Criminal Appeal No.588 of 1999

26th October, 2004

Petitioner Counsel: Mr. V. N. KAMBLE
Respondent Counsel: Mrs. U. V. KEJRIWAL

Cases Cited:
Ram Prasad Vs. Punit, 1999 Cri.L.J. 2889 [Para 17]
Narayan Vs. State of Maharashtra, 2000 Cri.L.J. 4640 [Para 17]
Bhiva Doulu Patil Vs. State of Maharashtra, AIR 1963 SC 599 [Para 17]
Dagdu Vs. State of Maharashtra, AIR 1977 SC 1753 [Para 17]
Ravindra Singh Vs. State of Haryana, AIR 1975 SC 856 : 1975 Cri.L.J. 765 [Para 18]
AIR 1996 SC 3254 : 1996 Cri.L.J. 2506 [Para 18]
Ahmed Ali Vs. State of Maharashtra, 1994 Cri.L.J. 274 [Para 20]
Ganesh Bhavan Patel Vs. State of Maharashtra, 1979 Cri.L.J. 51 : AIR 1979 SC 135 [Para 21]
Ram Lal Vs. State of Punjab, 1989 Supp. Part-I SCC 21 [Para 21]
Swaran Singh Ratan Singh Vs. State of Punjab, AIR 1997 SC 637 [Para 27]
Kaliram Vs. State of Himachal Pradesh, 1973 Cri.L.J. SC 705 [Para 27]

JUDGMENT

ANOOP V. MOHTA, J. :- This is an Appeal filed by the appellant-accused No.1 and appellant-accused No.2 against the judgment and order passed by the Sessions Court at Raigad, Alibag, dated 10th February, 1999, whereby, the appellants have been convicted for the offence punishable under Section 302 read with 34 of the IPC and sentenced to suffer life imprisonment and to pay a fine of Rs.1,000/- and, in default, to undergo rigorous imprisonment for six months each. Accused Nos.3 to 5 are convicted for the offence punishable under Section 323 read with Section 34 of the IPC. Therefore, the present Appeal only by appellants Nos.1 and 2 against the order of conviction.

2. All accused Nos.1 to 5 were tried on the charge of commission of offence punishable under Sections 147, 148, 302, 201 read with Section 149 and in the alternative, under Section 34 of the Indian Penal Code and also under Section 37(1)(3) read with Section 135 of the Bombay Police Act, 1951.

3. The communal riots erupted at Pen City on 26th September, 1996, the day of Ganpati immersion and that resulted in indiscriminate firing by the Police. The curfew was also clamped to maintain law and order. In the firing, three persons belonging to the Hindu community died and three were injured.

4. Accused Nos.1 to 5, PW8 - Vishwas Kashinath Mhatre, PW15 - Santosh Rajaram Suryawanshi and one Nilesh Pawar had assembled in connection with erection of a Pandal to celebrate the forthcoming Navratri festival in the premises of a private High School in front of the living accommodation of accused No.1 Ashok, who was working as a Watchman in the said High School. At about 11.00 a.m. on the same day, accused No.2 - Raju informed Ashok - accused No.1 about the death of Hindus in a Police firing. It is the case of the prosecution that one Haidar Ali was passing by and all the accused in vengeance against the community assaulted him. Appellant No.1 caught hold of Haidar and the appellant No.2 gave stab blows by means of a gupti, which resulted into the death of Haidar on the spot. Both the accused threw the dead body of the deceased in the adjoining field in a ditch and left. This incident was witnesses by PW 8 - Vishwas and PW 15 - Santosh, along with Nilesh Pawar from a distance of about 100-150 feet. PW 8 - Vishwas and PW-15 Santosh and Nilesh Pawar were all members of the same group.

