YAKUB AKRAM KHAN AND ANR vs. THE STATE OF MAHARASHTRA

Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.685 OF 2009
1. Akhtar Hussein Mohiddin Ali Shaikh, ]
Aged 41 Yrs., ]
R/at Islamiya Chawl Committee, ]
Pathanwadi, Powai, Mumbai-400 087. ]
]
2. Amin Momin Khan, ]
Aged 26 Yrs., ]
R/at Near Gupta Grocery Shop, ] ….Appellants /
Morarji Nagar, Filterpada, ] (Org. Accused
Aarey Road, Powai, Mumbai – 400087. ] Nos.3 and 7)
Versus
The State of Maharashtra, ]
Thru' Powai Police Station, Mumbai ] …. Respondent
WITH
CRIMINAL APPEAL NO.699 OF 2009
1. Rauf @ Guddu @ Giddu Sher Bahadur Khan ]
Aged 35 Yrs., Occu.: Security Service, ]
R/o. Near Kedor Cable Company, Pathanwadi, ]
Filterpada, Aarey Road, Powai, Mumbai – 400 087. ]
]
2. Khwaja Jamal Khan ]
Aged 50 Yrs., Occu.: Cab Driver, ]
R/o. Near Plastic Company, ] …. Appellants /
Narendra Hardware Shop, ] (Org. Accused
Filterpada, Aarey Road, Powai, Mumbai-400087. ] Nos.8 and 9)
Versus
The State of Maharashtra ] …. Respondent
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WITH
CRIMINAL APPEAL NO.700 OF 2009
1. Sherbahadur Akram Khan, ]
Aged about 72 Yrs., ]
]
2. Yusuf Sherbahadur Khan, ]
Aged about 44 Yrs., ]
]
Both residents of Pathanwadi, Filterpada, ]
Near Kedor Cable Company, Aarey Road, ]
Powai, Mumbai – 400 087. ]
] …. Appellants /
[Both presently detained at Nashik Road ] (Org. Accused
Central Prison, Nashik] ] Nos.1 and 4)
Versus
The State of Maharashtra, ]
Thru' Powai Police Station, Mumbai. ] …. Respondent
WITH
CRIMINAL APPEAL NO.706 OF 2009
1. Yakub Akram Khan, ]
Aged 55 Yrs., ]
]
2. Amroj @ Papa Momin Khan, ]
Aged 27 Yrs. ]
]
Both resident of Pathanwadi, ]
Behind Hanuman Temple, ]
BEST Nagar, Filterpada, ]
Aarey Road, Powai, Mumbai-400 087. ] …. Appellants /
] (Org. Accused
Presently in Arthur Road Central Prison ] Nos.5 and 6)
Versus
The State of Maharashtra ] …. Respondent
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WITH
CRIMINAL APPEAL NO.884 OF 2009
Arif Sherbahadur Khan, ]
Age : 32 Yrs., ] …. Appellant /
R/at Near Kedore Cable Company, ] (Org. Accused
Pathanwadi, Powai, Mumbai – 400 087. ] No.2)
Versus
State of Maharashtra, ]
Thru' Powai Police Station, Mumbai ] …. Respondent
AND
CRIMINAL APPEAL NO.558 OF 2011
Akhtar Hussein Siddiqui, ]
Aged about 47 Yrs., ]
R/at Near Gupta Grocery Shop, ] …. Appellant /
Morarji Nagar, Filterpada, ] (Org. Accused
Aarey Road, Powai, Mumbai – 400 087. ] No.10)
Versus
The State of Maharashtra, ]
Thru' Powai Police Station, Mumbai. ] …. Respondent
Mr. Shailesh Kantharia for Appellant No.1 in
Cr. Appeal No.685 of 2009.
Mr. Sudeep Pasbola for Appellant No.2 in Cr.
Appeal No.685 of 2009.
Mr. Rahul Arote for Appellant No.1 in Cr. Appeal
No.699 of 2009.
Mr. A.G. Toraskar, appointed Advocate, for
Appellant No.2 in Cr. Appeal No.699 of 2009.
Mr. Prakash Shetty a/w. Mr. Shrikant Sonkawde
for the Appellants in Cr. Appeal No.700 of 2009.
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Mr. Amin Solkar a/w. Mr. Shantanu Phanse for
Appellant No.1 in Cr. Appeal No.706 of 2009.
Mr. Sudeep Pasbola for Appellant No.2 in Cr.
Appeal No.706 of 2009.
Mr. Prakash Shetty for Appellant in Cr. Appeal
No.884 of 2009.
Mr. Rahul Arote for the Appellant in Cr. Appeal
No.558 of 2011.
Mrs. S.D. Shinde, A.P.P., for the Respondent-State.
CORAM : P.V.HARDAS &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
TH
JUDGMENT RESERVED ON : 20 JANUARY, 2015.
ND
JUDGMENT PRONOUNCED ON : 22 JANUARY, 2015.
JUDGMENT [Per Dr. Shalini Phansalkar-Joshi, J.] :
1. These Appeals are directed against the Judgment of conviction and
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sentence dated 4 May, 2009 recorded in Sessions Case No.80 of 2007
rd
by the Court of 3 Ad-Hoc Additional Sessions Judge at Sewree, Mumbai.
By the said Judgment, the Appellants, who are Original Accused Nos.1 to
10, are held guilty for the offence punishable under Section 120-B of the
IPC and sentenced to suffer imprisonment for life and fine of Rs.1,500/-
each, in default to suffer R.I. for six months. They are further convicted for
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the offence punishable under Section 302 r/w. section 149 of the IPC and
sentenced to suffer imprisonment for life and fine of Rs.3,000/- each, in
default to suffer R.I. for one year. Original Accused No.1-Sherbahadur
Akram Khan is also convicted for the offence punishable under Section
302 r/w. Section 109 of the IPC and sentenced to suffer imprisonment for
life and fine of Rs.1,000/-, in default to suffer R.I. for six months. They are
further convicted for the offence punishable under Section 143 of the IPC
and sentenced to suffer R.I. for six months and to pay fine of Rs.500/-
each, in default to suffer R.I. for one and a half month. They are also
convicted for the offence punishable under Section 144 of the IPC and
sentenced to suffer R.I. for two years and fine of Rs.750/- each, in default
to suffer R.I. for two months. Original Accused No.1-Sher Bahadur Akram
Khan and Original Accused No.3-Akhtar Hussein Mohiddin Ali Shaikh and
Original Accused No.9-Khaja Jamal Khan are also convicted for the
offence punishable under Section 147 of the IPC and sentenced to suffer
R.I. for two years and to pay fine of Rs.750/- each, in default to suffer R.I.
for two months. Original Accused No.2-Arif Sherbahadur Khan, Original
Accused No.4-Yusuf Sherbahadur Khan, Original Accused No.5-Yakub
Akram Khan, Original Accused No.6-Amroj @ Papa Momin Khan, Original
Accused No.7-Amin Momin Khan, Original Accused No.8-Rauf @ Guddu
@ Giddu Sherbahadur Khan and Original Accused No.10-Akhtar Hussein
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Siddiqui are further convicted for the offence punishable under Section
148 of the IPC and sentenced to suffer R.I. for three years and to pay fine
of Rs.750/- each, in default to suffer R.I. for two months.
