Criminal Appeal No.389 of 1998,Criminal Appeal No.396 of 1998,Criminal Appeal No.409 of 1998,Criminal Appeal No.419 of 1998,Criminal Appeal No.528 of 1998

23rd January, 2002

Petitioner Counsel: Shri. P. V. MARWADI, Shri. A. P. MUNDARGI, Shri. P. L. ARJUNWADKAR, Shri. UMESH NIKAM, Shri. PRASHANT BADOLE, Shri. AVINASH R. RASAL
Respondent Counsel: Shri. B. R. RAMCHANDANI, Shri. D. P. ADSULE

Cases Cited:
Rammi alias Rameshwar Vs. State of Madhya Pradesh, 2000 ALL MR (Cri) 275 (S.C.)=1999 Cri.L.J.4561 [Para 9]
Jackaran Singh Vs. State of Punjab, 1995 Cri.L.J.3992 [Para 9]
Pratapaneni Ravi Kumar alias Ravi Vs. State of Andhra Pradesh A.I.R., 1997 S.C.2810 [Para 14]
Asha alias Ashanand Vs. State of Rajasthan A.I.R., 1997 S.C.2828 [Para 14]
Kartik Malhar Vs. State of Bihar, (1996) 1 S.C.C.614 [Para 14]
Charipalli Shankararao Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad A.I.R., 1995 S.C.777 [Para 15]
Nawab Ali Jhinnu Vs. State of Uttar Pradesh A.I.R., 1994 S.C.1607 [Para 15]
Ramawati Devi Vs. State of Bihar A.I.R., 1983 S.C.164 [Para 15]
Appabhai Vs. State of Gujarat A.I.R., 1988 S.C.696 [Para 16]
State of U.P. Vs. Anil Singh A.I.R., 1988 S.C.1998 [Para 16]
Sanjay @ Kaka etc. Vs. The State (N.C.C.T. of Delhi), 2001 (1) Crimes 268 (SC) [Para 16]
Khujji @ Surendra Tiwari A.I.R., 1991 S.C.1853 [Para 16]
Naggappa F. Gauder Vs. State of Karnataka, 1994 (1) Crimes 577 [Para 16]

JUDGMENT

R. K. BATTA, J. :- All these Appeals arise out of Sessions Case No.74 of 1994 on the file of III Additional Sessions Judge, Thane. The Appellants were tried for unlawful assembly, rioting, murder of Vazir Varis Khan under Section 147, 148, 302 read with Section 149 of I.P.C. Alternatively they were charged under Section 302 read with Section 34 of I.P.C. and lastly under Section 135(1) read Section 135 of the Bombay Police Act read with Section 34 of I.P.C. In support of the charges the prosecution had examined 17 witnesses in all. The learned Additional Sessions Judge, Thane, vide judgment dated 23rd February, 1998 found all the appellants guilty of the offence of murder of Vazir Varis Khan under Section 302 read with Section 149 of I.P.C. In addition he also found the appellants guilty for the offence under Section 147, 148 and also under Section 37(1) read with Section 135 of the Bombay Police Act. The appellants have been sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- each in default of payment of fine, the accused to further undergo simple imprisonment for three months. No separate punishments were awarded under Section 147 and 148 of the I.P.C. and under Section 37(1) read with Section 135 of the Bombay Police Act. The accused were given benefit of set off under Section 428 of Cr.P.C. for the detention period spent in police custody/Magisterial custody. It appears that during the pendency of the trial and the pendency of the hearing of the Appeals all the appellants had been released on bail except the Appellant - Usman @ Pappu Iqbal Shaikh.

2. The appellants have challenged their conviction and sentence by filing separate Appeals. Criminal Appeal No.389 of 1998 is filed by original accused No.2, Criminal Appeal No.396 of 1998 is filed by original accused Nos.1 and 7, Criminal Appeal No.409 of 1998 is filed by original accused No.6, Criminal Appeal No.419 of 1998 is filed by original accused No.3 and Criminal Appeal No.528 of 1998 is filed by original accused Nos.4 and 5. The appellants shall hereinafter be referred to by their original numbers as accused in the trial Court.