5. One Babusheth informed the Police about the dead body which was lying in the adjoining field of Chinchpada Road. PW 16-Ashok Sakharam Jadhav, the PSI, as per the directions of Deputy Superintendent of Police Shri. Patil, had visited the spot. The dead body was sent to the Rural Hospital, Pen. Inquest was recorded. PW 2 - Abhay Keshav Patil had identified the dead body and informed to the brother of the deceased. The brother of the deceased PW 1-Shaikh Mohin Mohamad Bhaledar, had also identified the dead body. The FIR was recorded as per the narration of PW 1-Mohin. The Spot Panchanama (Exhibit-28) was also drawn. There were eleven injuries on the person of the deceased Haidar as per the P.M. Report (Exhibit-43). The autopsy was conducted on the next day by PW 17-Dr. Ramdas Narayanrao Khune.

6. As there was communal riots and Police firing, led to strong public criticism, therefore, the matter was handed over to the CID, Assistant Superintendent of the Flying Squad, Pen. PW-18, Dattatraya Ramchandra Shejal, the Investigating Officer took over the investigation on 29th September, 1996, and proceeded further. The involvement of the accused, as per the prosecution was detected only on 26th October, 1996. On 2nd November, 1996, accused Nos.2 to 4 were arrested. Accused Nos.1 and 5 were arrested on 7th November, 1996. At the instance of accused Raju, the weapon i.e. gupti was recovered and Panchanama was drawn accordingly. The clothes of all the accused were seized under the Panchanama. The blood stained clothes and the gupti were sent to the Chemical Analyzer. After completion of the investigation all the accused were charge-sheeted. They denied the charges. Their defence was of false implication. The prosecution has examined, in all, 21 witnesses. No defence witness has been examined.

7. The learned Sessions Judge held that the prosecution has failed to prove that accused Nos.1 to 5, being members of unlawful assembly and with common intention, had committed the offence of rioting at 11.30 a.m. on 27th September, 1996, by the side of Chinchpada Road leading to Pen City. The learned Sessions Judge further held that prosecution has failed to prove that accused Nos.1 to 5, at the same time and at the same place, being members of unlawful assembly in prosecution of common object, were armed with deadly weapons like gupti. The learned Sessions Judge further held that the prosecution has failed to prove that accused Nos.1 to 5 caused disappearance of evidence of the offence to save themselves from the legal punishment. The learned Judge further held that the prosecution has failed to prove that accused Nos.1 to 5, at the same time and at the same place, disobeyed the Prohibitory Order dated 22nd September, 1996, issued under Section 37(3) of the Bombay Police Act. However, it is held that the death of the deceased Haidar was homicidal. It is further held that appellant Nos.1 and 2, at the same time and place, being members of unlawful assembly with common object, committed the murder by intentionally and knowingly inflicting the injuries by means of a gupti, which caused the death of the deceased Haidar Ali. It is held, in the alternative, that appellant Nos.1 and 2, did commit the murder of deceased Haidar Ali and, therefore, the learned Sessions Judge has passed the impugned judgment and order.

8. We have heard the learned A.P.P. for the State. None for the appellants. We have been taken through the record of the Sessions Case No.46 of 1997. We have also considered the submissions, as raised by the appellant in the memo of appeal. The learned A.P.P. submitted to maintain the impugned judgment and order.

9. The date of the incident was 28th September, 1996. The appellants were arrested on 4th November, 1996. The blood stained gupti and the clothes of the accused were seized on 5th November, 1996. The communal riots and indiscriminate Police firing on that day and curfew in the City, including three deaths of Hindus and injuries to three Hindus are the part of the record. The involvement of the accused was detected on 26th October, 1996. The homicidal death of Haidar Ali is undisputed. In this background, we have to see the actual role, if any, played the appellant Nos.1 and 2 and to what extent the prosecution has proved their case.

