued
after 26.11.2011. He further deposed that police had not recorded
his statement. He deposed that injury nos. (i) and (ii) were sharp on
both edges and thus were caused by weapon with sharp edges on
both sides. He deposed that dimensions of all 4 injuries are different
but cannot comment whether the injuries were caused with different
weapons. Accused Nos.2 and 4 adopted cross-examination of
accused No.1. Accused No.3 declined cross-examination.
96. PW-29, Shrikant Hanamant Lade, Assistant Director at Forensic
Lab in Kalina. He deposed that on 01.11.2011, he had received 26
parcels and 2 plastic containers out of which 13 articles/exhibits
were sent for DNA analysis. After detection of blood stains and
extraction of DNA from detected blood, following interpretation was
drawn by PW-29:
(i) DNA profile of blood detected on exhibit 12- jeans full pant
of Ruben, exhibit 18- full bush shirt of Mohsin and DNA profile
obtained from blood detected on exhibit 19- knife are identical,
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and from one and same source of male origin. DNA profiles
matched with maternal and paternal alleles in source or blood.
(ii) Controll DNA profile obtained from blood detected on
exhibit 1- jeans full pant of deceased Kenan.
(iii) Controll DNA profile obtained from blood detected on
exhibit 16- track full pant of accused Deepak.
(iv) Controll DNA profile obtained from blood detected on
exhibit 28 - jeans full pant of Sunil Both.
97. Report was prepared by PW-29 and sent to D.N. Nagar Police
Station. The report is at Exhibit-168. During cross-examination on
behalf of accused No.3, he deposed that report at Exhibit-168 is not
electronic record, and further voluntarily added that it is Electro
Phelogram. He deposed that report at Exhibit-168 was not
generated using the software. He volunteered that the all findings of
electro phelogram are mentioned in the report and the lab has a
procedure to generate report by comparative study. He further
deposed that the said report was not submitted to the police as they
had not asked for the same. He deposed that he had not issued
certificate u/s 65(B) under the Evidence Act regarding generating
electronic report using the software. Accused Nos.2 and 4 adopted
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cross-examination of accused No.3.
98. The statements of the accused under Section 313 of the Cr.P.C
were recorded. The arguments of the Counsel appearing for the
respondents were heard at length. The Trial Court, thereafter, vide
the impugned Judgment and Order dated 05.05.2016 convicted the
Appellants.
C. DISCUSSION ON THE TRIAL COURT’S JUDGMENT
99. The Trial Court held that the prosecution proved the
death of Keenan and Ruben as homicidal death.
100. The Trial Court held that the prosecution proved that on
20th October, 2011, at about 22:30 hours, the accused Nos. 1 to 4,
in furtherance of their common intention, had outraged the modesty
of victim-PW-1 and therefore, committed an offence under Section
354 of IPC. It was further held that the accused Nos. 1 to 4, in
furtherance of the common intention, had expressed gesture and
uttered demeaning words to PW-1 and committed an offence under
Section 509 of IPC. The accused Nos. 1 to 4 committed an offence
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under Section 504, the accused Nos. 1, 2, 3, and 4 threatened the
victim Keenan and Ruben to cause injuries to their person and life,
intending to prevent them from opposing the accused and the other
co-accused from assault, injuries, threats, and commission of the
offence and thereby, the accused Nos. 1 to 4 committed an offence
punishable under Section 506 read with Section 34 of the IPC.
101. It was held that the accused Nos. 1 to 4 had committed
an offence under Section 120(B)(i) of the IPC. So also, the accused
Nos. 1 to 4 had committed the murder of deceased Ruben and
Keenan and committed an offense under Section 302 r/w Section 34,
120(B) of the IPC. The accused Nos. 1 to 4 caused voluntary hurt to
PW-17 by means of knives, cricket stump, and bamboos and
therefore committed an offence under Section 324 r/w Section 34,
120(B) of the IPC. The offence under Section 37(1) r/w Section
135(1) of the Bombay Police Act was committed, inasmuch as there
was a common intention to commit breach of the order of the
Commissioner of Police for preventing public peace and public safety
by carrying weapons, such as knives and cricket stump. The Trial
Court for the reasons mentioned in greater details in the impugned
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Judgment and Order, passed the impugned Judgment and Order.
D. SUBMISSIONS OF THE LEARNED SENIOR ADVOCATE, MR.
PASBOLA, APPEARING FOR THE ACCUSED NO. 1 IN CR. APPEAL
NO. 439 OF 2016
102. The learned Senior Advocate attacked the Judgment of
the Trial Court. He submitted that the prosecution has deliberately
suppressed the evidence from the Court and concocted a false
narrative. The waiter Kanti Patel, who helped in removing the
injured, was not examined. Similarly, Mohsin, who was an employee
of the restaurant, was not examined. The real brother of the
deceased Ruben, who carried Ruben to Cooper Hospital and
thereafter took him to Kokilaben Hospital, Benjamin Fernandes, was
not examined. The said person Benjamin had given a history of
alleged assault by 15 persons with knife at Amboli Kitchen Bar &
Restaurant. The version of Benjamin given to the doctor and EPR
constable discredits the prosecution case, and therefore he was not
examined.
103. He submitted that the EPR constable at Cooper Hospital
had made the EPR entry (Exhibit 70) with regard to the injured
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Ruben Fernandes. The said Exhibit 70 discloses assault by some
known persons. The EPR is recorded as per the information given
by Benjamin Fernandes. The constable who recorded the said EPR
was, therefore a material witness, but he was not examined. This was
only to avoid discrediting the prosecution's case. Priyanka, who was
with the victim and an eyewitness to the alleged molestation of PW-
1, was also not examined. The father of Keenan Santos, who was
informed about the incident and who arrived at the spot, and
thereafter, visited Kokilaben Hospital, was also not examined. The
F.I.R of PW-17 at Exhibit 83 is totally silent regarding the
molestation. The story of molestation is subsequently introduced
sometime on 07/11/2011 or thereafter.
104. The F.I.R (Exhibit 83) and the station diary entry in
respect of registration of the F.I.R below Exhibit 100 does not speak
about molestation or an indecent remark made by the said four
persons who were standing near the paan shop. The F.I.R (Exhibit
83) explicitly states that there was an accidental push by one of the
four persons, which led to the verbal altercation.
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105. Though the statement of PW-18, Shobita Singh, is alleged
to have been recorded on 21st October, 2011, the offences u/s 504,
506(II), 509, 354 of the Indian Penal Code (IPC) were added to the
F.I.R (Exhibit 83), which was registered u/s 302, 307, 324 read with
Section 34 of the Indian Penal Code (IPC) and Section 137-A and
135 of the Bombay Police Act, much later. He submitted that PW-2
and PW-21, though are not shown to be connected with the
complainant and victim, their evidence needs to be accepted with
great care and caution. They are subsequently introduced to bolster
the prosecution's case. The presence of PW-2 at the spot is doubtful,
and the conduct of PW-21 is unnatural. The F.I.R is totally silent
regarding molestation, and the story of molestation is introduced
subsequently after public and media pressure so that the case does
not come within the ambit of grave and sudden provocation.
106. The statements of PW-18 and PW-1 were recorded at an
earlier point in time, yet the charges u/s 354 of the Indian Penal
th th
Code (IPC) were added only after 5 November, 2011 or 7
November, 2011 or thereafter. The investigating officer did not add
an offence u/s 354 of the IPC.
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107. The remand reports below Exhibit 127 and 142 show that
the charge u/s 354, 504, 506(II) of the Indian Penal Code (IPC) had
th
not been invoked till 4 November, 2011. The station diary, Exhibit
128, by PI Dewde, shows that the charge u/s 509, 506(II) was added
on 0 7th November, 2011. The incident is alleged to be of 00.45
hours in that connection. C.R No.411 of 2011 has been registered
u/s 143, 144, 147, 149, and 353 of the Indian Penal Code (IPC).
Subsequently, some of the persons were charge-sheeted. The said
F.I.R is also recorded by PW-22.
108. The F.I.R No. 411 of 2011 is suppressed. The blood
samples of the complainant, Benjamin, PW-1, Shobita, and Priyanka
have not been collected, nor were they tested for alcohol. The bill
allegedly paid by the complainant and witnesses have also not been
collected.
109. The complainant party was there in the Bar for around 3
hours. In all probability, they had consumed alcohol, and in this
drunken state, the incident had occurred. There was a gross delay in
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recording the F.I.R. There is an inordinate delay in recording the
statements. The statements of PW-1, and Priyanka were recorded on
7th November, 2011, and the statement of PW-18 Shobita Singh was
st
recorded on 21 October, 2011 is apparently pre dated.
110. The recovery of the knife (Article 2) appears to have been
recorded u/s 27 of the Evidence Act at the instance of accused No. 1.
The memorandum statement is at Exhibit 56, and the seizure
panchanama is at Exhibit 56-A. The panch witness is PW-7. The
recovery is allegedly made from an open place which is accessible to
all. The place of recovery is from a hole under the electric box. The
meter box is situated on a footpath and is situated at Gulmohar
building. The place of recovery is very close to the Amboli Kitchen
Bar & Restaurant, and it does not stand to any logic that the accused
would commit the murder, come back, and keep the knife near the
place of incident.
111. According to the C.A report, the blood on the knife seized
from accused No. 1 had blood group ‘O’. Blood group of Ruben is ‘O’,
whereas blood group of Keenan is ‘A’. As per the DNA report Exhibit-
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168, proved through the evidence of PW-29, the DNA of blood on the
said knife is of Ruben.
112. It is not the prosecution's case that the accused No. 1 had
assaulted Ruben. The assault on Ruben is attributed to accused No.
2. The blood allegedly found on the clothes of the accused is human
and inconclusive. The fact that the accused himself was injured in
the alleged incident and had sustained injuries on his head is proved
through the medical certificate and OPD papers at Exhibit 158 and
159, respectively. The same could have been his own blood on his
clothes.
113. The learned Counsel Mr. Pasbola also attacked the
forwarding letter dated 01.11.2011 at Exhibit 120. PW-17 has
improved the version in his deposition by stating that 4 unknown
persons who were smoking cigarettes went towards the girls with
them (PW-1, PW-18 and Priyanka). At that time, PW-1 screamed and
came towards Avinash PW-17 who was standing with Keenan, Ruben,
and Benjamin. The story of the alleged lewd words and molestation
was not disclosed by PW-17 Avinash in his F.I.R dated 21st October,
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2011, which is allegedly recorded at about 1:30 hours. The case of
the prosecution with regard to alleged misbehavior and molestation
is farce, preposterous and absurd. It is unbelievable that the deceased
Keenan, Ruben, Benjamin, or PW-17, who were standing near the
paan shop, would not have themselves noticed the alleged
molestation or heard the screams/shouts of PW-1. The evidence of
PW-17, apart from being replete with embellishment, is also highly
unreliable and unsafe to convict the accused.
114. The statement of PW-17 cannot be treated as an F.I.R
regarding a cognizable offence which was already relayed to the
police. The evidence of PW-23 PI Indalkar and PW-22 PSI Ghadge
shows that the information regarding commission of a cognizable
offence was already disclosed to the police. The investigation had
thus commenced, and therefore, the statement of PW-17, is a
statement recorded u/s 161 of Cr.P.C, and its use is limited as
prescribed u/s 162 of Cr.P.C and cannot be used for corroboration.
115. The statement of PW1, who was the alleged victim of
molestation, shows that the incident happened on 20th October,
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2011 and her statement was recorded on 7th November, 2011.
There is no plausible explanation for such delay. There are
improvements regarding identification of the accused. Evidence of
PW-1 is also too artificial, absurd, and unbelievable. The evidence of
PW-18 Shobita Singh, who is an alleged eyewitness, also does not
inspire confidence. Her statement was also recorded on 22.10.2011.
116. The statement of PW-2 Surendra Ray who was working
as a security guard at the Amboli Bar & Kitchen restaurant, also does
not inspire confidence. There is no record to show that, on the day
of the alleged incident, the said witness was on duty. The said
witness states that there was no exchange of words between four
unknown persons and four customers at the paan shop, and they
crossed those unknown persons while going to the paan shop.
117. The evidence of PW-21 Kumar Chaurasia, who claims to
be running a paan shop near the Amboli Bar & Kitchen Restaurant
does not inspire confidence. The statement does not corroborate the
statement of molestation, but has only deposed that he saw the girls
frightened, and therefore, felt that the accused person might have
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misbehaved with them.
118. The conduct of PW-21 of not waiting at the place of the
incident, not rendering any help or informing the police, and there
being no evidence to show that he was running the paan shop, as
deposed by him, creates serious doubt regarding the presence of PW-
21 at the spot and having witnessed the incident. His conduct is
unnatural. There was no reason for him to close the shop and run
away from the spot. The cross-examination of PW-21 would totally
discredit his evidence. He submitted that the entire case is a
concocted version of the incident. In the end, he submitted that in
case the Court comes to a conclusion that the offence has taken
place, the same is covered by exceptions 1 and 3 of Section 300 of
the Indian Penal Code (IPC). He lastly submitted that the occurrence
was sudden within the meaning of the exception to Section 300 of
the Indian Penal Code (IPC). There was no sufficient time for
passions to cool, and therefore the accused were entitled for acquittal
or, at least, convicted for a lesser offence u/s 304 of the Indian Penal
Code (IPC).