3. The prosecution case, in brief, as revealed during the course of prosecution evidence, is that there was enmity on account of Municipal elections between the original accused No.1 and father of the deceased Vazir Varis Khan. The enmity between the two is spoken of by prosecution witness P.W.3-Salima, who is the daughter of the deceased Vazir Varis Khan and this fact is admitted by the original accused Nos.1,3,4,6 and 7 in their statements under Section 313 of Cr.P.C. The prosecution case further is that on 9th August, 1993 at about 4.00 to 4.30 p.m. the deceased Vazir Varis came to his house for drinking water and after drinking water he stated that he would go outside. Accordingly, he left the house. His sister Parveen, who has been examined as P.W.1 asked him not to go outside the house. Since he did not listen to her, she followed him. In the adjacent building mother and sister of Praveen, P.W.1 were sitting on a bench outside the house of Khatija Khan, who has been examined as P.W.13. The deceased had gone there and the mother of the deceased told him not to go anywhere and he should go to the house. Inspite of that the deceased Vazir Varis Khan started going towards the gate of the colony. The prosecution case further is that outside the gate accused No.6-Rashid called the deceased to accompany him in order to go outside near Kehkashan Video Library and near the said Video Library all the accused encircled him and started assaulting him with weapons. Accused No.1-Iqbal is said to be having an iron rod, accused No.2-Sameer and accused No.4-Farid had hockey sticks, Accused No.3-Pappu had knife and accused no.7-Yusuf had chopper. It appears that accused Nos.5 and 6 did not have any weapons with them. It appears that prior to the attack accused No.7-Yusuf had said that deceased Vazir Varis Khan and his father had become over wise and they should be beaten. It is also the prosecution case that accused No.1-Iqbal was instigating the other accused to beat the deceased Vazir Varis Khan. As a result of the assault by the accused the deceased suffered injuries and he was bleeding from the injuries. He was accordingly taken to Civil Hospital, Thane from where he was shifted to Sion Hospital, Mumbai. In Sion Hospital, Mumbai the dying declaration of deceased Vazir Varis Khan was recorded by P.W.5, Police Constable Pandurang, who had been instructed to record the same by P.S.I. Patankar, P.W.4. According to P.W.5 Police Constable, Pandurang, the condition of the deceased was critical; he had given one paper to the doctor on which the doctor made endorsement that the patient was in a position to talk; thereafter he recorded the dying declaration of the deceased and obtained his thumb impression since he was not able to hold the pen and sign it. The deceased succumbed to his injuries at about 1.30 a.m. on 18th August, 1993. The investigation agency went to action and the appellants were promptly arrested with in a few days of the incident. At their instance weapons were recovered as also blood stained clothes, some of which were sent to Chemical Analysis. After completing the investigation charge sheet was filed. The case of the defence is total denial.

4. The prosecution evidence consists of statements of eye witnesses, dying declaration of the deceased, the identification parade in which accused Nos.5 and 6 were identified. Out of the four eye witnesses, two eye witnesses namely Khatija Khan, P.W.13 and the owner of the Video Library Mohd. Hanif, P.W.15 did not support the prosecution case and they were cross examined by the learned A.P.P. but nothing material could be elicited through cross examination. The trial Court placed reliance on the testimony of two eye witnesses P.W.1-Parveen Khan and P.W.3-Salima Khan who are the sisters of the deceased. The trial Court also accepted the identification of accused Nos.5 and 6. However, the trial Court did not accept the dying declaration of the deceased. The trial Court also held that the recoveries had been duly established through the testimony of the investigating officer P.W.17 though the prosecution witnesses P.W.7 to 10 had not supported the prosecution case. Accordingly the trial Court convicted the appellants as stated hereinabove.