2. Being aggrieved by this Judgment, Criminal Appeal No.685 of 2009
is filed by Original Accused No.3-Akhtar Hussein Mohiddin and Accused
No.7-Amin; Criminal Appeal No.699 of 2009 by Original Accused No.8-
Rauf and Accused No.9-Khaja; Criminal Appeal No.700 of 2009 by
Original Accused No.1-Sherbahadur and Accused No.4-Yusuf; Criminal
Appeal No.706 of 2009 by Original Accused No.5-Yakub and Accused
No.6-Amroj and Criminal Appeal No.884 of 2009 by Original Accused
No.2-Arif and, lastly, Criminal Appeal No.558 of 2011 by Original Accused
No.10 Akhtar Hussein.
3. As all these Appeals arise from the same Judgment, they are
decided by this common Judgment.
4. Facts, as are necessary, for the decision of these Appeals may
briefly be stated thus :
Informant Ramsagar Yadav, having resigned from the service due to
heart ailment, was the active member of Vishva Hindu Parishad.
Navinchandra Krishnakishor Dube, since deceased, was the Deputy
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Secretary of the said Parishad. He was having sections (Galas) of plastic
moldings at Filterpada, Powai and was residing at Khirani Road,
Sakinaka. He used to visit his Galas at Filterpada daily. Hoslaprasad
Upadhyay, since deceased, who was running a hotel and betel leaves
kiosk at Filterpada, was Vice President of Hanuman Temple in the same
locality and was Joint Secretary of Vishva Hindu Parishad. PW-12
Lalitkumar Dube is also the Member of Vishva Hindu Parishad. Initially, all
of them were on visiting terms with Accused No.1-Sherbahadur, Accused
No.2-Arif, Accused No.4-Yusuf and Accused No.6-Papa. However, in the
year 2003, some dispute arose between them. As a result thereof, they
stopped talking with each other. It is the Prosecution case that it was the
practice of Informant Ramsagar, PW-12 Lalitkumar, deceased
Navinchandra and Hoslaprasad to visit Hanuman Temple on every
Saturday for prayers.
5. The incident giving rise to the present Prosecution case took place
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on 20 March, 2004. On that day, in the evening at about 7 p.m.,
Informant Ramsagar met PW-12 Lalitkumar, deceased Hoslaprasad and
Navinchandra at Paras Tool Center, Filterpada. From there, they started
proceeding towards Hanuman Temple. On the way Hoslaprasad
expressed desire for chewing betel leaf and, therefore, all of them came to
betel leaves kiosk near Anusaya Hotel. They placed the order for betel
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leaf. At that time Accused No.3-Akhtar also came there and placed an
order for betel leaf. However, without purchasing the same, he left giving
push to Informant Ramsagar. Navinchandra told Informant Ramsagar to
forget about it and then they started proceeding ahead towards Hanuman
Temple.
6. It was about 7:45 p.m. After crossing some distance, when they
came in front of Sugrabi Chawl, Informant Ramsagar heard the sound of
loud talk from behind. So he turned round and saw Accused No.1
Sherbahadur and his son-in-law Accused No.3 Akhtar. He further saw that
Accused No.1 Sherbahadur was exhorting to kill Navinchandra and
Hoslaprasad. Immediately Accused No.2 Arif, Accused No.4 Yusuf,
Accused No.6 Amroj, Accused No.8 Rauf, Accused No.10 Akhtar and
others came with swords, choppers, knives, sickle and iron rods in their
hands. Accused No.4 Yusuf assaulted Navinchandra with sword on his
head and neck. Navinchandra fell down on the bicycle kept adjacent to
the wall. At that time, Accused No.6 Amroj assaulted Navinchandra with
knife in his hand. Accused No.2 Arif assaulted Hoslaprasad by chopper,
whereas Accused No.3 Akhtar assaulted both Hoslaprasad and
Navinchandra by iron rod. Accused No.7 Amin assaulted Hoslaprasad and
Navinchandra by sickle in his hand, whereas Accused No.10 Akhtar
Hussein assaulted both of them by chopper. Accused No.8 Rauf stabbed
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Navinchandra with knife in his hand, whereas Accused No.5 Yakub was,
throughout the incident, standing with iron rod in his hand in order to help
the assailants.
7. As per further Prosecution case, due to this assault, the people
started running helter-skelter. Adjoining owners closed the doors of their
houses and shutters of their shops. Accused No.2 Arif shouted to kill
Informant Ramsagar. Hearing this, Accused No.8 Rauf started chasing
Ramsagar with knife in his hand. Both Ramsagar and PW-12 Lalitkumar
then went in the lane running towards Tempo Naka. However, Accused
No.9 Khaja and his wife Khurshid obstructed them by hands. Hence,
Informant Ramsagar and PW-12 Lalitkumar ran through the lane of Al
Aman Rahivasi Sangh . PW-12 Lalitkumar went to his house at Filterpada,
whereas Informant Ramsagar rushed to Powai Police Station.
8. After 2 – 3 minutes, PW-12 Lalitkumar came to the Galas of
Navinchandra and told the workers there about the incident of assault.
Workers of the Galas came on the spot along with PW-12 Lalitkumar. By
that time, Hoslaprasad’s son Surendra had also come on the spot. He
took his injured father Hoslaprasad to Rajawadi Hospital in an auto-
rickshaw, whereas injured Navinchandra was taken to Cooper Hospital in
the auto-rickshaw by PW-12 Lalitkumar and the workers of the Galas.
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Medical Officer at Cooper Hospital declared Navinchandra as “brought
dead” , whereas at Rajawadi Hospital, Hoslaprasad was also declared as
“brought dead” .
9. Meanwhile, Informant Ramsagar went to Powai Police Station and
gave information of the incident to PW-18 PSI Rajesh Kadav. He, along
with the Informant Ramsagar and staff, came to the spot. He saw there
the pool of blood and came to know from the nearby persons that both the
injureds were taken to the hospitals. Hence, along with Informant
Ramsagar and staff he went first to the Cooper Hospital. There Informant
Ramsagar identified dead body of Navinchandra. PW-18 PSI Kadav
obtained the Certificate of intimation of his death from the Medical Officer
on duty. He recorded the statement of Informant Ramsagar in detail at
Cooper Hospital itself and on telephone asked PSI Salve to register the
offence.
10. Accordingly, on the complaint of Informant Ramsagar, C.R. No.77 of
2004 came to be registered at 9:50 p.m. at Powai Police Station against
the Accused for the various offences punishable under Sections 143,144,
145, 147, 148, 149 and 302 r/w. 34 of the IPC and under Section 4 r/w. 25
of the Arms Act.
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11. PW-18 PSI Kadav then made Inquest Panchanama (Exhibit-50) on
the dead body of Navinchandra and seized the clothes on his person.
Thereafter, along with the Informant Ramsagar, he went to the spot. There
his superior officer PW-19 PI Eknath Shiralkar was present along with the
staff. The Panchanama of Scene of Offence (Exhibit-50) was made at the
spot and under the said Panchanama, various articles lying there like the
sleepers, handle of weapon, blood stained mud were seized. PW-18 PSI
Kadav then returned to the Police Station and filled up the printed form of
F.I.R. (Exhibit-164). Then, along with the staff, he left in search of the
Accused. Accused No.3 Akhtar was found in early morning in Sai
Bungalow area. He was brought to Police Station and arrested under
Panchanama (Exhibit-165).
st
12. On 21 March, 2004, in the afternoon, PW-19 PI Shiralkar arrested
Accused No.4 Yusuf and Accused No.5 Yakub under Pachanama (Exhibit-
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90). On 21 March, 2004 itself, PW-19 PI Shiralkar recorded the
statement of the eye witness PW-12 Lalitkumar.
