Ganesh Suresh Jadhav & Ors. v. The State of Maharashtra

15. Per contra, the learned APP Ms. Shinde strongly advocated the impugned Judgment and Order of conviction rendered by an Additional Sessions Judge, Pune. She would argue that the prosecution had not only proved the complicity of the appellants in the commission of the offence but also, the medical evidence as well as the discovery of weapons, established beyond doubt the complicity of these appellants in the offence of committing murder of deceased Ketan and Siddiq.

16. Obviously, the first question which needs to be answered is, as to whether both the deceased Ketan and Siddiq died homicidal death?

17. P.W. 12-Dr. Abhijeet Dhondiraj Lokhande was attached to Y.C.M. Hospital, Pimpri as a Casualty Medical Officer. On 01.03.2010, at about 09:50 p.m., Siddiq Ismail Arkate (for short ‘deceased Siddiq’) and Ketan Manik Bansode (for short ‘deceased Ketan’) were brought to the hospital around 09:50 to 09:55 pm. He had personally examined both the injured. After examination of deceased Siddiq, he noticed following three injuries: [i] CLW over left gluteal region ad-measuring 3 cm x 1 cm. SH / SGP 10 of 42 [ii] CLW on left occipito parietal region 3 cm x 1 cm. [iii] Incised wound on right forearm 5 cm x 1 cm.

18. After examination of deceased Siddiq, he was referred to surgery department for performing surgery. However, according to this witness, he came to know that Siddiq had died. The OPD papers are proved at Exhibit 131. He categorically testified that the injuries mentioned in Exh. 131 could have been caused by a sword, which was shown to him in the box.

19. After examination of deceased Ketan, he found that he was normal when he was brought to the hospital. He noticed following three injuries on his person: [i] CLW on left side of back, 2 cm x 1 cm x 1 cm. [ii] CLW on left side of back upper side,[2] cm x 1 cm x 1 cm. [iii] Abrasion over right arm.

20. Accordingly, he prepared the OPD papers which are at Exh. 131. He opined that the CLW injuries on the person of Ketan could be caused by the blunt portion of the sword and injury no. 3 which is an incised wound can be caused by sharp edged weapon. SH / SGP 11 of 42

21. A very interesting thing has been surfaced during his cross-examination. He testified that both the patients were conscious and well oriented when they were brought to the casualty. Both of them had given history of road traffic accident. P.W.12-Dr. Abhijeet Lokhande has categorically opined in his medical papers that the cause of injury was road traffic accident. According to him, injuries on the person of deceased Siddiq were simple in nature which could have been caused due to an accident. However, he had not referred in the case papers about the cause of injury which could be due to a sharp edged weapon. According to this witness, deceased Ketan was brought by his relative namely Sijoy Thomas. The deceased Ketan was also conscious and well oriented. He too had given the history of road traffic accident. Thus, a very first Doctor who examined both the deceased first in time, has categorically testified that both the deceased themselves had stated the cause of injury as road traffic accident and had not whispered anything about the alleged attack by the assailants by means of swords and stones. The prosecution has failed to clear this anomaly which would indeed go to it’s root and render it’s case unworthy of acceptance. Be that as it may. SH / SGP 12 of 42