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119. He relied and took us through the text of the following
judgments:
1
1. Surinder Kumar Vs Union Territory of Chandigarh
2
2. Jagrup Singh Vs State of Haryana
3
3. Arvind Kumar Vs State of Uttar Pradesh
4
4. Sukhbir Singh Vs State of Haryana
5
5. Surain Singh Vs State of Punjab
6
6. Rambir Vs State of NCT, Delhi,
7
7. Rampal Singh Vs State of Uttar Pradesh
8
8. Tholan Vs State of Tamil Nadu
9
9. Anbazhagan Vs State of Tamil Nadu
E. SUBMISSIONS OF THE LEARNED COUNSEL DR. YUG MOHIT
CHAUDHARY ON BEHALF OF ACCUSED NO. 4 IN CR. APPEAL
NO.840 OF 2016:
120. The Learned Counsel Yug Mohit Chaudhary appearing for
the Appellant No. 4 made the following submissions:
He argued that the allegation of sexual assault and molestation
is an afterthought and is levelled belatedly. The complainant was the
1 (1989) 2 SCC 217
2 (1981) 3 SCC 616
3 (1987) (Supp) SCC 638
4 (2002) 3 SCC 327
5 (2017) 5 SCC 796
6 Cr. Appeal No. 839 of 2019
7 (2012) 8 SCC 289
8 (1984) 2 SCC 133
9 (2026) 2 SCC (Cri.) 717
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aggressor and had initiated the fight as he and his friends were
under the influence of alcohol. It was a case of free fight and that
the learned Judge has rightly recorded a finding that no injury had
been caused by accused No. 4, whom he is representing. The
accused No. 4 was holding a bamboo stick in his hand and that it was
not the reason for causing death of the deceased. The only injury
which is said to have been caused was the injury to the PW- 17 and
that too, a minor injury to his thumb in the nature of abrasion.
There was no common intention to kill because he was not holding
any deadly weapon in his hand and Section 34 would not apply in
this case. It was a case of free fight, and that each person was
responsible for their own conduct and that the vicarious liability
could not have been attached in this case upon the accused No.4.
121. It was submitted that the entire incident of molestation
was concocted. Although the incident took place on 20th October,
2011, yet on that day, the charges of molestation were not pressed.
Section 354 of IPC was not invoked immediately upon lodging of the
FIR. Section 509 was added for the first time on 7th November, 2011
th
and thereafter Section 354 was added on 30 December, 2011.
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There were total five eyewitnesses namely PW-1, PW- 2, PW- 17, PW-
18 and PW- 21. The complainant and his friends were PW-1, PW- 17
and PW- 18. Save and accept these witnesses, the independent
witnesses PW- 2 and PW- 21 do not make out allegation of
molestation. The PW- 17 slapped the accused No.1 and this is how
the fight began. In the event this Court comes to a conclusion that
the offence of Section 300 was made out, then the exception 4 would
be attracted in this case and that the accused No. 4 is entitled for
acquittal.
122. He argued, in free fight, every person is liable for his own
act and that it was incorrect on the part of the Trial Court to make
the accused Nos.3 and 4 are liable for the act committed by the other
accused. The provisions of Section 354 were added belatedly. The
offence was committed on 20th October, 2011 at about 11.00 pm.
The Medical Certificate of deceased - Ruben at Cooper Hospital
clearly shows that the history of assault given by the brother of
Ruben i.e. Benjamin to Dr. Ram Murthy states that the assault was by
15 persons with knives in Andheri (West) at 11.00 PM. In this
Medical Certificate, there was no mention of any molestation. The
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EPR entry made at Kokilaben Hospital on the basis of information
given by supervisor Gupta of Amboli Bar and Kitchen Restaurant
while admiting Keenan also states that Keenan was assaulted by
unknown person by knife in abdomen at 23.00 hours. Here, also,
there was no mention of molestation. The station diary of D.N. Nagar
Police Station about visit of PSI Ghadge to Kokilaben Hospital, which
is at Exhibit - 99 also, does not mention any thing about molestation.
The EPR entry made at Cooper Hospital, which is below Exhibit-70
also fails to note any any incident of molestation. The ADR No. 78 of
2011 registered by the office in-charge of D. N. Nagar Police Station,
which is at Exhibit-138 states only about the scuffle which has taken
place. However, it doesn’t mention anything about the alleged
molestation. The station diary entry of D.N. Nagar Police Station
after Police team returned from Kokilaben Hospital which is below
Exhibit–100 and Exhibit-115 does not mention anything about
molestation. The FIR registered by PW-17, station diary entry made
on information given by Police inspector - Indalkar of D.N. Nagar
Police Station, which is below Exhibit-134, the Medical Certificate of
PW-17, which gives history of assault which is at Exhibit- 85, the
MLC OPD paper of PW- 17, which is below Exhibit- 116 does not
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mention the incident of molestation.
123. The supplementary statement of PW-17 recorded by PW-
23 is where, for the first time, the allegation of molestation has
found place. The said statement was recorded after 24 hours from
the date of recording of the FIR. In the FIR, however, there is no
mention of molestation. The entire case of molestation under
Section 354 is totally a figment of imagination and that such incident
has never taken place.
124. The complainant and his friend had consumed liquor. The
statement of PW-1 stated that they had been in the Bar, where liquor
was served for nearly 3 hours and therefore, it is difficult to believe
that they did not consume alcohol. Reference was made to the notes
of the Autopsy Surgeon where it was mentioned that a sour smell
was coming out of the stomach. This sour smell was present because
the deceased had consumed alcohol. The act of the investigating
officer of not sending the blood for test was criticised. The
investigating officer has also not collected the bill of the restaurant
which, if collected, would have shown that the complainant and his
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friends were drunk. He criticized the investigation by stating that
the investigation is not an independent investigation. He raised the
question as to how the PW- 17, who is the first informant had got
access to the glass, which he threw upon the accused due to which
the accused was injured. He lastly submitted that the accused No.4
had no role. He pointed out the findings of the Trial Court which is
on record at page 1337, which says that there was no role attributed
to the accused No.4. There was no weapon seized from the accused
No.4. The bamboo was lying on the spot. There were no blood stains
upon the said bamboo, which was the weapon alleged to have been
used by the accused No.4. The t-shirt was recovered, however, there
were no blood stains on the said t-shirt. However, there were blood
stains on the pant. Those blood stain, however, not were not of the
accused nor there were of the deceased or the injured. There was no
intention on the part of the accused No.4 because had it been there
was an intention of killing the deceased, he would not have come
merely with the bamboo as a weapon.
125. Lastly, he submitted that if this Court comes to a
conclusion that the offence under section 300 was committed, then
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in such an event they all were entitled to the benefit under the
provisions of exception 4 of Section 300. He criticized the Judgment
of the Trial Court for not considering the aforesaid facts and he
sought acquittal of the accused No.4. He submitted that the appeal
be allowed and the accused be acquitted.
F. SUBMISSIONS OF LEARNED COUNSEL MR. GAURAV
BHAVNANI ON BEHALF OF ACCUSED NO. 3 IN CR. APPEAL NO.381
OF 2016:
126. The learned Counsel, Mr Bhavnani, appearing for the
accused No. 3, adopted the arguments made by the learned Counsel
appearing for the accused Nos. 1 and 4. He, however, made a
specific submission regarding the material available against accused
No. 3. He argued that accused No. 3 did not assault either of the
deceased persons. The only allegation is that he has assaulted PW-17
Avinash and witness Benjamin. The injuries of Benjamin have not
been proved. PW-17 is said to have suffered merely an abrasion and
that too either one or two in number.
127. Accused No. 3 is alleged to have used a cricket stump
which was seized from the spot of the incident (the cricket stump is
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Article 3). He relied upon the CA Report, Exhibit-171, and stated
that there were no blood stains found on the said stump. The
alleged weapon used by accused No. 3 also does not indicate any
role in assaulting the deceased persons.
128. The clothes allegedly worn by accused No. 3 were seized
at the time of his arrest under panchanama, Exhibit-68. As per the
CA Report, no blood was found on the shirt/baniyan of accused No.
3, although few blood stains were found on the lower part of the leg
of the jeans pant; the blood group was inconclusive. The said pant
was sent for DNA analysis. As per the DNA analysis report, Exhibit-
168, the blood stains did not tally with either of the deceased
persons.
129. There is absolutely no material to state that the Appellant
shared any common intention to murder the deceased person. He
argued that the intention of each person in an assembly may vary
from merely threatening, to causing hurt, causing grievous hurt, or to
commit murder . The evidence of accused No. 3 does not indicate
that there was any common intention on his part to commit murder.
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G. SUBMISSIONS BY LEARNED SPECIAL PUBLIC PROSECUTOR
MR. AABAD PONDA :
130. Learned Spl. P.P Mr. Ponda appearing for the prosecution
made the following submissions :
He argued that the Trial Court has meticulously considered
every material aspect of the prosecution case, dealt with each of the
contentions raised on behalf of the defence and assigned cogent
reasons while recording the findings of conviction. The findings
recorded are fully supported by evidence on record and settled
principles of criminal jurisprudence and therefore, there is no
perversity, illegality or infirmity, warranting interference by this
Court in exercise of its appellate jurisdiction. The evidence on record
must be appreciated cumulatively. The evidence of the prosecution
is not dependent upon one witness, one recovery or one document.
The evidence of five witnesses are supported by medical evidence,
the spot panchanamas, the recovery evidence, the Chemical
Analyser’s report and the DNA reports.
131. The present case is principally that of direct evidence.
The prosecution has examined five witnesses, namely PW-1, PW-2,
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PW-17, PW-18 and PW-21 who are eye witnesses. PW-2 and PW-21
are independent witnesses naturally present at the place of
occurrence and provide material corroboration regarding the
presence and conduct of the parties and subsequent assault. The
learned Sessions Judge has specifically treated the prosecution case
as one based on direct evidence upon cumulative assessment and
found that the eye witnesses were trustworthy and consistent with
the spot and medical evidence. The evidence concerning the first
incident is principally proved through PW-1 and PW-18. PW-17
speaks about the disclosure made by the girls and his own
subsequent interaction with the accused. PW-21 corroborates the
surrounding circumstances, including the frightened demeanor of the
girls, their immediate communication with PW-17 and ensuing
reaction of deceased Keenan and PW-17. PW-24, the Control Room
Officer, recorded the information received at approximately 2.00
a.m. on 21st October, 2011 in the Station Diary at Exhibit-134. This
contemporaneous record assumes significance because it was created
within hours of occurrence and before the subsequent detailed
statements were recorded. After the first confrontation had
concluded, all the four accused left the spot where there was a
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interval of about 10 to 15 minutes. While going, they had
threatened the victim and other friends that they would be coming
back. Thereafter, the four accused returned together armed with
weapons. Accused Nos. 1 and 2 carried knives, while accused Nos.3
and 4 carried wooden weapons attributed to them. Accused No.1
repeatedly stabbed Keenon Santos in the abdomen until he fell.
Accused No.2, on the other hand, stabbed deceased Ruben Fernandez
in his abdomen until he fell. Accused Nos.3 and 4 simultaneously,
participated in the assault with wooden weapons carried by them.
Accused No.1 had made a memorandum statement, expressing is
willingness to produce the knife concealed by him, the police and the
panch witnesses were led to an electric meter box near Gulmohar
building, from where he produced the concealed knife was produced
and seized. PW-7, Yamin Shaikh proved the said memorandum
recovery. The recovered knives were thereafter forwarded alongwith
other Muddemal articles for Forensic Examination. The forwarding
letter is at Exhibit-120 which is proved by PW-23.
132. PW-29, The Chemical Analyser specifically deposed that
on 01.11.2011, he received 26 parcels and two plastic containers in
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sealed condition. He examined them for presence of blood and
thereafter subjected to DNA analysis. Significantly, the DNA profile
obtained from the blood detected upon one of the recovered knife
was found to be identical with the DNA profile obtained from the
blood of deceased Ruben’s Jeans and was found to originate from the
same male source. The physical condition of the place immediately
after the occurrence materially corroborates the eye witnesses’
narrative. PW-3 proves the spot panchanama. The same is at
Exhibit-46, under which the scene was examined and physical
articles, including blood stains, pieces of broken glass, and wooden
articles connected with the occurrence were found and seized. This
evidence is particularly relevant to PW-17’s account that during the
armed assault, it threw the glasses towards the accused in self
defence and thereafter used the ladder lying nearby in an attempt
ward off the attackers. Thus, the physical condition of the spot is not
independent of eye witnesses’ narrative but also corresponds to the
material features described by the eye witnesses.
133. PW-16 Dr. Vijay Tasgaonkar conducted Post Mortem
examination and provided the Post Mortem Report at Exhibit -77.
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The medical evidence, therefore independently establishes, both, the
homicidal nature of the death and its consistency with weapon and
the manner of assault.
134. PW-26, Dr. Prakash Pawar, who examine accused No.1
found the injuries upon the scalp. The history given by the accused
No.1 himself and as recorded in the medico-legal register was of an
assault by glass and hand over the left parietal region. PW-26 opined
that the injury was possible if stuck by glass. Thus, the medical
evidence independently corroborates with the occurrence described
by the eye witnesses. The recovery of two knives at the instance of
accused Nos.1 and 2, which is corroborated by PW-6 - Regan D’Souza
who proved the memorandum and recovery at the instance of
accused No. 2 under Exhibit-53 and 54 and PW-7 - Yamin Shaikh,
who proved the memorandum and recovery at the instance of
accused No.1 under Exhibit-56 and 56A are very material witnesses.
The clothes worn by the accused and their subsequent
seizure/recovery is also important. PW-12 proves the seizure of the
clothes of accused Nos.1 to 3 under Exhibit-68. PW-11 proved the
memorandum and recovery of clothes of accused No.4 under Exhibit-
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65 and 66. He argued that these articles formed part of muddemal
forwarded for scientific examination. The clothes evidence therefore
provides an additional physical link which has to be read together
with rather than separately from the eye witnesses and forensic
evidence. He relied upon the report at Exhibit - 168 of the Chemical
Analyser. He submitted that the prosecution establishes a continuous
evidentary sequence from the seizure/recovery, forwarding, receipt
in sealed condition and scientific examination. He submitted that
the chain of custody of articles is completed.
135. Learned Counsel relied upon the Test Identification
Parade conducted by PW-14 on 16.11.2011. The memorandum of
identification parade is at Exhibit-72. The eye witnesses identified
the accused during the Test Identification Parade and thereafter
before the Trial Court.
136. He submitted that PW-1 and PW-18 are the direct
witnesses to the acts committed by the accused Nos.1 and 2. The
learned Session Judge recorded that the accused No. 1 molested PW-
1, the accused No.2 touched her inappropriately and both passed
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vulgar comments. The immediate disclosure of the occurrence by
PW-1 and PW-18 to their friends was found to be natural and
consistent. He submitted that it was never the case of the
prosecution that PW-21 was an eye witness to the physical act,
constituting molestation. He relied upon the testimony of PW-1, duly
corroborated by the PW-18, the immediate disclosure made to PW-
17, the evidence of PW-2, the contemporaneous ADR and the Station
Diaries established the incident of molestation.
