1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1301 OF 2015

Latesh @ Dadu Baburao Karlekar …Appellant (s)

Versus

The State of Maharashtra  …Respondent (s)

WITH

CRIMINAL APPEAL NO. 165 OF 2016

Anil Ankush Gadekar                                        …Appellant (s)

Versus

The State of Maharashtra  …Respondent (s)

CRIMINAL APPEAL NO. 141 OF 2016

Vishnu Maruti Bule                                          …Appellant (s)

Versus

The State of Maharashtra  …Respondent (s)

2

CRIMINAL APPEAL NO. 91 OF 2016

Vijay @ Vijay Istriwala Ramdulari Nirmal       …Appellant (s)

Versus

The State of Maharashtra      …Respondent (s)

CRIMINAL APPEAL NO. 94 OF 2016

Sunil Kashinath Chandanshiva                        …Appellant (s)

Versus

The State of Maharashtra  …Respondent (s)

JUDGMENT N.V. RAMANA, J.

1. These five appeals, by way of special leave petitions, are by

five accused persons against the conviction imposed by the

High Court, wherein leave to appeal to this court has been

granted to these accused. Facts being related, and the issue

involved being connected, we would like to deal with these

cases by a common judgment.

2. At the outset, it is to be noted that the High Court has partly

allowed the appeal preferred by the accused/appellants and

set  aside their  sentence  for  the offences punishable  under

3

Sections 143, 144, 147 and 148 of IPC, Section 4 read with

Section 25 of the Arms Act and Section 37(1)(a) read with 135

of the Bombay Police Act. The conviction of Appellant Nos. 1

to 3 for the offence punishable under Section 302 read with

149 of the IPC was modified to Section 302 read with 34 of

IPC,  while  maintaining the sentence imposed  by the trial

court.

3. A few facts which are necessary for disposal of these cases

are that on the 10th of December, 2006 between 10:20 pm to

10:30 pm, one Vitthal Hingane (PW­2) and his brother

Jagdish Hingane (deceased) were returning from the office of

one Uttam Gite,  a  worker  of  a  political  party,  at  Mulund.

When they reached the Saint Pius Lane, six persons i.e.

Accused No. 1  (Sunil  Chandanshiva),  Accused No. 2 (Vijay

Nirmal), Accused  No. 3 (Latesh  Karlekar), Accused  No. 4

(Sandeep Bhosale), Accused No. 5 (Vishnu Bule) and Accused

No. 6 (Anil Gadekar) confronted them from the opposite side.

The accused,  who  were armed  with various  weapons like

chopper, sword, sickle  and  stick,  on  account  of some  old

enmity,  assaulted  Jagdish Hingane (deceased)  and  injured

Vitthal  Hingane  (PW­2).  Hearing the  shouts  of the injured

4

and the deceased, PW­11  (Police  Naik,  Dyaneshwar Ladse)

and Police Naik Ghyansham Pawar (not examined), who were

on patrol duty, rushed to their help. It is alleged that

Accused No.  1  was  caught red­handed with  blood  stained

chopper in his hand but the other accused persons

succeeded in fleeing from the spot. An independent witness,

PW­16 (Kishore Potdar), who was passing through the same

road, upon hearing the shouts, also came to the help of PW­

11.  The  injured  (PW 2)  was taken  in an auto­rickshaw to

Mulund General Hospital while PW­11 took the accused No.

1, who was caught red­handed, in a Maruti car, followed the

said  auto­rickshaw  to the  aforesaid  hospital.  On  the  way,

they met PW­15 (Jagdish Shridhar Shetty), who identified the

injured and accompanied them to Mulund General Hospital.

4. On arrival at the hospital, PW­11 handed over the custody of

accused No. 1, along with his blood­stained chopper, to

Ghanshyam Pawar for taking him to Mulund Police Station.

One important aspect is that all the while PW­11 stayed in

the  hospital along  with the injured. It is alleged that the

deceased said to have revealed to PW 11, the names of four

assailants, Sunil Kashinath Chandanshiva (Accused No. 1),

5

Anil Gadekar (Accused No. 6), Vishnu Bule (Accused No. 5)

and Sandeep Bhosale (Accused No. 4) and PW11 recorded the

same in his case diary.

5. In the meanwhile, two police personnel (PW­24 and PW­25) of

Mulund Police Station, on receipt of the information of the

incident from PW­11 and Ghanshyam Pawar, rushed to the

Mulund  General  Hospital  where, they came to  know that

Jagdish  Hingane  had  succumbed to the injuries  at  about

11:23 PM, and the other injured, PW­2 (Vitthal Hingane) was

being taken to Sion Hospital for further treatment. With the

permission of PW­23 (Dr. Anirrudh Gokhale), PW­24 recorded

the statement of the injured PW­2 at about 12:15 AM, and on

the basis of said statement PW 24 (PSI Joshi) registered the

offence bearing C.R. No. 595 of 2006 against all the accused.

6. Meanwhile PW­24 seized the blood­stained clothes of the

injured PW­2 (Vitthal Hingane) under panchanama (Ex. 27).