5. Learned Advocate Shri. Mundargi, argued on behalf of all the accused-appellants except for accused No.2, whose case was argued by Advocate Shri Marwadi, who had adopted the arguments advanced by learned Advocate for the other appellants. We have heard learned Advocates Mr. Mundargi, Mr. Marwadi and learned Public Prosecutor at length. They have taken us through the entire record.

6. The learned Advocate for the Appellants has urged before us that the names of accused Nos.5 and 6 did not figure in the F.I.R. nor their description was given by the complainant P.W.1 in the F.I.R. In the absence of the description of accused Nos.5 and 6 as also the delay in holding identification parade, which is held about a month from the date of the incident, the presence of accused Nos.5 and 6 has not been duly proved at the scene of offence. Learned Advocate for the appellants further argued before us that the dying declaration of the deceased has not been proved in as much as it has not been established that the same was recorded after obtaining certificate of the doctor regarding the mental state of the deceased. In this regard it has been pointed out that the names of accused Nos.1, 5 and 7 did not figure in the dying declaration; that in the dying declaration there is no reference to the presence of the witness P.W.1-Parveen and witness P.W.3-Salima though there is a reference to the mother of the deceased having arrived there, who has not been examined in this case. In addition, it is argued, that the dying declaration cannot co-exist with the evidence of P.W.1-Parveen and P.W.3-Salima. It is also pointed out that the dying declaration has been rejected by the trial Court.

7. Coming to the testimony of the eye witnesses, it has been urged before us that the said eye witnesses have not given any details of assailant except that P.W.1 Parveen has spoken of knife blows being given by accused No.3-Pappu and besides that the evidence of P.W.1 and P.W.3 is in omnibus fashion since they neither disclose as to how many blows were given by the appellants nor on which parts of the body of the deceased. It is also pointed out that P.W.1-Parveen who is the complainant in this case has not even mentioned as to which accused had what weapon with him except for accused No.3, who according to her had a knife. It is also pointed out that there was absolutely no reason for this witness to follow the deceased and as such her presence at the scene of offence is extremely doubtful. In so far as the other eye witness P.W.3-Salima is concerned, it is urged by the learned Advocate for the appellants that though through her attempt is made to show as to what weapon each of the accused had, yet she has not at all given any details of the assault by the accused nor on what parts of the body the deceased was assaulted.

8. The testimony of these eye witnesses has been further attacked by the learned Advocate for the appellants on the ground that no injuries with blunt weapon were found on the person of the deceased on account of which the version of these witness stands discredited. According to the learned Advocate for the appellants the material witness Zarin, who is the mother of the deceased and who according to Khatija-P.W.13 as also according to the dying declaration was present at scene of offence has not been examined. The said witness has been withheld by the prosecution even though she had been summoned to depose in the Court.

9. In respect of the discoveries at the instance of the appellants, it has been urged that except for the discovery as against accused No.7 all the panchas had not supported the recoveries alleged to have been made at the instance of the accused and that the said recoveries have not been duly proved through the Investigating Officer, who has not even stated that disclosure was voluntarily made by the appellants. In this connection reliance is placed on Rammi alias Rameshwar Vs. State of Madhya Pradesh, 1999 Cri.L.J. 4561:2000(1) ALL MR 324(S.C.):2000 ALL MR (Cri) 275(S.C.). It is also urged that in the light of the fact that the panchas had not supported the prosecution case the absence of signatures of the accused on the disclosure panchanama assumes importance and in this connection our attention has been drawn to Jackaran Singh Vs. State of Punjab, 1995 Cri.L.J.3992.

10. It is further pointed out by the learned Advocate for the appellants that articles which are alleged to be recovered at the instance of accused Nos.1,5 and 6 were not sent to chemical analyzer; that the attached articles which were sent to the chemical analyzer had not been sealed, which is the requirement of law, and as such no credence can be given in the circumstances to the report of the Chemical Analyzer. In the light of the above arguments, it has been urged that the accused be acquitted of all the charges.