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13. During the course of investigation on 4 April, 2004, at the instance
of Accused No.8 Rauf, two knives, one sword and one sickle were
recovered under Memorandum Panchanama (Exhibit-51) and Seizure
Panchanama (Exhibit-52). These weapons were having wiped out blood
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stains. On the same day, at the instance of Accused No.7 Amin, the blood
stained clothes of Accused No.6 Amroj and Accused No.8 Rauf were
recovered from the house of his mother/Original Accused No.11-Gangubai
under Memorandum Panchanama (Exhibit-83) and Seizure Panchanama
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(Exhibit-84). On 6 April, 2004, at the instance of Accused No.2 Arif, one
chopper and blood stained clothes were recovered under Memorandum
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Panchanama (Exhibit-69) and Seizure Panchanama (Exhibit-70). On 18
April, 2004, at the instance of Accused No.10 Akhtar, his blood stained
clothes and one chopper were recovered under Memorandum
Panchanama (Exhibit-73) and Seizure Panchanama (Exhibit-74).
14. All these articles, seized under various Panchanamas, were sent to
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Chemical Analyzer on 5 May, 2004 vide requisition letters (Exhibits 167
to 173).
15. Further investigation was taken over by PW-20 ACP Prakash
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Mohanrao Wadkar. On 25 May, 2004, at the instance of Accused No.6
Amroj, he made Panchanama of the Gala, where the weapons were
sharpened by the Accused. He recorded the statement of the owner of the
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Gala, Shri. Magdum Shah and labours Siraj and Javed. On 29 May,
2004, PW-20 ACP Wadkar made Memorandum Panchanama (Exhibit-88)
of Accused No.1 Sherbahadur and Panchanama of the place (Exhibit-89),
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where, according to the Accused, conspiracy was hatched. On 30 May,
2004, PW-20 ACP Wadkar made Panchanama of the place at the
instance of Accused No.10 Akhtar, where the blood stained hands were
washed. On the same day, he recorded the statements of some more
witnesses.
nd
16. Thereafter, on 2 June, 2004, at the instance of Accused No.5
Yakub, two iron rods were recovered and seized under Memorandum
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Panchanama (Exhibit-184) and Seizure Panchanama (Exhibit-185). On 6
June, 2004, Accused No.8 Rauf showed them the house of Accused
No.11 Gangubai. After recording the statements of some more witnesses,
PW-20 ACP Wadkar concluded the investigation.
17. Since he invoked the offences under M.C.O.C. Act, Charge-Sheet
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was initially filed in the Special Court on 30 July, 2004. However, in
December, 2006, it was held that the provisions of the M.C.O.C. Act were
not applicable to the case. Accordingly, the case was transferred to the
rd
Court of Sessions and in due course it was assigned to 3 Ad-Hoc
Additional Sessions Judge, Sewree, Mumbai. He framed charge vide
Exhibit-19 against Accused Nos.1 to 10 for the various offences
punishable under Sections 120-B, 143, 144, 147, 148, 149 and 302 r/w.
Section 120-B and r/w. Section 149, Section 176 r/w. Section 149 of the
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IPC, Section 4 r./w. Section 25(1)(b), 27 and 35 of the Arms Act and
under Section 135 of the Bombay Police Act. Accused No.1 Sherbahadur
was further charged for the offence punishable under Section 302 r/w.
Section 109 of the IPC. As against Accused No.11-Gangubai, the charge
was framed under Section 212 r/w. Section 302 of the IPC. All the
Accused abjured the guilt and claimed trial raising a defence of total
denial and false implication out of rivalry.
18. To bring home the guilt of the Accused, Prosecution examined as
many as 20 witnesses, majority of them being Panch Witnesses and
Investigating Officers. PW-16 Dr. Mohan Shivsharan and PW-17 Dr.
Shivaji Kachre are the Medical Officers, who conducted the post mortem
on the dead bodies. The major plank of the Prosecution case was,
however, on the evidence of sole eye witness PW-12 Lalitkumar.
19. Accused No.9 Khaja raised the plea of alibi and to substantiate it,
he examined his brother Ayub Khan. Remaining Accused have not
examined any other witness.
20. On appreciation of entire evidence on record, the Trial Court found
the testimony of solitary eye witness PW-12 Lalitkumar to be wholly
reliable, being corroborated fully with the evidence of recovery of weapons
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of assault and blood stained clothes at the instance of various Accused,
further supported with the C.A. Reports. Hence, Trial Court convicted and
sentenced Accused Nos.1 to 10 as stated above and acquitted them of
the remaining charges. Accused No.11-Gangubai was acquitted of all the
charges levelled against her. The Respondent-State has not preferred any
Appeal against this order of acquittal.
21. We have heard learned Counsels on behalf of the Appellants and
the learned A.P.P. for the Respondent-State. In order to effectively deal
with the various submissions advanced before us by them, it would be
useful to refer first to the evidence on record. However, before adverting
to the ocular evidence of the incident, in our considered opinion, it would
be helpful to refer to the medical evidence to understand the magnitude of
the incident, assault and ferocity of the cause of death of Navinchandra
and Hoslaprasad.
22. PW-16 Dr. Shivsharan, who, at the relevant time, was attached to
Cooper Hospital, has conducted the post mortem on the dead body of
Navinchandra during 10 a.m. and 11 a.m. on the next day. On
examination, he has found following external injuries, which he has
mentioned in the Post Mortem Report (Exhibit-156) :-
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“Injuries on head :
(i) Incised wound on top portion of head at frontanalli
measuring 10 cm. x 2 cm. and scalp deep.
(ii) Incised wound below it measuring 8 cm. x 2 cm. and
scalp deep.
(iii) Incised wound behind left eyelid vertically placed
measuring 11 cm. x 2 cm. and skin deep.
(iv) Incised wound in front of ear and behind ear measuring
10 cm. x 2 cm. and scalp deep.
(v) Incised wound at temporal region 10 cm. x 2 cm. and
scalp deep.
(vi) Incised wound on temporal region horizontally placed
measuring 11 cm. x 2 cm. and scalp deep.
(vii) Incised wound vertically placed and crossing the above
injury measuring 11 cm. x 2 cm. and scalp deep with
cutting of right ear pinna.
(viii) Injury behind head and neck portion measuring 20 cm.
x 7 cm. and vertibral column deep.
This incised wound was cutting almost back portion of
the neck.
Injuries on neck portion :
(i) Incised wound on right side of neck measuring 20 cm. x
5 cm. and deep into neck cutting thyroid gland and wind
pipe extending from mid portion of neck right side to
front mid portion of neck.
(ii) Incised injury below above injury measuring 11 cm. x 2
cm. and neck muscle deep.
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Injuries on right shoulder portion :
There were three incised wounds of size 5 cm. x 2 cm. and
muscle deep, 4 cm. x 2 cm. and muscle deep and 4.5 cm. x 1
cm. and skin deep.
These injuries were placed on top portion of shoulder and
front side of it, which were horizontally placed.
Injuries on left shoulder :
There were two incised wounds on back side of shoulder
measuring 4 cm. x 1 cm. skin deep and 3 cm. x 1 cm. skin
deep.
Injuries on abdominal portion :
There were three incised wounds :
(i) On right side of abdomen measuring 4 cm. x 2 cm. and
abdominal deep.
(ii) On right flank measuring 2.5 cm. x 0.5 cm. and
abdominal deep.
(iii) On right iliac fossa 2 cm. x 0.5 cm. and abdominal
deep.
There were superficial scratches over skin on lower chest,
which were four in numbers and on abdomen on flank region,
five in numbers.
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Injuries on left side of abdomen :
(i) Incised wound at right edge of cage measuring 3 cm. x
1 cm. and abdomen deep.
