Criminal Appeal No.1229 of 2002,Criminal Appeal No.1162 of 2002,Criminal Appeal No.36 of 2003

12th October, 2009

Petitioner Counsel: Mr. U. S. VANJARA,Mr. M. A. SHAIKH,Mr. AMIN SOLKAR
Respondent Counsel: Mrs. M. M. DESHMUKH

Cases Cited:
Bandu Shankar Kale Vs. State of Maharashtra, 2002 ALL MR (Cri) 311 [Para 8]
Vilas Vasantrao Patil Vs. State of Maharashtra, 1996 Cr.L.J. 1854 [Para 8,11]
Ramchandra Bhudiram Gupta Vs. State of Maharashtra, 1995 Cr.L.J. 4048 [Para 8]
Pravinkumar Kailashchandra Shukla Vs. State of Maharashtra, 1997 ALL MR (Cri) 93 [Para 8]
Balu Shravan Ahire Vs. State of Maharashtra, 2001 ALL MR (Cri) 364 [Para 8]
State of Rajasthan Vs. Teja Singh, 2001 ALL MR (Cri) 994 (S.C.) [Para 8]
Rajesh Govind Jagesh Vs. State of Maharashtra, 2000 Cr.L.J. 380 [Para 8]
Dungar @ Ravi Mohan Sapharia Vs. The State of Maharashtra, Cri. Appeal No.202/2003, Dt.:-28-04-2009 [Para 9,23]
Vijay Dadasaheb Bhosle Vs. State of Maharashtra, 2006 ALL MR (Cri) 3390=2007(1) Bom. C.R. (Cri) 717 [Para 9]
Shaikh Farid Hussainasab Vs. State of Maharashtra, 1981 Bom.C.R. 520 [Para 10]
State of A.P. Vs. K. Venkata Reddy, AIR 1976 SC 2207 [Para 12]
Mr. M. V. Ramanna Reddy Vs. State of A.P., AIR 1991 SC 1938 [Para 14]
Acharaparambath Pradeepan Vs. State of Kerala, 2007 ALL SCR 1004 : (2006) SCC 643 [Para 14]

JUDGMENT

B. H. MARLAPALLE, J.:- All these three Appeals arise from the order of conviction and sentence passed on 8th October, 2002 by the learned Ad-hoc Additional Sessions Judge at Thane in Sessions Case No.330/2000 in which five accused were put on trial and accused No.4 Prakash Baswant Gangu was declared as an absconder after the charge was framed and, therefore, trial proceeded against accused Nos.1 to 3 and 5. These Appeals have been filed by accused Nos.2, 3 and 5, respectively and accused No.1 came to be acquitted, whereas the Appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer R.I for life. Accused Nos.3 and 5 are in jail and accused No.2 Rajesh Shetty has been absconding after he was released on furlough as per the order passed on 16th March, 2004.

2. The prosecution case as seen from the record is that on 24th December, 1999 the deceased Sunil Chaugule along with 5 6 others was standing opposite the telephone booth by name Amit Communications in Chinchpada area, New Bombay (Airoli) at about 10 a.m and was waiting for his brother to go to Thane. At about 10.15 a.m i.e. within about 15 minutes, 5 6 assailants armed with deadly weapons like knives, sura and chopper etc., arrived there and without any provocation from the deceased or any of his friends, the deceased was attacked. The first blow was given below his chest and he immediately started bleeding, to save himself from further attack he ran inside the telephone booth and as some of the accused were following, he exited from the rear door of the telephone booth, but at a distance of about 25 ft. he collapsed in the drain. One of the accused who had inflicted the first blow brandished his weapon and threatened the companions of Sunil not to move or interfere and therefore, they had receded backwards. After Sunil collapsed in the drain, all the accused again attacked him and within about 5 minutes time they left the place. Sunil was lifted from the drain by his companions and he was profusely bleeding and his clothes were stained with blood as well as mud. He was, shifted to Modi Hospital in a rikshaw by 4 of his companions and was declared dead by the Doctor. Dattatraya Pawar (P.W.1) who was one of the companions lodged complaint with the Rabale Police Station and the same was recorded by Shri. Narayan Bankar, P.S.I (P.W.8) as F.I.R, Exhibit-49 for the offences punishable under Sections 302, 143, 147, 148 and 149 of the Indian Penal Code at about 10.35 a.m the dead body of Sunil was forwarded to the Government Hospital for Post-Mortem and the same was undertaken between 3.30 to 4.50 p.m on the same day by Dr. S. G. Bakshi. Post-Mortem Report at Exhibit-67 was prepared. P.W.15 Shri. Pralhad Laxman Chandanshive took over the investigation from P.W.8 and recorded the statements of eye-witnesses. He arrested accused Nos.3, 4 and 5 at about 15.15 hours on the date of incident itself and accused No.2 at 22.35 hours, whereas accused No.1 came to be arrested on 5th January, 2000. On arrest the clothes of the accused were seized and while they were in custody recoveries of weapons i.e. Article Nos.18, 19 and 20 were made at the instance of accused Nos.2, 3 and 5. P.W.15 carried out the spot panchanama on 24th December, 1999 (Exhibit-42) and recovered one knife stained with blood from the spot (Article-1). These weapons as well as the clothes of the accused and the deceased were sent for Chemical Analysis by P.W.15. C.A. Report was received by the I.O.