Thereafter,  PW­24 went to the spot along with PW­25 (PSI

Mane) and PW­11 and prepared spot panchanama (Ex. 29) in

the presence of the panch witness (PW­4). From the spot, the

blood­stained mud was seized and photographs of the scene

of the offence were taken. Then PW­24 returned to the Police

6

Station, made station diary entry and deposited muddemal in

Malkhana. On the other hand, on the same night, at about 1

A.M., PW­22 (PSI Shrikant Ramdas) seized the chopper and

blood­stained clothes of Accused No. 1 under panchanama

(Ex.­46) in the presence of the panch witness PW­10 (Raju

Jadhav). Accused No. 2 and 3 were also arrested on the same

night  of the incident.  Their clothes  were  seized  by  PW­24

under  panchanama  (Ex.  34) in the  presence of the  panch

witness PW­7 (Pradeep Shirodkar). At about 6:15 A.M., dead

body of the deceased was brought to Rajawadi Hospital Post

Mortem Centre and on examination, the deceased was found

to have sustained 27 injuries.

7. That being so, on 13.12.2006  blood stained clothes  were

seized from Accused No. 4 in the presence of panch witness

PW­6 (Gopal Naidu). On 14.12.2006, Accused Nos. 5 and 6

were arrested and their blood stained clothes were seized in

the presence of PW­6. Scythe and sword were recovered from

Accused No. 5 and 6 respectively (Ext. 40), in the presence of

panch witness PW­8. On 19.12.2006 PW­25 recorded

supplementary statement of PW­2.

7

8. After completion  of investigation, charge­sheet  came to  be

filed in the court against all the accused for various offences

in the following manner­ All accused persons in the alleged crime are still in Magistrate custody since 20.12.2006. In order to submit charge­sheet against them in the court as enough evidence is available, in this crime after investigation section 120(b) of Indian Penal Code  and  Section  35  of Indian  Arms Act  have been removed and charge sheet is prepared under Section 143, 144, 147, 148, 149, 302, 307 of Indian Penal Code with Sections 4, 25 and 27 of Indian Arms Act and Sections 37(1)(a) and 135 of Bombay Police Act.  

9. The Sessions Court framed charges against the accused in

the following manner­ Firstly  :­  That on 10/12/06 at about 22:20 to 22:30 hours at  ‘middle  gully’ from Goshala Road, Sent Payas Road, Madanmohan Malviya Cross Road, Mulund (West), Mumbai­400 080, you accused were members of unlawful assembly with the common object of which was of commit murder of complainant Vithal Narayan Hingane and his brother Jagdish Hingane and thereby committed an offence  punishable  under  Section 143 of IPC and within my cognizance.

Secondly :­ That on the same date, time and place, you accused being armed with deadly weapons with chopper, sickle, sword and knife were members of unlawful assembly and thereby committed an offence  punishable  under  Section 144 of IPC and within my cognizance.

8

Thirdly  :­  That on the same date, time and place, you accused were  members  of  unlawful  assembly and in prosecution of the common object of the said assembly namely to commit murder of complainant Vithal  Narayan  Hingane and  his brother Jagdish Hingane  by  means  of chopper, sickle, sword  and knife  which offence you knew to be likely to be committed in prosecution of the common object of the said assembly and you being a member of such assembly at the time of the committing of that offence and thereby guilty of an offence punishable under Section 149 of IPC and within my cognizance.

Fourthly :­ That on the same date, time and place you accused were  members  of  unlawful  assembly and were at the time armed with deadly weapons or which used as a weapon of offence and was likely to cause death of  complainant’s brother and thereby committed an offence  punishable  U/s  148 of IPC and within my cognizance.

Fifthly  :­  That on the same date,  time and place you accused were members of unlawful assembly, you are being prosecuted for your common object namely to commit  murder of complainant Vithal Narayan Hingane and his brother Jagdish Higgane and with sword and knife which offence you knew to be likely to be committed in prosecution of the common object  of the said assembly and being a member of such assembly at the time of the committing of that offence and thereby guilty of an offence punishable U/s.149 of  IPC and within my cognizance.

9

Sixthly  :­  That on the same date, time and place you accused were  members  of  unlawful  assembly you committed murder by intentionally or knowingly causing the death of complainant’s brother Jagdish Hingane by means of chopper, sickle, sword and knife and thereby committed an offence  punishable  U/s 302,  r/w 149 of IPC and within my cognizance.

Seventhly :­ That on the same date, time and place you accused were  members  of  unlawful  assembly you accused did an act namely assaulted complainant  Vithal  Naryan  Hingane  by  means of chopper,  sickle,  sword and knife  on his  stomach, forehead and other part of the body with such intention or knowledge and under such circumstances that if by that act, you had caused the death of complainant you would have been guilty of murder and that you thereby committed an offence  punishable  U/s 307,  r/w 149 of IPC and within my cognizance.

Eighthly  :­  On the same date, time and place you accused were found in possession of deadly weapon without licence/authority, i.e. chopper, sickle, sword and knife, in contravention of prohibitory order  and  that  you thereby committed an offence punishable  U/s  4,25,27  of Indian  Arms  Act, and within my cognizance.

Ninthly  :­  On the same date time and place you accused were found in possession of deadly weapon without licence/authority, i.e. chopper, sickle, sword and knife, in contravention of prohibitory order and that you thereby committed an offence under the provision of Section 37 (1) r/w section

10

135 of Bombay Police Act and within my cognizance.