Injuries on lower side of chest :
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Incised wound below nipple on 8 place obliquely placed
measuring 3 cm. x 2 cm. and chest deep.
Injuries on back :
Incised wound at T-11 level measuring 10 cm. x 4 cm. and
muscle deep.
Injury on left side near iliac crust in flank. There were five
incised wounds - abdomen deep parallely situated measuring
25 cm. to 27 cm. long and 3 cm. broad.
Injury on right hand :
Incised wound behind right elbow joint measuring 11 cm. x 3
cm. and muscle deep.
Injury on right palm :
Incised wound on right palm cutting base of thumb and total
palm portion and first finger measuring 8 cm. x 2 cm. and
there was separation of total palm portion.
Edges of all above injuries were clear. There was acute
angle. Clotted blood was seen at places. All were ante-
mortem in nature.
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Internal Injuries :
(i) Scalp (head skin) is cut upto skull bones under all
above head incised wounds, which were mentioned in
column No.17, with bilateral temporal muscle bleeding.
(ii) Injury on right temporal and parito occipital bones were
cut by incised wounds – muscle deep. There were
multiple bones fracture at 10 – 12 places.
(iii) All membrane layer bleeding around brain. Brain matter
was pale.
Injury on chest portion :
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8 space bleeding under incised wound perforating cage.
Pleura was perforated. Larynx trachea and bronchi were cut
on right side of thyroid gland, carotid artery along with wind
pipe was cut.
On left side of lung, there was bleeding about 400cc.
Pericardium lung coverings were perforated at apex of heart.
Right side ventricle perforated. There was bleeding into heart
sac.
Injuries on abdomen portion :
There was bleeding around all incised wounds on abdomen,
which were mentioned in column No.17 and they have
perforated abdominal wall. There was bleeding in abdominal
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wall, which was semi-clotted about 900cc. In mouth cavity,
chin bones were fractured, which loosening of pesterior teeth.
There was mysentric bleeding throughout abdomen. There
was rupture of right lobe of lever, which were placed at lower
edges of lever at two places measuring 2.5 cm. and 2 cm.
perforating lever. There was capsular bleeding around right
kidney with cutting of kidney at lower side into two pieces.”
23. In his opinion, probable cause of death was “hemorrhage and shock
due to multiple stab injuries over head, neck, chest and abdomen with cut
throat neck injury” . He has opined that the external injuries mentioned in
Column No.17 are co-related to internal injuries mentioned in Column
No.19 of the Post Mortem Report (Exhibit-156) and all these injuries can
be caused by the weapons like knife, chopper and sword. They were ante-
mortem and sufficient in the ordinary course of nature to cause death.
24. Then there is evidence of PW-17 Dr. Shivaji Kachare attached to
Rajawadi Hospital. He has conducted post mortem on the dead body of
Hoslaprasad on the next day in between 9 a.m. to 10 a.m. On
examination, he has found the following injuries, which he has noted in
Column Nos.17 and 19 in the Post Mortem Report (Exhibit-158) :-
“(i) Incised wound at right frontotemporoparietal region, 23
cm x 2 cm – bone deep, reddish, margins were clean
cut, underneath bone shows communited fracture.
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(ii) Incised wound at right occipitoparietal region, 8 cm x 2
cm – bone deep, reddish, margins clean cut.
(iii) Incised wound at left frontotemporoparietal region,
extending to left ear pinna, 36 cm x 2 cm – bone deep
with left ear pinna ruptured, reddish, margins clean cut,
underneath skull bones communited fracture.
(iv) Incised wound at posterior of neck region, 11 cm x 3 cm
x 5 cm, reddish, margins well defined, clean cut.
(v) Incised stab wound at posterior of vertebral column at
C7 approximately 8 cm x 3 cm x 12 cm, reddish,
margins and angle clean cut.
(vi) Incised stab wound at posterior of left lumber region, 2
cm x 1 cm x 8 cm deep, reddish, margins and angles
clean cut.
(vii) Incised stab wound at vertebral column at lumber
region, 3 cm x 2 cm x 5 cm, reddish, angles clean cut.
(viii) Incised stab wound at left axilla at 5 cm above left illiac
crest 6 cm x 2 cm x 7 cm, reddish, margins clean cut.
(ix) Multiple abrasions over left posterior of scapulae linear
varying in sizes from 5 cm x 1 cm to 3 cm x 1 cm,
reddish.
(x) Multiple incised wound at phalanges of left palm with
evidence of total rupture and fracture of left phalanges,
metacarpals, sizes are varying from 5 cm x 2 cm muscle
deep to 3 cm x 2 cm muscle deep, reddish.
(xi) Total rupture and fracture of right thumb, forefingers,
middle finger – reddish.
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Corresponding internal injuries were as follows :
(i) Injuries under the scalp – haemorrhages all over scalp.
(ii) Skull -
(1) Communited fracture left fronto-temporoparietal
bone.
(2) Communited fracture right temporoparietal
bones.
(iii) Brain – subdural and subarachnoid haemorrhages.
th th th
(iv) Walls, ribs, cartilages – Fracture left 4 , 5 , 6 ribs in
axillary region.
(v) Pleura – ruptured bilateral.
(vi) Larynx, Trachea and Bronchi – ruptured.
(vii) Right lung – ruptured at apical region, haemorrhages.
(viii) Left lung – ruptured at lower lobe.
(ix) Pericardium – ruptured.
(x) Heart – ruptured, empty.
(xi) Abdominal walls – upper part of left anterior abdominal
wall – ruptured.
(xii) Peritoneum – ruptured at left side.
(xiii) Lever, pancreas, spleen, kidneys – pale -
(1) Lever ruptured at inferior surface.
(2) Pancreas, spleen – ruptured.
(3) Pole of left kidney perforated.
(xiv) Evidence of fracture C-, vertebral column, spinal cord –
rupture of vertebral column at lumber region.”
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25. In his opinion, cause of death was “hemorrhage and shock due to
multiple injuries (unnatural)” . He has further opined that “all these injuries
were anti-mortem and are possible by any sharp edged cutting weapon” .
Injury Nos.1, 2 and 3 in Column No.17 are sufficient to cause death in
ordinary course of nature, whereas Injury Nos.10 and 11 are defence type
of wounds.
26. Both these Medical Officers are cross-examined by the various
Defence Counsels, but nothing worthwhile is elicited in their cross-
examination to disbelieve their evidence or the nature of injuries found on
the dead bodies and the cause of death, as given by them, which was
unnatural and homicidal in nature. In the course of arguments before us,
the learned Counsel for the Appellants have also fairly conceded that they
are not disputing either the cause of death, the nature of injuries or the
homicidal nature of the deaths.
27. At this stage, it may be stated that the Informant Ramsagar, who
was also the eye witness to the incident and, therefore, the crucial witness
st
for Prosecution, has died on 1 June, 2005, during the pendency of the
case in the Trial Court. Hence, he could not be examined as witness. The
entire reliance of the Prosecution, therefore, is on the evidence of the
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solitary eye witness PW-12 Lalitkumar and the evidence relating to
recovery of the weapons and blood stained clothes at the instance of the
various Accused.
28. To put it, as a matter of fact, the Prosecution case hinges on the
sole testimony of the eye witness PW-12 Lalitkumar. The law relating to
the appreciation of evidence of the sole eye witness and whether the
conviction can be based on his testimony alone, is sufficiently crystallized
in various pronouncements of this High Court and the Hon’ble Supreme
Court. However, before adverting to the legal position, we would prefer to
deal with his evidence on facts.