137. The statement of PW-2, a security guard which was
recorded on the very next date that is on 21st October, 2011,
corroborates the evidence of PW-1 and PW-17 regarding the genesis
of the incident. He argued that the contention of the Appellant that
the case of molestation was introduced subsequently and is totally
concocted is not correct. He submitted that the statements which
recorded is considered in the proper sequence would falsify the case
of the Appellant . He stated that the incident occurred during the
night of 20th October, 2011 at about 2.00 a.m. On 21st October,
2011 PW- 24, the Control Room Officer received information from P.
I. Indulkar of D. N. Nagar Police Station that three boys and two girls
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had been standing in front of Amboli Bar and Kitchen Restaurant and
that a quarrel had arising after one of the boys had “uttered bad
words for girl”. He also stated that the person thereafter left the
spot returned with his companions, armed with choppers and knives
and assaulted the boys. This information in the Station Diary is at
Exhibit-134. Thus, within hours of the occurrence and before the
subsequent detailed statement of the witnesses, the Police themselves
recorded the genesis of the first altercation.
138. In response to the argument of the Appellant that the
PW-21’s vision was questionable. He submitted that the submission
of the Appellant is speculative and not founded upon any legal or
evidentary requirement that every victim of molestation must
necessarily scream or raise an alarm. The evidence shows that the
occurrence was immediately disclosed by the girls to their friends.
Keenan and PW-17 confronted the accused.
139. In response to the case of the Appellant that there is a
contradiction regarding which knife was carried by accused No.1 and
which knife was carried by accused No.2, the said submissions
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according to the learned Counsel for the respondent confuses the
identification of recovered articles with the substantive evidence
concerning the individual roles of the accused during the assault. He
submitted that there is no material contradiction in eye witnesses as
regard the actual role of the accused Nos.1 and 2.
140. In response to the argument advance by the learned
Counsel appearing for the Appellant that the recoveries were
doubtful because the panch witness stated during the deposition
before the Court that the recovered weapons were wrapped, labelled
and sealed by the Police. The earlier spot panchanama do not
specifically record the fact of sealing. He submitted that the alleged
omission must be distinguished from a contradiction concerning
factum of recovery itself.
141. In response to the argument of the Appellant regarding
common intention, learned Counsel for the State, Mr. Ponda
submitted that there was a common intention. He submitted that all
four persons were present during the first incident, thereafter they
left the spot together. They threatened the complainant party to
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return back. All the four returned together, and at this time, each of
them was armed. The accused Nos.1 and 2 were carrying knives
while accused Nos.3 and 4 returned carrying, cricket stump and
bamboo respectively.
142. As far as the argument of the Appellant regarding non-
production of CCTV footage, Restaurant bill, waiter and alcohol test
is concerned, the learned S.P.P submitted that none of the above
evidence constitute substantive evidence. He submitted that when
the case rests upon direct evidence of five eye witnesses, including
two independent eye witnesses mere absence of CCTV footage
cannot outweigh otherwise, reliable direct evidence. He submitted
that mere recording of a person’s statement during investigation does
not make a person a material witness whose non-examination must
necessarily result in adverse inference against the prosecution. Mere
non examination of witnesses cannot be treated as suppression. He
submitted that the challenge to the timing and genuineness of the
FIR, based on the movements of PW-22 PSI Shivaji Ghadge, was
without merit. The Sessions Court had considered the issue and
found that there was no delay in registration of the FIR. The injured
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were immediately taken to the hospital and, after Keenan's death, the
FIR was registered at about 2.30–2.40 a.m. The mere movement of
PW-22 between the Police Station, hospital and spot did not establish
that the FIR was ante-timed or fabricated. No alteration in the FIR or
contemporaneous document showing otherwise was brought on
record. It was further submitted that C.R. No.411/2011 was not a
counter-case arising from the present incident. The Sessions Court
had found that it was registered because a mob had interfered with
the police investigation and was not connected with the present
offence.
143. As regards the gaps in the Station Diary, it was submitted
that the failure to record every movement or investigative step could
not, by itself, render the eyewitness, medical and forensic evidence
unreliable unless such omission showed manipulation or
contradiction regarding the occurrence.
144. On the challenge to the Test Identification Parade, it was
submitted that PW-14, Special Executive Magistrate, had proved that
the parade was conducted after following the necessary precautions.
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As regards PW-18, it was submitted that the TI Parade was only for
identification of the accused and was not an occasion to repeat the
entire occurrence. The failure of PW-18 to mention the act of
molestation before the Magistrate during the parade therefore did
not affect her evidence. It was further submitted that the incident
was not a "free fight" or a case of grave and sudden provocation. The
slap by PW-17 occurred during the first confrontation. Thereafter, all
four accused left the spot and returned after about 10–15 minutes
armed with weapons. Accused Nos.1 and 2 had knives, accused No.3
had a stump and accused No.4 had a bamboo. Their departure,
procurement of weapons and return together showed an intervening
and deliberate act, and not a spontaneous continuation of the earlier
incident. Further, accused Nos.2 to 4 had not themselves been
subjected to the alleged provocation. The allegation of consumption
of alcohol by the complainant party was also stated to be speculative.
There was no evidence that any eyewitness was intoxicated to an
extent affecting his or her perception, recollection or identification.
145. As regards accused No.4 and Section 34 IPC, it was
submitted that the prosecution did not allege that he had inflicted
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the fatal knife injuries. His role was to participate in the assault while
armed with a bamboo. He had left the spot with the other accused,
returned with them after 10–15 minutes armed with the bamboo and
actively participated in the assault. Section 34 did not require the
accused to use identical weapons or inflict identical injuries. His
active participation in the assault, along with the other accused, was
sufficient to establish his participation in the common intention. He
further submitted that the conduct of accused Nos.3 and 4 during the
fatal assault supported the finding of common intention. All four
accused had left the spot together and returned together, armed with
weapons. When accused Nos.1 and 2 commenced the fatal knife
assault, accused Nos.3 and 4 did not withdraw or attempt to prevent
the assault. Instead, they simultaneously assaulted Avinash and
Benjamin with the stump and bamboo respectively. Their conduct
therefore showed active participation in furtherance of the common
intention. It was submitted that the comparatively minor injury
caused to PW-17 did not exonerate accused No.4. The relevant
circumstance was his active participation in the coordinated assault.
Section 34 IPC did not require every accused to inflict a fatal or
grievous injury.
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146. As regards the decisions relied upon by learned Counsel
for accused Nos.2 and 4, it was submitted that they were
distinguishable on facts. The cases concerning free fights, sudden
quarrels and individual liability involved circumstances such as
mutual fighting, injuries on both sides, injuries to the accused or
private defence. No such circumstances existed in the present case.
The first confrontation had ended, after which all four accused left
and returned together after 10–15 minutes armed with weapons. The
relevant consideration was their conduct during the intervening
period and their subsequent armed return.
147. On the issue of sentence, the learned Counsel fairly
submitted that the Sessions Court did not have the power to impose
a sentence for the remainder of natural life. However, it was
submitted that this Court possessed the requisite power and could
impose an appropriate sentence having regard to the nature and
circumstances of the offence.
148. As regards to accused No.3, the learned Counsel
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submitted that his case was substantially similar to that of accused
No.4. accused No.3 was present during the first confrontation, left
with the group, returned after 10–15 minutes armed with a stump
and participated in the simultaneous assault while accused Nos.1 and
2 were armed with knives.
H. SUBMISSIONS ON BEHALF OF INTERVENOR
149. The learned Counsel Ms. Gayatri Kulkarni appearing for
the intervener adopted the arguments made by the learned Special
P.P. Mr. Ponda. Although she has also argued extensively, however,
since the arguments of the learned Counsel appearing for the
intervener are nearly the same as that argued by the learned Special
P.P for the State, we would not reproduce the same to avoid
repetition.
I. REASONING AND ANALYSIS
150. We have heard the learned Counsel appearing for the
parties. We have perused the evidence and materials on record. Our
attention was invited to the Record and Proceedings. We have gone
through the impugned Judgment and Order passed by the learned
Additional Sessions Judge. There are, in all, four accused who were
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tried before the Trial Court . During pendency of these appeal,
accused No. 2 expired on 3rd November, 2025, and hence, his
Criminal Appeal No. 790 of 2016 was disposed of by this Court vide
a separate order dated 28th August, 2026.
151. Accused No. 1 has filed Criminal Appeal No. 439 of 2016.
Accused No. 3 has filed Criminal Appeal No. 381 of 2016. Accused
No. 4 had filed Criminal Appeal No. 840 of 2016. Since all these
accused were tried together and a common Judgment and Order was
passed, hence, these appeals are decided by a common Judgment
and Order.
152. The principal submission of the learned Counsel
appearing for all the Appellants was that there was no molestation
which took place and that the theory of molestation was introduced
later on. Since this aspect was argued at the beginning by all the
parties and much emphasis was laid on this issue, we deal with this
issue at the outset.
(a) MOLESTATION
153. The prosecution case is that of direct evidence. There are
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five eyewitnesses who were examined by the prosecution, namely,
PW1, PW- 2- Surendra Soni Ray, PW 17 - Avinash Surendra Singh
Solanki- the first informant, PW- 18 - Shobita Singh, and PW- 21 - S.
Kumar Chaurasia. Learned Counsel for the Appellants argued that
the allegation of molestation is an afterthought. They argued that the
molestation of PW- 1 never occurred and that the prosecution has,
therefore, failed to prove the genesis and motive of the subsequent
assault.
154. Evidence of PW- 1, who is an eyewitness and victim of
alleged molestation, is very crucial in this regard. PW- 1 has
narrated before the Court, the manner in which the molestation had
taken place. PW- 18 – Shobita Singh who is another witness of this
incident, has narrated the incident in the same manner in which it
was narrated by PW- 1.
155. As a matter of fact, it is the prosecution case that PW- 1
and PW- 18, along with another friend of theirs, namely, Priyanka,
were together. They had gone to the washroom when the boys had
gone to eat paan at the paan stall. All these three girls were coming
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down the hotel staircase, when the incident of molestation took
place. Their case is that accused No. 1 had molested PW-1.
Thereafter, accused No. 2 touched her inappropriately, and both of
them passed vulgar comments directed towards PW- 1.
156. The learned counsel appearing for the Appellants in all
the three appeals argued that if at all this was true, then this
incident would have been narrated in the statement of PW- 1
immediately. It is submitted that the allegation of sexual assault is
an afterthought. They stated that the incident took place on 20
October 2011, yet on that day, the charges of molestation were not
applied. Section 354 of the Indian Penal Code was not invoked
immediately upon lodging of the FIR. As a matter of fact, Section 509
th
was added for the first time on 7 November 2011, and thereafter,
th
Section 354 of IPC was added on 30 December 2011. They
submitted that the very fact that Section 354 was added as late as on
th
30 December 2011 shows that no such incident had taken place.
They stated that the FIR does not mention the act of molestation.
The statement of PW- 17, supplementary statement of PW- 17, which
was recorded after passage of 24 hours from the date of recording of
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the First Information Report, also does not mention molestation.
They submitted that the entire case of molestation under Section 354
is a figment of imagination and that such an incident never took
place.
157. They submitted that the story of molestation was
subsequently introduced after public and media pressure, so that the
case does not come within the ambit of grave and sudden
provocation. They laid much stress on the fact that the statement of
PW- 18, Shobita Singh, is said to have been recorded on 21st
October, 2011. The statement of PW- 1 and Priyanka (another girl
who was along with the complainant) are said to have been recorded
on 7th November, 2011. The supplementary statement of the
Complainant was recorded on 22/10/2011. Till that time, the
charge under Section 354 had not been added. It was for the first
th
time, the charge under Section 354 was added after 5 November,
2011.
158. According to PW- 23, till 5/11/2011, when he was the
Investigating Officer, the charge under Section 354 of the IPC was
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not attracted. They had invited our attention to the reports, Exhibit
rd th
127 dated 3 November, 2011 and Exhibit 142 dated 4 November,
2011, to buttress their contention that the charges under Sections
354, 504 and 506 of the IPC had not been added till then. They
relied upon the case diary entry, Exhibit 128, made by PI Devde,
which shows that the charges under Sections 509 and 506 were
added only on 7th November, 2011.
159. Learned Counsel appearing for accused No. 1 relied upon
the evidence of PW- 21 to drive home the point that the said witness
had not narrated anything about the alleged molestation, although
he was very well present near the spot of the incident and at a shop,
preparing paan.
160. We find that the prosecution does not rely upon PW- 21
as the sole or direct evidence regarding the act of molestation. The
prosecution has relied mainly upon the evidence of PW-1 and PW-18
to make out the case of molestation. We have considered the
evidence of PW-2 as well. The said witness is a security guard, whose
st
statement was recorded on 21 October, 2011 which is the very next
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day of the incident. He corroborates the evidence of PW-1 and PW-
18. PW-21 had not specifically observed, the actual act of the
molestation. The actual incident of molestation is proved by the
prosecution through PW-1 and PW-18, which is supported by the
other witnesses named PW-2, PW-17 and PW-21.
161. Although learned Counsel appearing for the Appellants
had made much capital of the fact that the initial F.I.R did not
contain the full particulars of molestation, the Trial Court had rightly
considered that the F.I.R was lodged shortly after the death of
Keenan, when PW-17 was in state of shock. PW-17 had also stated in
his deposition that initially the girls had decided not to pursue the
incident, naturally because of fear of social stigma. In the
supplementary statement which was recorded on the very next date,
PW-17, disclosed the incident of molestation. The statement of PW-
18 Shobita Singh, was all along with PW-1 who had been the victim
of molestation, needs to be considered at this stage. This statement
of PW-18 was recorded on the very next date of the incident. She has
stated about the act of molestation. The case of the Prosecution is
thus proved by direct evidence of PW-1 and PW-18 supported by the
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evidence of PW-2, PW-17 and PW-21. It would be too far fetched to
say that the act of molestation was subsequent act of fabrication.
