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Bombay High Court
Devidas @ Bhau Vishwanath Indore vs The State Of Mahrashtra And Anr on 1 April, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:11201-DB
Cri Appeal No.265.2011 and others.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.262 OF 2011
1. Sanjay Fakirchand Fatelashkar,
Age : 35 years, Occ. Business
2. Sachin @ Bunty Suryakant Pandure,
Age : 32 years, Occ. Business,
3. Pradeep @ Pintya Tarachand Pandure,
Age : 26 years, Occ. Business,
All r/o. Begumpura, Aurangabad ..Appellants
Vs.
1. The State of Maharashtra,
2. Mohammad Sirajuddin Mohammad
Yehsanuddin,
Age : 40 years, Occ. Driver,
r/o. Kutubpura, Aurangabad
3. Mohammad Nadimuddin Ehsanuddin
Faruki,
Age : 33 years, Occ. Crane Operator,
r/o. Begumpura, Aurangabad
4. Mohammad Asadoddin Mohammad
Ehsanuddin,
Age:36 years, Occ. Grocery Shop,
r/o. Jaisingpura, Aurangabad ..Respondents
AND
CRIMINAL APPEAL NO.265 OF 2011
Devidas @ Bhau s/o. Vishvanath Indore (died),
Age : 35 years, Occ. Service,
r/o. Begumpura, Aurangabad
Through His L.Rs.
1. Varsha wd/o. Devidas Indore,
Age : 38 years, Occ. Household,
r/o. Dimbar Galli, Begumpura,
2 Cri Appeal No.265.2011 and others
In front of University Foot Ball Ground,
Aurangabad
2. Abhishek s/o. Devidas Indore,
Age : 19 years, Occ. Student,
r/o. As above.
3. Vanshree w/o. Prasad Lahire and
Vanshree d/o. Devidas Indore,
Age : 22 years, Occ. Household,
r/o. As above ..Appellants
Vs.
1. The State of Maharashtra
2. Mohammad Sirajuddin s/o.
Ahesanuddin Kaski, Age : 40 years,
Occ. Driver, r/o. New Kutubpura,
Aurangabad ..Respondents
AND
CRIMINAL APPEAL NO.366 OF 2011
Mohammad Sirajoddin s/o. Asadoddin Faruqui,
Age : 40 years, Occ. Driver,
r/o. New Kutubpura, Jaisingpura,
Aurangabad ..Appellant
Vs.
1. State of Maharashtra
2. Sanjay s/o. Fakirchand Fatelashkar,
3. Devidas @ Bhau s/o. Vishvanath Indore
(appeal abated against appellant no.3
vide Court's order dated 24.02.2023)
4. Shantilal @ Pankaj s/o. Jagdish Battise,
5. Sandeep s/o. Manikrao Kharat,
6. Sachin @ Bunty s/o. Suryakant Pandure,
7. Pradeep @ Pintya s/o. Tarachand Pandure,
8. Anil @ Bhau Bapurao Salunkhe
9. Punam s/o. Gopinchand Nandvanshi ..Respondents
3 Cri Appeal No.265.2011 and others
Mr.Joydeep Chatterji, Advocate for appellants in Criminal Appeal
No.262 of 2011 and for respondent nos.2, 6 and 7 in Criminal Appeal
No.366 of 2011
Mr.Rajendra Deshmukh, Senior Advocate along with Mr.Nilanjan
Pande i/b. Mr.Devang Deshmukh and Vishal Chavan, Advocates for
appellant in Criminal Appeal No.265 of 2011 and for respondent no.3
in Criminal Appeal No.366 of 2011
Mr.Patel Shaikh Aspak Taher, Advocate for appellant in Criminal
Appeal No.366 of 2011 and for respondent nos.2 to 4 in Criminal
Appeal No.262 of 2011 and for respondent no.2 in Criminal Appeal
No.265 of 2011
Mrs.Uma S. Bhosale, APP for respondent no.1 - State in all appeals
Mr.Patel Shaikh Aspak Taher, Advocate for respondent no.2
Mr.D.V.Soman, Advocate for respondent no.4 in Criminal Appeal
No.366 of 2011
Mr.G.L.Deshpande, Advocate for respondent no.8 in Criminal Appeal
No.366 of 2011
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : MARCH 10, 2025
PRONOUNCED ON : APRIL 01, 2025
JUDGMENT (PER R.G.AVACHAT, J.) :
–
These three appeals are being decided by this common
judgment and order since they arise from one and the same
judgment and order dated 12.05.2011, passed by learned Addl.