29. PW-12 Lalitkumar has deposed that he was knowing deceased
Navinchandra and Hoslaprasad, as they were his friends. Navinchandra
was running a factory and was also the Deputy Secretary of Vishva Hindu
Parishad, whereas Hoslaprasad was Vice President of Hanuman Temple.
th
As regards the incident, he has deposed that on 20 March, 2004, in the
evening, he met Navinchandra, Hoslaprasad and Informant Ramsagar
near Paras Tool Center. All of them came near betel leaves kiosk of
Hoslaprasad, which was let out by him to Jayprakash Dubey on rent. At
that time, Hoslaprasad placed an order for betel leaves. Accused No.3
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Akhtar also came there and placed the similar order. However, without
accepting the betel leaves, Accused No.3 Akhtar gave push to Informant
Ramsagar and went away. When Informant Ramsagar made complaint
about it to Navinchandra, Navinchandra told him to forget it. Then all the
four of them started walking towards Hanuman Temple. Navinchandra and
Hoslaprasad were walking ahead at a distance of 5 ft. to 7 ft. from
Informant Ramsagar and PW-12 Lalitkumar. He heard some sound from
back side. Hence, he turned around and saw Accused No.1 Sherbahadur
and Accused No.3 Akhtar. Accused No.1 Sherbahadur was exhorting in
loud voice to kill Navinchandra and Hoslaprasad. Then he saw Accused
No.2 Arif, Accused No.4 Yusuf, Accused No.5 Yakub, Accused No.6
Amroj, Accused No.7-Amin, Accused No.8 Rauf and Accused No.10
Akhtar and others coming from front side. Accused No.4 Yusuf was
carrying sword in his hand, whereas Accused No.6 Amroj and Accused
No.7 Amin were having knives in their hands. Accused No.2 Arif and
Accused No.10 Akhtar were carrying choppers, whereas Accused No.5
Yakub was carrying iron rod. Other persons with them also were carrying
weapons in their hands.
30. As regards the actual assault, he has deposed that Accused No.4
Yusuf gave the blow of sword on the back side of Navinchandra’s head,
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whereas Accused No.2 Arif inflicted the chopper blow on the neck of
Hoslaprasad. Navinchandra fell down on the bicycle, but Accused No.6
Amroj and Accused No.7 Amin continued to give blows of knives to both
Navinchandra and Hoslaprasad. Accused No.5 Yakub was moving with
iron rod in his hand and was threatening the persons. At that time,
Accused No.2 Arif shouted loudly to kill Informant Ramsagar. Hence,
Accused No.8 Rauf ran towards Informant Ramsagar with chopper in his
hand. As per the evidence of this witness, he and Informant Ramsagar
then started running. After they crossed some distance, Accused No.9
Khaja and his wife Khurshid tried to obstruct them. So he ran towards his
house through the lane. Informant Ramsagar also ran away.
31. After he reached his house, he went to the factory (Galas) of
Navinchandra and informed the workers present there. Then, along with
the workers, he went to the spot. There he saw that Hoslaprasad was
being taken in the auto-rickshaw by his son Surendra to the Hospital. He,
along with workers of Navinchandra, took Navinchandra to the Cooper
Hospital in auto-rickshaw. There Doctor declared Navinchandra dead.
After some time, he came to know that Hoslaprasad was also declared
dead at Rajawadi Hospital. As per his evidence, he was in the Cooper
Hospital for about three hours.
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32. In his evidence before the Court, he was shown seized weapons,
namely, Article No.1 Sword, Articles Nos.2 and 3 Knives, Article No.4
Sickle, Article Nos.18, 21 and 34 Choppers and Article No.22 Iron Rod. He
identified these weapons to be the same which were used by Accused in
the assault.
33. In his cross-examination, PW-12 Lalitkumar has deposed that he
saw the incident from the distance of 5 ft. to 10 ft. and he was present on
the spot throughout the incident till Accused No.9 Khaja threatened to the
Informant Ramsagar and then both of them started running in the lane.
He has further admitted that as he was frightened due to attack on
Navinchandra and Hoslaprasad, he was not in a position to take any
decision and was thinking to run away from the spot as early as possible.
He has further deposed that first Navinchandra was attacked. He has
denied suggestion that as soon as Navinchandra was attacked, he tried to
run away. He has affirmed that he remained on the spot and after the
incident, he went towards the factory of deceased Navinchandra. He was
there for 2 - 3 minutes and then went to his house and after two minutes
again came to the spot. He has further deposed that due to funeral of
Navinchandra and Hoslaprasad, he did not go to the Police Station for
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recording his statement. He went there immediately after their funeral,
which took place at about 3 p.m. to 4 p.m. He has admitted that there
were no blood stains on his clothes and hence Police had not seized
those clothes. As per his evidence, from the hospital he returned to the
house at about 3 a.m. to 4 a.m. He saw the Police near his house, but he
did not tell them that he knows about the incident. It is further brought out
in his cross-examination that when he saw the weapons in the hands of
the Accused, he thought that the Accused would definitely attack them. In
his cross-examination, further details about the incident and the overt acts
of the Accused are brought on record, which are consistent with his
evidence in examination-in-chief.
34. This witness is cross-examined in extenso by the eight Defence
Counsels on behalf of different Accused. However, none of the Defence
Counsel had succeeded in eliciting anything of substance to disbelieve
him. He has remained thoroughly consistent throughout his evidence and
no major omissions or contradictions are brought out through his cross-
examination. His testimony has, thus, remained unshattered constituting a
solid bed rock for Prosecution case.
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35. His evidence is challenged mainly on the ground that there is delay
in recording of his statement by the Police. It is urged by the learned
Counsels for the Appellants that as the case stands now on the evidence
of only this witness, due to death of Informant Ramsagar, his evidence is
required to be scrutinized very carefully. The fate of all the ten Accused
hangs on his sole testimony and, therefore, it should pass an acid test. It
is submitted that this witness had more than three occasions to disclose
about the incident to the Police; firstly in the hospital to the constable on
duty where he has taken deceased Navinchandra. Thereafter in the
Cooper Hospital itself when PW-18 PSI Kadav arrived and recorded the
complaint of Ramsagar and, thirdly, when he returned home and, as
admitted by him, there was Police Bandobast in the area. It is urged that
the conduct of this witness of not disclosing about the incident to anyone
until the Police recorded his statement on the next day, is in itself sufficient
to create suspicion about his credibility of being an eye witness to the
incident.
36. It is also urged that this witness is not an independent witness. As
admitted by him, he was active member of Vishva Hindu Parishad, of
which Navinchandra was General Secretary and deceased Hoslaprasad
was Joint Secretary. Admittedly, there were two factions between the
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deceased, Informant and PW-12 on the one hand and Accused Nos.1 to
11 on the another hand, on account of the dispute, which had taken place
earlier. Therefore, the evidence of such witness, who is not independent
and whose statement is not recorded immediately after the incident by the
Police, cannot be relied upon implicitly to prove the Prosecution case.
According to the learned Counsel for the Appellants, there is serious
doubt about the alleged presence of this witness at the time of incident.
37. However, we find it difficult to accept these submissions as, in our
considered opinion, we get full proof guarantee of the presence of this
witness at the spot of incident from the F.I.R. (Exhibit-163) itself, which is
lodged immediately within one or two hours after the incident by Informant
Ramsagar. It is significant to note that the incident has taken place around
7:40 p.m. and F.I.R. is registered at the Police Station at 9:30 p.m. It was
recorded in the hospital itself by PW-18 PSI Kadav. He has obtained the
C.R. number on telephone. It is lodged by another eye witness to the
incident, namely, Ramsagar, who was very much with PW-12 Lalitkumar,
as deposed by this witness. In this F.I.R. (Exhibit-163), Ramsagar has
clearly mentioned that he along with PW-12 Lalitkumar, Navinchandra and
Hoslaprasad was proceeding towards Hanuman Temple when incident of
assault took place. In the F.I.R. it is further stated that after assault on
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Navinchandra and Hoslaprasad, when Accused No.8 Rauf ran towards
him to assault him with knife, he and PW-12 Lalitkumar ran in the nearby
lane.