Our attention was also invited by the learned Counsel appearing for
the State to the statement recorded by PW-24 Lingappa Rama
Attayar, the Control Room Officer on 21/10/2011 at about 2.00 a.m.
The information received by him was that three boys and two girls
were standing in front of Amboli Bar & Kitchen Restaurant, and that
a quarrel had arisen after one of the boys had uttered abusive words
towards the girl. Thereafter, the said person left the spot and
returned with his companions, armed with choppers and knives, and
assaulted the boys. The said information, was recorded by PW-24 in
the Station Diary, and was exhibited before the Court as Exhibit 134.
This document clearly shows that there was some incident of quarrel
and utterance of abusive words towards the girl. The said incident
was recorded immediately within hours of the occurrence. This
Station Diary at Exhibit 134 supports the case of Prosecution that
such an incident of molestation had indeed taken place.
162. Assuming without admitting that the Station Diary
Exhibit 134 does not contain details of molestation , such Station
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Diary Entry is not expected to be an Encyclopedia. This entry,
however, supports the version of prosecution witnesses that an
incident of utterance of lewd comments aimed at the girls had taken
place.
163. Apart from the aforesaid documentary evidence; there
are five eye-witnesses, to the incident, their evidence needs to be
considered extensively. PW-1 has stated that on 20th October, 2011,
she alongwith Shobita Singh (PW-18) had gone to Amboli Bar and
Kitchen Restaurant to watch the cricket match between England and
India. She has stated that it was a very big screen and they usually
went to see the match and take dinner. She has stated that after the
dinner was over, she alongwith Priyanka (PW-18) and Shobita were
coming out of the restaurant. Four unknown persons were standing
near a paan shop. One of the person who was wearing white pathani
dress, called the girls by making noise “shuk..shuk..”. When she
looked at the person, he said ‘Kya mast maal hai. Isko aaj rat ko
uthake leke jayenge...’ . She has stated that she ignored him and
started walking down. Till that time, her friends Shobita and
Priyanka also reached downstairs. Then the person who was
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wearing white pathani came closer to her and molested her. She
screamed and pushed his hand. All the other persons who were
standing and smoking at the paan shop started laughing. The other
person wearing 3/4th pant with whitish colour t-shirt came and
touched her inappropriately and he said “ aaj hamara rat ka asra ho
gaya” and tried to hold her from behind. She screamed and after
pushing him, ran towards her friends. She told her friends what had
happened. At that time, deceased Keenan came forward and stated
to the four persons “ tumhare ghar pe ma behan nai hai kya. Khule
am ladki ko chhedte ho. Sharam nahi aati kya..” Thereafter, the
four persons came and started abusing him. This incident is narrated
by PW-1 who herself is a victim of assault. She has narrated the
incident very clearly. There is nothing in the cross-examination to
discredit the version of the witness. The only major attack which
was made on this witness was that the statement under Section 161
was recorded very late. Even in the cross-examination to this
witness, there is nothing to discredit. Thus, the evidence of PW-1,
however, establishes the allegations against the accused/Appellants
that they had not only misbehaved with the PW-1, but had also
molested PW-1.
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164. As far as the question of delay in recording the statement
is concerned, we are dealing with the same in extenso in the
subsequent paragraphs.
165. The next witness in this regard is PW-18. PW-18 is the
friend of PW-1 who was molested. PW-18 was accompanying PW-1
throughout the incident. PW-18, thus, is an eye-witness to the
incident of molestation. She is the next important witness other than
PW-1 who was actually molested. We have perused the evidence of
PW-18 in detail. In paragraph No.3 of the deposition, she has clearly
stated as to the fact that the person in white pathani touched PW1
inappropriately. She further stated that PW-1 shouted and pushed
his hand. At that time, she noticed yet another person wearing white
t-shirt and 3/4th pant touched PW-1 inappropriately. He uttered
derogatory words against PW-1. She has also stated as to how PW-1
screamed and pushed away the hand of the accused. The version
narrated by PW-18 supports that of PW-1.
166. As far as PW-18 is concerned, again here there is nothing
elicited in the cross-examination to conclude that her evidence was
shaken. As a matter of fact, in the cross-examination by learned
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Counsel for the accused No.1, she has reiterated as to how the
molestation had taken place. We do not find any infirmity in the
evidence of PW-18 either. As a matter of fact, PW-18 as stated above,
accompanied PW-1 who was actually molested and was always with
her. There is no reason to doubt her version.
167. The next important evidence in this regard is PW-17. PW-
17 is the friend of PW-1. PW-17 also happens to be the first
informant. He has stated in the evidence that when girls were
stepping down from the staircase of the restaurant, at that time, PW-
1 screamed. She came towards them. She narrated to him that the
four persons who were standing on the footpath approached them.
One of them was wearing white pathani. He gave signal and made
noise of “ shuk..shuk …”. When she saw them, one of them uttered
derogatory words to PW-1. The person wearing white pathani
touched her inappropriately. PW-1 shouted. At that time, the person
wearing 3/4th pant came near PW-1 and touched her
inappropriately. Thereafter, he also uttered derogatory words against
PW-1. In the cross-examination, save and except questioning the
delay in not recording the statement under Section 161 on the same
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day qua this incident, there is nothing to discredit the witness. It is
true that the said witness has not uttered about this incident in the
first information report. However, he has given an explanation for
the same. He explained that the girls did not give the statement
immediately due to the defamatory social stigma attached. This
explanation is plausible.
168. PW-2 who was the watchman at the Amboli Bar &
Restaurant, is also a significant witness as far as the incident of
molestation is concerned. He has stated that he was on duty at that
particular time. He saw four unknown persons were smoking near
the paan shop. They passed filthy comments on the girls. At that
time, one of the girls screamed and rushed to their friends Bali and
Benjamin. Thereafter, some quarrel took place between them.
Although this witness does not state exactly as to what had
happened, however, he corroborates the evidence of PW-1 and PW-17
that some incident had taken place, as a result of which the girls had
screamed.
169. Next important witness is PW-21 – Mr. Chaurasia. The
said witness is the person who runs the paan shop. He has stated
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that the four friends of the deceased gave order for paan. Thereafter,
he saw the girls came there. They were scared. They told something
to Bali (PW-17). Therefore, he felt that the boys who were smoking
on the footpath must have misbehaved with the girls. He has also
explained that the girls were frightened and they were pointing
towards the accused and telling something to PW-17. Hence, he felt
that the boys (accused) must have misbehaved the girls. Thus, this
incident corroborates the incident of molestation. We find that PW-1
was molested. PW-18 was with PW-1. They are natural witnesses
who narrated the actual factum of the molestation. The evidence of
PW-17, PW-2 and PW-21 corroborates the said incident of
molestation.
170. Thus, the statements of PW-1, PW-18, PW-2, PW-17, PW-
21 have to be read in conjunction with the Station Diary exhibited as
Exhibit 134. If it is read in conjunction, then it can safely be
concluded that the act of molestation had indeed taken place. It is
too far fetched to say that there was no incident of molestation and
that it was an an afterthought. The evidence on record, more
particularly the statements of the witnesses stated above clearly
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demonstrates that the incident had taken place. The submission of
the learned Counsel appearing for the Appellants is that PW-21 did
not hear the girls scream, and that absence of any screams indicates
that no such act of molestation had taken place. The submission of
learned Counsel is not sufficient to conclude that no molestation has
taken place. As a matter of fact, PW-21 has stated that from the
demeanor of the girls, it was clear that some incident had taken
place. Only because PW- 21 did not hear the screams is not sufficient
to come to a conclusion that no such incident has taken place. The
statement of PW-21 that he saw the girls return in a frightened
condition and saw them speaking to PW-17, pointing towards the
accused, and thereafter, the said, the said PW-17, confronted the
accused, clearly shows that although PW-21 might not have heard
the screams, but certainly some acts have taken place which the PW-
21 did not hear. Evidence of PW-21, therefore can be used to
corroborate the evidence of PW-1 and PW-18. PW-21 was a paan
vendor and was busy doing his work of preparing paan. The Trial
Court had correctly considered the material before it. Only because
there was no mention of hearing of the screams by PW-21 itself was
not sufficient to infer that there was contradiction in the statement of
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the witnesses of Prosecution. The Hon’ble Apex Court in the matter
of Firoz Khan Akbarkhan Vs. State of Maharashtra 2025 SCC OnLine
SC 627 has observed thus:
“20. To our mind, the prosecution has succeeded in proving
its case beyond reasonable doubt. Having carefully gone
through the material on record, especially the depositions
of the witnesses and upon a keen examination of the
relevant aspects of the case, we find that the presence of the
Appellant at the site of the incident and him having
stabbed the deceased on the stomach repeatedly has been
the consistent stand of the PW-s who were eye-witnesses.
The Courts below have also concurrently found the same.
The accused-Appellant has not been able to controvert the
evidence on record. Minor and immaterial inconsistencies
and/or discrepancies shall not harm the case of the
prosecution, as held, inter alia, in State of Himachal
Pradesh v. Lekh Raj, (2000)Saturday 1 SCC 247; Narayan
Chetanram Chaudhary v. State of Maharashtra, (2000) 8
SCC 457; State of Madhya Pradesh v. Ramesh, (2011) 4
SCC 786; Mekala Sivaiah v. State of Andhra Pradesh,
(2022) 8 SCC 253, and; Rameshji Amarsingh Thakor v.
State of Gujarat, 2023 SCC OnLine SC 1321. The following
observations from Lekh Raj (supra) are instructive:
‘7. In support of the impugned judgment the learned
counsel appearing for the respondents vainly
attempted to point out some discrepancies in the
statement of the prosecutrix and other witnesses for
discrediting the prosecution version. Discrepancy has
to be distinguished from contradiction. Whereas
contradiction in the statement of the witness is fatal for
the case, minor discrepancy or variance in evidence
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will not make the prosecution's case doubtful. The
normal course of the human conduct would be that
while narrating a particular incident there may occur
minor discrepancies, such discrepancies in law may
render credential to the depositions. Parrot-like
statements are disfavoured by the Courts. In order to
ascertain as to whether the discrepancy pointed out
was minor or not or the same amounted to
contradiction, regard is required to be had to the
circumstances of the case by keeping in view the social
status of the witnesses and environment in which such
witness was making the statement…….”
(Emphasis supplied by us)
On cumulative reading of the ocular evidence which is
before us, we have no hesitation to come to a conclusion that the
incident of molestation had indeed taken place. We therefore, hold
that the accused Nos.1 and 2 have committed the act of molestation
upon PW-1.
(b) DELAY IN RECORDING OF STATEMENTS AND F.I.R.
180. We have dealt in extenso as to how the evidence of the
witnesses mentioned above viz. PW-1, PW-2, PW-17, PW-18 and PW-
21 are relevant for the purpose of coming to the conclusion that the
act of molestation has taken place. However, the argument of the
learned Counsel appearing for the Appellant was also that the delay
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in recording the statement of the said witnesses are fatal.
181. The learned Counsel appearing for the Appellants
submitted that the statement of PW- 1 has been recorded on 7th
November, 2011. They submitted in unison that the statement of PW-
17 is recorded as FIR and is exhibited as Exhibit 103. They
submitted that in the FIR, the said PW- 17 has stated that four
unknown persons were smoking near the paan shop, one of them
who was wearing a cream and white colour pathani dress was under
the influence of alcohol, he pushed and dashed against them. Verbal
altercation took place, and therefore he gave a slap on his face. It is
argued by the learned Senior Advocate for the Appellants that the
said PW- 17 has improved his version in the supplementary
statement recorded on the next day by stating that the four unknown
persons who were smoking cigarettes went towards the girl. At that
time PW- 1 screamed and came towards PW- 17. She informed them
that the person wearing white Patani dress made a noise of Shuk
Shuk, and made certain derogatory comments and also molested her.
Learned Counsel submitted that there was delay in recording
statement of PW-1.
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182. We have perused the FIR. It was recorded on 21st
October, 2011. This first information report was the statement of PW-
17. In the FIR, there is no mention of molestation having taken
place. On the next date, that is, on 22.10.2011 in the supplementary
statement, PW- 17 had mentioned about the case of molestation. PW-
18, whose statement was recorded on 21/10/2026, also
corroborates the version of PW- 17. PW- 17 had given an explanation
as to why the FIR does not mention about the molestation. He had
stated that the same was not given on that day, because the girls
initially decided not to pursue the incident because of the nature of
the occurrence and social consequences associated with the
disclosure. He also explained that the incident was a very vulgar act
and it was necessary to keep the girls away from defamation. Hence,
it was not mentioned in the FIR. Just because the incident of the case
of molestation was not mentioned in the FIR by PW- 17, would not
mean that such incident had not taken place.
183. Even otherwise, it is settled position of law that FIR is not
an encyclopedia and that the statements of the eyewitnesses and
other witnesses have to be considered in conjunction to each other.
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The Hon’ble Supreme Court in the matter of Satpal vs. State of
Haryana, reported in (2018) 6 SCC 610, has observed in paragraph 7
that the FIR is not to be read as an encyclopedia requiring every
minute detail of the occurrence to be mentioned therein.:
“7. Both PW- 7 and PW- 9 have consistently stated
having seen the deceased going with the Appellant on
a bicycle at 9.00 p.m. the previous evening. The
deceased did not return home at night. The Appellant
was also not to be found at home. The corpse of the
deceased was recovered the next morning hidden in a
heap of fodder in the fields. The FIR was lodged
promptly on 11-9-2007 naming the Appellant as a
suspect. An FIR is not to be read as an encyclopedia
requiring every minute detail of the occurrence to be
mentioned therein. The absence of any mention in it
with regard to the previous altercation, or the presence
of the milk can, cannot affect its veracity so as to doubt
the entire case of the prosecution. The altercation
suffices to establish motive. The Appellant has not led
any evidence regarding his not being in the company
of the deceased or that they had subsequently parted
ways. The Appellant has not led any evidence, despite
his statement under Section 313 CrPC that he would
do so, why he did not return home at night or his
whereabouts otherwise. PW- 8, father of the deceased,
was informed in the morning of 11-9-2007 by PW- 7
after which he came to the village. The deceased was a
thirteen-year-old hardly in a position to resist the
Appellant . We see no reason why the two witnesses
being related to the deceased would depose falsely and
shield the real offender, especially when the Appellant
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has not given any reason or led any evidence for his
false implication.”