3. On completion of investigation charge-sheet was filed on 23rd March, 2000 in the Court of the learned Judicial Magistrate, First Class at Vashi and the case being exclusively triable by the Sessions Court, it was committed on 9th August, 2000. Charge was framed on 29th June, 2002 against all the accused, but accused No.4 absconded after the charge was framed and therefore, trial continued only against 4 accused. As per the prosecution the deceased was attacked and killed by the accused on 24th April, 1999 in a mistaken identity and the attack was actually planned on Shri. Vijay Chaughule, a known local Politician and the accused had hatched a conspiracy to eliminate Shri. Vijay Chaugule.

4. The prosecution examined in all 15 witnesses and P.W.1 Shri. Dattaram R. Pawar, P.W.5 Shri. Sudhir Pandurang Satam, P.W.10 Shri. Ravi Shetty, P.W.11 Shri. Raju Pawar and P.W.14 Shri. Balu Dhotre, P.W.3 Shri. Sudhir Satam were claimed to be the eye-witnesses. P.W.2 Shri. Bhimrao T. Pawar was examined as a panch witness in support of the recovery of the weapons from accused Nos.3 and 5(Memorandum at Exhibit-51 and panchanama at Exhibit-52) whereas P.W.6 Shri. Kundan Trilok Singh was the panch witness for the recovery of weapon Article-20 at the behest of accused No.2. P.W. 7 and P.W.8 were also the panch witnesses for the recovery of clothes of accused Nos.3, 4 and 5 whereas P.W.9 Shri. Mohan Sonvane was the panch witness of clothes seized from the person of accused No.2. P.W.13 Shri.Kundan Anna Pawar was a panch witness for the purported, statement made by accused No.1 regarding the conspiracy hatched by accused No.2 in Shinde Niwas, Samtanagar, Airoli Naka prior to the incident and the panchanama was drawn at Exhibit-71. P.W.3 was the panch for the inquest panchanama at Exhibit-41 and P.W.4 was the panch for the recovery of the knife (Article No.1) from the spot (near the drain)and the panchanama was drawn at Exhibit-55.

5. P.W.12 Shri. Ramesh Anant Paranjape was the Special Executive Magistrate, who conducted the Test Identity Parade on 4th February, 2004 in the jail premises at Thane and had drawn the Test Identification Parade panchanama at Exhibit-69. Vide the application at Exhibit-40 filed under section 294 of the Code of Criminal Procedure, the prosecution had placed on record in all 12 documents before the trial Court and out of the same the defence specifically admitted the inquest panchanama dated 24th December, 1999 Exhibit-41, the Post-Mortem Report dated 24th December, 1999 (Exhibit-67), and the panchanama of attachment of clothes of the deceased Exhibit-61 and 64. As the Post-Mortem Report was admitted, the prosecution did not examine the Medical Officer, who had conducted the autopsy on the body of the deceased.

6. As per the Post-Mortem Report Sunil died due to hemorrhage due to tear of spleen, liver and lung as recorded in column No.17 of the Post-Mortem Report. There were in all 12 injuries noted on the body of the deceased. Ribs 7, 6 and5 were cut, right side lung had a clear incised injury on anterior aspect at the spleen region, a clear incised injury horizontally 8 cm., was noted. Clear incised injury on the liver was also noted and clear incised injury at the superior and lateral aspect of the spleen region measuring 3 x1 cm., deep was also noted. As per the Post-Mortem Report the death had occurred within 3 hours of taking last meal. The trial Court on the basis of the Post-Mortem Report and the injuries noted therein recorded that Sunil died a homicidal death on 24th December, 1999.

7. In their statements recorded under Section 313 of Criminal Procedure Code the accused/Appellants had denied their involvement in the homicidal death of Sunil and they had stated their total ignorance to the incident and claimed that they were falsely implicated.