38. Thus, F.I.R. (Exhibit-163), proved through the evidence of PW-18
PSI Kadav, who has recorded it, is a clinching proof of the presence of
PW-12 Lalitkumar on the spot at the time of incident, leaving no spec of
doubt about his presence at the spot and demolishing totally the
contention of Defence Counsel that he is a got up witness.
39. We are aware that F.I.R. is not a substantive piece of evidence and
it can only be used for the purpose of corroboration or contradiction. We
are further aware that in this case Informant Ramsagar was no more
available to give evidence due to his death during pendency of the trial.
However, we also cannot ignore the fact that F.I.R. is properly proved
through the evidence of PW-18 PSI Kadav, who has recorded it as per the
say of the Informant Ramsagar. He has deposed that it was read over to
the Informant Ramsagar in Hindi and signed by Ramsagar. It is, thus, an
exhibited document. Hence, for the limited purpose of ascertaining the
presence of PW-12 Lalitkumar at the spot, we are making reference to it.
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40. Once the presence of PW-12 Lalitkumar at the time of incident is
proved, the alleged delay in recording of his statement becomes totally
immaterial. As per the settled legal position also, mere delay in recording
of statement of eye witness can not be said to be a ground to discard his
evidence. Only when the delay is unwarranted and remains unexplained,
it may create suspicion about the credibility of the evidence of the witness.
41. In our opinion, in the present case, there is no delay as such in
recording of the statement of PW-12 Lalitkumar. The incident has taken
th
place around 7:40 p.m. on 20 March, 2004 and the statement of this
witness is recorded immediately on the next day in the evening. Though
the contention is raised to the effect that this witness had opportunity to
disclose the incident to the Police on three occasions; first two occasions,
when he was in Cooper Hospital and the third when he saw Police nearby
his house after he returned from the hospital, in our considered opinion,
this contention is of no avail, if one has regard to the magnitude and
gravity of the assault. It was a sudden incident of double murder. About 10
Accused persons had made simultaneous indiscriminate assault on
Navinchandra and Hoslaprasad in the presence of this witness. Both the
deceased were very much known to this witness. He has to run from the
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spot due to the threat of the assault. As deposed by him, he was totally
paralyzed during the course of incident due to the fear of the Accused,
who were fully armed with deadly and dangerous weapons. Only when
Accused No.8 Rauf rushed towards him and Informant Ramsagar with
knife in his hand, he could gather his wits to run away. Immediately after
the assault, he had informed the workers of Navinchandra and then, along
with their help, he has taken Navinchandra to the hospital, where he was
declared dead. There, to his knowledge, the complaint of Ramsagar was
recorded. Then there was another death of Hoslaprasad in Rajawadi
Hospital. One can imagine his mental condition in this entire episode. It
was but natural for him that, only after the rituals of funeral were
performed, he could make himself available to record his statement at the
Police Station. As brought out in his cross-examination, funerals took
place by 3 p.m. to 4 p.m.. Then he went to the Police Station and his
statement came to be recorded. Therefore, it can hardly be called that
there was any delay in recording of his statement, having regard to the
entire conspectus of the fact situation.
42. Moreover, it is not the case that he was the solitary eye witness and
unless he has disclosed about the incident, Police would not have come
to know about it. Informant Ramsagar has rushed to Powai Police Station
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and the Police had come immediately on the spot. The investigation was
set in motion. The complaint of Ramsagar was recorded in the hospital
itself. Police were also busy in carrying out Spot Panchanama, the Inquest
Panchanama and search and arrest of the Accused. In such situation, if at
all there is any delay in recording of his statement, which appears to be
clearly on the part of the Police, then it cannot be said that the delay was
unwarranted or unexplained. It appears that, as Police came to know the
names of assailants from the complaint of Ramsagar itself and they were
busy in carrying other part of investigation and search of Accused, Police
did not hastily recorded statement of this witness on the same night.
Therefore, the alleged delay in recording of his statement, in no way can
affect his evidence, which is found to be thoroughly credible and
consistent throughout and whose presence at the spot is proved
otherwise also from the F.I.R.
43. The second ground on which the Defence Counsels had assailed
his evidence is that, as admitted by him, his clothes were not blood
stained and they were not seized by the Police. According to the learned
Counsel for the Appellants, this fact falsifies his evidence that he has
taken Navinchandra to the hospital in rickshaw. In our considered opinion,
merely because he was along with the workers of the Navinchandra,
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when they took him in auto-rickshaw, it cannot be said that he has literally
carried Navinchandra in his hands, so as to get his clothes blood stained.
44. The learned Counsels for the Appellants have then drawn our
attention to the alleged contradiction in his evidence that in examination-
in-chief, he has stated that after the incident, first he reached his house,
then went to the factory of Navinchandra and informed the workers there,
whereas, in the cross-examination, he has stated that first he went to the
factory of Navinchandra and then went to his house. In our considered
opinion, this alleged contradiction is quite insignificant and pertains to
subsequent incident. It is not relating to the core of his testimony as
regards the actual incident of assault. It has no potential to discredit his
otherwise reliable evidence.
45. The learned Counsel for the Appellants has also drawn our attention
to the omission as he has not deposed about the roles played by certain
Accused in respect of the overt acts attributed to them. Again this
contention can be of least avail to the Appellants. This witness has clearly
spoken of the presence of Accused Nos.1 to 10 at the spot and has
deposed about the overt acts committed by these Accused in his
evidence-in-chief. Now, if at all anything remained to be said or deposed
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on his part, either in his statement before Police or in evidence before the
Court, this Court has to bear in mind two aspects; first, that all of a sudden
the incident of assault has taken place. The assault, as stated above, was
indiscriminate. Ten Accused came there, fully armed with the deadly
weapons and started assaulting two persons Navinchandra and
Hoslaprasad simultaneously. Therefore, in such a melee of incident, if the
eye witness could not specifically attribute role to each of the Accused,
detailing the overt acts played by them, no fault can be found with his
testimony. Conversely, inference has to be drawn that he is the most
truthful and honest witness, who has not exceeded his version just to
please the Prosecution. It also rules out the attack on him that he is an
interested witness or bent upon to implicate the Accused falsely.
46. Second aspect is that the incidence has taken place in the year
2004 and this witness has deposed about the said incidence in the year
2008 – 2009. Naturally, the memory at times plays mischief and,
therefore, if the witness is not a tutored one, then in his evidence, such
omissions are bound to occur. Instead of demolishing his evidence, they
give an in-built guarantee of his truthfulness.
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47. The last submission made by learned Counsel for the Appellants is
that the conduct of this witness is unnatural, as he neither intervened to
save deceased Navinchandra and Hoslaprasad from the assault, nor he
ran away from the spot as the incident started. In our opinion, the
explanation to this conduct is found in the incident itself. When ten
Accused are fully armed with deadly weapons and assaulting
simultaneously two persons with those weapons, how can one expect
PW-12 Lalitkumar to gather the courage to intervene in the assault? Self
preservation is the most predominant human tendency. He is bound to
save himself first. No normal person will dare to intervene in such incident
so as to invite the assault and injuries on himself. As regards running
away from the spot, in cross-examination itself, the explanation is brought
on record that he was so frightened due to attack that he was not in a
position to take any decision. A person being paralyzed in such gruesome
incident of assault cannot be called as unnatural.