10. PW 8-Vishwas Mhatre, PW 15 - Santosh and one Nilesh Pawar had claimed to be the eye-witnesses by the prosecution. They saw the incident, assault and the stabbing by the Raju, while Ashok holding the deceased Haidar Ali. As already noted, PW 1- Mohin, the brother of deceased Haidar Ali had identified the dead body. PW 2 -Abhay Patil had identified the dead body of Haidar Ali. The complaint/FIR was lodged accordingly. There was no arrest of these appellants as they were not named in the FIR. There was no material or evidence to connect these appellants immediately after the incident and/or registration at the time of the FIR. It was only after due investigation and/or inquiry by the CID the accused were arrested. It is evident from the record that there was no whisper or complaint lodged or made by PW 8-Vishwas, PW 15-Santosh and the said Nilesh even after witnessing the incident. There is nothing on the record to show that these persons had informed anybody about the incident. This unnatural behaviour needs more scrutiny while re-appreciating or re-weighing the testimony of these witnesses and other connected material as the learned Sessions Judge has convicted the appellants, based on these basic witnesses. Therefore, if the evidence of these three witnesses is discarded, there is no direct evidence to support the prosecution's case that the appellants had committed the offence in question.

11. The basic question, now, is the motive behind such a crime. As per the prosecution the background of communal riots and indiscriminate Police firing and death and injuries of Hindus, brought these accused together with common intention and object to kill the deceased Haidar who belonged to the Muslim community. Appellant No.1 is a Watchman in the private High School. He had no earlier criminal or such other background. All these members had gathered in the private School to construct a Pandal to celebrate Navratri. All of them were either students or young members of the community. There is nothing on the record to show that the said Ashok Patil had informed about the death of the Hindus and instigated them to kill the deceased Haidar Ali who was passing by, and according to the prosecution all these accused had rushed to the ground and assaulted the deceased. This incident pre-supposes the fact that the said Raju was carrying gupti and had intention to commit the offence. The prosecution has, in fact, failed to prove the recovery of the weapon used for the commission of the crime. The prosecution is unable to prove that all accused had the common intention to kill the deceased Haidar Ali. There was no planning to kill Haidar Ali, except spreaded rumour; about the killing of the Hindus and/or about the riots. The intention and common object to kill Haidar Ali in this background needs further scrutiny. All these circumstances need cogent and substantive evidence to connect the accused with the offence or vice-versa. If any link is missing to connect these circumstances, it is settled that the benefit of doubt must be in favour of the accused. The law is well settled that the prosecution must prove their case beyond reasonable doubt, based on cogent and sufficient evidence to link and pin-point the commission of the offence by the accused only and not by any other person.

12. The prosecution, as well as, the learned Additional Sessions Judge, basically, has relied on the evidence of PW 7-Laxman Ram Khatri, PW 8-Vishwas Kashinath Mhatre and PW 15-Santosh Rajaram Suryawanshi. PW 7-Laxman, at the relevant time, was minor, aged about 12 years who was studying in the School. He has deposed that some incident took place at Pen City on the day of Ganpati immersion. The School was closed. One Usha Phadke was taking the classes of the boys in the hostel on 26th September, 1996. He has further deposed that during the recess, they were playing under a mango tree. He has stated that he was referring to the incident of the next day of Anant Chaturdashi when, a mob came from Ravi Kiran side. One member of the mob caught hold of the said boy and other started assaulting him by means of the article held by them. The victim had shouted for help. Usha Phadke, who was with the boys, had directed the boys to go into the hostel. One of the assailant was wearing a white shirt and white pant and had long hair and another assailant was wearing black pant. He, however, could not give the description of the other assailant. He has further deposed that the victim was thereafter thrown in the ditch which was about 100 feet away from the terrace of the hostel. The assailants, thereafter ran away towards the Peer Dongri side. He has deposed that they went to PW 9 - Vaishali Raj Patil and informed her about the same. Thereafter, one Raj Patil arrived in the hostel. He disclosed the incident to the said Raj Patil, who identified accused Nos.1 and 4 in the Court. This witness, however, answered that he did not know what happened behind the mango tree as they were on the terrace of the hostel. He has deposed that he did not know Anant Patil. He has further deposed that the Police arrived at about 4.45 p.m. on that very day when he was in the hostel. However, he did not inform the Police about the incident. No discussion took place between the boys and/or between Ushatai, Vaishalitai and her husband even after the arrival of the Police. The discussion took place only after 2 to 3 days. He further admits that they had not disclosed about the assault to Raj Patil earlier. The Police had never approached them thereafter. The Police had recorded his statement after one and half months from the date of incident. The CID called Vaishalitai and Raj Patil also. He refused to make statement in the absence of Vaishalitai and Raj Patil. The statements of various other boys were also recorded. However, this witness was not aware of the contents of the same. He refused to identify Nirmalatai Joshi. He admitted that the mango tree was situated over the bandh by the side of the road and there were brushes around the said mango tree. The shaky testimony of this witness, is not sufficient to convict the accused.