Sessions Judge-3, Aurangabad (trial court), in Sessions Case No.224
of 2006.
4 Cri Appeal No.265.2011 and others
The first two appeals (Criminal Appeal Nos.262 of 2011
and 265 of 2011) have been preferred against the order of conviction
and consequential sentence passed against the appellants therein.
Criminal Appeal No.265 of 2011 has been preferred by the legal
representatives of the convict (deceased) – Devidas @ Bhau s/o.
Vishvanath Indore (original accused no.2). Criminal Appeal No.366 of
2011 has been preferred by the informant (victim) against acquittal
of the respondents therein of the offences punishable under Section
307 r/w.149 and allied offences under Indian Penal Code. The order
impugned herein is reproduced below:-
1. The accused Nos.(1) Sanjay Fakirchand
Fatelashkar, (2) Devidas Vishvanath Indore, (5)
Sachin Suryakant Pandure and (6) Pradeep @
Pintya s/o. Tarachand Pandure are hereby
convicted for the offences punishable under
Sections 324 of Indian Penal Code and Sentenced
to suffer rigorous imprisonment for six months
each and to pay fine of rupees five thousand each
and in default, to undergo simple imprisonment
for one month.
2. The accused Nos.(1) Sanjay Fakirchand
Fatelashkar, (2) Devidas Vishvanath Indore, (5)
Sachin Suryakant Pandure and (6) Pradeep @
Pintya s/o. Tarachand Pandure are hereby
convicted for the offences punishable under
Section 452 of Indian Penal Code and sentenced
to suffer rigorous imprisonment for six months
5 Cri Appeal No.265.2011 and otherseach and to pay fine of rupees five thousands
each and in default, to undergo simple
imprisonment for one month.
3. The substantive sentences for both the
offences shall run concurrently.
4. ………………
5. The accused Nos.(1) Sanjay Fakirchand
Fatelashkar, (2) Devidas Vishvanath Indore, (5)
Sachin Suryakant Pandure and (6) Pradeep @
Pintya s/o. Tarachand Pandure are acquitted of
the offences punishable under Sections 143, 147,
148, 149, 307, 336 and 427 of Indian Penal Code
and 4/25 of the Indian Arms Act and Section 135
of the Bombay Police Act.
6. The accused Nos.(3) Shantilal Jagdish
Battise, (4) Sandeep Manikrao Kharat. (7) Anil
Bapurao Salunke and (8) Poonam Gopichand
Nandvanshi are acquitted of the offences
punishable under Sections 143, 147, 148, 149,
307, 336, 427 and 452 of the Indian Penal Code
and 4/25 of the Indian Arms Act and Section 135
of the Bombay Police Act. Their bail bonds
cancelled. They are set at liberty.
2. For the sake of convenience, the parties are referred to
as per their status in the appeals against conviction.
3. The facts, giving rise to the present appeals, are as
follows:-
6 Cri Appeal No.265.2011 and others
The First Information Report (FIR – Exh.43) was lodged by
PW2 – Mohd. Sirajuddin Mohd Yehsanuddin with Begumpura Police
Station, Aurangabad, on 03.04.2006. It is his case that he had his
residence situated at New Kutubpura, Aurangabad. His house was in
the nature of a big premises (Wada). His two brothers namely,
Mohd. Nadimuddin (PW-5) and Mohd. Asaduddin (PW6) were also
residing in the said premises, separately. A petty quarrel had ensued
on football ground in the University premises, on 8.00 pm., on the
very day. His (PW2) younger brother Nadimoddin was involved
therein. Taking a clue of the said quarrel, all the appellants and the
acquitted accused along with 10-15 other persons came together to
the informant’s house by little past 10.30 pm. They were armed with
sword, sickle and other articles as well. PW2 – Mohd. Sirajoddin
(informant) and his brothers Asaduddin and Nadimuddin were
assaulted with sword and sickle. It was a bid on their lives. One Ajay
Dabhade (PW3) too was assaulted. The appellants and other
persons then went away.