10. All the accused pleaded not guilty and claimed to be tried.

During the trial, prosecution examined in all 25 witnesses. It

would be pertinent to note that the prosecution has not

marked the case diary in  which the alleged revelation of

names of accused was recorded by PW 11.  

11. The trial court, upon finding the accused guilty of committing

the crime, convicted them for the offences punishable in the

following manner :

ACCUSED  CHARGES AND CONVICTION A­1, A­2, A­3, A­

4, A­5, A­6 Section 143 of IPC

R.I for 6 months and fine of Rs. 200/­, in default to suffer R.I for 1 month.

A­1, A­2, A­3, A­ 4, A­5, A­6

Section 144 of IPC

R.I. for 1 year and fine of Rs. 300/­, in default to suffer R.I. for 1 month.

A­1, A­2, A­3, A­ 4, A­5, A­6

Section 147 of IPC

R.I. for 1 year and fine of Rs. 300/­, in default to suffer R.I. for 1 month.

A­1, A­2, A­3, A­ 4, A­5, A­6

Section 148 of IPC

R.I. for 2 years and fine of  Rs. 500/­, in default to suffer R.I. for 2 months.

A­1, A­2, A­3, A­ 4, A­5, A­6

Section 37(1)(a) r/w. 135

R.I. for 6 months and fine of 200/­, in default to suffer R.I. for 1 month.

11

of Bombay Police Act

A­1, A­2, A­3, A­ 4, A­5, A­6

Section 4 r/w 25 Arms Act

R.I. for 1 year and fine of Rs. 200/­, in default to suffer R.I. for 1 month.

A­1, A­2, A­3 Section 302 r/w 149 of IPC

Suffer life imprisonment and fine of Rs. 1,000/­ each, in default to suffer R.I. for 6 months.

A­4, A­5, A­6 Section 307 r/w. 149 of IPC

R.I. 10 years and fine of Rs. 1,000/­, in  default to  suffer  R.I. for 6 months.

The trial court, for holding the accused guilty, has reasoned

as under­ a. That the test identification parade was not necessary as

the accused were known to PW­2 and the deceased.

b. That the recovery of the weapons and the clothes are not made under suspicious circumstances.

c. That the non­production of the alleged dying declaration recorded by the PW­11 is not fatal.

d. Laid emphasis on the evidence of PW­2 and PW­11 being trustworthy  and natural. It  has termed certain contradictions as minor discrepancies which do not go to the root of the matter and held that the oral evidence of  above  mentioned  persons is corroborated  by  other evidence.

12

12. Aggrieved by the judgment  of the trial court, the  accused

approached the High Court. The High Court, on considering

the material placed before it, has partly allowed the appeal of

the accused and set aside the conviction of all the accused

for  offences punishable  under sections 143,  144,  147 and

148 of IPC. Further, the High Court converted the conviction

of Accused Nos. 1, 2 and 3 to the offence punishable under

section 302 of IPC read with section 34, and conviction of

Accused Nos. 4 to 6 for the offence punishable under section

307 read with Section 34 of IPC.  

13. The High Court while convicting the accused has emphasized

the following grounds: ­ a. That  non­attribution of specific role and  weapons to

individual accused is not detrimental as the statement was made in a condition wherein PW­2 had sustained grave injuries and was traumatized.

b. That there is corroboration of the evidence of PW­2 and PW­11 by the PW­15 to the extent that the injured and the deceased were returning from the Office of  Uttam Gite.

c. Even though the contents of C.A. Reports were not taken into consideration, it is not prejudicial to the prosecution’s case as there is strong and clinching evidence of the injured eye witness PW­2, which is fully supported and corroborated by the evidence of another independent eye witness PW­11 and the medical evidence on record.

13

d. The discrepancy concerning the recovery of knife from Accused No.1,  between the statement of  PW­10  (Raju Jadhav) and  Panchnama  (Ex. 46), is immaterial and minor.

e. That the trial court had erred in adopting the approach of distinguishing the overt acts attributed to the various accused on the  basis  of  evidence  given by  PW­2 and held them guilty for different offences.

14. Aggrieved by  the judgment  and order  of  conviction by the

High Court, all the accused have filed special leave petitions

before  this  Court.  However, the  SLP preferred by Sandeep

Bhosale i.e. Accused No. 4 (being SLP (Crl.) No. 6713 of 2015)

came to be dismissed by another Bench of this Court by its

order dated 7th September, 2015. Now, we are concerned with

the appeals filed by other accused—appellants.