8. The learned Counsel for the Appellants submitted before us that the T.I. Parade was inordinately delayed and therefore, unreliable, the same was conducted in breach of the guidelines laid down by this Court (On its Administrative side) and accused No.1 was not subjected to T.I.Parade. It was also pointed out that P.W.10 though claimed to be an eye-witness had not participated in the T.I. Parade so as to identify the accused he had seen while attacking Sunil in the incident. During the course of arguments it was sought to be pointed out that the T.I Parade Report at Exhibit-69 was required to be discarded as the Parade suffered from innumerable infirmities. Mr. Solkar, learned Counsel for the accused No.2 submitted that though the accused were arrested on the day of the incident itself, in the evidence of the P.W.15-the Investigating Officer, the prosecution did not bring about any lead so as to the involvement of accused, for their arrest and therefore, further recovery of weapons at their instance could not be relied upon. It was also submitted that the testimony of P.W.1, P.W.5, P.W.10, P.W.11 and P.W.14 did not prove beyond reasonable doubt that the accused or any one of them assaulted Sunil and therefore the charge of causing murder of Sunil by the accused was not proved by the prosecution. It was also pointed out that P.W.1, P.W.5, P.W.11 and P.W.14 were the relations of the deceased as well as Shri. Vijay Chaugule and/or were in the employment of Shri.Vijay Chaugule or P.W. 5 (Raj Constructions) and therefore, their testimony was required to be read with care and caution. It was further submitted that the recovery of weapons at the behest of the accused was not proved and the Chemical Analysis Report was not exhibited though it was sought to be placed on record along with the application at Exhibit-40. As per the defence the documents filed along with the application at Exhibit-40 and not specifically admitted by the defence were required to be proved through the evidence of P.W.15. In addition P.W.15 did not furnish any explanation as to why there was a delay of 43 days in holding the T.I Parade and more so when at least 4 accused were arrested on the date of the incident itself and all the eye-witnesses were from the same locality. In support of these contentions, reliance has been placed on the following decisions of this Court:-

1. Bandu Shankar Kale Vs. State of Maharashtra, 2002 ALL MR (Cri) 311.

2. Vilas Vasantrao Patil Vs. The State of Maharashtra, 1996 Cr.L.J. 1854.

3. Ramchandra Bhudiram Gupta Vs. State of Maharashtra, 1995 Cr.L.J. 4048.

4. Pravinkumar Kailashchandra Shukla & Ors. Vs. State of Maharashtra, 1997 ALL MR (Cri) 93.

5. Balu Shravan Ahire Vs. State of Maharashtra, 2001 ALL MR (Cri) 364.

They also relied upon the following decisions of the Supreme Court.

1. State of Rajasthan Vs. Teja Singh & Ors., 2001 ALL MR (Cri) 994.

2. Rajesh Govind Jagesh Vs. State of Maharashtra, 2000 Cr.L.J. 380.

9. Mr. Solkar, the learned Counsel for the accused No.2 has also relied upon an unreported decision of this Court (D.B.) in Criminal Appeal No.202/2003 in the case of Dungar @ Ravi Mohan Sapharia Vs. The State of Maharashtra rendered on 28th April, 2009 in support of his contentions that unless the prosecution had brought, through the evidence of P.W.12 Investigating Officer, the material before him to arrest the accused persons on 4th May, 2002 or on 5th January, 2002, the benefit of doubt would go in favour of the accused persons and more so because the subsequent recoveries of weapons connecting their complicity to the incident could not be relied upon. He also relied upon a subsequent decision in the case of Vijay Dadasaheb Bhosle & Ors. Vs. State of Maharashtra, 2007(1) Bom. C.R.(Cri.) 717 : [2006 ALL MR (Cri) 3390].

The following observations made by this Court in the case of Dungar @ Ravi Mohan Sapharia (Supra) have been more particularly relied upon by Mr. Solkar.

"On 4th May, 2002 disclosures were made allegedly by accused persons after they were arrested. The only evidence which is sought to be pressed into the service against the accused persons is the evidence collected after arrest of the accused and on the basis of their disclosure. But what was the material before the Investigating Officer to arrest these persons on 4th May, 2002 or 5th May, 2002 has not at all been disclosed. What was the evidence before the Investigating Officer, supporting as to why he prima facie thought or why even prima facie he had suspicion that these accused persons might be involved in the crime...."

10. Mrs. Deshmukh, the learned A.P.P on the other hand has supported the order of conviction and sentence. As per her, the 5 eye-witnesses, though some of them related to the deceased, are trust worthy and they are natural witnesses and there is no reason worth considering to discard their evidence. The T.I parade did not suffer from any material irregularities and in addition, in the substantial evidence before the trial Court, the eye-witnesses pointed out and identified accused Nos.2, 3 and 5. In support of her plea that all the documentary evidence placed before the trial Court along with the application at Exhibit-40 are required to be read in evidence, Mrs. Deshmukh has placed reliance on the decision of the full Bench of this Court in the case of Shaikh Farid Hussainsab Vs. State of Maharashtra, 1981 Bom.C.R. 520.