13. PW 8-Vishwas and PW 15-Santosh are the key witnesses of the prosecution, but again their statement was recorded on 2-11-1996, i.e. after about one and half months. The testimonies of these witnesses were identical and unnaturally similar. He has deposed that the communal riots broke out in front of the Jumma Masjid at the time of Ganpati idol immersion on 26-9-1996. Therefore, curfew was imposed in the locality. There were communal riots and Police firing also, in which three persons were injured and three were dead. One of the person who had received injuries, was resident from the locality of this witness. He deposed further that he was at home on the night of 26th September, 1996. On 27th September, 1996, on Friday, at about 10.00 a.m., he went to the house of Ashok Patil for the purpose of working on the pandal of goddess where Anil Jadhav, Anant Gaikwad, Ashok Patil, Kumar Shetty and Nilesh Pawar were already present. One Santosh Suryawanshi (PW 15) joined at about 10.30 a.m. At about 11.00 a.m. Raju Sondekar told Ashok Patil about the communal riots and that one Haidar Ali passing from the canteen side. Thereafter, Ashok and Raju went aside and had a talk for about 4 to 5 minutes. They went ahead followed by Anil Jadhav, Anant Gaikwad, Kumar Shetty, Santosh Suryawanshi, Nilesh Pawar and this witness. This group went towards the house of one Ram Dalmia. This witness also followed them. This witness further deposed that Ashok Patil, Raju Sondekar, Anil Jadhav, Kumar Shetty and Anant Gaikwad came together on the turning point and they caught hold and started assaulting Haidar Ali. The witness, along with Nilesh and Santosh witnessed the assault from 150 to 200 feet as there was electric pole from where he could witness the assault. He further deposed that the spot where Haidar Ali was assaulted was near a mango tree and some of the boys from the hostel were also playing there. This witness further deposed that all the five persons were assaulting Haidar Ali by means of kicks and fist blows. Santosh - PW15, who was standing along with this witness, told Raju to release Haidar Ali. Thereafter, Kumar Shetty, Anil Jadhav and Anand Gaikwad proceeded towards them. Ashok Patil caught Haidar Ali and Raju gave the stab blows. The body of Haidar Ali was thrown away in the adjoining field in a ditch. The spot-land was totally muddy at that time. These witnesses deposed that they were frightened and, therefore, they did not dare to visit the spot. Thereafter, the members of this assembly, including this witness, had gathered near the house of Ashok Patil where Raju was armed with a knife (gupti). They waited there for 4-5 minutes. This witness had described and identified Ashok Patil and Raju Sondekar. He has also identified the knife (article 18). He has identified all accused Nos.1 to 5. In the cross-examination, however, he could not prove the colour of the shirts of the accused (articles 9 & 10). He has further deposed that he could not dare to take any steps to prevent the said act. He also admits that he was also the member of Patit Pawan Sangathana. He has further deposed that after the incident, he never met any leader of the Patit Pawan Sangathana. He has further deposed that he was always afraid of and under the fear that he would be held responsible for the murder of Haidar Ali. He has deposed that he fled away because his grandmother or material uncle would have scolded him for joining the company of the accused. He was at Borwadi of Mangaon for about 8 days. However, he has stated in his statement that he stayed at Karjat after the incident. In the cross-examination, he has stated that he was never afraid of the Police as nothing wrong was done by him. He had knowledge that the Police were searching for the accused and investigating the offence in question. He stated that he returned from Karjat on 1-10-1996. He further deposed that he was aware that he should have disclosed the information in connection with the crime to the Police, but he did not go to the Police and instead he fled away to Karjat on 13th October, 1996. The CID had interrogated him and recorded his statement on 2nd November, 1996. He admitted that he was not aware of the discussion between Raju Sondekar and Ashok Patil. He deposed that there was no profused bleeding after the incident of stabbing by means of knife. He further deposed that he was at Pen till 21st October, 1996, along with Santosh Suryawanshi and Nilesh Pawar. PW 15 deposed that he did not sign the statement which he made after two months of the incident. He also admitted that the gupti was show to him on 19-11-1996 itself.