48. The last, but not the least, submission made by the learned Counsel
for the Appellants is that, as this witness belongs to the faction of the
deceased who were office bearers of Hindu Vishva Parishad and as the
Accused belong to another faction and as there were enemical relations
between these two factions, implicit reliance cannot be placed on his sole
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testimony, especially when large number of persons were available who
must have witnessed the incident, as it has taken place in the open space
on the road with shops and houses nearby.
49. Needless to state that, if the evidence of the eye-witness is found to
be convincing and wholly reliable, there is no reason to discard his
evidence merely because he belongs to the faction to which the deceased
belong. At the most his evidence may require careful scrutiny, which we
have already done. As on the touch stone of the cross-examination also,
he has withstood successfully, we find no reason to disbelieve him. It is
common knowledge that when the incident of such a magnitude and
gravity of assault between two factions has taken place, independent
witnesses, even if available, will rarely come forward to depose due to
fear of their life. The evidence on record also goes to prove that the shop
owners had closed the shutters and the doors of the houses were also
closed the moment the incident had started. If this was the terror created,
then naturally the evidence of independent witnesses cannot be expected
in such fact situation.
50. Moreover, the law does not require the Court to count the
witnesses. As per the settled position, the evidence is to be weighed and
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not counted. It is the quality of the evidence which is of significance and
not the quantity. That is why Section 134 of Indian Evidence Act clearly
lays down that no particular number of witnesses shall in any case be
required for the proof of any fact. Hence, the testimony of solitary witness
can also be a basis for conviction, if the Court comes to the conclusion
that his testimony is true and correct version of the incident. The Hon'ble
Supreme Court has, in the case of Lallu Manjhi V/s. State of
Jharkhand, AIR 2003 SC 854 , in categorical words, laid down that “the
Law of Evidence does not require any particular number of witnesses to
be examined in proof of a given fact. However, faced with the testimony of
a single witness, the court may classify the oral testimony into three
categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither
wholly reliable nor wholly unreliable. In the first two categories there may
be no difficulty in accepting or discarding the testimony of the single
witness. The difficulty arises in the third category of cases. The court as to
be circumspect and has to look for corroboration in material particulars by
reliable testimony, direct or circumstantial, before acting upon testimony of
a single witness.” In this case, on careful analysis and appreciation of
evidence of PW-12 Lalitkumar, we found his testimony to be wholly
reliable, hence acceptable with no need of looking for corroboration to it.
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51. In the case of Kunju V/s. State of Tamil Nadu, AIR 2008 SC 1381 ,
also the Hon'ble Supreme Court has laid down that “a conviction can be
based on the testimony of the sole eye witness, the test is whether his
evidence has a ring of truth and it is cogent, credible, worthwhile or
otherwise. Corroboration would be required only if the witness is neither
wholly reliable, nor wholly unreliable” .
52. In this case, on re-appreciation of evidence of PW-12 Lalitkumar, we
are convinced that the evidence of this witness has a ring of truth, a colour
of consistency and a sense of straight-forwardness. His evidence inspires
confidence in the judicial mind being bereft of any improvements,
contradictions or inconsistencies. His presence at the time of incident is
also sufficiently proved on record. As observed by the Hon'ble Supreme
Court in Vithal Pundalik Zendge V/s. State of Maharashtra, 2009 ALL
MR (Cri.) SC 245 , “one credible witness outweighs the testimony of a
number of other witnesses of indifferent character and unless
corroboration is insisted upon by the Statute, Courts should not insist on
corroboration”. It always depends on the facts and circumstances of each
case to determine whether corroboration to the testimony of single
witness is necessary or not. In our opinion, the Trial Court, which has the
advantage of observing the demeanor of this witness PW-12 Lalitkumar
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while undergoing the incisive cross-examination, found that his testimony
needs to be relied upon. Nothing is pointed out before us, for this Court
also to take any other view of the matter.
53. Moreover, if at all any further corroboration is necessary for his
testimony, it is also coming from the medical evidence discussed above,
which proves that both the deceased were having more than 15 to 20
incised wounds on the vital parts of the body, corresponding with internal
injuries clearly establishing that they were subjected to indiscriminate
assault by deadly weapons by several assailants simultaneously. There is
also corroborating evidence of the recovery of the various weapons at the
instance of the Accused. As discussed in detail by the Trial Court, the said
recovery is under Section 27 of the Evidence Act.
54. In addition to the recovery of the weapons of assault, which, as
deposed by PW-12 Lalitkumar, were used in commission of the assault
like swords, knives, iron rods, choppers, Prosecution has also relied upon
the recovery of blood stained clothes of the Accused. All these articles
were sent to the Chemical Analyzer and the C.A. Reports are produced on
record showing the blood stains of the blood group of the deceased
Navinchandra on the clothes of the Accused No.4 Yusuf, Accused No.6
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Amroj, Accused No.7 Amin and Accused No.8 Rauf. Learned Counsel for
the Appellants have, however, brought to our notice that the Trial Court
has not put up the contents and findings of C.A. Reports to the Accused in
their statements recorded under Section 313 of the Cr.P.C. In view
thereof, we are not relying upon the C.A. Reports and their contents as an
incriminating circumstance against the Accused. In our opinion, however,
the recovery of the weapons of assault at the instance of the Accused,
which are identified by PW-12 Lalitkumar as being used in the commission
of the offence, is definitely a corroborating circumstance, if at all any
corroboration is necessary for the ocular account of PW-12 Lalitkumar.
55. The Spot Panchanama proved through the evidence of the Panchas
and the Investigating Officer, proving the factum of assault and seizure of
various articles from the spot also gives further corroboration. The prompt
lodging of F.I.R. containing all the details of the incident, the names of the
Accused and the presence of the eye witnesses at the time of incident
add further corroboration.
56. This brings us to the last contention raised by the learned Counsel
for the Appellants that, in the F.I.R. no overt act is being attributed to some
of the Accused like Accused No.8 Rauf and Accused No.5 Yakub. As
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regards Accused No.1 Sherbahadur, it is submitted that he has merely
exhorted and not assaulted anyone. Similarly, as regards Accused No.9
Khaja, it is submitted that he was just present, but no specific role of
inflicting blow is attributed to him. Reliance is also placed by the learned
Counsel for Accused No.9 Khaja on the Defence Witness to state that
Accused No.9 Khaja was not present at the time of incident. However, the
plea of alibi, which is tried to be proved through the evidence of the
Defence Witness Ayub, who is the brother of Accused No.9 Khaja, is not
proved sufficiently. This witness has stated that on that night, Accused
No.9 Khaja went with his taxi for fare. However, he has not stated where
Accused No.9 Khaja had gone on that night. He did not depose name of
passenger. In absence of evidence proving that, at the relevant time,
Accused No.9 Khaja was at a particular place, which is far away from the
spot of incident and it was impossible for him to remain present at the spot
of incident at the time of incident, the plea of alibi cannot be said to be
proved.