11. P.W.12 Shri. Ramesh Paranjpe stated before the trial Court that he was working as the Special Executive Magistrate up to 31st March, 2000 and as per the intimation received from the police station concerned, he conducted the T.I parade on 4th February 2000 in the jail premises at Thane and the T.I parade commenced around 12 O'clock in the noon. There were 4 accused and 24 dummies. He also stated that there were 2 independent panch witnesses i.e. Dattatraya & Suresh. He had formed 2 rows of 12 dummies in each and 2 of the accused were made to stand in each row. Thus there were 2 rows of 14 persons from which the identifying witnesses viz: P.W.1, P.W.5, P.W.11 and P.W.14 were called upon to identify the 4 accused i.e. Accused Nos.2 to 5. He described the procedure he had followed to undertake T.I parade and proved his T.I parade panchanama at Exhibit-69. In the panchanama the names of the dummies have been set out and the names of the persons identified by each of the identifying witnesses. The learned Counsel for accused Nos.3 and 5 referred to paragraph 6 of the decision in the case of Vilas Patil (Supra) and submitted that the T.I parade suffered from irregularities. Undoubtedly this Court on its administration side has issued instructions for conducting T.I parade and these are contained in the Criminal Manual issued for the guidance of the Criminal Courts and subordinate officers. We have gone through the same procedure elaborately as set out and as referred by the learned Counsel and we have noted that P.W.12 did not comply the following requirements.

a) not more than 2 accused should be placed in any single parade and it appears that all the 4 accused were placed in a single parade.

b) Dummies were required to be selected by the Magistrate himself. However, in the instant case the dummies were produced by the jail authorities and the Magistrate appears to be satisfied with the said selection.

c) 2 independent witnesses from amongst respectable persons were present with the Executive Magistrate who were brought by the jail authorities and he appeared to be satisfied by the said selection.

d) When the identifying witnesses are called, the Executive Magistrate should have questioned them individually so as to ascertain from each of them whether they ad opportunity to see the culprit subsequent to the offence or after the arrest.

12. Though there are merits in the arguments advanced by the Advocate for the accused, we have noted that in the instant case the accused persons have been identified by most of the eye-witnesses in their substantial evidence before the trial Court. It is well settled that the T.I parade does not constitute substantive evidence and it can only be used as a corroborative evidence to the statements in the Court. In the case of State of A.P Vs. K. Venkata Reddy, A.I.R 1976 SC 2207. The Supreme Court held that the identification tests do not constitute substantive evidence and they are precisely made for the purpose of proceeding on the right lines. The identification can only be used as a corroboration of the statement in the Court. The necessity for holding the T.I parade can only whether accused were previously known to the witnesses and the whole idea of the T.I parade is that the witnesses who claim to have seen the culprits at the time of the offence identify from the midst of other persons without any aid or any other source. The identification proceedings are in the nature of tests significantly, therefore, there is no provision for it in the Cr.P.C and the Indian Evidence Act. However, it is desirable that the T.I parade should be conducted as soon as the arrest of the accused and this becomes necessary to eliminate the possibility of the accused being seen or shown prior to the T.I parade.

13. So long as the eye-witnesses have identified the accused persons in their substantial evidence, the discrepancies or irregularities pointed out by the learned Counsel and referred to herein above would not, in our opinion, effect the case of the prosecution.

14. At this stage it is also relevant to note the issue of delay caused in conducting the T.I parade. As noted earlier the incident has taken place on 24th December, 1999 and 4 other accused persons were taken into custody on the same day. Whereas accused No.1 was taken in custody on or about 5th January, 2000. However, the T.I parade was conducted on 4th February, 2000 i.e after about 43 days of the arrest of the most of the accused. In the depositions of P.W. 15, no explanation, leave alone satisfactory explanation, has come and he has been cross-examined on this issue. In the case of Dr. M. V. Ramanna Reddy Vs. State of A.P., A.I.R 1991 S.C. 1938 it has been held,

"Where there is unexplained delay in holding the T.I parade the evidence of the prosecution, regarding the identity of an accused cannot be held to be absolutely reliable and in such a case the accused is entitled to the benefit of doubt."

In the case of Acharaparambath Pradeepan and another Vs. State of Kerala, (2006) S.C.C 643 : [2007 ALL SCR 1004] he date of the incident was 1st December, 1999 and T.I parade was held on 8th February, 2000. he delay caused in conducting the T.I parade remained unexplained. Accused No.1 was identified in T.I parade by P.W.5 and he was identified by P.W.3 and 4 during the trial. The Supreme Court held that he was entitled for the benefit of doubt.