15. Mr. K. Parameshwar, learned counsel appearing on behalf of

accused Nos. 1 and 2 made the following submissions­

i. That the motive of  alleged previous criminal litigation acts as a double­edged sword which cannot be taken into consideration. More so, when both the parties recognize themselves with opposite political  parties  in that locality. Therefore, motive, is in any case not required and should not be taken into consideration.

ii. That the FIR was filed with substantial delay and was based on supplementary statements of PW2 rather than

14

the previous statement made by the deceased. Moreover, subsequent changes made to the FIR in adding Section 302, IPC in the FIR, at a later point of time is fatal for the prosecution.

iii. That the dying declaration which is revealed to PW11 is not made part of the prosecution evidence. This omission by the prosecution needs to be explained by the prosecution as such conduct gives rise to reasonable suspicion.

iv. Even assuming that the alleged dying declaration is true, and then too names of Accused Nos. 2 and 3 are not revealed by the declaration made by the deceased. The fact clearly shows that subsequent inclusion of Accused Nos. 2 and 3 are  material changes which discredits whole of prosecution’s case.

v. Weapons were recovered from Accused Nos. 1, 5 and 6; while Accused Nos. 2 and 3 were convicted for offence of culpable homicide amounting to murder, Accused Nos.5 and  6  were convicted  only for offence  under  Section 307, IPC for attempting to commit murder.

vi. That the Accused Nos. 2 and 3 were already arrested and taken  into custody even before  the FIR could be registered. This fact raises serious doubts as to the veracity of the incident and the court should take note of this circumstance while considering the guilt of the aforesaid accused as there is a possibility of false indictment.

15

vii. The alleged complaint given by PW2 is discredited by the very fact that the doctor who treated PW2 was not able to recollect whether PW2 had revealed names of the accused in his complaint.

viii. PW2 himself contradicts his statements that, he never revealed the  names  of the  accused in the  complaint, rather the  names  were first revealed on  19.12.2006. This contradiction clearly gives the final blow to the prosecution’s case.

ix. PW 15 and PW 16 have been declared hostile,  which needs to be taken into account.

x. Ghanshyam Pawar who is said to be present at the time of incident as  well as in the  hospital is not part of prosecution’s case.

xi. The seizure of weapons is done in suspicious circumstances.

xii. Chemical analysis test of the blood­stained  weapons has not been put to the accused. Therefore, the same cannot be taken into consideration by the court.

16. We have also heard Mr. Pardeep Gupta, learned counsel on

behalf of the Accused No. 3 and Mr. Anand Landge, learned

counsel appearing for accused Nos. 5 & 6. They contended

that—

16

i. FIR is said to have been registered based on the dying declaration by the deceased and not on the supplementary  statement  given by the  brother  of the deceased.

ii. No fingerprints were collected from the seized weapons.

iii. Accused no. 5 and 6 have not been identified in the test identification parade. (TIP)

iv. PW2 evidence  does  not recognize the specific role or specific assault given by the accused persons.

17. Mr. Nishant Ramakantrao Katneshwarkar, the learned

counsel for the State, while supporting the judgment of the

High Court, states that there are only minor contradictions

which do not go to the root of the matter, which might have

crept because of the incident happening late at night.

Further,  he states that there  was  no requirement  of  Test

Identification Parade, as the identity of the accused  was

known to the deceased as well as to PW2. Furthermore PW2’s

evidence, if read as a whole, reveals that there is no

contradiction rather, he states that he had revealed the

names at the time of registration of complaint, thereafter he

17

did not reveal  or there  was no occasion  for  him to reveal

about the  incident to anybody until  19.12.2006,  when his

statement under Section 161 CrPC  was recorded by the

police. 18. Having heard learned counsel for either side and given our

thoughtful  consideration to the facts and circumstances of

the case on hand, we are of the view that before furthering

our analysis into the matter, it would be apt to observe the

statements of PWs 2 and 11, on whose evidence the Courts

below have excessively placed reliance.

19. PW­2 states  that the incident took place on 10/12/06,  at

about 10:20 to 10:30 PM, near the Saint Pius Lane, when he

and his brother were returning from the office of Uttam Gite.

He states that they  were attacked at that time by Sunil

Chandanshiva (Accused No. 1) with a chopper, Anil Gadekar

(Accused No. 6) with a sword, Vishnu Bule (Accused No. 5)

with a sickle, due to their old enmity with them. The other

accused present at the spot were Sandeep Bhosale (Accused

No. 4), Latesh Karlekar (Accused No. 3) and Vijay Ramdulare

Nirmal @ Istriwala (Accused No. 2). Further he deposed that

accused  Vishnu Bule,  Anil  Gadekar  and  Sandeep  Bhosale

18

gave blows to him on his right wrist, near eyes and in

abdomen region, while the accused Latesh, Vijay and Sunil

assaulted his brother on head and hands.  On hearing his

cries ‘help, help’ (Bachao Bachao) two police officers rushed

towards them and caught hold of Sunil (A­1) while he was

trying to flee away. With their help, PW­2 and his brother

were shifted to Mulund General Hospital. Subsequently two

persons namely Kishore Potdhar and Jagdish Shetty

accompanied the police officers. Thereafter PW­2 was referred

to Sion Hospital for further treatment where he narrated the

incident to the Police officer Joshi (PW 24) in presence of the

medical officer on duty. He admits that the Ex. 23

(complaint) and its contents are true. PW­2 in the cross­examination conducted on behalf of

Accused Nos. 2 and 3 states that­

“I narrated to the police that all the accused persons had come to beat me and my brother in Sant  Pious  Lane  at  Mulund.  However, I cannot assign any reason as  to why the police did not record the said fact in my complaint. At the time of recording of my complaint at Ex. 23, I narrated to the police that the Accused No. 1 was armed with  chopper,  Accused No.  6  Anil  Gadekar  was armed with sword and Accused No. 5 was armed with sickle. However, I cannot assign any reason as to why the above said fact  is not specifically disclosed by the police in my complaint at Ex. 23.