(Emphasis supplied by us)
184. The learned Senior Advocate, Mr. Pasbola and Mr. Yug
Mohit Choudhary had attack the statements of the eyewitnesses.
They drew our attention to the statement of PW1 and contended
that there was an inordinate delay in recording the statement of
PW1.
185. As far as the first eye witness that is PW-1 is concerned,
we have discussed the evidence led by her in the forgoing paragraph.
She has clearly stated in her evidence as to how the accused No. 1
had molested her and as to how the accused persons had threatened
the complainant party that they would return back. She has also
stated before the Court, the manner in which the accused No. 1 and
2 have committed brutal assault on deceased Keenan and deceased
Ruben. In her evidence, the justification for recording the evidence
belatedly is clearly made out. Only because there was no proof of
leave from her work would not lead to a conclusion that the
justification put by her for recording the statement at a belated stage
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was incorrect. The conduct and the background in which the
statement was recorded also deserves to be considered. This young
girl had witnessed the fatal assault upon her friends immediately
following the incident involving herself, her state of mind can well be
imagined, therefore, mere absence of employment or leave document
cannot be said to be sufficient to prove that the explanation given by
her was false. In any event, the evidence of the said witness was
tested in detailed cross-examination. There surely is some delay in
recording the statement of the said witness, however, such delay in
itself can’t be considered in isolation. In this regard, the evidence of
PW- 25, the investigating officer is also very important. He has stated
that on 4/11/2011, the charge of investigation of the crime was
handed over to him by PI Indulkar. He further stated that on
5/11/2011, when he produced the papers received by him, he found
that statements of two eye witnesses were yet to be recorded. He
sent for a constable to call her for recording the statement. The
mother of PW-1 told the constable that PW-1 was not well and
therefore she was unable to attend the police station. This statement
of PW- 25, the investigating officer is sufficient to conclude that the
delay can at the highest be attributable to defect in investigation.
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Further one will have to look into the fact that there was a double
murder which had taken place in front of eyes of PW-1. PW-1 was
molested before the gruesome assault. It is because she was
molested, the further incident of murder had taken place. The sad
witness is a young girl of 24 years of age. Even on 5/11/2011, the
mother of P1 informed the constable that she was not well. It would
not be incorrect to infer that the young girl must have been
tremendous, psychological trauma which must have led to her ill
health. The delay has to be appreciated in this view of the matter.
186. The Apex Court in the matter of the State of Madhya
10
Pradesh v/s Balveer Singh has held as under:
“51. Thus, even if the accused had failed in putting a
question in regard to delay in examination of PW- 6,
the Presiding Judge was duty-bound to put this
question to the IO in exercise of his powers under
Section 165 of the Evidence Act. Since in the present
case no question whatsoever was put to the IO to
explain the reason for the delay in examination of
Rani, PW- 6, we should not willingly jump to discard
the testimony of PW- 6 on the ground of delay
alone, and ought to be circumspect while
scrutinising the effect of such delay. The court in
such a situation would be required to carefully see
whether there is anything palpable on the face of it
to indicate any malice at the end of the investigating
10 (2025) 8 Supreme Court Cases 545
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agency in belatedly examining such witness.
52. There is nothing on record that would lead to
the inference that the delay in recording the
statement of PW- 6 was done deliberately in order to
manipulate or concoct the case against the
respondent-accused herein, and rather such delay
appears to be inadvertent with no sinister motive or
design in mind. We say so because, the statement of
PW- 6 had been recorded on the same date as the
statement of PW- 5. If at all the investigating agency
intended to allow the doctoring of the testimony of
PW- 6 then it would have only delayed the
examination of the child witness, Rani (PW- 6) and
not of PW- 5 as well, thus this delay in examination
appears to be attributable to the routine manner in
which the IO proceeded with the course of
investigation and the overall investigation inertia
and not to give effect to any unfair practice.”
In this case also the delay in examining the witness under
Section 161 Cr.P.C was sufficiently explained. As far as PW-18 is
concerned, her statement was recorded immediately on the next day
of the incident. She has deposed before the Court. The deposition
was in sync with her statements recorded under Section 161 of the
Cr.P.C. She was also subjected to grueling cross examination. She is
an eye witness who has deposed what has transpired on that day.
She was very well present with the PW-1 on the staircase of the Hotel
where the incident of molestation had taken place. She is a natural
witness in these circumstances. In absence of any infirmity in the
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Cross- Examination, her statement deserves to be accepted without
any doubt. There was no delay in recoding her statement. As stated
by the Hon’ble Supreme Court in the matter of State of Madhya
Pradesh versus Balveer Singh (Supra) , if at all the act of recording
evidence of PW-1 regarding molestation was done deliberately, the
prosecution would not have recorded the statement of PW- 18 and
statement of PW- 17 on the very next date where the act of
molestation is mentioned in greater details. The delay is sufficiently
explained by the PW- 25.
(c) CREDIBILITY OF PW-2 (SECURITY GUARD)
187. The learned Counsel appearing for the prosecution attacked
the credibility of PW-2. The said witness PW-2 happens to be a
Security Guard. He has narrated in details the incident which has
taken place. Only because he has not produced the appointment
letter of Vishal Security Force where he was employed, does not
make his evidence doubtful. The said witness has also been
subjected to detailed Cross-examination. He has withstood the
statement which was recorded under Section 161 as well as the
deposition given by him in the Court. He has narrated in detail as to
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how the accused Nos.1 and 2 gave threats that they will kill them all
and thereafter they returned after about 10 to 15 minutes with
weapons. He deposed that the person wearing White Pathani,
stabbed Keenan and the person wearing white t-shirt, and 3/4th pant
stabbed Ruben with knife. He has identified all the accused in the
Courtroom. He also happens to be a natural witness as he was
guarding the main door of the Hotel Amboli Bar and Restaurant.
Only because he did not hear the actual words uttered by accused
No. 1 to PW-1, does not make his evidence doubtful.
(d) CREDIBILITY OF PW-21 (PAAN VENDOR)
188. The evidence of PW-21 Chaurasia, who is the paan vendor
is also considered by the Trial Court in detail. This witness is a
natural witness. He was having a paan shop outside the Hotel. He
has narrated the manner in which the girls who were frightened
came towards the boys who were standing near the paan shop. He
heard the accused giving threat to the Complainant that they should
wait there, and that the accused would come back. He has deposed
the matter in which the assault took place. He has also narrated who
had assaulted whom and what were the weapons with them. Since
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he was having a shop over there, he was a natural witness. Merely
because he did not wait after the incident, closed his shop and went
away would not render his evidence doubtful. It is but natural that
when a gruesome murder of two young boys had taken place in front
of him, he would try to go away after the incident probably because
he did not want to involve himself in Police Investigation. This itself
does not make his evidence untrustworthy. We have perused the
Cross-examination to which he was subjected. This witness has not
narrated anything which would make his Cross-examination
doubtful.
189. The argument of the Appellants that PW-21 has not heard
the scream of PW-1 and therefore, it should be disbelieved is without
any substance. The paan shop is on the road. The said witness PW-
21 was preparing paan. He perhaps might not have heard the
screams of the girl. In fact, it was not even the Prosecution’s case that
PW-21 had seen the physical act of molestation. We have already
discussed in foregoing paragraph that as a matter of fact, this witness
does not state anything which he has not seen. The Trial Court has
considered this witness as well as PW-2 to be quite truthful witnesses
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and has also observed that they have not exaggerated the version.
(e) NON-EXAMINATION OF SOME OF THE WITNESSES:
190. The learned Senior Advocate, Mr.Pasbola has submitted
that non-examination of Mohsin, Benjamin, the Doctor from Cooper
Hospital, beat Marshals and other witnesses was fatal to the case of
the Prosecution and that adverse inference should have been drawn.
We must note at this juncture that it is not the number of witnesses
which are important, but the quality of the witnesses which is
important. The Prosecution has examined nearly 5 eyewitnesses.
Two of the eyewitnesses are not at all related to the Complainant
Three witnesses are known to the Complainant. Only because the
said witnesses are from the side of the Complainant would not make
them interested witnesses.
191. The Apex Court in the matter of Vijendra Singh versus
State of Uttar Pradesh (2017), 11 SCC page 129 has held thus:
“35. The next plank of argument of Mr Giri is that since
Nepal Singh who had been stated to have accompanied PW-
2 and PW- 3 has not been examined and similarly, Ram Kala
and Bansa who had been stated to have arrived at the
tubewell as per the testimony of PW- 2, have not been
examined, the Prosecution's version has to be discarded, for
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it has deliberately not cited the independent material
witnesses. It is noticeable from the decision of the trial
Court and the High Court, that reliance has been placed on
the testimony of PW-s 1 to 3 and their version has been
accepted. They have treated PW- 2 and PW- 3 as natural
witnesses who have testified that the accused persons were
leaving the place after commission of the offence and they
had seen them quite closely. The contention that they were
interested witnesses and their implication is due to inimical
disposition towards accused persons has not been accepted
and we have concurred with the said finding. It has come
out in evidence that witnesses and the accused persons
belong to the same village. The submission of Mr Giri is that
non-examination of Nepal Singh, Ramlal and Kalsa is quite
critical for the case of the Prosecution and as put forth by
him, their non-examination crucially affects the Prosecution
version and creates a sense of doubt. According to Mr Giri,
Nepal Singh is a material witness. In this regard we may
refer to the authority in State of H.P. v. Gian Chand [State of
H.P. v. Gian Chand, (2001) 6 SCC 71 : 2001 SCC (Cri) 980]
wherein it has been held that: (SCC p. 81, para 14)
“14. Non-examination of a material witness is again not a
mathematical formula for discarding the weight of the
testimony available on record howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the Court levelled
against the Prosecution should be examined in the
background of the facts and circumstances of each case
so as to find whether the witnesses were available for
being examined in the Court and were yet withheld by
the Prosecution.”
The Court after so holding further ruled that it is the duty
of the Court to first assess the trustworthiness of the
evidence available on record and if the Court finds the
evidence adduced worthy of being relied on and deserves
acceptance, then non-examination of any other witnesses
available who could also have been examined but were
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not examined, does not affect the case of the Prosecution.
36. In Takhaji Hiraji v. Thakore Kubersing Chamansing
[Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001)
6 SCC 145 : 2001 SCC (Cri) 1070] , it has been held that:
(SCC p. 155, para 19)
“19. … if a material witness, who would unfold the
genesis of the incident or an essential part of the
Prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the
Prosecution case which could have been supplied or made
good by examining a witness who though available is not
examined, the Prosecution case can be termed as
suffering from a deficiency and withholding of such a
material witness would oblige the Court to draw an
adverse inference against the Prosecution by holding that
if the witness would have been examined it would not
have supported the Prosecution case. On the other hand,
if already overwhelming evidence is available and
examination of other witnesses would only be a repetition
or duplication of the evidence already adduced, non-
examination of such other witnesses may not be material.
… If the witnesses already examined are reliable and the
testimony coming from their mouth is unimpeachable,
the Court can safely act upon it, uninfluenced by the
factum of non-examination of other witnesses.”
37. In Dahari v. State of U.P. [Dahari v. State of U.P.,
(2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , while
discussing about the non-examination of material
witness, the Court expressed the view that when he was
not the only competent witness who would have been
fully capable of explaining the factual situation correctly
and the Prosecution case stood fully corroborated by the
medical evidence and the testimony of other reliable
witnesses, no adverse inference could be drawn against
the Prosecution. Similar view has been expressed in
Manjit Singh v. State of Punjab [Manjit Singh v. State of
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Punjab, (2013) 12 SCC 746 : (2014) 4 SCC (Cri) 531]
and Joginder Singh v. State of Haryana [Joginder Singh v.
State of Haryana, (2014) 11 SCC 335 : (2014) 3 SCC
(Cri) 366] .
38. Tested on the aforesaid parameters, we are unable to
accept tho submission of Mr Ciri that non-examination of
Nepal Singh and other two persons who had been
referred to by PW- 2 affects the Prosecution version or
creates any doubt in the mind of the Court. We arrive at
such a conclusion since the witnesses examined by the
Prosecution are trustworthy and the Court can safely act
on their testimony. There is no justification in the instant
case to draw any adverse inference against the
Prosecution.
(Emphasis supplied by us)
(f) NON PRODUCTION OF CCTV FOOTAGE
192. The next submission of the, Mr. Pasbola Mr. Yug Mohit
Choudhary and Mr. Gaurav Bhavnani appearing for the Appellants
was that non-production of CCTV footage, restaurant bill, non-
examination of waiter, and absence of alcohol test was fatal to the
case of the prosecution. This submission of the learned Counsel for
the Appellants can only be stated to be rejected. In this case, there
are five eyewitnesses who have deposed the manner in which the
assault has taken place. Merely for want of CCTV footage, all these
eyewitnesses cannot be ignored. This case is not based on
circumstantial evidence nor is based only on digital evidence. We
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have already discussed in extenso the evidence of the eyewitnesses
and we have given our reasons why the eyewitnesses are to be
believed. In these premises, non-production of CCTV footage,
restaurant bill, non-examination of the waiter, and absence of alcohol
test is not at all fatal to the case of Prosecution. Non-production of
CCTV footage at the highest can be attributed to defect in the
investigation. The investigating officer should have been more
careful to gather the CCTV footage and produce the same. However,
non-production of the CCTV footage only a defect in the
investigation which cannot be regarded as fatal to the case of the
prosecution. The Hon’ble Supreme Court in the matter of the State of
11
Karantaka v/s. K. Yarappa Reddy has observed as under :
“If the other evidence , on scrutiny, is found credible and
acceptable, should the Court be influenced by the
machinations demonstrated by the investigating officer in
conducting investigation or in preparing the records so
unscrupulously? It can be a guiding principle that as
investigation is not the solitary area for judicial scrutiny in a
criminal trial, the conclusion of the court in the case cannot
be allowed to depend solely on the probity of investigation.