On the background of this well settled position in law we have to examine whether the T.I parade held belatedly in the instant case has affected in any way, the case of the accused and has to give any benefit of doubt to any of the accused. As noted earlier the eye-witnesses being inter-related or related to the deceased through business, it would be necessary for us to consider their evidence with care and caution and the delay caused in conducting the T.I parade becomes an additional reason for the same purpose and only on the ground of delay in conducting T.I parade, the prosecution case cannot be thrown out.

15. The prosecution has claimed P.W.1, P.W.5, P.W. 10, P.W.11 and P.W.14 as the eye-witnesses. P.W. 10 Ravi Shetty did not participate in the T.I parade held on 4th February, 2000 and he has identified some of the accused for the first time during his substantial evidence before the Court that too only in respect of accused Nos.3 and 10. It would be therefore, appropriate for us to examine the prosecution case on the basis of the evidence of P.W.1, P.W.5, P.W.11 and P.W.14.

16. We have also noted that the depositions before the trial Court were recorded in Marathi as well as in English. It is evident that almost all the witnesses were Marathi speaking and the depositions recorded in Marathi were translated by the learned Judge in English. We have come across material mistakes while translating the Marathi depositions into English and therefore, we have preferred to refer to the Marathi depositions as recorded in the trial Court.

17. P.W.1 Datta Pawar is the brother of the mother of the deceased as well as the mother of Vijay Chaughule. It also appears that the father of the deceased as well as the father of Vijay Chaughule are full blood brothers. He was also looking after the business of the deceased. He stated before the trial Court in his examination-in-chief that around 10 a.m on 24th December, 1999 he was standing in front of the STD booth along with Balu Dhotre (P.W.14), Datta, Sudhir Satam(P.W.5), Ravi Shetty (P.W. 10) and Raju Pawar (P.W.11) and the deceased was also in the same group. The deceased had informed him about 10 minutes before that he was waiting for his brother to go to Vashi. Suddenly 5, 6 persons arrived with deadly weapons and those who were before the trial Court arrived at the scene and attacked the deceased on his chest. The deceased shouted and tried to run away behind the STD booth, but he was followed by 2, 3 accused persons. He fell down in the drain located behind the STD booth and all the accused continued to assault him. Some of the accused were brandishing their weapons and asking the people around not to intervene, within 5, 6 minutes all the 6 accused persons went towards the Belapur road side. Sunil was lifted from the drain and his clothes were stained with blood and mud as he had received number of injuries on his person. He was shifted to Modi hospital in an autorikshaw, and he was declared dead by the Doctor. He went to the Rabale police station and lodged the complaint at Exhibit-49, which was reduced in writing by P.W.8. He stated that the assailants were not known to him, but he could identify them, if shown. He also stated that he came to know the name of accused No.2 later on and he had made the first assault on the deceased. He identified accused Nos.3 and 5 before the Court and stated that accused No.3 had a chopper in his hand and accused No.5 had a sura in his hand. He further stated that after the incident he was in his village for 2 months and after receiving summons for identification he identified some of them in the jail premises. He stated that he identified all the accused persons in the T.I parade. Article Nos.1, 18, 19 & 20 which were the weapons, were shown to him before the Court and he identified the same to have been used while assaulting the deceased. Though he did not assign a specific role to accused Nos.3 and 5 in his examination-in-chief, he stated in his cross-examination that after the deceased fell in the drain he was assaulted by all the accused with the weapons in their hands. He also admitted in his cross-examination that he had never seen accused Nos.3 and 5 before the incident and the same applied to all the accused. He specifically denied the suggestion, in his cross-examination, that any of the accused persons or their photographs were shown to him by the police before the T.I parade. He also admitted that after the deceased was assaulted and was taken in autorikshaw along with him there were P.W.14, P.W.10 and P.W.5 and his clothes were stained with blood while taking the deceased to the hospital, but his clothes were not seized by the police.