4. During investigation of the crime, the crime-scene
panchnama (Exh.38) was drawn. The appellants and acquitted
accused were arrested. The informant and other injured were
medically screened. Their medical certificates were obtained. The
7 Cri Appeal No.265.2011 and othersappellant – Sanjay made disclosure statement, pursuant to which a
sword came to be seized. Statements of the persons acquainted
with the facts and circumstances of the case were recorded. On
completion of the investigation, charge sheet was filed.
5. The trial court framed Charge (Exh.26) for the offences
punishable under Sections 143, 147, 148, 307, 452, 336, 427 r/w.149
of Indian Penal Code; Section 135 of the Bombay Police Act; and
6. The appellants pleaded not guilty. Their defence was of
false implication. The prosecution, to bring home the Charge,
examined nine witnesses and produced in evidence certain
documents. On appreciation of the evidence in the case, the trial
court convicted and consequentially, sentenced the appellants –
original accused nos.1, 2, 5 and 6. Appellant – original accused no.2
– Devidas @ Bhau passed away. He was serving as a Police
Constable. On his demise, his legal representatives are pursuing the
appeal against his conviction, since his pensionery benefits are said
to have been withheld on account of his conviction.
7. Learned Senior Counsel for the legal representatives of
deceased appellant – Devidas @ Bhau Indore (in Criminal Appeal
8 Cri Appeal No.265.2011 and others
No.265 of 2011) and learned counsel for the appellants in Criminal
Appeal No.262 of 2006 took us through the evidence on record.
They would submit that no independent witness has been examined.
Those who have actually participated in the incident have even not
been prosecuted. The one, who was involved, was later on dropped
at the behest of the informant and his two brothers. They would
further submit that the informant and the injured have come with a
false and concocted version. The injury certificates indicate them to
have suffered injuries in the nature of C.L.Ws. The Medical Officer,
who examined them, opined the injuries to have been caused with
hard and blunt objects. The injured claimed to have been assaulted
with sharp-edged weapon like, sword and sickle. Learned counsel
would, then, submit that the medical evidence falsifies the eye-
witnesses account. They would further submit that the order of
conviction dates back to 2006. About 18 years have passed post
conviction. They, therefore, urged for allowing the appeals preferred
by the convicts.
8. Learned APP for the respondent – State and learned
counsel for the respondent – informant would, on the other hand,
submit that the case was based on the evidence of the injured eye
witnesses. They would further submit that the evidence of such
9 Cri Appeal No.265.2011 and others
witnesses stands on higher pedestal. They took us through the
evidence of each and every witnesses. According to them, the injury
certificates reinforce the prosecution case. From the cross-
examination of the prosecution witnesses, nothing could be elicited
to disbelieve their evidence.
9. Learned counsel for the informant would submit that the
injuries, which were total 16 in number, on the person of the four
injured persons, could not be caused by fall. The suggestion in that
regard given by the defence falsifies their case. He would further
submit that the weapon of assault was recovered pursuant to the
disclosure statement. The injured had informed the Medical Officer
the history of the assault. The same reinforces their evidence before
the court. He would further submit that there were, in fact, three
incidents. The first one took place at 8.00 pm. on the football
ground; the second incident took place by 10.00 pm.; and the third
one, for which charge was framed, took place by little past 10.30 pm.
Learned counsel for the informant relied on the judgment of the Apex
Court in the cases of (i) Matiullah Sheikh and others Vs. State of
W.B., AIR 1965 SC 132; and (ii) The Apex Court judgment in the case
of the State of Karnataka Vs. Battegowda & ors., Criminal Appeal
No(s). 1694 of 2014 decided on 09.01.2025. In the case of Matiullah
10 Cri Appeal No.265.2011 and others
Sheikh (supra), it has been observed thus:-
(B) Penal Code (45 of 1860), S.307 and S.34 –
Charge under S. 307 read with S.34 is
sustainable.
The act committed by a number of persons shall
in the circumstances mentioned in S.34 of the
Penal Code be held to be the act of each one
individual of those persons. It may, in many
cases, be difficult to decide whether the criminal,
act in question has been done by several persons
in furtherance of the common intention of all.