11. The learned Special P.P. on the other hand, argued that the prosecution witness P.W.1 had an opportunity to see the accused Nos.5 and 6 at the time of the incident and as such the identification of accused Nos.5 and 6 cannot be discarded or disbelieved merely on the ground that she has not given description of the said accused. It is also pointed out by him that there is no delay on the part of the Police to seek identification parade in as much as after the arrest of the accused, the Investigating Officer had on 27th August, 1994 requested to conduct the parade and that it is not in the hands of the Investigating Officer to hold identification parade as the same has to be held by the concerned Officer.

12. The learned Special P.P. has strenuously urged before us that there is absolutely no reason to discard the dying declaration made by the deceased to Police Constable P.W.5-Pandurang. According to him the deceased was in critical condition and there was no time to send request to the Executive Magistrate and in the circumstances P.W.5 Pandurang after obtaining certificate of fitness from the doctor P.W.16-Dr. Kandar Kanda had recorded the dying declaration of the deceased. According to him in the certificate given by Dr. Kandar Kanda there has been some error of the tense and instead of using present tense he has used past tense which mistake has been admitted by the said doctor.

13. Coming to the eye witnesses P.W.1-Parveen and P.W.3-Salima it has been vehemently urged before us that in the situation where the deceased was surrounded by 6 to 7 assailants and was being assaulted by all of them it will be extremely difficult for the witnesses to give details of the incident including the number of blows, parts of body on which blows were given and the weapons used by the accused in assault on the deceased. According to him, even inspite of this position P.W.1 Parveen and P.W.3 Salima had given details of the incident. There is absolutely no reason to discard their testimony. On the question of corroboration by medical evidence it has been urged that haemotomas were found on the person of the deceased and according to doctor P.W.11 Injury No.3 was possible by fall on the ground. According to him, two haemotoma found on the person of the deceased are result of assault by blunt weapon namely hockey sticks. According to the learned P.P. the trial Court has assessed the prosecution evidence in the light of principles applicable in that behalf that there is no case made out for interfering with the conviction recorded by the learned Additional Sessions Judge, who had the benefit of observing demeanor of the witnesses examined in this case. The learned Special P.P. has placed reliance on number of authorities on the question of assessment of evidence of partisan witness; recording of dying declaration by police; that when dying declaration inspires confidence no further corroboration is required; that if common intention and common object is established, it is not necessary that each and every accused involved in the incident should have done any overt act; that merely because witnesses could not describe the parts on which the deceased person was assaulted, does not affect the prosecution version and that the panchanama of recovery does not require to be attested by any independent witness. We shall make brief reference to the relevant rulings upon which reliance has been placed by the learned P.P.

14. On the question of partisan witnesses reliance is placed by learned Special P.P. on Pratapaneni Ravi Kumar alias Ravi and Anr. Vs. State of Andhra Pradesh, A.I.R. 1997 S.C. 2810, Asha alias Ashanand and Ors. Vs. State of Rajasthan A.I.R.1997 S.C. 2828, and Kartik Malhar Vs. State of Bihar (1996) 1 S.C.C.614. The rulings in nut-shell lay down that only because the witnesses are relatives or friendly the testimony of the said witnesses cannot be discarded. The deposition of these witnesses would, of course, require close scrutiny.