22. P.W. 13 – Dr. Prakash Dnyanoba Rokade conducted autopsy on the dead body of deceased Ketan on 05.03.2010. He noticed the following injuries: - [i] Stiched wound seen over the abdomen mid line below the xiphisternum extending lower downwards upto infraumbilical region of size 22 cms with intact 15 black linen sutures vertical. [ii] Stiched wounds (intercostal drain) seen over the left mid axillary line in between 4-5th intercostal space of size 3 cms with intact 2 stiches. [iii] 4 cms below and downs wards in between 6-7 intercostal space of size 2 cms with intact stiches with extract vasation of blood subcutaneous tissue redish brown around oblique. [iv] incised wound circular right lumbar region antriorly of 2 cms diameter for drain noted. [v] Stiched wound seen over the left inferior angle of scapula over the back of size 2 cms with intact 2 stiches vertically oblique. [vi] Incised wound seen over the left loin region of back 4 cms below injury no. 5 of size 2 cms x 0.[5] cms with lossened stitch vertically oblique margins clear spindle shaped. [vii] Multiple contusions seen all over the left and right sided scapular region of the back, thoracic diffuse of variable sizes of 5 cms to 20 cms brownish black in colour. [viii] Contusion left ear upper pinna and margins of size 4 cms x 0.[5] cms brownish black in colour. SH / SGP 13 of 42 The injuries mentioned in column no. 17 are antemortem in nature. Injuries No. 1 to 4 are surgical wounds. Injuries No. 5 and 6 are caused by sharp object. Injuries No. 7 and 8 are caused by hard and blunt object. Age of injuries No. 5 to 8 are more than 48 hours. On dissection meninges intact tense raised above the surface, brain firm edematous with contusion left frontal region anterior aspect of size 4 cms x 1 cm. As regards Thorax – on dissection, on exploration of stiched wound injuries no. 2 and 3 under the left sided axillalry line margins of wound clean cut with hemarragic area round. Pleura – posteriorly contused with left sided intercostal drain incised wound noted clear cut margins noted obliquely. Larynx, Tracea and Bronchi – Blood stained frooth noted. Right lung – it was partly collapsed, pale pinkish upper lobes with lower lbes firm and darck blush cutsection hearmorragic with edematous frooth noted firm to spongy at places cutsection congestion with edematous frooth noted. Left lung – it was partly collapsed pinkish upper lobes with lower lobes firm and dark bluish cutsection heamorragic with edematous frooth noted firm to spongy at places cutsection congestion with edematous frooth noted with blood in the cavity of about 150 cc. Heart – Externally areas of petechial heamorragic areas noted. The left and right ventricle aspect cutsection right side dark blood with clots noted left side empty. Abdomen – On exploration of the injury no. 1 & 6 rectus and midline muscle and peritoneum found sutured with adhesions of viscera with drain adjacent wound right lumbar region noted. SH / SGP 14 of 42 Peritoneum – stiched with surrounding reddish and inflamed. Cavity – Edematous blood stained fluid noted. Stomach blood with mucosa congestion noted. Small intestline and its contents – resection anatomosis of jejunum with contused & heamorragice intestines with adhesions to the adjacent visceral organs noted. Large intestline and its contents – contused and hearmorragic and adhesions posteriorly. Liver – Pale, slugh with adhesions right lobe, congested. Pancreas – Heamorragic body of pancreas with adhesions noted. Spleen – pale, slate grey in colur adhesions posteriorly and medially with congestion at places. Kidneys – Firm, pale cutsection congested. Organs of genration – edematous flud seen under the scrotal skin rest normal tissue.

23. According to P.W. 13 - Dr. Rokade, the probable cause of death was ‘intra abdominal operative surgery (resection anastomosis of the jejeunum) with blunt trauma upper back and chest’. He further testified that after receipt of histopathological examination and report of Chemical Analyzer, he had given the final cause of death as “septicemia in a case of Intra-abdominal operative surgery”. Accordingly, he issued the post-mortem notes SH / SGP 15 of 42 which are proved at Exhibit 139. The final cause of death is at Exhibit 140. This witness categorically deposed that the injuries mentioned in column no. 17 of the autopsy report are possible with the weapon before the court, meaning thereby, a ‘sword’. He further admits that the injury nos. 1 to 4 in column no. 17 are surgical wounds. The injuries no. 5 and 6 in column no. 17 externally appeared to be simple injuries. According to this witness, if a patient is diabetic then it can cause septicemia. As such, the evidence of this witness though prima facie seems to be not very clear as to whether the death of Ketan was homicidal or due to the pre-existing ailments and subsequent septicemia, yet we may for the time being accept that deceased Ketan died a homicidal death. However, further evidence of P.W.14 – Dr. Ms.Dakshayani Satish Nirahale, who conducted surgery on the person of deceased Ketan, falsifies that there was a direct nexus between the alleged injuries caused in the assault vis-a-vis the cause of death of the deceased.