19

I did not narrate to the police at the time of recording of my statement that accused Vishnu, Anil and Sandip assaulted on my right knee, near my eyes and abdomen.  I  did not narrate to the police while recording my complaint that accused Sunil, Latesh and Vijay assaulted my brother on his leg and hands. At the time of  lodging of my report at Ex. 23, I  did not narrate to the police that during the incident, I shouted as ‘Bacho, Bacho’. At the time of the lodging of the report in Ex. 23, I did not narrate to the police that at the time of the incident two police officers rushed to the spot of incident and they caught accused Sunil armed with the weapon at the spot of the incident. Witness volunteers that he narrated this fact to the police at the time of recording the supplementary statement”.

PW­2 in the cross­examination conducted on behalf of

Accused No. 5 states that­

“I  was  fully conscious at the time of lodging  of report at Ex. 23, I was fully aware about the injuries  caused to me,  by which person and by which weapon. When I was admitted in the Sion Hospital, the police officers were deputed to guard me. It is true that I did not disclose the name of assailants, the weapons used to cause injuries to me and my brother by the assailants to any police officer or other person till 19/12/2006 after filing my complaint”.

PW­2 in the cross­examination conducted on behalf of

Accused No. 4 states that­

“It is not true to say that contents at Ex. 23 were narrated by me to the police and the said contents were not read over to me by the police”.

20

20. PW­11 has stated in his deposition that he was attached to

Mulund Police Station since June, 2004. He was deputed as

a beat marshal along with Ghanshyam Pawar on 10.12.2006

from 7:15 p.m.At about 10:20 p.m., while they were passing

through  J.N. Road to Madan Mohan Malvia Road, they heard

a  noise ‘bacho  bacho’.  On  hearing the distress call, they

rushed to the spot and saw that two persons were assaulted

by six assailants  with choppers, sword,  Kyota and knife.

When he got down from motor­cycle, the assailants ran away

but, he alleges that he caught Sunil Chandanshiva (A­1)

having blood stained chopper. Though  Ghanshyam Pawar

chased the other assailants but they ran away. Thereafter,

one more person by name ‘Kishore Potdar’ also came to help.

While going to the Hospital, they were joined by Jagannathan

Shetty on the way and PW­11 asked him to accompany them

to the hospital. At about 10:40 p.m., they reached Mulund

Hospital and at about 10:50 pm, he informed the incident to

duty officer PI Joshi and handed over the custody of accused

Sunil Chandanshiva and blood­stained chopper to

Ghanshyam Pawar to take them to the police station while he

stayed back at the hospital. He further states that he had

21

noted down the names of assailants Sunil Kashinath

Chandanshiva, Anil Gadekar, Vishnu Bule and Sandeep

Bhosale in his case diary as revealed by the deceased. He

further deposed that the victim Jagdish Hingane died at 11:

23 pm. Thereafter  PW­11 and Ghanshyam Pawar took the

Accused No. 1 to Mulund Police Station.

PW­11 in the cross­examination conducted on behalf of

Accused No. 4 states that­ “It is not true that, I am deposing false that injured  had disclosed to  me the names of the assailants and I had noted down the same in my pocket diary. P.I. Shri  Mane did not seize  my pocket diary while recording my statement”.  

21. As regards to the evidences of other witnesses who supported

the prosecution case, P.Ws.3 to 8 are the panch witnesses for

seizure of  clothes,  blood,  earth samples  and weapons and

they have admitted their signatures on the respective

panchanamas.

22. Dr.  Tapan Bhattachraji (PW­17), the  doctor  who examined

Accused No. 5 (Vishnu Maruti Bule), stated that the accused

has got pain on the right palm. Accordingly, he has prepared

injury certificate  which  has  been  admitted  by  him in the

22

court. He has also stated that injury on the person of Vishnu

is simple in nature. However, the witness has not identified

Vishnu in the Court.

23. Dr. Sunil Mohanrao Jawale (PW­18), the doctor who

performed post­mortem on the body of the deceased, stated

that 27 injuries were received by the deceased. He has also

stated in his cross­examination that injuries no.1 to 5 were

inflicted on his head. He has further stated that one of the

reasons for the cause of death was huge loss of blood due to

multiple  injuries as all  the injuries except injury no.6 & 7

were bleeding injuries. Such injuries were sufficient to cause

death and if person receiving those injuries is not given

immediate treatment within 5­10 minutes, he may die.

24. Amarnath Munoli (PW­19) has stated that he has examined

the injured Vitthal Hingane (PW 2) and informed the police

officers that he was in fit state of mind to give statement and

also made an endorsement. He has identified such

endorsement and has admitted his signatures. He has stated

in his cross examination that he was not near the patient

when such statement was made by the injured.

23

25. Dr.  Suraj  Kumar Agarwal (PW­20)  has  stated that  he  has

performed operation on injured Vitthal Hingane (PW 2). The

statement (Ext. 23) was made in his presence and it was also

endorsed by him. The said witness has denied that Exhibit

23 and 69 do not bear his signatures (He did not endorse

such statement it has been endorsed by the witness as above

mentioned).