15. On dying declaration reliance is placed on Charipalli Shankararao Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, A.I.R.1995 S.C. 777, which lays down that it is not the requirement of law that person making dying declaration should make an elaborate and exhaustive statement so as to cover each and every aspect of the incident and narrate the whole history of the case. It further lays down that where attempt was made to procure services of Magistrate who was not available, the police Head Constable is competent to record dying declaration. Reliance is also placed on Nawab Ali Jhinnu and Anr. Vs. State of Uttar Pradesh, A.I.R.1994 S.C.1607 which lays down that the authenticity of dying declaration is not affected merely by reason of certain infirmities in it where declaration is amply corroborated by evidence of witnesses and the same is recorded after his conscious state and good mental condition is certified by doctor. Reliance is also placed on Ramawati Devi Vs. State of Bihar, A.I.R.1983 S.C.164 in order to substantiate the proposition that dying declaration need not always be recorded by Magistrate and recording of dying declaration before Police Officer may be sufficient compliance of law in the facts and circumstances of the case.

16. It has been urged by learned Special P.P. that the prosecution case cannot be thrown on account of failure of the prosecution to examine independent witnesses. In this regard reliance has been placed on Appabhai Vs. State of Gujarat A.I.R. 1988 S.C. 696, and State of U.P. Vs. Anil Singh, A.I.R.1988 S.C.1998 which lay down that it is not proper to reject prosecution case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. In respect of the submission that disclosure statement is not required to be attested by independent witness reliance has been placed on Sanjay @ Kaka etc. etc. Vs. The State (N.C.C.T. of Delhi), 2001 (1) Crimes 268 (SC). On the question of hostile witnesses reliance is placed on Khujji @ Surendra Tiwari (A.I.R.1991 S.C.1853) which lays down that the evidence of hostile witnesses cannot be treated as affected or washed off the record altogether and part of his evidence which is acceptable can be acted upon. Relying upon Naggappa F. Gauder Vs. State of Karnataka (1994 (1) Crimes 577), it has been urged that merely because witnesses could not describe the part played by each accused in detail, it does not affect the prosecution version when evidence of eye witnesses otherwise is overwhelming.

17. In the light of the submissions made before us, we shall now deal with the merits of the case. In the F.I.R. the names of accused Nos.5 and 6 did not figure even though the complainant P.W.1 had stated that there were 6 to 7 persons who had participated in the crime and she had given the names of all except two. Accused Nos.5 and 6 were subsequently identified by P.W.1-Parveen in the identification parade. It is pertinent to note that neither description of accused Nos.5 and 6 was given by the complainant P.W.1 in the F.I.R. nor the same was elicited at the time of recording of F.I.R. by the Police Officer, who recorded the same. According to P.W.1-Parveen and P.W.3-Salima the incident continued for two to three minutes and the contention of the learned Special P.P. is that P.W.1 had sufficient opportunity to observe accused Nos.5 and 6 who had taken part in the assault, and as such the identification of the said accused should not be discarded. In case of unknown persons description given prior to the identification parade lends assurance to the identification of the person because in the absence of description anybody could be identified in the identification parade and it will not be possible to challenge the veracity of the person identifying the assailants. In the absence of the description of the assailants in the F.I.R., we are not inclined to accept the identification of accused Nos.5 and 6 by P.W.1-Parveen. This is more so in the light of the fact that the identification parade was not promptly held. The incident had taken place on 9th August, 1993 and the identification parade was held only on 11th September, 1993. In this respect even though P.W.3-Salima had stated that all the accused had assaulted the deceased and she had in her deposition stated regarding the weapons held by some of the accused, yet she did not speak of any weapons in the hands of accused Nos.5 and 6. In view of this evidence on record we are not inclined to accept the identification of accused Nos.5 and 6 by the prosecution witnesses.