14. The word "accomplice" is not defined under the Criminal Procedure Code. However, this word has a specific place in the Evidence Act, in Section 133 read with Section 114.

The word "accomplice" is defined in The Law Lexicon, (The Encyclopaedic Law Dictionary, 1997 Edition) as follows :

"One who is in some way concerned in the commission of a crime, though not a principal."

In Webster's Encyclopaedic Unabridged Dictionary of the English Language, it is defined to mean -

"A person who helps another in a crime or wrongdoing, often as a subordinate."

Black's Law Dictionary (Sixth Edition) defines Accomplice as follows :

"One who knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime. Smith Vs. State Tenn. Cr. App., 525 S.W. 2D 674, 676; Model Penal Code, 2.06(3). One who is in some way concerned or associated in commission of crime; partaker of guilt; one who aids or assists, or is an accessory. McLendon Vs. U.S., C.C.A.Mo., 19 F.2nd 465, 466. Equally concerned in the commission of crime. Fryman Vs. Commonwealth, 289 Ky.540, 159 S.W. 2D 426, 429. One who is guilty of complicity in crime charged, either by being present and adding or abetting in it, or having advised and encouraged it, though absent from place when it was committed, though mere presence, acquiescence, or silence, in the absence of a duty to act, is not enough, no matter how reprehensible it may be, to constitute one an accomplice. One is liable as an accomplice to the crime of another if he gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime.

15. Therefore, the question is - Whether these witnesses are an "accomplice" as contemplated under the Evidence Act or the Criminal Procedure Code?

16. The incident, as narrated, made it very clear that along with the accused Nos.1 to 5, this witness had also gathered at the place of Ashok Patil. They were working together and preparing the Pandal for Navratri Pooja. All of them were aware of the communal riots, which had erupted in Pen City and the death of Hindus in the indiscriminate Police firing. These witnesses, therefore, as narrated, had followed the accused Nos.1 to 5 who had assaulted Haidar Ali. They had witnessed all this, but took no steps to prevent the same. They allowed the accused to commit the said offence. After the alleged incident, along with the accused, they had again gathered at the place of Ashok Patil. There was no discussion or any hue and cry made about the incident. These witnesses thereafter, inspite of the fact that there was investigation of the crime in question going on, and knowing fully the obligation and responsibility, did not report the incident to anyone. They were also the member of Patit Pawan Sangathana. It is only in the CBI enquiry that their delayed statement were recorded on 2nd November, 1996. In our view, therefore, PW 8-Vishwas and PW 15-Santosh can be said to be an accomplice, as contemplated under the Evidence Act.

17. The appreciation of such evidence and the testimony of such an accomplice is well settled. The Apex Court's decisions in this regard are 1999 Cri.L.J. 2889 (Ram Prasad Vs. Punit), and 2000 Cri.L.J. 4640 (Narayan Vs. State of Maharashtra). These judgments have laid down the basic principle of appreciation of evidence of the testimony of an accomplice. It is held in AIR 1963 SC 599 (Bhiva Doulu Patil Vs. State of Maharashtra) that the combined effect of Sections 133 and 114, Illustration (b) of the Evidence Act is that an accomplice is competent to give evidence, but it would be unsafe to convict the accused on his testimony alone. Though the evidence of such a witness cannot be said to be illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a witness, without corroboration in material particulars. The same principle has been followed in AIR 1977 SC 1753 (Dagdu Vs. State of Maharashtra).