26. Dilip Bapurao Thorat (PW­21) has arrested accused Sandeep

Bhosale (A­4) and has prepared his arrest panchnama and

also identified the accused in the court. He has also caught

accused Vishnu Bule (A­5) and Anil Gadhekar (A­6) on 13­

12­2006, seized their clothes and prepared the panchnama.  

27. At the relevant time, Shrikant kishanji Ramdas (PW­22) was

PSI on duty at Mulund police station where accused Sunil (A­

1) was brought in custody, Panchnama was conducted and

clothes were seized. He states that he has arrested the

accused Sunil and made its entry in the station diary. He has

also admitted that P.C. Ladse (PW 11) produced the accused

and chopper before him.

24

28. Dr. Anirudh Gokhale (PW­23) was the medical officer on duty

at  Sion Hospital.  The said witness has stated that he has

given endorsement that Vitthal  was in  fit  state of  mind to

make the statement.

29. Madhusudan Malhar Joshi (PW­24) has stated that he along

with PC Ladse, after getting to know about the incident

proceded towards the Mulund General hospital. He has

stated that two injured persons were present there.

Thereafter, he states that injured Vitthal was taken to Sion

Hospital for the treatment. Further, he stated that the

statement of Vitthal was recorded after obtaining the

permission of the doctor and endorsement with respect to his

fitness to make the statement. He also specifically mentions

that, report  with respect to the incident  was sent to the

Magistrate within 24 hours.

30. Ananta Mana (PW­25), is a police inspector, Special Branch.

He has stated that he was informed about the incident by PI

Joshi and at Sion Hospital he saw one of the accused named

Sunil and name of other assailants were informed to him by

25

PW­11. He has further stated that in his presence, one of the

accused Anil made voluntary statement and led to the

recovery  of the  weapon used in the  office.  He  stated that

since, victim knew Vijay;  he  did  not feel the  necessity of

conducting Identification Parade. He specifically states that

Accused No.2 and 3 were not implicated in a false case.

31. In the backdrop of the factual matrix, we would like to deal

with several contentions raised on behalf of the accused.   It

is specifically put forth on behalf of the accused that P.W.2 in

the initial statement has not specifically disclosed the names

of the Accused Nor attributed individual roles of the accused,

when the case of P.W.2 is that the accused are very much

known to each other.  Further, P.W.2 revealed the names of

the accused a few days after the incident by way of a

supplementary statement with an intention to implicate the

accused because of previous enmity.   To appreciate this

particular contention, it would be appropriate to reproduce

the part of the FIR (translated herein).

“The fact is that at the mentioned date, time and place all the six accused persons mentioned here have made illegal mob, held dangerous weapons

26

like knife, chopper, sword, scythe etc., made life threatening attack on the deceased person named Jagdish Narayan  Hingne aged 26 and killed him. Similarly, they attacked on his brother Vitthal Narayan Hingane and injured him seriously. Hence the crime is  filed against them.”

32. There  is no dispute with regard to the fact that the entire

case of the prosecution depends upon the evidence of P.W.2

and P.W.11 who are the eye­witnesses to the incident.

Admittedly, basing on the statement of P.W.2, the FIR was

registered, and initially he has not revealed the names of the

accused. Subsequently in a supplementary statement, he has

narrated the details of the incident.  

33. The value to be attached to the FIR depends upon facts and

circumstances of each case. When a person gives a statement

to the police officer, basing on which the FIR is registered.

The capacity of reproducing the things differs from person to

person. Some people may have the ability to reproduce the

things as it is, some may lack the ability to do so.   Some

times  in  the  state  of  shock, they  may miss the important

details,  because people tend to react differently when they

come across a violent act.  Merely because the names of the

27

accused are not stated and their names are not specified in

the FIR that may not be a ground to doubt the contents of

the FIR and the case of the prosecution cannot be thrown out

on this count.  Coming to the facts of the case, it is nobody’s

case that P.W.2 was not injured and was not hospitalized for

sometime due to the injuries caused to him by the assailants

and also lost his brother.  It is most probable that he might

have given a general statement for the purpose of registering

the complaint which was recorded by police few hours after

the incident has taken place.  Later, when once he was out of

shock, the supplementary statement was recorded, then he

has disclosed the names of the accused and has attributed

specific overt acts to each of the accused.   It is settled law

that FIR need not be an encyclopedia of the incident laying

out miniscule  details  and  instances of  how the crime was

committed.  Hence, in view of the above discussion we do not

find force in the contention put forth on behalf of the accused

which is rightly rejected by both the Courts.

34. It is argued by the learned Advocates on behalf of the

accused that  no  Test Identification  Parade  was  conducted

28

and for the first time P.W.2 recognized the accused in the

Court which is fatal to the case of the prosecution.   As per

the evidence of P.W.2, the accused were known to him and

the other eye­witness i.e. P.W.11, has never stated that he

has seen the face of the assailants.  The necessity of holding

Test Identification Parade arises only when the accused are

not previously known to each other. The Test Identification

Parade is not a substantial piece of evidence, but is useful for

corroboration with the other evidence.   It is a rule of

prudence.   The Test Identification Parade, even if it is held

may not be considered in all cases as trustworthy evidence

on which the conviction of the accused can be sustained.  In

the case on hand, the absence of Test Identification Parade

will not vitiate the case of the prosecution as the accused and

P.W.2 were known to each other.