18. P.W.5 Sudhir Satam stated before the trial Court in his examination-in-chief that between 10.15 a.m on 24th December, 1999 he was standing in front of the STD booth at Chinchpada along with Sunil (the deceased), Datta Pawar (P.W.1), Balu Dhotre (P.W.14) and Ravi Shetty (P.W.10) and 5 to 6 persons from the opposite direction arrived at the scene and one of them gave first blow with a knife in his hand below the chest of the deceased. As per him it was Ravi Shetty who gave the first blow. He identified accused No.2 Rajesh Shetty before the Court. He stated that after the assault on him Sunil ran from the rear exit of the STD booth and was chased by accused Nos.3 and 5. While running away Sunil fell in the drain and at that time 3 of the accused were brandishing their weapons and threatening others not to intervene. All these accused started assaulting Sunil while he was in the drain and within few minutes they left. Sunil was lifted from the drain and was taken to Modi hospital in rikshaw. He was declared dead. After about a month and quarter he was called for the T.I parade and accused Nos.2 and 3 before the Court were identified by him in the said parade. He also identified the 4 weapons i.e. Article Nos.1, 18, 19 and 20 when showed to him before the Court as the weapons used for assaulting Sunil. In his cross-examination he admitted that he is a Civil Contractor and runs the Firm by name Raj Constructions along with another person by name Arun. He described the personal appearance of the accused, who had given the first blow to Sunil in the incident. He also stated that though he had lifted Sunil from the drain, his clothes were not stained with blood, but they were stained with mud. He also admitted that he did not go to the Civil hospital where Sunil's dead body was sent for P.M and he saw the dead body only during the cremation. He also denied the suggestion that he did not attend the T.I parade and that these accused persons had not assaulted the Sunil. He also denied the suggestion that the accused No.2 did not assault Sunil and he was not brandishing the weapons threatening due to panic of Sunil including himself. His statement was recorded by the police on 25th December, 1999. During his cross-examination he admitted that he was working as a Manager in the Firm run by Vijay Chaughule for some time and he knew all the persons in the family of Sunil Chaughule. He also stated that at the spot all of them were standing for about 10 to 12 minutes. He also stated that out of the assailants he had seen 4 accused at the first instance and he had not seen them at any time earlier. He also stated that all the assailants started assaulting Sunil without any provocation and there was no hue and cry raised by the people around. Immediately on the first assault, Sunil started bleeding and running away from the scene. He was followed by the assailants. The whole incident was over within 5 to 7 minutes. When Sunil was lifted from the drain, his clothes were stained with mud. In the T.I parade all the persons shown to him were unknown to him. He also denied the suggestion that the accused persons were shown to him in Vashi Court at the time of their remand or that they were shown before he participated in T.I. parade. He also denied the suggestion that he did not identify the accused Nos.3 and 5 in the T.I parade.

19. P.W.11 Raju Pawar in his examination-in-chief described the incident in the same manner as was done by P.W.1 and P.W.5. He identified caused No.2 as the first assailant on Sunil nd the assailants were 6 in number and they were assaulting Sunil with Sura and Chopper. The incident was over within 5 to 6 months. Sunil was lifted from drain and was taken to Modi hospital in rikshaw. He was one of the persons accompanied Sunil to Modi hospital where Sunil was declared dead. 1-1/2 months later he received the summons for T.I parade and he participated in the same. He had identified accused Nos.2 and 5 in the T.I parade. During his cross-examination he admitted that Vijay Chaughule is the cousin from the paternal side and same was the relationship with the deceased. He also stated that he had given the description of the accused persons in his statement to the police. The assailants, after the incident had gone towards Belapur side, but he could not state by which vehicle they had arrived and subsequently left. He did not go to the police to file a complaint though his statement was recorded by the police on 24th September, 1999. He denied the suggestion that his statement was recorded after 4, 5 days. He also denied the suggestion that it was not the accused No.5 who had inflicted first blow to Sunil. He also admitted in his cross-examination that the whole incident was spontaneous and the accused who gave first blow on Sunil did not run after him immediately. He also denied the suggestion that only one person had assaulted Sunil. He also admitted that he had not seen any of the accused prior to the incident, but had identified them in the T.I parade. In the T.I parade there were 27 to 28 persons standing in 3 lines. He did not recollect the number at which the accused persons were standing in the 3 lines. The size of the room in which the T.I parade was conducted was 10 x 30 ft. He also admitted that out of 27 to 28 people standing in the T.I parade he knew some of them. He denied the suggestion that he was not standing near the STD booth and he had not seen the incident. He also described the clothes on the persons of the accused at the time of the incident.

20. Now coming to the deposition of P.W.14 Shri. Balu Dhotre, he stated before the trial Court about the incident on the same lines as the eye-witness referred to herein above. He stated that accused No.2 threatened Sunil and gave first blow with Sura like weapon on his chest. Sunil ran behind the STD booth and accused No.2 threatened others. Immediately thereafter accused Nos.5 and 2 followed Sunil and Sunil fell in the drain. The accused continued to assault Sunil. There were in all 5 to 6 assailants and within few minutes they ran away. He identified article No.20 as the weapon which was used by accused No.2 while attacking Sunil. He identified accused Nos.1, and 3 before the Court as the assailants. He also admitted that he had participated in the T.I parade and had identified accused Nos.2 and 5. In his cross-examination he admitted that he as running the fair-price shop licenced in the name of Sunil's wife Vandana. He denied that Dattatraya Dhotre was his cousin. He also admitted that his statement was recorded by police. He also denied the suggestions that on the date of the incident the ration shop was half opened. He did not realise that the assailants had come to attack Sunil. On the first assault he started bleeding and he started running. The time gap between the first and the second assault was about 3 to 4 minutes. He had seen the assailants assaulting Sunil even while he had fallen in the drain and he had seen the second assault from a distance of about 10 to 12 ft. He denied the suggestion that he was not the eye-witness. In his cross-examination he stated that the assailants came and suddenly took out the weapons. The day of incident was Friday, but it was not a festival day. He described the clothes of the assailants and their personal appearance etc. He also stated that the deceased was not in his relation. This witness also identified accused Nos.2, 3 and 5 before the Court.