24. The sum and substance of the evidence of P. W. 14 – Dr. Dakshayani Nirahale is that she is a Professor and qualified as M.S. (General Surgery). At the relevant time, she was attached to SH / SGP 16 of 42 D.Y. Patil Hospital. On 04.03.2010, Ketan was brought with a history of pain in the abdomen. On examination, she found that his pulse was very low and feeble. The rate was increased. His blood pressure was low. After investigation, it revealed that the patient had a blood clot in left plural cavity and in the abdomen there was hollow viscus perforation. After discussion with the relatives of the patient, he was operated in order to drain out the intercostal blood for left hemothorax and exploratory laparotomy for perforative peritonitis. Her evidence further reveals that the patient was in critical condition and, therefore, exploratory laparotomy was done under general anesthesia. Patient was kept on ventilator in surgical ICU. His health started deteriorating and was put on all supportive management. On 05.03.2010, in the morning at about 10:15 am, patient did not respond to any stimuli, pulse was not recordable and BP was not recordable, ECG was taken. No cardiac activity recorded. The pupils were dilated and fixed. He was, therefore, declared dead.

25. The evidence, however, reveals that during investigation it was noticed that the kidney functions were deranged. The patient was in septicemia which was explained to SH / SGP 17 of 42 his relatives.

26. Certain vital admissions given in cross-examination would definitely brush aside the case of the prosecution that the death of deceased Ketan was homicidal. P.W. 14 - Dr. Ms. Dakshayani Nirahale admits that deceased Ketan was chronic smoker and addicted to alcohol. When he was examined by this witness, she found that there were infections and septicemia. She admits that any impact on chest or abdomen may lead to haemorrhage. If such impact is in a road traffic accident, then it may lead to haemorrhage. According to this witness, in case of accumulation of blood in plura as has been occurred in this case, it may lead to hypertension and the patient may have breathlessness, pain in chest, decrease of oxygen level in blood. If the blood accumulation goes on increasing, lungs may collapse. This can be one of the contributory factor affecting general condition of the patient.

27. Thus, the two important witnesses who are experts in their fields and had no axe to grind against the deceased, had categorically opined that it would be very difficult to construe that SH / SGP 18 of 42 the deceased died a homicidal death. The death due to injuries sustained in a road traffic accident cannot be ruled out. The final cause of death certificate of deceased Ketan is proved at Exhibit

140.

28. So far as deceased Siddiq is concerned, P.W.11-Dr. Subhas Madne testified that he conducted autopsy on the person of the deceased Siddiq on 02.03.2010 between 6.15 and 07.15 am. He noticed the following external injuries. “(i) Sutured wound over occipital part of skull. It was obliquely directed 4 cms in length and 2 stiches.

(ii) sutured wound on the left side of buttock posterior aspect.

(iii) incised wound on right forearm, flexor aspect and was obliquely directed, 7 cms 2 cms in dimension and skin deep. The above injuries were antemortem in nature.

4. On dissection, he found the following injury.

(i) Sutured contused occipital skull, with correspond to injury No. 1 of col. no. 17. There was no any fracture detected to skull. Dura was intact. Cerebellum and brain stain were congested. Pontine haemotama was present.. Accordingly, he issued Autopsy Report, which is at SH / SGP 19 of 42

29. P.W.11 – Dr. Subhas Madne testified that after receiving the reports of histopathological examination and Chemical Analyzer, he issued the final cause of death certificate. According to him, the cause of death is ‘death due to head injury’. However, he further clarified that injury nos. 1 and 2 mentioned in column no. 17 cannot be caused by the type of weapon which was shown to him i.e. sword. However, he opined that it was a homicidal death.

30. Let us say that this was a homicidal death caused due to the sword like weapon, however, it will have to be seen whether the appellants were the authors of those injuries and whether the prosecution has established beyond doubt that it was none other than these four appellants who had a direct nexus in the assault and resultant death of deceased Siddiq?