But, once it is decided that the act is so done by a
number of persons in furtherance of the common
intention of all, the legal position that results is
that each person shall be held to have committed
the entire criminal act. Hence, a charge under
Section 307 read with S.31 is sustainable in law.
Learned APP and learned counsel for the informant urged
for dismissal of the appeals filed by the appellants – accused and for
allowing the appeal preferred against acquittal.
10. Needless to mention, a criminal case has to be decided
on the basis of the evidence therein. The law of precedent can
hardly be applicable in a criminal case since no two criminal cases
could be identical on facts.
11 Cri Appeal No.265.2011 and others
11. We have considered the submissions advanced. Perused
the judgment impugned herein. Let us, now, advert to the evidence
on record and appreciate the same.
Medical Evidence :-
12. PW7 – Dr.Baburao Sapkal was the Medical Officer, at
GHATI Hospital, Aurangabad, on 02.04.2006. He testified that he
examined injured – Ajay Dabhade, Mohd. Asadoddin, Mohd.
Nadimoddin and Mohd. Sirajoddin by little past 11.05 pm. on
02.04.2006 and noticed the following injuries on their person:-
Injuries on the person of Ajay Dabhade (PW3) :-
(i) CLW on left shoulder 3x2x2 cms. age of
injury was less than 12 hours, probable
weapon was hard and blunt, it was simple
injury.
(ii) CLW over left arm 10x1x0.5 cm., age of
injury was less than 12 hours, weapon was
hard and blunt object, it was simple in
nature.
Injuries on the person of Mohd. Asadoddin (PW 6):-
(i) CLW over head having 10x2 cms., it was
within less than 12 hours, probably caused
by hard and blunt object, simple in nature.
12 Cri Appeal No.265.2011 and others
(ii) Second CLW over right lower limb, 3x2
cm.,
(iii) Abrasion over right calf 2x2.
(iv) Contusion over back 2x2 cms.
All these injuries are within less than 12 hours, possible
by hard and blunt object, simple in nature.
Injuries on the person of Mohd. Nadimuddin (PW5) :-
(i) Contusion over scalp 1x1 cm.,
(ii) Contusion over right clavicle 2x1 cms.
(iii) Abrasion over right side face
(iv) CLW over right side of face 2x1 cms.
The injuries were within less than 12 hours and possible
by hard and blunt object. Simple in nature.
Injuries on the person of Mohd. Sirajuddin (PW 2) :-
(i) CLW with contusion on left hand of 3x1 cms.
(ii) Abrasion over back 3x0.5 cms.
(iii) CLW over left elbow 7x0.5 cms.
(iv) 2 Contusions over left wrist, 1x1 and 2x1 cms.
All these injuries were possible by hard and blunt object
of less than 12 hours. Simple in nature.
He referred to their injury certificates (Exhs.81, 82, 83
and 84). In his opinion, the nature of injuries was simple and those
were caused by hard and blunt objects. The age of injuries was
within twelve hours.
13 Cri Appeal No.265.2011 and others
13. Now, let us turn to the evidence of the other witnesses,
to find whether the aforesaid injuries were caused by the
appellants/accused.
14. PW2 – Mohd. Sirajuddin, informant, testified that the
incident took place by little past 10.30 pm. on 02.04.2006. He was
at his house. Suddenly, appellant (deceased) – Bhau Indore entered
his house. He was armed with sickle. He assaulted him therewith.
Bhau Indore was followed by 10-15 persons. They were: Pintya,
Poonam, Gopi, Bunty, Sharad, Mangesh, Pankaj, Sachin Babu Peter
and Bunty Kiranewala. He claimed to have known all the persons.
He identified them before the court. He further testified that the
assailants, while on their way back from his house, assaulted one
Ajay Dabhade (PW3). PW2 – Mohd. Sirajuddin further testified that
his two brothers – Mohd. Nadimuddin (PW5) and Mohd. Asadoddin
(PW6) were also assaulted. All of them then went to GHATI Hospital.
He then referred to the FIR lodged by him. It is at Exh.43.