21. Coming to the recovery of the weapons, as per the prosecution, the recovery of the weapon from accused No.2 has been proved through the evidence of P.W.6 Kundan vide Exhibits-58 and 59. Article No.20 was the weapon and the Article No.21 was the photograph and both of them were recovered from the terrace of the building i.e. The house of accused No.2 at Dombivli(Taibai Niwas). P.W.6 admitted in his cross-examination that the terrace was open. Nothing further was brought on record in the cross-examination and the witness was shown Article 20 before the Court and he identified the same as having been recovered at the instance of accused No.2. We are satisfied that the trial Court rightly accepted this recovery.

22. For the recovery of weapons at the behest of accused Nos.3 and 5 the prosecution examined P.W.2 and during his depositions before the Court he was shown Articles 19 and 20. Article 18 was not shown to him though its description finds place in panchanamas Exhibits-51 and 52. Though Article-19 is claimed to have been recovered at the instance of accused No.3, we have noted that his memorandum was not drawn and therefore, this recovery within the meaning of Section 27 of the Evidence Act cannot be believed. In short both the weapons allegedly recovered at the instance of accused Nos.3 and 5 i.e. Article No.18 and 19 could not be identified and their recovery cannot be relied upon so as to connect accused Nos.3 and 5 with the said weapons allegedly used in the attack dated i.e on 24th December, 1999. It is also important to note that none of these weapons were subjected to the examination by he Finger Print Expert, which could have been an additional circumstance in connection with the weapons. Mrs. Deshmukh, the learned A.P.P sought to rely upon the C.A report which was sought to be brought on record along with application Exhibit-40. At the first instance the said report was not put to P.W.15 during his depositions and therefore, it could not be exhibited. Even otherwise the weapons were recovered from the open place on the 3rd day of the incident and almost about 10 ft. away from the road (near Mhapa bridge). The C.A report did not detect the blood group and it only stated that human blood was noted on its blade. The blood group of the deceased was "B".

23. Each of the four eye-witnesses stated without any ambiguity that accused No.2, used the said weapon Article No.20 while giving the very first blow to Sunil below his chest, they also stated that it was accused No.2 after giving the first blow to Sunil, brandished the said weapon to threaten them so as to keep them at bay. He was identified by each of the witnesses before the Court as being the main assailant. Though Article-20 was not sent for examination to the Finger Print Expert, on the face of the evidence of as many as 4 eye-witnesses, regarding the complicity of the accused No.2 in assaulting Sunil. We are satisfied that this efficiency by itself would not effect the prosecution case. We must also note that the presence of accused Nos.3 and 5 along with accused No.2 at the spot of incident and in the attack on Sunil has been established. What is not established is the blows attributed to accused Nos.3 and 5 with the weapons, while attacking the deceased during the incident. At the same time the P.M.Report at Exhibit-67indicates that the deceased has received injuries in addition to incised injuries and they appear to be grievous injuries. We have been all the muddemal articles i.e articles 1,18,19 and 20 and article 20 is a sharp knife which relates to the injuries caused by accused No.2. The oral evidence of the eye witness does prove the participation of accused Nos.3 and 5 in the assault on Sunil but the prosecution case that they assaulted Sunil with articles 18 and 19 weapons is not proved. We therefore, do not agree with the finding recorded by the trial Court that accused Nos.3 and 5 had committed any overt act by means of any weapon, resulting into the death of Sunil. It is the prosecution case that all the accused had given blows of weapons while attacking Sunil and it would be, therefore, unsafe to accept the prosecution case that accused 3 and 5 also caused deadly injuries or the incised wounds. At the same time the findings recorded by the trial Court against accused No.2 are required to be confirmed, on the face of the evidence of the eye witness viz: A-1, A-5, A-11 and A-14 read with the P.M report. The evidence of all the four eye-witnesses is found to be cogent and inspiring confidence. Though there is some scope to believe that the F.I.R filed by the P.W.1 at Exhibit-49 was not free from some exaggerations, in his substantial evidence before the trial Court, his testimony on the arterial aspects of the incident is reliable. All the 4 eye-witnesses consistently stated before the trial Court that none of the accused were known to them and they had not seen any of them prior to the incident. There is no scope to attribute any motive on the part of these witnesses to implicate any of the accused on any false ground or on the behest of some persons. In the F.I.R at Exhibit-49 the names of the other eye-witnesses i.e. P.W.5, P.W.11 and P.W.14 clearly appear as being the persons who were at the spot along with P.W.1 as well as the deceased at the time the deceased was attacked by the accused. The recovery of clothes from the person of the accused while they were under arrest has been proved by the evidence of P.W.7 and 8 and the same description tallies with the clothes which were sent for C.A as per the evidence of P.W. 15. The prosecution case is not based on circumstantial evidence and therefore, absences of any lead when the accused were arrested may not be a material circumstance so as to weaken the prosecution case. The incident has taken place during the broad day light and on a public street. It ought to have been noticed by number of other persons in the market, but as is known, when it comes to becoming a witness, the normal tendency is to shy away from helping the prosecution. The presence of the eye-witnesses at the spot is also connected with the business activities and therefore, there were no material improvements on the part of any of theses witnesses so far as their presence at the spot as well as their description on the material particulars of the assault on Sunil in 2 stages i.e first inflicted at the STD booth and subsequently while he fell in the drain in the process of saving himself. The evidence of these 4 eye-witnesses also unquestionably shows that accused No.2 inflicted multiple assaults on Sunil and he gave blows at both the places. Article-20 which has been seen by us in the muddemal property is capable of causing injuries which are found to be the cause of death in the P.M.report. It is also to be noted that as per the case of the prosecution through the evidence of P.W.15 some of the accused have been known criminals and accused No.2 was accused in 3 or 4 cases for the offences punishable under Section 302 of the Indian Penal Code. In these obtaining circumstances, the following observations made in the case of Dungar Sapharia (supra) and relied upon by Mr. Solkar; are not applicable-