18. We shall now take up the controversy relating to dying declaration. The prosecution has examined P.W.5 Pandurang, P.W.4-Sudarshan Paithankar, P.S.I. and P.W.16-Dr. Kandar Kanda. P.W.4 has stated that he was informed by a constable on telephone from Sion Hospital that one injured person was admitted in the Emergency Ward. He was in serious conditions and he directed him to record his statement. The said Constable is Pandurang Sawant, P.W.5 who has stated that on instructions of P.S.I. Paithankar he had recorded the dying declaration of the deceased since he was in critical condition. He has stated that he went to the Emergency Ward and located the doctor. He gave one paper on which the doctor made endorsement that the patient was in a position to talk. After obtaining this endorsement, he recorded the statement of the deceased and after recording the statement obtained the thumb impression of the deceased since he was not able to hold pen and sign it. He admitted during cross examination that timing of recording the statement is not mentioned in the statement. The prosecution has examined Dr. Kandar-P.W.16 in order to prove the said endorsement at Exhibit 92. He stated that he had given endorsement to the effect that the patient is conscious and able to give statement. He also admitted in his cross examination that the said endorsement does not bear timing and he could not tell at what time he gave the endorsement on the same. He also stated that he could not tell who had recorded the dying declaration of the patient and that there is no reference in the case papers, but he examined the patient for the purpose of giving endorsement. The said endorsement at Exh.92 reads as under :-

"9-8-93 - Patient Vazir Varis Khan - OPD No.198744. Casualty No.14218, was admitted at 8.00 p.m. in the "E" Ward and was fully conscious and was able to give a statement which is _ (illegible)."

Sd/-

Dr. Kandar, P.W.16 has stated that in the endorsement the word was is wrongly written. We are, however, not satisfied by the explanation given by the doctor since the word "was" is not written once but thrice. The entire reading of this endorsement makes it clear that the said endorsement has been made after recording of the statement. We have already pointed out that neither P.W.6 nor Dr. Kandar, P.W.16 has given the timing of the recording of the statement and in fact the deposition of Mr. Kandar, P.W.16 shows that not only it was not recorded in his presence, but he could not even tell at what time and who had recorded the dying declaration of the patient. In the light of the above, we are not inclined to accept the dying declaration which has been recorded by Police Constable P.W.6. In view of this conclusion, it is not necessary to go further into the dying declaration in order to examine the contention of the learned Advocate for the Appellants as to whether the said dying declaration could co-exist with the deposition of P.W.1-Parveen and P.W.3-Salima.

19. The prosecution had indicated that the incident was in fact witnessed by four witnesses namely P.W.1-Parveen, P.W.3-Salima, P.W.13-Khatija and P.W.15 Mohd. Hanif Ansari. P.W.13-Khatija did not support the prosecution case except for stating that the deceased Vazir Varis Khan was coming with his friend and his mother asked him not to go but despite this the deceased left toward the rear gate of the building. It is further stated that after some time they heard commotion and shouting and on hearing commotion she along with Zarine, mother of the deceased, went towards the rear side where the sound of commotion came. There both of them saw the deceased having sustained bleeding injuries. According to this witness the mother of the witness Zarine was with her. According to Khatija she did not know who had beaten the deceased. Since this witness did not support the prosecution case the Special P.P. was permitted to put questions in the nature of cross examination, but nothing could be elicited during the cross examination of this witness. In the light of the fact that this witness had not supported the prosecution case it had become necessary that the said Zarine should have been examined by the prosecution, but there is no satisfactory explanation for her non-examination except that the prosecution is not required to duplicate evidence. Be that as it may, the other independent witness Mh. Hanif Ansari infront of whose Video Library the incident is reported to have taken place has not supported the prosecution case. During his cross examination by the learned Special P.P. nothing material could be elicited. Thus evidence of witness P.W.13 and P.W.15 does not in any manner help the prosecution case.