35. We would like to deal with the case of accused Nos. 2 and 3

first and then the case of the accused Nos. 1, 5 and 6.  The

issue  that  crop up  for  consideration  is  whether the  Court

below was right in convicting the accused, whether the

prosecution proved the guilt of the accused beyond

29

reasonable  doubt?  We are  conscious  of the fact that the

golden thread which passes through out criminal

jurisprudence is the standard of “beyond reasonable doubt”,

particularly, in this case, where certain evidences were not

brought on record before the Court.

36. The case of the prosecution  is that  the deceased gave the

statement to P.W.11 giving the names of assailants as Sunil

Kashinath  Chandanshiva (A1), Anil Gadekar (A6), Vishnu

Bule (A5) and Sandeep Bhosale (A4). This particular

statement was not  made part  of the prosecution evidence.

Even in his statement to P.W.11, the names of the accused 2

and 3 did not find place. An objection has been taken by the

State that the  Court should not take such evidence into

consideration as such statement does not have any

significance in law. We cannot ignore the fact that there is

clear cut suppression of this document as the State is unable

to explain the reason as to why such important document

could not be produced before the Court. Although the case

diary has not been produced before the Court but the

possibility of existence  of such  document is supported  by

30

P.W.11’s evidence  which creates a suspicion in our  mind

concerning the implication of Accused Nos. 2 and 3.

37. In the light of the evidence of P.W.11, the statement of the

deceased, the fact that  weapons  were  not recovered from

accused Nos.  2 and 3, no blood stains were found on the

clothes of the accused, coupled with the arrest and presence

of accused Nos.2 and 3 in the police station immediately after

the incident gives rise to suspicion concerning the

involvement of these accused.   It is also the case of the

accused  No.3 that P.W.2  was earlier convicted in a case

basing on their evidence.

38. Both the trial Court as well as the High Court have found

accused Nos. 2 and 3 guilty.   It is necessary to extract the

finding of the High Court:

“In our considered opinion, this submission cannot  be  accepted in the face  of  overwhelming evidence on record that the testimony of P.W.2 Vitthal,  who  has categorically  deposed  about  all these accused assaulting him and his brother with the weapons in their hands.  The names also find mention in the complaint lodged immediately.  The evidence on record also proves that all the accused have come together at the spot and started assault on both   P.W.2 Vitthal and his brother Jagadish

31

simultaneously.   Therefore, merely because in the traumatic and serious condition in which the deceased Jagadish was, when he made that oral dying declaration to P.W.11.   Merely because he has not stated about the specific overt act committed by these two accused, their case cannot be differentiated so as to give them benefit of doubt.   Their presence at the spot and their complicity in the assault is required to be held as proved.”

39. It is also relevant to extract the finding of the trial Court on

this aspect:

“The facts and evidence brought on record reveal that  all the accused persons with  their  common object to commit murder of Jagadish Hingne and Vitthal Hingne formed an unlawful assembly and at the relevant date and time, attacked on them with deadly weapons causing them severe bodily injuries  which resulted  in the death of  Jagadish Narayan Hingne.  As per the evidence of  Vitthal Hingne, accused Sunil Chandanshiva, Latesh Kalekar and Vijay Nirmal  @  Istgriwala  assaulted Jagadish Hingne and therefore, they are the author of his death.   Similarly accused  Sandip Bhosale, Vishal Bule and Anil Gadekar assaulted Vitthal  Hingne  causing stab  wounds  and severe bodily injuries on vital part of his body and thus I have  no  hesitation to  hold that the  prosecution has proved the case”.

40. The deceased gave statement to the police, and for the

reasons best known to them, the said statement is not part of

32

the prosecution evidence. In the said statement, the deceased

has not stated the names of accused Nos. 2 and 3, secondly

P.W.2 in the supplementary statement stated their names,

but he has not specifically attributed any weapon used by

them.   P.W.11  has also not attributed any overt acts to

accused Nos. 2 and 3.   During investigation, the clothes of

P.Ws. 2 and 3 were sent for expert opinion and it discloses

that there were no blood stains on the clothes.  No weapons

were recovered.   Except the oral evidence of P.W.2, there is

no other evidence on record to connect accused Nos. 2 and 3

to the crime. P.W.2’s oral testimony  without independent

corroboration cannot be basis  for the conviction.  Both the

Courts went wrong in finding these accused guilty without

there  being  any  evidence  which  points  out  at the  guilt  of

these  accused beyond reasonable  doubt.  The  prosecution

has to prove the guilt of the accused beyond all reasonable

doubt.  Accused has a profound right not to be convicted for

an offence which is not established by the evidential

standard of proof beyond reasonable doubt.   The law does

not permit the court to convict the accused based on

suspicion or on the basis of preponderance of probability.

33

41. In  our  opinion,  an  ingenious  mind  can question  anything

and,  on  the  other  hand, there is  nothing  which  it  cannot

convince. When you consider the facts, you have a

reasonable doubt as to whether the  matter is proved or

whether it is not a reasonable doubt in this sense. The

reasonableness of a doubt must be a practical one and not

on an abstract theoretical hypothesis.  Reasonableness is a

virtue that forms as a mean between excessive caution and

excessive indifference to a doubt.