It is well-nigh settled that even if the investigation is illegal
or even suspicious the rest of the evidence must be
scrutinized independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the investigating
officers ruling the roost. The court must have predominance
and pre-eminence in criminal trials over the action taken by
11 (1999) 8 Supreme Court Cases 715
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investigating officers. Criminal justice should not be made a
casualty for the wrongs committed by the investigating
officers in the case. In other words, if the court is convinced
that the testimony of a witness to the occurrence is true the
court is free to act on it albeit the investigating officer's
suspicious role in the case.”
(g) INCONGRUITY IN NUMBER OF ASSAILANTS:
193. Learned Counsel appearing for the Appellants contended
that when PW-17, Avinash Solanki visited Cooper Hospital at 7.35AM
of 21st October, 2011, he gave history of assault by three known
persons. In the continuation sheet of the casualty papers at page
number 558 the alleged history has mentioned as assault by four
unknown persons. The Medical Certificate Exhibit 85, according to
them shows assault by three unknown persons. They contented that
three different versions given by PW-17 recorded in medical papers
was not satisfactorily explained by the Prosecution. The Station
Diary Entry Exhibit 100 recorded at 01.30 hours shows that the
information was received from Kokilaben Hospital in respect of
assault on Keenan Santos by 1 known person and was brought to the
hospital by waiter Mohsin. All these contradictions are minor in
nature. The entire incident is witnessed by the five eye-witnesses.
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The Station Diary – Exhibit 134, the statement of the eye-witnesses
PW-1, PW-2, PW-17, PW-18 and PW-21, all have given a clear
account that there were four accused persons. The said medical
documents have to be read in its entirety alongwith the material
evidence on record. At page No.557 of the paperbook, it is
mentioned that the assault was by three persons. However,
immediately on the dorsal side of the said document, it is mentioned
that assault is by four unknown persons. Thus, there can be some
error by the staff of hospital while recording of medical history. The
statement of PW-17 and his evidence in the Court will have to be
given due importance in this regard. As far as the eye witnesses are
concerned, in the statement under Section 161 or in the deposition
recorded in the Court, there is no variation at all. It is not the case of
any of the eye-witness present on the spot that there were more than
four people. The Station Diary – Exhibit 134 which was the earliest
available document also clearly mentioned that there were in all four
persons involved in the incident. Hence, the objection regarding the
discrepancies in the medical record cannot be given any weightage
for the reasons mentioned above. The said discrepancies are duly
explained by the prosecution in their ocular evidence as well as the
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documentary evidence.
(h) DELAY IN CONDUCTING TEST IDENTIFICATION PARADE:
194. The submission of Mr. Pasbola the learned Senior
Advocate appearing for the Appellant about inordinate and
unexplained delay in conducting the Test Identification Parade is that
the Appellant and other accused were arrested on 21/10/2011
whereas the Test Identification Parade was conducted on
16/11/2011 i.e. nearly a month later and therefore there was
sufficient time to show the witness, the photographs of the accused
at the time of remand. In this connection evidence of PW-14 the Spl.
Executive Magistrate, Mr. Kadam is very important. He narrated that
the Test Identification Parade was conducted on 16.11.2011 after
taking necessary precautions. He has narrated extensively as to the
manner in which the TIP was conducted. Only on the basis that there
was a delay in conducting the TI Parade was not sufficient to discard
the TI Parade. There is nothing brought on record to show that the
photographs of the accused were seen by the witnesses before the
identification. The witnesses had the sufficient opportunity to
observe the accused at the time of incident. The occurrence was in
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front of the paan shop and the Hotel. In the Cross examination
specific question was put to the witnesses that photographs of the
accused were shown to them before the TI Parade. The witnesses
have denied the same. Even otherwise the said witnesses had
identified the accused in the Court. This identification is substantive
piece of evidence as opposed to the TI Period which is only the
corroborative evidence. We, therefore, hold that there was no
infirmity in the Test Identification Parade.
(i) RECOVERY OF KNIFE:
195. The learned Senior Advocate, Mr Pasbola, appearing for
accused No. 1, argued that the knife (Article 2) is alleged to have
been recovered under Section 27 of the Indian Evidence Act at the
instance of accused No. 1. He submitted that the memorandum
statement (Exhibit 56) and the seizure panchanama (Exhibit 56A)
show that the said recovery was made from an open place which is
accessible to all. The place of recovery was from a hole under the
electric box. This electric meter box was situated on the footpath
near Gulmohar Building. The place of recovery is very close to
Amboli Bar and Kitchen Restaurant where the incident took place.
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He submitted that by no stretch of imagination could the accused,
after committing a murder would come back and keep the knife near
the place of incident. He drew our attention to the CA Report,
Exhibit 121. The blood on the knife seized from accused No. 1 had
blood group O, and the blood group of the deceased Ruben is O,
whereas the blood group of Keenan is A. He submitted that, as per
the DNA Report, Exhibit-168, proved through the evidence of PW-
29, the DNA of the blood on the said knife is of Ruben. He argued
that it was not the case of the prosecution that accused No. 1 had
assaulted Ruben. The assault on Ruben was attributed to accused No.
2 and not to accused No. 1. The blood found on the clothes of
accused No. 1 is human and inconclusive. He submitted that the
accused himself was injured in the incident and had sustained
injuries on his head. He invited our attention to Exhibit 120, which
was the forwarding letter dated 01.11.2011 shows that the knife
originally recovered from accused No. 1 was marked as Exhibit 19,
the jeans pant of Ruben was marked as Exhibit 12, and the shirt of
witness Mohsin was marked as Exhibit 18. He submitted that the
DNA profile of the blood, as per Report Exhibit-168, shows that
Exhibits 12, 18 and 19 are of one and the same source of mutual
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origin. He submitted that the contradiction regarding the knife
which was carried by accused No. 1 and the knife which was carried
by accused No. 2 falsifies the case of the prosecution.
196. We have considered the submissions very carefully. The
eyewitnesses have clearly stated that accused No. 1 stabbed Keenan,
whereas accused No. 2 stabbed Ruben. Mr. Ponda, learned Senior
Advocate, rightly argued that the discrepancy sought to be
highlighted by the Appellant is only with regard to the identification
of a particular knife, that is, Article 1 and Article 2, as being in the
hands of accused No. 1 or accused No. 2. The knives were not seized
from the spot. They were recovered from the spot pursuant to the
statement under Section 27 of the Indian Evidence Act. The
eyewitnesses do not make any mistake about the role of accused Nos.
1 and 2. Accused No. 1 was identified as the person who stabbed
Keenan repeatedly until he fell on the ground. The discrepancy in
subsequently identifying the recovered knife as to whether it was
Article 1 or Article 2 cannot have a material effect on the trial and
the same could not displace the otherwise cogent and reliable
evidence of the eyewitnesses. Further, it is very difficult to expect
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that, in the course of a violent assault, the eyewitnesses would have
noted minor distinguishing features of each knife so as to
subsequently identify with precision which particular knife was used
by which accused. Only because of inconsistency in identification of
the knife as Article 1 and Article 2, the eyewitnesses' evidence cannot
be discarded.
197. The contention of the Appellant that the knife was
recovered pursuant to the recovery panchanama and statement
under Section 27 of the Evidence Act and was therefore not
believable is also not correct. The memorandum statement was
made by accused No. 1. PW- 7, who is the panch witness, proved the
memorandum statement. The same is part of the record. It is
material to read the memorandum statement, which is at Exhibit 56,
and the seizure panchanama, which is Exhibit 56A. The knife was
concealed under the electric box of Reliance Company. It is not as if
the knife was kept on the electric box, but the specific statement of
accused No. 1 shows that the knife was hidden beneath the electrical
box. The location of the concealed weapon was within the special
knowledge of the accused. The knife bore blood stains. The knife
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was not left lying open or at a place where it could ordinarily come
to the notice of a passer-by. The learned Sessions Judge rightly found
that the recovery of the knife at the instance of accused No. 1 was
consistent with the evidence on record and cannot be doubted. We
find no merit in the submission of Mr Pasbola regarding recovery of
the knife pursuant to the statement at Exhibits 56 and 56A under
Section 27 of the Indian Evidence Act at the instance of accused No.
1, was faulty.
198. Mr. Pasbola, learned Senior Advocate appearing for the
Appellant No. 1 further sought to cast doubt upon the recoveries by
contending that, although the panch witnesses stated during their
deposition before the Court that the recovery weapons were
wrapped, labelled and sealed by the police, the earlier Spot
panchama does not specifically record the fact of sealing. Mr Ponda,
on the other hand, submitted that this at the most being omission,
must be distinguished from a contradiction. The witnesses have
consistently narrated regarding the recovery of weapons at the
instance of the respective accused from the places from which the
weapons were produced. We have gone through the panchanama in
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details. Although the panchanama does not expressly mention every
subsequent procedural detail concerning the seal, such omission by
itself would not establish that the weapon was not recovered or that
the recovery was fabricated. The evidence of the panch witnesses
must be read as a whole. Mere absence of the word seal would not
render their evidence untrustworthy. The recovery at the instance of
accused No. 1 was proved through PW-7 the panch witness. The
memorandum and recovery panchama is exhibited below Exhibit 56
and 56A. The recovered articles were forwarded to the Forensic
Science Laboratory. The C.A. Reports were received. PW-29, who is
the Chemical Analyzer has also deposed the manner in which he had
received the parcels which were 26 in numbers and plastic
containers, which were 2 in numbers in “sealed condition”. The
analysis of the DNA and the Report at Exhibit-168 cumulatively
would show that there was no tampering with the seal. We do not
wish to attach much importance to the fact of sealing being omitted
in the earlier panchanama.
(j) CONSUMPTION OF ALCOHOL BY THE COMPLAINANT:
199. The learned Counsel appearing for the Appellants
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strenuously argued that the death was as a result of free fight, in
which the Complainant Party was the aggressor which started
because PW-17 had slapped the accused No. 1 during the first
incident. They relied upon the post mortem report of deceased
Keenan at page number 286 of the paper book. They read the
deposition of PW-16 (Autopsy Surgeon). There was a specific
question put to PW-25 about the scuffle taking place after both the
sides had consumed alcohol. The learned Counsel Dr. Choudhary
appearing for accused No.4 went to the extent of saying that it is
very inconceivable that the Complainants who were inside a beer bar
for about 3 hours would not consume alcohol. He further mentioned
that the victim, the deceased and the Complainant were drunk and
therefore the blood samples were not collected. He relied upon the
evidence of PW-22 and PW-23 to buttress his contention. He also laid
much stress upon the Investigating Officer's failure to collect the bill
from the restaurant of the relevant date. He further submitted that it
was very wrong to suppose that none of the victim's party was
consuming alcohol and still they chose the Amboli Bar and Kitchen
Restaurant for a get together especially when a Cafe Coffee Day was
opened next to the Amboli Bar and Kitchen Restaurant. We find the
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above submission of learned Counsel totally prepostorous. It is too
much to assume that merely because a person is visiting a bar and
restaurant, he would invariably consum alcohol.
200. It is true that the blood sample of the Complainant party
was not taken. It is also true that the complainant party were inside
the bar and restaurant for nearly or perhaps more than 3 hours. But
this itself was not sufficient to conclude, that the said persons had
consumed alcohol. It is too prepostorous to assume that only
because a person goes to a Bar and Restaurant, the person has
consumed alcohol. The submission of Dr. Yug Mohit Chaudhary that
only because the Complainant were inside the Bar and Restaurant for
about 3 hours, therefore they must be presumed to have consumed
alcohol deserves to be considered only to be rejected. Only because
there was some sour smell coming from the stomach is not sufficient
to come to a conclusion that deceased had consumed alcohol.
(k) SUDDEN FIGHT, PREMEDITATION AND EXCEPTION 4 TO
SECTION 300:
201. Learned Counsel appearing for the Appellant contended
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that if the Court comes to a conclusion that Appellant have
committed an offence under Section 300, then they are entitled to
the benefit of exception (4) of Section 300 of the Indian Penal Code.
Section 300 reads thus :
“Section 300. Murder. —Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing death, or-
2ndly-If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of
the person to whom the harm is caused, or-
3rdly- If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or-
4thly- If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
Exception 1- When culpable homicide is not murder.
- Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake
or accident.
The above exception is subject to the following provisos:—
First- That the provocation is not sought or voluntarily provoked
by the offender as an excuse for killing or doing harm to any
person.
Secondly- That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful
exercise of the powers of such public servant.
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Thirdly- That the provocation is not given by anything done in
the lawful exercise of the right of private defence.
Explanation- Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact.
Exception 2- Culpable homicide is not murder if the offender in
the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law and
causes the death of the person against whom he is exercising
such right of defence without premeditation, and without any
intention of doing more harm than is necessary for the purpose
of such defence.
Exception 3- Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him
by law, and causes death by doing an act which he, in good
faith, believes to be lawful and necessary for the due discharge
of his duty as such public servant and without ill-will towards
the person whose death is caused.
Exception 4- Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and without the offender's having taken
undue advantage or acted in a cruel or unusual manner.
Explanation-It is immaterial in such cases which party offers the
provocation or commits the first assault.
Exception 5- Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent.”
202. We are conscious of the fact that the doctrine of grave
and sudden provocation is incapable of rigid construction. It will
have to be interpreted on a case to case basis. A sudden fight implies
mutual provocation and exchange of blows on both the sides. In such
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case, the homicide committed is clearly not attributable to unilateral
Act, nor can the blame be placed on one side. The learned Counsel
appearing for the Appellants are pitching their case to bring the same
within Exception 4 to section 300 of the IPC. The Hon’ble Apex Court
12
in the judgment of Kikar Singh versus State of Rajasthan , has held
in paragraph 8 as under:
“8. The counsel attempted to bring the case within Exception 4.
For its application all the conditions enumerated therein must be
satisfied. The act must be committed without premeditation in a
sudden fight in the heat of passion; (2) upon a sudden quarrel;
(3) without the offender's having taken undue advantage; (4)
and the accused had not acted in a cruel or unusual manner.