20. We shall, therefore, now examine the evidence of P.W.1-Parveen and P.W.3-Salima. P.W.1-Parveen has stated that all the accused were standing near the rear gate of the colony and one of the accused had called her brother. According to her Pappu Iqbal Shaikh, Yusuf Iqbal Shaikh, Samir Shaikh, Allauddin Ansari, Farid Balbale and Iqbal Shaikh were standing near the gate of the colony. It may be mentioned here that Allauddin Ansari is stated to be Juvenile delinquent and his trial has been separated. She has further stated that there were about 7-8 persons and names of two of them who were not mentioned in the FIR were identified by her as Accused No.5 and 6 which aspect we have already dealt with. According to her, all the persons encircled the deceased and started beating her brother by hockey sticks and knives. She specifically stated that Pappu Iqbal Shaikh, accused No.3 had given blow by knife to her brother and Iqbal Shaikh who was there said that he would kill her father as his son had killed her deceased brother. She further stated that the place of incident is situated in front of the gate of their colony and in front of one Video Library known as "Kehkashan Video Library". During the cross examination she stated that the distance between the Video Library and the house of Khatija is about 10 to 20 ft. According to P.W.3-Salima the cassette library is visible from the place where they were sitting outside the house of Khatija. It may be mentioned here that according to I.O. P.W.17 the distance between Kehkashan Library and rear gate of Tanwar Nagar is about 50 ft. and the flat of Khatija is situate at a distance of 50 to 60 ft. from the rear gate of Tanwar Nagar. Thus according to the Investigating Officer the distance from outside the flat of Khatija to Kehkashan Library near which the incident took place would be 100 to 110 ft. It is surprising that the Investigating Officer did not even show the house of Khatija in the spot panchanama when even in the F.I.R. it is stated by the complainant that her deceased brother had gone to the house of Khatija where his mother was sitting along with Khatija, P.W.1 in her cross examination stated that her brother was given blow of knife on his right shoulder, on right thigh and he was also brutally beaten on forehead. In so far as the right thigh is concerned Dr. P.W.11 has categorically stated that there was no injury found in the right or left right of the deceased.

21. In respect of the incident P.W.3 Salima has stated that she along with her mother was sitting outside the house of one Khatija on the bench. Deceased Vazir had come there. Her mother told him not to wander anywhere and that he should go to the house. However, Vazir did not say anything and went towards the gate of the colony. Outside the gate Accused No.6 Rashik called her brother to accompany him to go outside near Kehkashan Video Library. In fact in her cross examination she stated that accused No.6 did not call her deceased brother but he took him along with him. She has further stated that when they reached near Kehkashan Video all the accused encircled him and started assaulting him. She has not given any details of the assault, but has stated that Accused No.3-Pappu had knife, accused No.7-Yusuf had chopper, Juvenile Allauddin had sword, the accused No.2-Sameer and Accused No.4-Farid had hockey sticks, accused No.1 Iqbal had iron rod. According to her all the said accused with the said weapons had assaulted the deceased Vazir Khan. She has not given any detail of assault even though she states that beating was going on for 2 to 3 minutes. According to her when beating was going on, owner of library was present, but he has not supported prosecution case. We have already pointed out that she did not find any weapons in the hands of accused Nos.5 and 6.

22. Thus from the evidence of P.W.1 and P.W.3 it follows that according to them all the accused had assaulted the deceased. At the time of the assault the deceased was encircled by all the accused and as a result of assault by all the accused the deceased is said to have received 5 injuries. As per deposition of Dr. Ramesh Kundaji Tapase, P.W.11 who conducted Postmortem on the dead body of the deceased, the said injuries are as under :-

1. Sutured wound on right side second inter costal space 9 cm. long it was horizontal with 4 c.m. long extension. On opening that wound sutured sub clavicle artery was seen. The sutures were intact. There was muscle haemotoma 5 grams in weight.

2. Sutured wound 2 cm. below the above wound No.1, 1 cm. x 1/2 cm., it was subcutaneous deep.

3. Sutured wound 1 cm. above lateral end of eyebrow on right side 1 cm. x 1/2 cm. subcutaneous deep.

4. Sutured wound on right perital region 2 cm. subcutaneous deep.

5. Finding of the skull there was scalp haemotoma on right perital region 5 gms. in weight.

There was no evidence of fracture of skull.