31. Before going to that, it would be interesting to go through the cross-examination of P.W.11 – Dr. Subhas Madne. He admits that he cannot categorically opine whether injuries no. 1 and 2 mentioned in column no. 17 of the post-mortem report can be caused by a muddemal article nos. 19 and 20 i.e. swords, which SH / SGP 20 of 42 were shown to him. However, he admits that the injury no. 3 i.e. the incised wound on right forearm adm. 7 cm x 2 cm can be caused by swords. He testified that there was a doubt whether the deceased had consumed liquor/alcohol and, therefore, his blood was sent for chemical analysis. Since the mucosa was congested, he testified that there was a possibility of consumption of alcohol before death. He further admits that he cannot opine whether the injuries described in the post-mortem report could be said to be fatal in nature and were sufficient to cause death in ordinary course of nature. According to this witness, at the time of issuing autopsy notes as well as final cause of death certificate, he did not opine that the injuries in column no. 17 are possible by blunt and sharp side of the weapons which were referred to him when he was in the witness box. He further corroborated the testimony of earlier Medical Officer that in view of the OPD case papers, there was a history of road traffic accident. Injury like CLW and incised wound on the person of Siddiq could have been caused in the road traffic accident. This witness had been cross-examined extensively by the defence on the aspect of injuries mentioned in column NO. 17 vis-a-vis the weapon alleged to have been used in causing those injuries. He categorically admits that injury nos. 1, 2 and 3 were SH / SGP 21 of 42 not fatal as at the time of admission of the patient, he was conscious and well oriented.

32. Having considered the over all evidence of medical experts, it is quite apparent that deceased Ketan did not die a homicidal death, much less, a homicide alleged to have been committed by the appellants which would be discerned from other evidence on the record. However, the death of Siddiq could have been a homicidal one, of course coupled with several other factors as already discussed herein above.

33. Turning to the star witness of the prosecution and the first informant P.W. 1 – Narsingh Chavan to ascertain, whether his evidence can be accepted as a truthful version of entire incident and whether implicit reliance can be placed upon his testimony?

34. Indubitably, P.W.[1] – Narsingh was a friend of both deceased Ketan and Siddiq. According to him, on 01.03.2010, around 07:00 p.m., he accompanied deceased Siddiq and Ketan to the Chinese cart of one Mr. Ravi. It was a day of Holi festival. The trio had decided to have some snacks at the Chinese food centre of SH / SGP 22 of 42 one Mr. Ravi. They went there together and placed an order. However, at 08:30 p.m., when they were about to start eating the snacks, 7 to 8 persons suddenly came over there and started kicking the tables and throwing the plates. When deceased Ketan asked those persons about their conduct, they picked up quarrel with Ketan. Owner of the Chinese cart, namely Ravi intervened and the boys left the spot. After sometime, all of them returned, however, at this time four of them were armed with swords. They started beating Ketan on his chest with stones. They gave blow on the back of deceased Ketan. When deceased Siddiq went for the rescue of Ketan, he too was assaulted by means of swords over his head, hand and hips. Rest of the assailants were beating Siddiq and Ketan with fist blows. The evidence further reveals that one Harjitsingh also came for the rescue of the Siddiq and Ketan, who was sitting on the another table. In the melee, Harjitsingh too sustained injuries to his hand when he tried to rescue Ketan and Siddiq. Thereafter, all of them ran away. Admittedly, P.W.1- Narsingh Chavan already knew accused Ganesh Jadhav. He did not know rest of the accused. His evidence further reveals that thereafter he took both Siddiq and Ketan to Mayur Hospital and thereafter to the YCM Hospital. According to this witness, there SH / SGP 23 of 42 was no facility of Intensive Care Unit (ICU) at YCM Hospital and, therefore, Siddiq was taken to Birla Hospital. However, he was declared dead on the gate of Birla Hospital. He was again brought back to YCM Hospital. This witness thereafter went to Dehu Road Police Station to lodge a report at about 01:30 a.m. The FIR is proved at Exhibit 62 dated 02.03.2010. P.W.1-Narsingh admits that the printed proforma of the FIR does not bear his signature. His evidence further reveals that on the following day he was called by the police at the spot of the incident from where a footwear of the deceased Siddiq Akarte was seized and the Investigating Officer had drawn a spot panchanama, etc.