42. In the light of the above discussion, we are of the opinion

that the prosecution failed to prove the case against accused

Nos. 2 and 3 beyond reasonable doubt.

43. Coming to  the  role  attributed to  the  other  accused,  P.W.2

stated that  accused Vishnu Bule  (A­5),  Anil  Gadekar  (A­6)

and Sandeep Bhosale (A­4) assaulted on his right wrist, near

his eye and abdomen region, while accused Sunil Kashinath

Chandanshiva (A­1), Latesh (A­3) and Vijay @ Istriwala (A­2)

assaulted his brother on his head and hands. It is settled law

that oral evidence takes precedence over the medical

evidence unless the latter completely refutes any possibility

34

of such occurrence [Rakesh & Anr. v. State of M.P., (2011)

9  SCC 698;  Kathi Bharat Vajsur and Anr.  V.  State of

Guj., (2012) 5 SCC 724; State of U.P. v. Hari Chand, (2009)

13 SCC 542].   In order to establish the consistency of the

evidence and to further buttress the conclusion, we may have

to observe the injuries noted during the medical examination

on the body of the deceased.   Injury No.1 (sutured wound),

No.2 (incised  wound),  No.3 (incised  wound),  No.4 (incised

wound) and No.5 (incised wound) are present on the head.

While injury  No.7 (contusion),  No.8 (incised  wound),  No.9

(incised wound), No.10 (incised wound), No.11 (incised

wound), No.12 (incised wound), No.13 (incised wound), No.18

(incised wound), No.19 (incised wound), No.21 (incised

wound), No.22 (incised wound), No.23 (incised wound), and

No.24 (chop wound) were found to be inflicted on the

deceased. We find that the injuries attributed by P.W.2 to the

accused are  attributable to  a  sharp  weapon.  Even P.W.18

(Dr.Sunil Mohanrao Jawale) opined that the “cause of death

was shock due to head injury in the form of fractured skull

bones with intra cranial haemorrhage with stab wounds with

35

multiple incised wounds (unnatural)”. The fact that accused

No.1 was caught red­handed with chopper  (sharp weapon)

which is corroborated  with the evidence of P.W.2, P.W.1,

panch witness for the arrest, seizure of weapons and clothes,

and also in terms of expert evidence.  Thus, the prosecution,

by adducing cogent evidence, has successfully brought home

the guilt of the accused No. 1 beyond reasonable doubt.

44. Coming to the involvement of accused Nos. 5 and 6, they are

named in the FIR as well as in the alleged oral declaration by

the  deceased.  Even the recovery  of  weapons  supports the

case and the statements of  prosecution witnesses are also

consistent pointing at the guilt of the accused. The counsels

on behalf of these accused tried to submit that the evidence

of P.W.2 cannot be believed as there are contradictions

between his statement in the FIR and the evidence before the

Court. They submit that P.W.2 has not attributed individual

role on the day of the incident. The evidence of the Doctor

and the injuries sustained by the deceased clearly

establishes the guilt of accused Nos. 5 and 6 and, as already

observed by us, merely not attributing specific overt act to an

36

accused would not be fatal to the case of the prosecution.  In

every criminal trial, normally discrepancies are bound to

occur due to long lapse of time between the date of incident

and deposition of witnesses before the Court.  When the

contradictions are so serious and create doubt in the mind of

the court about the truthfulness of the statement, then such

evidence is not safe to rely upon.   We feel that the

contradictions in the evidence concerning this case are very

trivial in nature and will not affect the case of the

prosecution.

45. Looking at the injuries caused to P.W.2, it can be seen from

the  injury certificate (Ex.No.20) that these are  injury No.1

(incised wound on forehead),  second injury  (incised wound

on the right forearm) and third injury (incised wound on the

right hypochondria with omentum protruding out).   Taking

into account all the above stated circumstances coupled with

the evidences, we are of the considered opinion that the case

of prosecution clearly establishes the fact of involvement and

guilt of accused Nos. 5 and 6 beyond reasonable doubt.

37

46. Lastly, the counsel appearing on behalf of Accused No. 1 has

contended that the non­examination of Ghanshyam Pawar is

fatal for the prosecution. We do not agree with such

contention as the prosecution has the discretion to produce

any witness based on its prudence. In the entire facts and

circumstances of this case, the factum of arrest and seizure

of weapon from Accused No. 1 has been cogently established

by PW­11 and other evidences on record. Therefore, we are of

the considered opinion that the aforesaid contention is

meritless as well.

47. In light of the above discussion, we are in agreement that the

case against  Accused No.  2 and 3 has not  been established

beyond reasonable  doubt,  whereas the  same cannot  be  said

with respect to others, whose roles have been proved  with

cogent evidence  available  on record.  Therefore,  while setting

aside the conviction and sentence against Accused Nos. 2 and

3, we maintain the conviction and sentence under Section 302,

IPC with respect to Accused No. 1 and conviction and sentence

under Section 307 read with 34, IPC with respect to accused

Nos. 5 and 6. Accordingly, we direct the concerned authorities

38

to set free Accused Nos. 2 and 3 forthwith, if not required in

any other offence.

48.  The appeals are disposed of in the aforesaid terms.

……………………..……J.   (N. V. RAMANA)

…………………………..J.   (AMITAVA ROY)

New Delhi, January 30, 2018.