57. About the submission that no overt act is attributed to some of the
Accused and their mere presence at the time of incident cannot be
sufficient to attribute to them the guilt for the offence punishable under
Section 302 r/w, 149 of the IPC, this submission is misconceived and
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cannot be accepted in law. The very basis of bringing on Statute Book
Section 149 of the IPC is “to provide for vicarious liability. This section
clearly provides that, if the offence is committed by any member of an
unlawful assembly in prosecution of a common object thereof or such as
the members of that unlawful assembly knew that the offence was likely to
be committed in prosecution of that object, every person who at the time
of committing that offence was member is guilty of the offence
committed” . Hence, once formation of unlawful assembly is proved, every
member thereof is liable for any offence committed by any member of that
assembly in prosecution of the common object of that assembly, whether
he has committed any specific overt act or not. Only two conditions are
required to fasten him with vicarious liability. First that he was the member
of an unlawful assembly and the second, offence was committed by such
unlawful assembly in prosecution of the common object of that assembly.
The law is also well settled that the words “in prosecution of the common
object” do not mean “during the prosecution of the common object of the
assembly” . It means that the offence committed was immediately
connected with the common object of the assembly or the act is one
which upon the evidence appears to have been done with a view to
accomplish the common object attributed to the members of the assembly.
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58. The common object of the unlawful assembly may be formed by an
express agreement, after mutual consultation, but that is by no means
necessary. It may be formed at any stage, by all or a few members of the
assembly and other members may just join and adopt. As held by the
Hon'ble Supreme Court in the case of Gangadhar Behera V/s. State of
Orissa, 2003 SCC (Cri.) 32 , though no hard and fast rule can be laid
down under the circumstances from which common object can be culled
out, it may necessarily be collected from the nature of the assembly, arms
it carries and behaviour at, before or after the scene of incident. As
observed by the Apex Court in this authority, when a group of members
come together, armed with dangerous weapons and inflict several injuries
resulting into death of two persons, as in the present case, the common
object of murder has to be inferred and all of them are required to be held
guilty of murder even if some of them did not actually participate or some
of them did not use the arms. It would not absolve them of the offence of
murder with the aid of Section 149 of the IPC.
59. The law is crystallized on this aspect in the case of Lalji V/s. State
of U.P., AIR 1989 SC 754 , wherein it is held that, “everyone must be
taken to have intended the probable and natural results of the
combination of the acts in which he joined. It is not necessary in all cases
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that all the persons forming an unlawful assembly must do some overt
act. Where the Accused had assembled together, armed with weapons,
and were parties to the assault, Prosecution is not obliged to prove which
specific overt act was done by the particular Accused. Once it is held that
there was an unlawful assembly, then each and every member of that
unlawful assembly, who acts in prosecution of its common object, is
equally liable irrespective of whether some of them have not been
assigned any role of actually committing that particular offence” .
60. Therefore, the submission of the learned Counsel for the Appellants
that PW-12 Lalitkumar has not attributed specific overt act to some of the
Accused will be of no avail to absolve them from the offences with which
they are charged on the basis of vicarious liability under Section 149 of
the IPC. It is also not the case of any of those accused persons that they
were mere by-standers. Conversely, the evidence on record proves that
all these Accused had come together to the spot. They were armed with
weapons and on the exhortion of Accused No.1 Sherbahadur, they
assaulted both the deceased with weapons in their hands. Then all of
them also left together. We are, therefore, of the opinion that the finding of
the Trial Court of holding the Accused guilty for the offences punishable
under Sections 143, 144, 148 and 302 r/w. Section 149 of the IPC has to
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be confirmed, being arrived at after proper appreciation of entire evidence
on record.
61. However, the same cannot be said, so far as finding of the Trial
Court regarding the conviction of Accused Nos.1 to 10 for the offence
punishable under Section 120-B of the IPC. The offence of criminal
conspiracy, as defined under Section 120-B of the IPC, essentially
contemplates an agreement to do an illegal act. This agreement is the gist
of the offence; meeting of minds is essential for arriving at agreement.
Mere knowledge or information is not sufficient. It is true that there may
not be any direct evidence of such agreement, as conspiracy is always
hatched in secrecy. However, there must be some evidence or the
circumstances for inferring the conspiracy. The circumstances must be
such as giving rise to a conclusive or irresistible inference of an
agreement between two or more persons to commit an offence. The law
further contemplates that the existence of meeting of minds of two or
more persons, which is sine qua non, must be established from the chain
of circumstances from which a conclusion about the guilt of Accused could
be drawn.
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62. In the present case, there is absolutely no evidence proving the
meeting of minds or of agreement amongst the Accused. Though the Trial
Court has relied upon the evidence relating to the Accused sharpening
their weapons and coming together at the spot to infer the criminal
conspiracy, these two pieces of evidence are too feeble to draw the
inference of criminal conspiracy. They are also not sufficient to form the
chain of circumstances from which the only and only irresistible inference
that can be drawn is about the meeting of minds. This finding of the Trial
Court, therefore, of holding the Accused Nos.1 to 10 guilty for the offence
punishable under Section 120-B of the IPC is required to be quashed and
set aside.
63. Further finding of the Trial Court of holding Accused No.1
Sherbahadur guilty and convicting him for the offence punishable under
Section 302 r/w. Section 109 of the IPC also cannot survive as Accused
No.1 Sherbahadur is already held guilty and convicted for the offence
punishable under Section 302 r/w. Section 149 of the IPC, being the
member of the unlawful assembly, the common object of which was
commission of the offence.
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64. Consequently, we allow these Appeals partly. The Judgment of the
Trial Court of convicting and sentencing Accused No.1 Sherbahadur,
Accused No.2 Arif, Accused No.3 Akhtar Hussein Mohiddin Ali Shaikh,
Accused No.4 Yusuf, Accused No.5 Yakub, Accused No.6 Amroj, Accused
No.7 Amin, Accused No.8 Rauf, Accused No.9 Khaja and Accused No.10
Akhtar Hussein Siddiqui for the offence punishable under Section 120-B of
the IPC and further convicting Accused No.1 Sherbahadur for the offence
punishable under Section 302 r/w. Section 109 of the IPC is hereby
quashed and set aside. Accused Nos.1 to 10, as stated above, are
acquitted for the offence punishable under Section 120-B of the IPC.
Similarly, Accused No.1 Sherbahadur is further acquitted for the offence
punishable under Section 302 r/w. Section 109 of the IPC. Fine amount, if
any, paid by the Accused Nos.1 to 10, for these offences be refunded to
them.
65. As regards the conviction and sentence of the Accused Nos.1 to 10
for the offences with which they were charged and tried, namely, Accused
No.1 Sherbahadur, Accused No.2 Arif, Accused No.3 Akhtar, Accused
No.4 Yusuf, Accused No.5 Yakub, Accused No.6 Amroj, Accused No.7
Amin, Accused No.8 Rauf, Accused No.9 Khaja and Accused No.10
Akhtar, for the offences punishable under Sections 302 r/w. Sections 149
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and 143 of the IPC; Accused No.2 Arif, Accused No.4 Yusuf, Accused
No.5 Yakub, Accused No.6 Amroj, Accused No.7 Amin, Accused No.8
Rauf and Accused No.10 Akhtar for the offence punishable under Section
148 of the IPC; Accused No.1 Sherbahadur, Accused No.3 Akhtar and
Accused No.9 Khaja for the offence punishable under Section 147 of the
IPC and Accused No.2 Arif, Accused No.3 Akhtar, Accused No.4 Yusuf,
Accused No.5 Yakub, Accused No.6 Amroj, Accused No.7 Amin, Accused
No.8 Rauf and Accused No.10 Akhtar for the offence punishable under
Section 148 of the IPC, is hereby confirmed and maintained.
66. Appeals are, thus, partly allowed as indicated above.
67. Fees payable to the Mr. Toraskar, the learned counsel appointed on
behalf of Appellant No.2 in Criminal Appeal No.699 of 2009 is quantified at
Rs.5,000/-.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [P.V.HARDAS, J.]
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