18. In Ravindra Singh Vs. State of Haryana, AIR 1975 SC 856 : 1975 Cri.L.J. 765, the apex court has held that the evidence of an approver is of a tainted character and as such, is very weak, but nevertheless, it is evidence and may be acted upon subject to the requirement that it has corroboration, which may depend upon the facts and circumstances of the respective case. The corroboration need not be in the form of an evidence or testimony and may be even in the form of circumstantial evidence. Such corroborative evidence must be independent, unambiguous and reliable as held in AIR 1996 SC 3254 : 1996 Cri.L.J. 2506.

19. In view of this, we are of the view that in the present case, the evidence of these accomplice witnesses PW 8-Vishwas and PW 15-Santosh cannot be sufficient, as relied upon by the learned Additional Sessions Judge, to convict the accused. According to us, this witness appears to be a got-up and tutored witnesses. They in fact, participated in the basic conspiracy. Knowing fully the alleged incident and its effect, they concealed the same and/or did not inform anybody about the incident. He involved all the accused Nos.1 to 5, but the learned Additional Sessions Judge, however, relying on the same evidence, convicted only accused Nos.1 and 2 and not all the accused. Accused Nos.3 and 4 were acquitted merely on the ground that they took 3 to 4 steps back while accused Nos.1 and 2 were assaulting. Therefore, the reason for acquittal of accused Nos.3 and 4 was that they did not actually participate in the assaulting, whereas these witnesses specifically deposed that all the accused Nos.1 to 5 were actually assaulting Haidar Ali. The learned Additional Sessions Judge, therefore, restricted the evidence of these witnesses and accepted the same only to the effect that the accused Nos.1 and 2 had assaulted Haidar Ali by knife. These witnesses, as alleged, was standing away from the place of the occurrence of the incident and were watching silently. These witnesses, after the incident, met the accused and joined them at the place of Ashok Patil. Now, for whatever may be the circumstances, the statement of these witnesses almost one and half months late supports the case of the prosecution. The delay in recording the statement of these witnesses, along with others, in fact raises doubts in accepting the prosecution's story. The communal riots in the town on the date cannot be overlooked. In our view, therefore, this witness could not have been the basis to convict the accused. The improvements and contradictions in the testimony also makes these witnesses weak.

20. PW 9-Anwar Abdul Rahman Khan, who acted as a Panch witness to the recovery deposed that when accused No.2 Raju made disclosure statement while he was in the custody, he was hand-cuffed and more over, both his shoulders had been tied by means of rope. Such recovery, therefore, based on such influence and pressure, cannot be said to be a voluntary statement which led to recovery or discovery of the weapon or gupti in question. The discovery of the gupti was also from the open place as it was behind the house of Ashok Patil. This is also a weak link of the prosecution's case, for the reason that the accused were arrested on 2nd November, 1996 and the weapon was discovered on 5th November, 1996. There was no explanation for such delayed recovery. As already noted the incident in question was of 26th September, 1996. The decision in Ahmed Ali Vs. State of Maharashtra, 1994 Cri.L.J. 274 also supports the defence. PW 16-PSI Jadhav deposed that the Spot Panchanama was not recorded on the spot. The Inquest Panchanama was also not recorded on the spot.

21. Another facet which needs consideration at this stage is the delay in recording the statement under Section 161 of the Criminal Procedure Code. The incident took place on 26th September, 1996. The statements had been recorded by the CID on 2nd November, 1996. Therefore, the interrogation and the investigation by the Officers, after a lapse of more than one and half months, creates doubt in the investigation. The Apex Court in Ganesh Bhavan Patel & Anr. Vs. State of Maharashtra, 1979 Cri.L.J. 51 : AIR 1979 SC 135, held as follows :

"15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye-witnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S.161, Cr.P.C. were recorded on the following day. Welji (P.W.3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simipliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.

18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed. The investigating officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a.m. On the 30th, of Constable Shinde at 4 a.m. And thereafter of Welji, Kanjibhai (P.W.7), Santukbai (P.W.6), Pramila and Kuvarbai, between 8 a.m. and 1 p.m."