15. During cross-examination, PW2 – Mohd. Sirajuddin
admitted that he came to know about the assault on Ajay Dabhade
(PW3) when he was in the hospital. As such, his case as regards
assault on PW3 – Ajay Dabhade is hearsay. He gave vital admission
14 Cri Appeal No.265.2011 and others
during his cross-examination conducted on behalf of the
appellant/original accused no.2 – Devidas @ Bhau Indore. He
testified that after lodging of the FIR, he realised to have mentioned
the name of a wrong person in the FIR. He knew one Bajarang
Pathare. He did not have enmity with him. Bajarang was one of the
assailants. He had disclosed his name to the police. He was
confronted with his application (Exh.44) dated 19.07.2006. He
admitted the same. Vide the said application, it was informed by
him to the police that the name of Bajarang was inadvertently stated
in the FIR as one of the assailants. He requested the police
authorities to drop his name.
16. PW2 – Mohd. Sirajoddin was confronted with the FIR
(Exh.43). He admitted to have not stated to the police that apart
from the persons named in the FIR, there were other 10-15 persons.
Said statement, however, finds in his FIR. He could not find any
reason, as why did the same finds place therein. He also admitted
to have not stated to the police that the assailants, while returning,
assaulted Ajay (PW3) with sword. He further admitted that while he
had been to the police to give application to drop Bajarang, his two
brothers (PW5 – Nadimoddin and PW6 – Asadoddin) were with him.
Said application was preferred after discussion amongst them. He
15 Cri Appeal No.265.2011 and others
further admitted that the police had asked him to give the names of
the actual assailants. Thereafter, his statement was recorded again.
In the said statement, he did not mention the name of Late Bhau
Indore (appellant).
17. PW3 – Ajay did not stand by the prosecution, although he
was said to have been one of the victims of the assault. He testified
that it was about 11.30 pm. There was discontinuation of electricity
supply. He was present on the road opposite his residence. About
10-15 boys came from Jaysingpura and were proceedings towards
University. One of them assaulted him and fled. He suffered injuries
in his back. He claimed ignorance about what did happen thereafter.
According to him, his mother took him to GHATI hospital. He did not
know the assailants or those boys. Although learned APP cross-
examined him extensively, nothing helpful to the prosecution could
be elicited.
18. PW5 – Mohd. Nadimoddin (injured) testified that by
8.30 pm. on 02.04.2006, he returned his house from football ground.
On the ground, he met with two boys and two girls. One of the boys
caught hold of his collar and threatened not to disclose whatever he
had seen. The other boy, thereafter, said “Jane De, Pintya Chod”.
16 Cri Appeal No.265.2011 and others
Then he returned to his house. He further testified that thereafter,
the appellants – Sachin and Pintya along with 8-10 persons came.
They beat him up and ran away. He further testified that, thereafter,
again, one Bhau Indore (deceased appellant) came to his residence.
He questioned him, as to why did he assault his nephew. His father
intervened; still, he (deceased appellant – Bhau Indore) gave him 2-3
slaps. Thereafter, the Corporator of the area – Salim Khan arrived.
He convinced them. His father, thereafter, confined him in the
house.
19. PW5 – Mohd. Nadimoddin further testified by 11.00 pm.,
20-25 persons attacked their house. The assailants were armed with
swords and sticks. The assailants broke open the gate and windows
of the house. They were insisting to let him (PW5) be brought out of
the house. His brother – Sirajoddin (PW2) tried to reason with the
boys. Bhau Indore (deceased) assaulted his brother Sirajoddin (PW2)
with sickle. When his another brother – Mohd. Asadoddin tried to
intervene, he too was assaulted by appellant Sanjay Fatelashkar on
his head with sword. He then came out of the room. Sachin and
Pintya assaulted him on his head with stick. He became
unconscious. He regained it in the hospital. He identified the sickle
and sword shown to him in the court.
17 Cri Appeal No.265.2011 and others
20. During cross-examination, PW5 – Mohd. Nadimoddin
could not assign any reason, as to why his police statement was
silent to state that Bhau Indore (deceased appellant) had come to his
residence by 10.00 pm. and questioned as to who assaulted his
nephew and that he would beat him. He admitted that the boys with
whom the incident had happened at the football ground, were not of
his acquaintance. He stated to have informed the police that one
Bajarang Pathare was involved in assaulting him at his residence.