"Learned Counsel for the appellants have drawn our attention to the another fact that PW 12, who was the first Investigating Officer, stated that he arrested the accused persons on 4th May, 2002, whereas there is nothing stated by the Investigating Officer as to on what basis these accused persons were arrested. On 4th May, 2008 disclosures were made allegedly by accused persons after they were arrested. The only evidence which is sought to be pressed into service against he accused persons is the evidence collected after arrest of the accused and on the basis of their disclosure. But what as the material before the Investigating Officer to arrest these persons on 4th May, 2002 or 5th May, 2002 has not at all been disclosed. What was the evidence before the Investigating Officer, supporting as why he prima facie thought or why even prima facie he had suspicion that these accused persons might be involved in the crime."

24. For the reasons stated above we are satisfied that the order of conviction and sentence passed against accused No.2 deserves to be confirmed. However, the said order against accused Nos.3 and 5 is unsustainable. As noted earlier their presence at the spot is proved but their participation in the assault by the weapons was not proved by the evidence of the eye-witnesses, as the prosecution failed to bring on record the connection between the acts attributed to the accused and the weapons recovered, therefore, at the best what could be attributed to these accused is only thrashing of the deceased thereby causing grievous hurts to him. We, therefore, find sufficient material to hold that the offence punishable under Section 325 read with Section 34 of the Indian Penal Code has been proved against accused Nos.3 and 5 and the offence punishable under section 302 read with Section 34 of the Indian Penal Code has not been proved against them. It is not the prosecution case that either accused No.3 or 5 or both of them had held the deceased thereby facilitating the accused No.2 inflicting any injury on the deceased. In the absence of any specific overt act attributing to any of these accused so as to result in his death, it would not be safe that they are convicted under Section 302 read with Section 34 of the Indian Penal Code and to that extent e do not agree that the findings recorded by he trial Court as well as the reasoning in support thereof.

25. In the premises, Criminal Appeal No.1229/2002 fails and the same is hereby dismissed. The order of conviction and sentence passed by the trial Court under Section 302 of the Indian Penal Code is hereby confirmed against accused No.2. Criminal Appeal No.1162/2002 and Criminal Appeal No.36/2003 partly succeed. The order of conviction and sentence passed against accused Nos.3 and 5 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is hereby set aside and instead they are convicted for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code. We sentence them to undergo R.I for 7 years. Undoubtedly they shall be entitled to set off under Section 428 of the Code of Criminal Procedure, if any.

26. The Appellant in Criminal Appeal No.1229/2002 (Accused No.2) is reported to be absconding from 2004 onwards. We direct the Commissioner of Police, New Bombay to take appropriate steps and produce the said accused before us within 4 weeks.

27. The Registrar (Judicial) is directed to issue non-bailable warrant against accused No.2 Shri. Rajesh Umakant Shetty.

28. The warrant shall be collected by the Senior Police Inspector, Rabale Police Station, New Bombay before 16th October, 2009 from the Registry.

Ordered accordingly.