35. There are several reasons to disbelieve the testimony of this witness on certain vital aspects, for, his conduct as well as some of his admissions in cross renders his testimony doubtful. Before adverting to the very lengthy and elaborated crossexamination, we would like to mention that the learned trial Court had not controlled the cross-examination and permitted the defence to put several irrelevant and inadmissible questions thereby unnecessarily wasting the valuable time of the court. A trial Judge is not simply a recording machine but he should have SH / SGP 24 of 42 over all control over the cross-examination, albeit keeping in mind the right of the defence to cross-examine the witnesses within the four corners of law of evidence. Be that as it may.

36. As already stated, P.W.1-Narsingh cannot be said to be a wholly truthful witness. The first and foremost aspect which would render the testimony of P.W.1-Narsingh unacceptable as, according to him, the accused were not armed with weapons when they first arrived at the scene. However, he did not state this material fact in his complaint. He even did not state that the accused again returned back with weapons in their hands. He admits that four of the accused were armed with swords and started assaulting deceased Ketan. He further admits that he was sitting in the opposite direction of deceased Ketan and deceased Siddiq was sitting by the side of Ketan. As already discussed in the evidence of the medical experts, it is apparent that there are very few injuries on the person of both the deceased which rules out the possibility of they having been assaulted by four persons armed with swords by each of them, indiscriminately. Except accused Ganesh Jadhav, P.W.1-Narsingh did not state in particular as to which accused had dealt blows on the person of deceased Ketan SH / SGP 25 of 42 and Siddiq. He also testified that one of the accused had beaten deceased Ketan with stone. No doubt, it is difficult to describe in minute details about the blows alleged to have been inflicted upon the deceased by each of the accused, nevertheless, the conduct of this witness to remain a silent spectator itself renders his testimony doubtful and so also about his presence on the spot. He called brother of deceased Siddiq, namely, Javed by his mobile phone bearing no. 9921030720 only after the assault and escape of the assailants. The prosecution has not examined the said Javed, brother of deceased Siddiq, in order to substantiate the fact as to whether he was, in fact, called by P.W. 1-Narsingh, who would have corroborated the fact that P.W.1-Narsingh was present on the spot. By not examining the said Javed, adverse inference can be drawn against the prosecution for suppressing this material evidence. The Investigating Officer could have obtained CDR of Cell No. 9921030720 of P.W.1-Narsingh as well as tower location to establish the facts that, in fact, he did call Javed and his location was at the Chinese Food Cart. No such efforts appeared to have been taken.

37. P.W. 1-Narsingh testified that he along with Javed took both the accused first to Mayur Hospital and thereafter to YCM SH / SGP 26 of 42 hospital. Surprisingly, though both the deceased were profusely bleeding, there is no drop of blood or stains seen on the clothes of this witness. He admits that his clothes were not stained with blood nor did the police seize his clothes. On the aspect as to whether he really accompanied the deceased to the hospital, there is also a contradiction in the sense that according to PW.12-Dr. Abhijeet Lokhande, one Sijoy Thomas had brought both the deceased Ketan and Siddiq to the hospital and not by P.W.1- Narsingh. P.W.12 – Dr. Abhijeet Lokhande has no reason to falsely depose as regards the person who had brought both the deceased to the hospital. It would necessarily mean that this witness either is lying on that aspect or he did not accompany both the deceased to the hospital along with Javed. The prosecution even did not examine the said Sijoy Thomas, who would have been the best witness to depose whether he had brought both the deceased to the hospital. It is pertinent to note that the person by name Sijoy Thomas, who is said to have taken both the deceased to the YCM hospital, was not examined by the prosecution even though he also acted as a panch witness to the inquest panchanama of the deceased Siddiq. Why his evidence has been withheld by the prosecution? An adverse inference under Section 114(g) of the SH / SGP 27 of 42 Evidence Act is required to be drawn against the prosecution. According to P.W.[1] – Narsingh, along with Javed and one Atish Bhalsing both the deceased were taken to YCM hospital. Except this witness, no one had whispered about the presence of one Atish Bhalsing nor the prosecution examined the said Mr. Atish Bhalsing. P.W.1-Narsingh admits that he did not remember whether he had correctly told his name to the police as Narsingh Ramlal Chavan at YCM hospital. It is difficult to believe this witness as to how a person would not tell his correct name. P.W.1- Narsingh categorically admits that there is police booth in Y.C.M. hospital. If he had carried deceased Siddiq and Ketan to the hospital after the alleged assault, why his name has not been entered in the register maintained at the police booth or even for that matter, in the casualty of Y.C.M. hospital? It sounds incredible that the police personnel present in the police booth as well as the casualty Medical Officer failed to obtain the signature of P.W.1- Narsingh or record his name as a person bringing the deceased in the hospital for the first time after the incident. He also feigned ignorance as to whether the Doctor at Y.C.M. hospital had enquired with deceased Siddiq and Ketan as to how they sustained injuries. This necessarily means that he did not carry deceased SH / SGP 28 of 42 Siddiq and Ketan to the hospital but, perhaps it was the said Sijoy Thomas as, it has been unequivocally testified by P.W.12 - Dr.Abhijeet Lokhande. This also creates a doubt about the authenticity of his testimony.