Whatever was disclosed by him to the police regarding Bajarang’s
role was true. He along with his brothers (PW2 – Sirajoddin and PW6
– Asadoddin) had been to the police station to prefer an application
(Exh.44), to ensure that the name of Bajarang was dropped as one of
the assailants. They told to the police that Bajarang was not at all
involved in the incident. He went on to admit that he was not
knowing any of the assailants involved in all the three incidents that
took place on the given day, i.e. 02.04.2006. He testified to have
learnt the names of the assailants from the police and the assailants
themselves. He claimed to have been assaulted by two assailants.
According to him, he was not assaulted by Mangesh and Sharad in
his house. He was, therefore, confronted with the matter – portion
marked “B” in the police station, which states that these two persons
18 Cri Appeal No.265.2011 and others
had assaulted him. He went on to state that he informed the police
that the psychological condition of his brother, PW2 – Sirajoddin
(informant) was not well and therefore, by mistake, the name of
Bajarang was stated as one of the assailants. He admitted to have
not stated in the statement to the police that appellant (deceased) –
Bhau Indore came to his house and slapped him. He went on to
state that he was conscious all along, i.e. from the time of the
incident till his discharge from the hospital. He saw the appellants
before the Court for the first time as accused.
21. Then comes the evidence of PW6 – Mohd. Asadoddin. He
testified that by 09.00 on 02.04.2006, he returned to his house. He
learnt that his younger brother – PW5 – Nadimoddin had a quarrel.
Ten-twelve persons came to his house. They asked to let his brother,
PW5 – Nadimoddin, be brought out of the house as they wanted to
beat him up. One of them was Bhau Indore (deceased appellant), a
policeman. It was he, who had asked them to bring out their brother,
as he wanted to beat him. Thereafter, those persons went away. He
further testified that again by 11.00 pm., Bhau Indore along with 10-
15 persons came to their premises. They were armed with swords,
sickle, sticks and iron rod. His brother – PW2 – Sirajuddin tried to
intervene. Bhau Indore (deceased appellant) assaulted him with
19 Cri Appeal No.265.2011 and others
sickle. When he intervened, appellant – Sanjay Fatelashkar
assaulted on his head with sword. Then, Bhau Indore assaulted him
on his back with sickle. The others were assaulted with sticks. He
was taken to the hospital.
22. During his cross-examination, he testified that the
neighbours had gathered and even intervened in the quarrel. He,
however, could not disclose their names. Begumpura Police Station
was at a distance of five minutes from their residence. He did not
lodge the report immediately, since the Corporator – Salimkhan
intervened in the matter. His statement was recorded by the police
a month after the incident. He further testified that the police had
visited GHATI hospital. His statement was, however, not recorded in
the hospital that time. He knew that his brother has lodged the FIR
and even the contents thereof. He further testified to have informed
the police that his brother’s (informant) psychological condition was
not good at the time of lodging of the FIR. He has also named
Bajarang Pathare as one of the assailants.
23. PW1 – Sk. Shaukat is witness to the crime-scene
panchnama (Exh.38). The panchnama was admitted in his evidence.
The contents thereof indicate that there was a pile of bricks and tiles
20 Cri Appeal No.265.2011 and others
in front of the house of the informant. The police seized some of
those articles since those were allegedly pelted on the house of the
informant.
24. PW4 – Kedar Warkad was witness to the disclosure
statement made by appellant – Sanjay Fatelashkar, pursuant to
which a sword was recovered. This witnesses did not stand by the
prosecution. PW8 – Vikram Karkud and PW9 – Sk. Akhmal are the
police officers, who did investigation of the crime. The evidence of
PW8 – Vikram indicates that the appellant – Sanjay Fatelaskhar made
a disclosure statement. PW9 – Sk.Akhmal testified that the appellant
(deceased) – Bhau Indore made disclosure statement and a sickle
was recovered under panchnama.
Appreciation of the evidence:-
25. The injury certificates indicate that PW5 – Md. Sirajuddin
(informant), PW3 – Ajay, PW5 – Mohd. Nadimoddin and PW6 – Mohd.