The same view is also taken by the Supreme Court in the case of Ram Lal & Anr. Vs. State of Punjab, as reported in 1989 Supp. Part-I SCC Page 21.

22. The above principle, if taken note of, also raises suspicion and doubts in the prosecution's case. The testimonies of such witnesses cannot be the foundation for conviction for the offence of the nature in question. In the present case, no explanation whatsoever has been brought on the record from the prosecution's side for recording such delayed statements. Merely because there were communal riots in the town and, therefore, they could not collect the material, as well as, the evidence immediately, cannot be accepted especially when there was no such material or evidence led and placed on the record by the prosecution. In view of this also, the conviction is unsustainable as it raises doubts in the investigation. The delayed statements and testimony of such accomplice cannot be the foundation to convict under Section 302 read with Section 34 of the Indian Penal Code as done in the present case.

23. PW 18-ASP Dattatraya Sejal has deposed that he took over the investigation on 29th September, 1996. However, he detected the crime on 28th October, 1996, only. He further deposed that he arrested the accused Nos.2 to 4 on 2nd November, 1996, and accused Nos.1 and 5 on 7th November, 1996. There is no explanation, whatsoever, about the reason for the delay in investigating and/or in detection of the crime and/or the arrest of the accused at such a delayed stage. PW 18, the CID Inspector could not support or give any explanation for such delayed investigation and recording of delayed statements.

24. In the present case, as already noted above, according to us, these witnesses PW 8 and PW 15 definitely fall within the ambit of the word "accomplice". These witnesses, according to us, therefore, are accomplices. Therefore, the learned Additional Sessions Judge was wrong in holding that both these witnesses PW 8-Vishwas and PW 15-Santosh were not accomplices and based on these witnesses, has wrongly passed the order of conviction.

25. The testimony of PW 8 and PW 15 cannot be accepted in view of the above principle. Therefore, if this testimony goes, it is difficult to maintain the conviction on the basis of other testimony including PW 4-Sunder Jadhav, a maid servant. PW 7-Laxman is a minor boy of 12 years whose statement was also recorded on 2nd November, 1996. PW 14- Santosh has not fully supported the prosecution case as he has only supported that on the day of the incident, he saw accused Nos.1 to 5 and PW 8 - Vishwas and PW 15-Santosh and Nilesh Pawar in front of the house of Ashok Patil at about 10.00 to 10.15 a.m. PW 1-Shaikh Mohin, PW 2-Abhay Patil, PW 3-Ezaz Mohamad have supported the prosecution's case only to identify the dead body of the deceased Haidar Ali. There is no much challenge to the death of Haidar, as also being supported by the medical evidence.

26. The prosecution has admittedly not examined material or independent witnesses viz. Anant Patil, who had passed on Chinchpada Road and one Usha Phadke, the Hostel Superintendent who was alleged to have also witnessed the incident of assault along with the boys of the hostel, who were playing near the bandh.

27. According to us, therefore, these so called two eye-witnesses are not reliable. They are got-up witnesses and creates a reasonable doubt. According to us, both these witnesses are accomplices. The testimony of these witnesses has not been corroborated by other independent witnesses and therefore, the conviction, based on this basic or alleged two eye-witnesses, needs to be interfered with. The decision of the Supreme Court in Swaran Singh Ratan Singh Vs. State of Punjab, AIR 1997 SC 637 and also in Kaliram Vs. State of Himachal Pradesh, 1973 Cri.L.J. SC 705, supports the defence to the extent that if the involvement of the accused creates a reasonable doubt, such accused are entitled to benefit of reasonable doubt.

28. In view of the above reasoning, we are setting aside the order of conviction and sentence dated 10th February, 1999, passed by the learned Additional Sessions Judge, Raigad, and accused Nos.1 and 2 are acquitted accordingly. They be released forthwith if not required for any other offence.

29. The Appeal is allowed.

Appeal allowed.