Therefore, there must be a mutual combat or exchanging blows
on each other. And however slight the first blow, or provocation,
every fresh blow becomes a fresh provocation. The blood is
already heated or warms up at every subsequent stroke. The
voice of reason is heard on neither side in the heat of passion.
Therefore, it is difficult to apportion between them respective
degrees of blame with reference to the state of things at the
commencement of the fray but it must occur as a consequence of
a sudden fight i.e. mutual combat and not one side track. It
matters not what the cause of the quarrel is, whether real or
imaginary, or who draws or strikes first. The strike of the blow
must be without any intention to kill or seriously injure the
other. If two men start fighting and one of them is unarmed
while the other uses a deadly weapon, the one who uses such
weapon must be held to have taken an undue advantage denying
him the entitlement to Exception 4. True the number of wounds
is not the criterion, but the position of the accused and the
deceased with regard to their arms used, the manner of combat
must be kept in mind when applying Exception 4. When the
deceased was not armed but the accused was and caused injuries
to the deceased with fatal results, the Exception 4 engrafted to
Section 300 is excepted and the offences committed would be
one of murder. 9. The occasion for sudden quarrel must not only
12 (1993) 4 SCC 238
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be sudden but the party assaulted must be on an equal footing in
point of defence, at least at the onset. This is specially so where
the attack is made with dangerous weapons. Where the deceased
was unarmed and did not cause any injury to the accused even
following a sudden quarrel if the accused has inflicted fatal
blows on the deceased, Exception 4 is not attracted and
commission must be one of murder punishable under Section
302. Equally for attracting Exception 4 it is necessary that blows
should be exchanged even if they do not all find their target.
Even if the fight is unpremeditated and sudden, yet if the
instrument or manner of retaliation be greatly disproportionate
to the offence given, and cruel and dangerous in its nature, the
accused cannot be protected under Exception 4….”
(Emphasis supplied by us)
203. Thus, exception 4 to Section 300 can be invoked only if
the death is caused - A), without premeditation, B) in a sudden fight
C) without the offenders, having taken undue advantage or acted in
cruel or unusual manner, D) the fight must have been with the
person killed.
204. In the present case, none of the ingredients of exception
4 to section 300 are attracted. In the first place, there was no sudden
fight. The sudden fight was a part of the first incident in as much as
the accused No. 1 was given a slap by PW-17 (informant). This had
arisen from the offence of molestation which the said accused No. 1
had committed as against PW-1. Thus, this is not a case of sudden
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fight. The accused No.1 knew very well what had transpired and
that he had molested the PW-1. Since PW-1 narrated the same to her
friends, as a natural reaction PW-17 slapped the accused No. 1. At
that time, no fight ensued. The accused went away by threatening
the Complainant. The actual assault took place after an interval of
about 10-15 minutes. Thus, this is not a case of sudden fight.
205. The next parameter is that it should be without
‘premeditation’. In the case at hand, the accused had threatened the
complainant with grave consequences after PW-17 slapped accused
No.1. The accused had threatened them that they would come back
to kill them. After a passage of about 10 to 15 minutes, the accused
came back duly armed with dangerous weapons. Hence, it cannot be
said that there was no premeditation.
206. The next parameter which is required to be satisfied in
order to get benefit of exception 4 to section 300 is that the offender
should not take advantage or act in cruel and unusual manner. In the
present case, the accused No.1 had caused serious stab injuries to
deceased Keenan. The injuries were of such severe nature that the
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intestine of deceased Keenan came out protruding, it had to be put
together with a towel and thereafter, deceased Keenan had to be
hospitalised. He died immediately thereafter. Similarly, deceased
Ruben was given a blow with such impact that he fell down on the
spot. Taking into consideration the aforesaid facts, it certainly can be
said that the assault was gruesome and that the Appellant No.1
certainly cannot take advantage of exception 4 to Section 300.
207. The last principle is that the fight must have been with
the person killed. If we accept the theory of the Appellant , that it
was because of the slap which PW-17 had given to accused No. 1 that
there was grave and sudden provocation, but the death of PW-17 is
not caused. The death which is caused is of Keenan and Ruben.
Thus, by no stretch of imagination, the case of the Appellant can be
said to be falling within exception 4 to Section 300. We are further
fortified in our view by the decision of Hon’ble Supreme Court in the
matter of Surain Singh versus State of Punjab (2017), 5 SCC 796
where their Lordships observed thus:
"The help of Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight, (C) without the
offenders having taken undue advantage or acted in a cruel or
unusual manner, and (d) the fight must have been with the
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person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to be noted that
the "fight" occurring in Exception 4 to Section 300, IPC is not
defined in IPC...... A fight is a combat between two and more
persons whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts of
each case. For the application of Exception 4, it is not sufficient
to show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has
not taken undue advantage or acted in a cruel or unusual
manner. The expression "undue advantage" as used in the
provision means "unfair advantage"."
(Emphasis supplied)
208. We make it clear at this juncture that this observation
that exception 4 to Section 300 is not attracted in the present case is
made, qua accused No.1 only and not qua accused Nos.3 and 4. As
far as the case of accused Nos.3 and 4 is concerned, we are dealing
with it in detail in the subsequent paragraph.
209. Thus, the contention of the Appellant that this injury was
caused as a result of grave and sudden provocation, which resulted
from the fact that PW- 17 had given a slap to accused No. 1 cannot
be countenanced. The incident can be divided into two parts. In the
first part, accused No. 1 had molested PW- 1, the later complained of
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the same to her friends. PW- 17 slapped the accused. The accused
threatened that they would return and kill them and went away.
Thereafter, almost 10 to 15 minutes had passed. All the accused
returned with weapons in their hands. There was enough time to
cool down the passion. It is not as if the fight ensued immediately
after accused No. 1 was slapped by PW- 17.
210. The submission of the learned Counsel that the trial
Court erred in not placing reliance on Exception 4 of section 300 in
our opinion, is an incorrect interpretation on the part of the
Appellants to apply the exception to the facts of the present case. At
the cost of repetition, after the first incident, the accused left the
place, and there was sufficient time for them to cool down their
passion. Their subsequent conduct of coming armed with knives and
other weapons and immediately assaulting the complainant cannot
be said to be an act of grave and sudden provocation. There is
premeditation involved. It is not that the accused were armed with
the weapons at the time when the first incident had taken place.
They, in fact, went away to procure the weapons, came back with the
weapons, and then started assaulting the complainant. This itself
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shows the deliberate and intentional act on the part of the accused.
At this juncture, it is also necessary to consider that the complainant
party was not armed. The Appellant No.1 certainly cannot take the
benefit of Exception 4 to Section 300 of the IPC.
211. The Apex Court, in the matter of Asif Khan v. State of
13
Maharashtra , had occasion to consider similar facts, where there
was an altercation between the parties. Para 15 reads thus :
" 15. Coming to the case relied on by the Appellant i.e.
Ramesh Vithalrao Thakre [Ramesh Vithalrao Thakre v.
State of Maharashtra, (2009) 17 SCC 438 : (2011) 1 SCC
(Cri) 1056] in the above case, the accused had previous
enmity with one Ashok and they have gone to inflict injury
on Ashok. Sister of Ashok, Rekha came in between and she
received single injury on her chest. In the above
circumstances, this Court held that case will fall under
Section 304 Part II IPC. In paras 9 and 11, the following
has been held: (SCC p. 441)
“9. There is no denying the fact that one single injury was
caused to the deceased by Ramesh when Rekha intervened
to save her brother Ashok from being assaulted. The
primary target of Ramesh was Ashok, who got saved when
Rekha received the injury on her chest. After causing the
single injury to Rekha, it is the prosecution case itself, that
Ramesh did not cause any other injury to Rekha nor even
to Ashok, PW- 1.
11. We, accordingly set aside the conviction and sentence
of Ramesh for the offence under Sections 302/34 IPC and
instead find him guilty for the offence under Section 304
Part II IPC and sentence him to five years' rigorous
imprisonment and a fine of Rs 4000. In default of payment
of fine, the Appellant shall suffer rigorous imprisonment
13 2019 5 SCC 210
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for a period of one year. The fine shall be paid within three
months and on realisation shall be paid to the mother of
the deceased, PW- 2, Janabai.”
The above case in Ramesh Vithalrao Thakre [ Ramesh
Vithalrao Thakre v. State of Maharashtra , (2009) 17 SCC
438 : (2011) 1 SCC (Cri) 1056] is clearly distinguishable
since in that case, they had not gone to inflict injury on the
deceased sister of Ashok, rather they had gone to inflict
injury on Ashok and since she intervened to save her
brother and got assaulted, it was not pre-planned. But, in
the present case, accused 1 and 2 after first incident,
returned back on motorcycle and came back after 10
minutes along with weapon, hence, the above judgment is
not applicable."
(emphasis supplied by us)
212. For the reasons mentioned above, we are of the
considered opinion that this is not a case where the death was
caused due to grave and sudden provocation. This is a case where
there was a pre-planned intention to commit the murder. The
accused had threatened to kill them. The Appellants, came armed
with weapons, in fact, with deadly weapons. The facts in this case
are similar to that in the matter of Asif Khan V. State of Maharashtra
(supra) .
(l) APPLICABILITY OF SECTION 302 R/W SECTION 34 OF IPC
QUA ACCUSED NOS.3 & 4
213. Learned Counsel Dr. Chaudhary as well as learned
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Counsel Mr. Gaurav Bhavnani vehemently submitted that Section 34
of the IPC could not be made applicable to the accused Nos. 3 and 4
only. They carried stump and bamboo stick and that they did not
inflict the fatal knife injuries upon the deceased Keenan or Ruben.
The learned Counsel for the accused No. 4 had relied upon a detailed
comparison of injuries sustained by the injured and deceased and
also the role attributed to the accused No. 4 as narrated by the
prosecution witnesses. As far as Avinash PW-17 is concerned, he
stated that Avinash had sustained abrasion over Occipital region.
The medical certificate of Avinash also corroborates the same. He
submitted that PW-17 claimed that he was assaulted by A3 and A4
who are allegedly holding bamboo and stump and only single simple
injury is sustained by PW-17. Even if the prosecution's case is taken
to be true, according to the learned Counsel appearing for the
respective Appellants, the offence under Section 302 read with 34
could not have been made out against the accused Nos.3 and 4.
According to learned Counsel Mr. Yug Mohit Chaudhary and Mr.
Gaurav Bhavnani, it is not the case of Prosecution that accused No.3
and 4 had inflicted the fatal blow on the deceased. He submitted
that accused No. 4 is alleged to have been armed with simple stick
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and the only injury is alleged to have been inflicted is on PW-17's
thumb causing a minor abrasion. He is not shown to have assaulted
the deceased. They submitted that there was no weapon recovered
from him and that a stick was alleged to have been found on the spot
which was alleged to have been used by the accused No. 4. They
submitted that, at the best, intention can be ascribed to accused
Nos.3 and 4 to cause simple injuries with a stump and stick. They
further submitted that there was no evidence to show that they
shared or harboured the intention to commit murder. Therefore, a
necessary inference required to be drawn is that Section 34 of IPC is
not made out from the facts of the present case. They relied upon the
14
judgment of Mahboob Shah v. Emperor to buttress their
submission. They submitted that there is nothing to show that
accused Nos.3 and 4 was even aware of the intention of the other
accused to commit murder; The accused Nos. 3 and 4 have not
assaulted either of the deceased persons. It is not the prosecution's
case that accused Nos.3 and 4 had exhorted his co-accused to murder
the deceased. It is submitted that invoking Section 34 of IPC against
accused Nos.3 and 4 for murder requires undoubtedly evidence of
14 AIR (32) 1945 PC 118
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their involvement in the offence of murder. There was no scope
according to the learned Counsel for arriving at a conclusion that
there was meeting of mind of accused Nos.3, accused No. 4, accused
No. 1 and accused No. 2. They relied upon the decision of Mohan
15
Singh & Anr. V/s. State of Punjab . In support of their contention,
relevant para of which reads thus :
"That inevitably takes us to the question as to whether the
Appellants can be convicted under Section 302/34. Like Section
149, Section 34 also deals with cases of constructive criminal
liability. It provides that where a criminal act is done by several
persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it
were done by him alone. The essential constituent of the
vicarious criminal liability prescribed by Section 34 is the
existence of common intention. If the common intention in
question animates the accused persons and if the said common
intention leads to the commission of the criminal offence
charged, each of the persons sharing the common intention is
constructively liable for the criminal act done by one of them.
Just as the combination of persons sharing the same common
object is one of the features of an unlawful assembly, so the
existence of a combination of persons sharing the same common
intention is one of the features of Section 34. In some ways the
two sections are similar and in some cases they may overlap.
But, nevertheless, the common intention which is the basis of
Section 34 is different from the common object which is the
basis of the composition of an unlawful assembly. Common
intention denotes action-in-concert and necessarily postulates
the existence of a prearranged plan and that must mean a prior
meeting of minds. It would be noticed that cases to which
Section 34 can be applied disclose an element of participation in
action on the part of all the accused persons. The acts may be
different; may vary in their character, but they are all actuated
by the same common intention. It is now well-settled that the
common intention required by Section 34 is different from the
15 AIR 1963 SC 174
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same intention or similar intention. As has been observed by the
Privy Council in Mah-bub Shah v. King-Emperor common
intention within the meaning of Section 34 implies a pre-
arranged plan, and to convict the accused of an offence applying
the section it should be proved that the criminal act was done in
concert pursuant to the pre-arranged plan and that the inference
of common intention should never be reached unless it is a
necessary inference deducible from the circumstances of the
case.”