Asadoddin suffered injuries in the nature of C.L.Ws. The medical
evidence indicates that those were suffered on the night of
02.04.2006. The injuries were simple in nature. The Medical Officer,
who examined them, has specifically stated that the injuries have
21 Cri Appeal No.265.2011 and others
been caused due to assault with hard and blunt objects; while, the
case of the injured is that they were assaulted with sharp-edged
weapons like sword and sickle. The injured are none other than
three real brothers. The incident took place at a very populated
area. In spite of the statements of neighbours to have been
recorded, none of them has been examined as prosecution witness.
The crime-scene panchnama (Exh.38) indicates that the
assailants/culprits pelted stones and tiles. None of the injured stated
about the same.
26. According to PW5 – Nadimoddin (injured) it was a group
of not less than 20-25 persons, who made attack on their house. The
trio had admittedly been to the police station together, three months
after the incident. They stated the police that at the time of lodging
of the FIR, the informant – PW2 – Sirajoddin was not having good
psychological condition and therefore, he wrongly stated the name of
one Bajarang Pathare in the FIR. This dilutes the prosecution case.
The Investigating Officer has testified that during the investigation,
he realised that none of the injured (PW2, PW3, PW5 and PW6) knew
the names of the assailants. Still, he did not conduct the test
identification parade. In our view, the same proved fatal to the
prosecution. PW5 – Nadimoddin has stated in his statement to the
22 Cri Appeal No.265.2011 and others
police that there was assault by one Mangesh and Sharad with sticks
and thereby, he became unconscious. He has, however, not named
them as assailants in his examination-in-chief. These two persons
namely, Mangesh and Sharad were not put on trial for the offences
in question. The police statement of PW6 – Asadoddin was recorded
a month after the incident, in spite of he having been conscious all
along. When his statement was recorded by the Investigating
Officer, he was in the know of the contents of the FIR. The defence,
therefore, has every reason to contend that he gave the police
statement consciously consistent with the averments in the FIR. All
the three brothers had a discussion over the matter and then, they
had been to the police station to ensure that the name of one
Bajarang Pathare was dropped as assailant.
27. PW3 – Ajay (injured) did not stand by the prosecution.
PW2 – Sirajoddin (informant) came to know about the assault on Ajay
when he was in the hospital. One Salim Khan, Corporator from the
area, had intervened. He was, however, not examined as a witness.
In his subsequent statement, he (informant) did not name Bhau
Indore (deceased appellant) as one of the assailants inspite of the
fact that the police had asked him to give the names of those
persons who had participated in the incident. This happened when
23 Cri Appeal No.265.2011 and others
he along with his two brothers, had been to the police station and
preferred the application to drop the name of Bajarang Pathare. He
attributed Bhau Indore (deceased appellant) with the assault of
sickle; while, the injuries he suffered, in the opinion of the Medical
Officer, were caused by hard and blunt object. He was not knowing
that Bhau Indore was serving in police department. Same suggests
that he was not in the know of him and was not of his acquaintance.
PW5 – Nadimoddin admitted that none of the assailants were
knowing to him prior to the incident. As such, the evidence of these
three injured brothers inspires no confidence. The independent
witnesses to recovery of sickle and/or sword did not stand by the
prosecution. None of the seized articles borne any blood stains.
28. It appears that the nature of the real incident has been
hushed up. The persons, who actually assaulted, have either been
dropped at the best of the injured and/or not put on trial by the
Investigating Officer. It is reiterated that the Investigating Officer
admitted that the injured witnesses were not knowing the actual
culprits. Still, he did not hold the test identification parade. Based
on such nature of evidence, the trial court ought not to have
convicted the appellants/original accused nos.1, 2, 5 and 6. We,
therefore, find merit in the appeals filed by the appellants – accused.
24 Cri Appeal No.265.2011 and others
29. In the result, the following order:-
(i) Criminal Appeal Nos.262 of 2011 and 265 of 2011 are
allowed. The impugned order of conviction and and consequential
sentence dated 12.05.2011, passed by learned Addl. Sessions
Judge-3, Aurangabad (trial court), in Sessions Case No.224 of 2006,
convicting and sentencing the appellants for the offences punishable
under Sections 324 and 452 of Indian Penal Code, is set aside. The
appellants are acquitted of the said offences. The appellants have
already been released on bail. Their bail bonds stand cancelled. Fine
amount paid by the appellants, if any, be refunded to them.
(ii) Criminal Appeal No.366 of 2011 preferred by the
informant stands dismissed.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.] KBP
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