The cause of death according to him was due to shock following stab injury which was caused by sharp object and sufficient to cause death in ordinary course. In cross examination he stated that the injury No.5 is possible by falling. The cause of the other injuries was not ascertained. The weapon with which the injuries are said to have caused were not shown to Dr. Ramesh Kundaji Tapase-P.W.11 nor to the eye witnesses P.W.1-Parveen and P.W.3-Salima. We have already pointed out the prosecution case is that all the accused had encircled and assaulted the deceased. In case of assault on a person who is encircled and assaulted after being encircled it is but natural that there should have been injuries on the sides as well as back of the deceased, but if we see the injuries spoken of by Dr. Ramesh Tapase-P.W.11 the injuries are only on front and right side portion of the body of the deceased. The injury Nos.1 to 4 as per postmortem report are incised wounds. Even as per report Exh.93 of the Intensive Care Unit of the Sion Hospital, Mumbai, the said injuries are incised and stab wounds. We may at this stage point out that P.W.6, Clerk in Thane Civil Hospital had produced certain records for the examination of the deceased by Dr.Smt. Pundalik, Chief Medical Officer. P.W.6 had submitted that Smt. Pundalik was on temporary employment in the hospital. There is nothing to show that she was not readily available. The production of the record of examination of the deceased at the Thane Civil by Dr.Smt. Pundalik, Chief Medical Officer where the deceased was taken has not been proved. In fact this record shows that injury Nos.1 and 2 were stab wounds, three other injuries on the right parietal bone, right eye brow and on the elbow joint are contused lacerated wounds. In such eventuality there will be discrepancy in the report of examination by Dr.Smt. Pundalik, Postmortem Report and Exh.93 and unless the same is explained it cannot be reconciled. In view of this, we are of the opinion that the prosecution has failed to prove assault by blunt weapons like hockey stick since it is not the prosecution case that iron bar had been used in the assault. The medical evidence, therefore, considerably weakens the occular evidence given by P.W.1 and P.W.3 in as much as the assault by blunt weapons is not established. It is no doubt true that in cases where common object and common intention is proved, it is not necessary that the overt act should be proved on behalf of the persons sharing the common object and common intention. Nevertheless, we find that testimony of P.W.1-Parveen and P.W.3-Salima which is more of omnibus nature does not get enough support or corroboration from material on record. We have already pointed out that even the weapons used by the accused are not shown to these witnesses. The recovery of weapons has not been proved through testimony of panchas. Though the prosecution has proved the recovery of chopper, yet P.W.1 did not at all speak of chopper being in the hands of any of the accused. The Investigating Officer had also not proved the said recoveries of the weapons or the clothes of the accused. Besides this, the report of the Chemical Analyzer shows that the Articles were received in 20 sealed parcels. There is nothing on record to show as to who did this sealing and when it was done. The Panchanama of recovery shows that the recovered items were put in wrappers and on the said wrappers the paper chits containing the signature of the Pancha had been affixed. However, these Panchas did not support the prosecution case. The prosecution did not even get the signatures of the Panchas identified on the said paper labels which had been affixed on the wrappers of the items seized. Therefore, the recoveries as also the report of the Chemical Analyser cannot be used as against the accused-appellants.

23. In the light of the above, we are not inclined to place implicit reliance on the sole testimony of P.W.1-Parveen and P.W.3-Salima and we are of the view that the prosecution has failed to prove the charges as against the accused beyond reasonable doubt. The appellants are therefore, given benefit of doubt and are all acquitted of the charges.

24. For the aforesaid reasons, the Appeals are allowed. The conviction and sentence of all the Appellants recorded by the IIIrd Additional Sessions Judge, Thane, vide judgment dated 23rd February, 1998 in Sessions Case No.74 of 1994 is set aside. All the Appellants-Accused except the Appellant-Accused No.3 are stated to be on bail. Their bail bonds are cancelled. Accused No.3-Usman @ Jahur Shaikh the Appellant in Cri. Appeal No.419/98 is stated to be in custody. He shall be set at liberty forthwith, in case he is not required in any other case.

Appeals allowed.