38. A useful reliance has been placed upon an authority of the Supreme Court in the case of Bhimapa Chandappa Hosamani and others Versus State of Karnataka reported in (2006) 11 SCC 323, on the aspect of evidentiary value of a solitary witness. Here in the case in hand, P.W.[1] – Narsingh is the solitary witness of the prosecution. Though P.W.[2] - Harjitsingh was also examined, however, he could not identify any of the accused during trial. So, practically P.W.[1] - Narsingh is the only eye-witness. It has been held by the Supreme Court that though conviction can be based on a sole testimony of single witness but, while doing so, the court must be satisfied that his testimony is of such a sterling quality that the court finds it safe to base a conviction solely on that. Credibility of such a witness is to be tested by reference to the quality of his evidence, which must be free from any blemish or suspicion. It also must impress the court as wholly truthful. It should also appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on that basis. SH / SGP 29 of 42

39. Viewed from this angle, by no stretch of imagination, testimony of P.W.1-Narsingh is of such a sterling nature which can be relied upon. In view of material inconsistencies, contradictions and the falsity of his evidence of carrying the deceased to the hospital would not render his testimony natural. The ratio is, therefore, can be made applicable in the given set of facts. To rely upon the testimony of this witness would tantamout to miscarriage of criminal justice. If Ravi – the Chinese Cart owner was the first person to pacify the quarrel amongst the assailants, he also could have been the best witness not only to confirm the identification of the appellants as well as the rest of the accused but also to testify about the alleged assault. Non-examination of Ravi would also hit the prosecution story very badly. Adverse inference in that regard is also required to be drawn against the prosecution as to why his evidence was withheld. It is not the case of the prosecution that presence of Ravi could not have been procured during trial.

40. There is one more glaring aspect. P.W.1-Narsingh admits that there is a whitener put on his signature on the FIR. Prosecution has not clarified as to why there was a whitener put SH / SGP 30 of 42 over the signature of P.W.1-Narsingh. It is the defence of the accused/appellants that the FIR was antedated and, therefore, there was interpolation over it which renders the prosecution case doubtful. He admits that his clothes were not stained with blood while taking Siddiq and Ketan to the hospital. Interestingly, at one place during cross-examination, P.W.1-Narsingh testified that he tried to intervene in the quarrel, however, he did not receive a single scratch nor he was assaulted by anyone in the said episode. This is something strange which no sane man will believe. If more than four persons were assaulting the deceased in which even P.W.2-Harjitsingh sustained injuries, how come this witness escaped from receiving a single scratch on his person and why the assailants had spared him?