214. They argued that inference of common intention should
never be reached unless it is necessarily inference deducible from the
circumstances of the case. Learned Counsel appearing for accused
No. 4 as well as accused No. 3 made submissions which are almost
identical. It is true that the evidence on record does not indicate that
the deceased Keenan or deceased Ruben were attacked by the
accused No. 3 or accused No. 4. The Prosecution has also never
alleged that accused No. 3 or accused No. 4 had stabbed either of the
deceased. The finding of the Sessions Judge is also to the effect that
accused No. 1 and accused No. 2 had inflicted the fatal knife assault
upon deceased and accused No. 3 and accused No. 4 were armed
with wooden weapons and simultaneously assaulted Avinash and
Benjamin. We must also mention at this juncture that the only injury
which is caused by the accused No. 4 is to the thumb of PW-17, the
complainant. Before coming to a conclusion that the offence under
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Section 302, read with Section 34 is made out several aspects will
have to be considered. Upon perusal of the entire evidence there is
nothing to show that the accused No. 3 and accused No. 4 shared or
harboured the common intention to commit murder. It is settled
position of law that the inference of common intention should never
be reached unless it is necessarily an inference deducible from the
circumstances of the case. There is nothing before us to arrive at a
conclusion that there was meeting of minds of accused No. 4,
accused No. 3, accused No. 1 and accused No. 2. No doubt accused
No. 3 and accused No. 4 were present on the spot. It is however not
the case of the Prosecution that these accused had assaulted the
deceased person. There is nothing to show that accused Nos.3 and 4
were even aware of intention of accused No. 1 to commit murder.
215. In this context, it is necessary to refer to the decision in
16
Pandurang, Tukia, Bhilia versus The State of Hyderabad . Paragraph
numbers 30, 31 and 32 of the said decision are reproduced as under:
“30. Now in the case of Section 34 we think it is well established
that a common intention presupposes prior concert. It requires a
pre-arranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been
done in furtherance of the common intention of them all :
16 AIR 1955, Supreme Court Cases 216
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Mahbub Shah v. King Emperor-, IA pp. 153-54. Accordingly
there must have been a prior meeting of minds. Several persons
can simultaneously attack a man and each can have the same
intention, namely, the intention to kill, and each can individually
inflict a separate fatal blow and yet none would have the
common intention required by the section because there was no
prior meeting of minds to form a pre-arranged plan. In a case
like that, each would be individually liable for whatever injury
he caused but none could be vicariously convicted for the act of
any of the others; and if the prosecution cannot prove that his
separate blow was a fatal one he cannot be convicted of the
murder however clearly an intention to kill could be proved in
his case: Barendra Kumar Ghosh v. King Emperor- (at p. 49) and
Mahbub Shah v. King Emperor. As their Lordships say in the
latter case: (IA p. 154) ".... the partition which divides "their
bounds" is often very thin; nevertheless, the distinction is real
and substantial, and if overlooked will result in mis- carriage of
justice."
31. The plan need not be elaborate, nor is a long interval of time
required. It could arise and be formed suddenly, as for example
when one man calls on bystanders to help him kill a given
individual and they, either by their words or their acts, indicate
their assent to him and join him in the assault. There is then the
necessary meeting of the minds. There is a pre-arranged plan
however hastily formed and rudely conceived. But pre-
arrangement there must be and premeditated concert. It is not
enough, as in the latter Privy Council case, to have the same
intention independently of each other eg. the intention to rescue
another and, if necessary, to kill those who oppose.
32. In the present case, there is no evidence of any prior
meeting. We know nothing of what they said or did before the
attack, not even immediately before. Pandurang is not even of
the same caste as the others Bhilia, Tukia and Nilia are
Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is
true prior concert and arrangement can, and indeed often must,
be determined from subsequent conduct as, for example, by a
systematic plan of campaign unfolding itself during the course of
the action which could only be referable to prior concert and
pre-arrangement, or a running away together in a body or a
meeting together subsequently. But, to quote the Privy Council
again: (Mahbub Shah case-, IA p. 154) "... the inference of
common intention... should never be reached unless it is a
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necessary inference deducible from the circumstances of the
case."
(Emphasis supplied by us)
216 . There is hardly any material to show that there was prior
meeting of minds, although four persons had attacked the deceased.
It would however be preposterous to suppose that there was a
common intention required under Section 34 of IPC. We are also
conscious of the position of law that common intention can arise on
the spur of the moment also and that long interval of time is not
required to reach a common intention. There is nothing on record to
conclude that there is pre-meditation, the nature of the injuries
infected would fortify our findings. Section 34 has been enacted on
the principle of joint liability in the doing of a criminal act. The
Section is only a rule of evidence and does not create a substantive
offence. The distinctive feature of the Section is the element of
participation in action. The liability of one person for an offence
committed by another in the course of criminal act perpetrated by
several persons arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who join in
committing the crime. Direct proof of common intention is seldom
available and, therefore, such intention can only be inferred from the
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circumstances appearing from the proved facts of the case and the
proved circumstances. In order to bring home the charge of common
intention, the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting of mind of all
the accused persons to commit the offence for which they are
charged with the aid of Section 34, be it pre-arranged or on the spur
of moment; but it must necessarily be before the commission of the
crime. The true purport of Section 34 is that if two or more persons
intentionally do an act jointly, it is same as if each of them has done
it individually by himself. As observed in Ashok Kumar v. State of
17
Punjab , the existence of a common intention amongst the
participants in a crime is the essential element for application of this
Section. It is not necessary that the acts of the several persons
charged with commission of an offence jointly must be the same or
identically similar. The acts may be different in character, but must
have been actuated by one and the same common intention in order
to attract the provision.
217. The evidence of PW-1, PW-18, PW-17, PW-2 and PW-21
all are at variance with each other when it comes to assault, by
17 MANU/SC/0089/1976
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accused Nos. 3 and 4 to the deceased. PW-1 in her Examination-in-
chief, states in paragraph No. 6 of her deposition that the accused
Nos. 3 and 4, attacked on Benjamin and Avinash. PW-18 in
paragraph No. 7 of her Examination-in-chief states that, accused Nos.
3 and 4 attacked. Ruben, Keenan, and Avinash. PW-17 in paragraph
No. 3 of his Examination-in-chief stated that the accused No. 3 and 4
were assaulting deceased Ruben and himself. PW-2 in paragraph No.
3 of his Examination-in-chief states that all the persons assaulted
PW-17(Bali), Keenan, Ruben, and Benjamin. PW-21 in paragraph
No. 4 of his Examination-in-chief stated that the accused Nos. 3 and
4 attacked all the four boys from the complainants side. Thus, the
version of all the eyewitnesses, qua the role of accused Nos. 3 and 4
is not consistent. It is, therefore, difficult to conclude that accused
Nos. 3 and 4 had assaulted deceased Ruben and deceased Keenan.
Their role of attacking PW-17 Avinash, and causing injury to his right
thumb, is, however, clearly made up. The Trial Court has rightly
convicted the accused Nos. 3 and 4 of the offence under section 323
of Indian Penal Code. We are in agreement with the findings of the
Ld. Trial Court convicting the Appellant under section 323 of Indian
Penal Code. We, however, do not agree with the finding of the Trial
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Court that the accused No. 3 and 4 had committed an offence under
Section 302, read Section 34 of the Indian Penal Code. For the
reasons mentioned hereinafter, we are of the considered opinion that
the accused No. 1 committed the offence under section 302 read
with section 34 of IPC. The conviction of accused No. 1 is sustained.
We do not find any ground to interfere with the Judgment and order
passed by the Trial Court qua accused No. 1. We are, however, not in
agreement with the findings of the Trial Court that the accused Nos.
3 and 4 also deserve to be convicted under section 302 read with
Section 34 of the Indian Penal Code.
J. CONCLUSION :
218. To sum up the prosecution has failed to prove the
element of common intention. The prosecution, however, has proved
that deceased Keenan was assaulted by the accused No.1 in most
gruesome manner. Since the evidence of the witnesses on the role of
accused Nos.3 and 4 assaulting deceased Keenan is concerned, they
are at variance. Hence, it would be too unsafe to hold that accused
No.3 and 4 had assaulted deceased Keenan and Ruben. Once we hold
that, the accused has failed to prove the element of common
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intention under Section 34, accused Nos.3 and 4 cannot be held
guilty of commission of murder of Keenan or Ruben. We conclude
that the accused Nos.3 and 4 have assaulted PW- 17 and Benjamin.
We, concur with the finding of the Trial Court that accused No. 1
committed the murder of deceased Keenan. We, however, do not
subscribe to the view of the Trial Court that accused Nos.3 and 4 had
common intention, and therefore they too should be held guilty of
murder of deceased Keenan. To this extent, we are interfering with
the finding of the Trial Court.
219. The Trial Court has in paragraph No. 329 of the
impugned Judgment and Order held as under :
“329 accused nos.3 and 4 were having bamboo and stump.
They were assaulting simultaneously to Benjamin and
Avinash. Avinash has received some injuries and he has
deposed that accused No.3 and 4 assaulted him. Other eye-
witnesses have also mentioned that the accused nos.3 and 4
were assaulting with said bamboo stick and stump which
were found on the spot. The articles were identified during
evidence. As the injuries were of not grave nature but, PW-
17 has stated that he was assaulted by both of them and he
went to medical checkup. The offence of assault by deadly
weapon causing grievous injury is not proved as he was
assaulted by wooden stick and stump therefore offence
u/s.324 is not proved but, the offence u/sec. 323 is proved
which is related to body pain. Hence, offence u/s.323 r/w
34 of IPC is proved against accused nos.3 and 4.”
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This is yet another reason for coming to a conclusion that the
prosecution failed to prove that accused Nos.3 and 4 committed
offence under Section 302 r/w Section 34 of IPC.
220. As far as the finding of the Trial Court that the accused
Nos.3 and 4 have committed offence under Section 323 of the IPC is
concerned, we do not intend to interfere with the finding of the Trial
Court. We hold the accused No.1 guilty of having committed
offence under Section 354 of IPC. None of the Appellants before us
had argued the appeal against that part of the order, imposing
punishment under Section 509, 506 and 504 of IPC, or Section 37(1)
r/w Section 1351) of the Bombay Police Act.
K. IMPOSITION OF SENTENCE ON ACCUSED NO.1 :
221. After having come to the aforesaid conclusion, the next
issue, which arises for our consideration is whether the Trial Court
was right in convicting the accused No.1 under Section 302 r/w
Section 34 of IPC, and sentencing him for life imprisonment, i.e.
remainder of natural life. As stated, in the earlier paragraphs, the
learned Special PP, Mr. Ponda had very fairly submitted that this
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power did not exist with the Trial Court, however, the High Court can
definitely consider imposing the said sentence i.e. remainder of
natural life. We appreciate the fairness of the learned Special P.P
appearing for the State. We hold that the Trial Court was not within
its jurisdiction to impose the sentence i.e. remainder of natural life
upon the accused No.1.
222. We are fortified in our view by the Judgment of the Apex
Court in the matter of Naval Kishore and another V/s State of
18
Punjab . The Hon’ble Apex Court after considering various
Judgments of the Apex Court has held as under :
“25.In light of the decisions considered hereinabove, we are of
the view that there is no doubt that the Trial Court was
competent to impose the punishment of imprisonment for life
upon the Appellants for the offence under Section 302 read with
Section 34 IPC, however, at the same time, the Trial Court was
not competent to impose a special category sentence that the
Appellants “to remain in prison till rest of their life”, which in
substance and effect, excludes the statutory power of remission
or commutation. Therefore, the High Court, while affirming the
sentence imposed by the Trial Court, did not examine the
competence of the Trial Court to impose such a sentence and
thus, to that extent, the impugned judgment requires
interference of this Court.”
223. Having said so, we must note that the offence is
premeditated murder of two young persons viz. Keenan and Ruben
18 2026 SCC OnLine SC 2000
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who were of 25 years and 29 years, at the time of incident. They had
been to a restaurant to have food and to watch cricket match and
enjoying their life peacefully. The accused No.1 had molested the
friend (PW-1) of the deceased. The accused No.1 has assaulted the
deceased in utmost heinous manner, as stated above with lethal
weapon. The injury was such that the intestine of Keenan came out
protruding and had to be held together by a towel. The deceased
died immediately within 10 to 15 minutes of him being taken to the
Kokilaben hospital. Further taking into consideration the factors that
the accused No.1 was of 25 years on the date of incident, not a
habitual offender, we are of the opinion that ends of justice would be
adequately met by altering the sentence of the accused No.1 awarded
by the Trial Court i.e. “life imprisonment i.e. remainder of their life’,
to the sentence of rigorous imprisonment for a period of 20 years,
without any statutory remission. We are fortified in awarding the
rigorous imprisonment for a period of 20 years and putting it beyond
statutory remission by placing reliance upon the judgment in the
19
matter of Union of India V/s V. Shriharan alias Murugan & Ors.
“177. Imprisonment for life in terms of Section 53 read
with Section 45 of the Penal Code only means
19 2016 (7) SCC 1
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imprisonment for rest of life of the convict. The right to
claim remission, commutation, reprieve etc. as provided
under Article 72 or Article 161 of the Constitution will
always be available being Constitutional Remedies
untouchable by the Court.
178. We hold that the ratio laid down in Swamy
Shraddananda (supra) that a special category of
sentence; instead of death can be substituted by the
punishment of imprisonment for life or for a term
exceeding 14 years and put that category beyond
application of remission is well-founded and we answer
the said question in the affirmative.”
Hence, the following order:
ORDER
(1) The appeals are partly allowed.
(2) The Judgment and Order passed by the Additional
Sessions Judge, City Civil and Sessions Court, Greater Bombay
th
dated 5 May, 2016 in Sessions Case No.161 of 2012 is
modified to the following extent:
(i) The accused No.1 Jitendra Fakirchand Rana @
Chaina is hereby convicted for the offence punishable
under Section 302 r/w Section 34 of IPC and is
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sentenced for rigorous imprisonment of 20 years without
any statutory remission.
(ii) Accused Nos.3 and 4 are acquitted from the offence
punishable under Section 302 r/w 34 of the IPC. To that
extent, the order of the Trial Court is set aside.
(iii) Rest of the sentence imposed on the Appellants by
the Trial Court is confirmed.
(iv) The appeals are disposed of in the aforesaid terms.
224. In view of the disposal of appeals, all the interim
applications pending therein are also disposed of.
(SANDESH D. PATIL, J.) (M. S. KARNIK, J.)
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