41. The aforesaid factors indeed reduces the probative value of the evidence of P.W.1-Narsingh and also creates a reasonable doubt as to whether he was present on the spot. P.W.1- Narsingh claims that he knew P.W.2-Harjitsingh for several years, however, P.W.2-Harjitsingh is silent whether P.W.1-Narsingh was present on the spot of the incident. The conduct of P.W.[1] is highly unnatural. If P.W.1-Narsing already knew Ganesh Jadhav, then SH / SGP 31 of 42 why the prosecution had conducted a Test Identification Parade (for short “TI Parade”) qua accused Ganesh Jadhav by asking P.W.[1] to identify the assailants. The TI Parade itself appears to be a farce and nothing else. It is because accused Ganesh Jadhav was arrested on 02.03.2010, accused Riyaz was arrested on 03.03.2010 and accused Chandrabhan was arrested on 06.03.2010. It necessarily means that all these accused were in custody of the police. The TI parade was held on 01.07.2010 i.e. almost after four months. There is no plausible explanation given by the prosecution for such an inordinate delay in conducting the alleged TI parade. The incident had occurred during night hours on the occasion of Holi festival. The learned counsel for the appellants has, therefore, rightly relied on a judgment in the case of Hari Nath And Anr. Vs State of U.P. reported in (1988) 1 SCC 14. The ratio laid down by the Hon’ble Apex Court that the evidentiary value of TI parade is only corroborative in nature. It is only for the purpose to ensure that the investigation is being conducted in the right direction. For admissibility of such evidence, the accused should be unknown to the prosecution witness before the TI parade is conducted. It is also observed that TI parade should be held with reasonable promptitude after the occurrence. Here is SH / SGP 32 of 42 the case where the prime accused was already known to P.W.1- Narsingh and, therefore, the TI parade was just a farce. As regards rest of the accused, there is no explanation by the prosecution for such a long delay and, therefore, that itself renders the prosecution case unworthy of credit. The evidence on that aspect is unreliable.

42. P.W.1-Narsingh, in his evidence, admits that he had been to Yerwada Central Prison for TI parade on 05.05.2010, however, on that day TI parade was not held nor there is any explanation tendered by the prosecution. Had there been a TI parade just within 3-4 days of the incident, there would have been some substance in the same. From letter Exhibit 169, dated 03.05.2010, produced by the prosecution, it appears that the TI parade was to be held on 04.05.2010. If it was so, why the parade was not conducted either on 04.05.2010 or 05.05.2010? It seems that the prosecution has tried to suppress genesis of the crime as well as evidence as regards the identification of the real assailants. There is no evidence that before conducting the TI parade there was no occasion for any of the identifying witnesses to see the suspects. The prosecution did not examine Executive Magistrate who alleged to have conducted the TI parade. That also is the SH / SGP 33 of 42 reason to discard the evidence as regards the TI parade. The Investigating Officer (P.W.18 – P.I. Gokave) was not the proper witness to prove the memorandum of TI parade. P.W.1-Narsingh identified accused Jaiswar and appellant Amol Khalage as the persons assaulting the deceased with swords. However, no sword came to be recovered at the instance of appellant - Amol Khalage. A sword is alleged to have been recovered at the instance of acquitted accused Sagar Potbhare. Sagar was not identified by P.W.1-Narsingh. Thus, evidence of P.W.1-Narsingh is shaky, unbelievable and unacceptable on the vital aspect of identification of present appellants.

43. The learned counsel has placed reliance on a judgment of the Division Bench of the Bombay High Court in the case of Prakash @ Buddha Ramchandra Shinde vs The State of Maharashtra (Criminal Appeal No. 753 of 2014 and two other connected appeals), wherein it has been observed in paragraph nos. 16 and 17 that non-examination of the Special Executive Magistrate, who had conducted the TI parade, would be fatal to the prosecution case. “16. In the substantive evidence, both the witnesses have not deposed before the Court in respect of the contents of Exh.

115. It is admitted position that the actual assailants were SH / SGP 34 of 42 unknown to P.W. 2 Swapnil, the complainant. In view of this, it is the case of the prosecution that test identification parade was conducted in which the complainant had identified the actual assailants and driver of the motorcycle. It would therefore be incumbent upon the prosecution to establish that P.W. 2 had indeed identified the accused persons. It is pertinent to note that the prosecution has not examined Special Executive Magistrate who had conducted test identification parade, but instead has examined P.W. 9 Pandit Rokade and P.W. 3 Suresh Bhat.

17. The Prosecution has examined P.W. 9 Pandit Rokade as a panch for test identification parade conducted in the office of the Tahasildar. No reason is assigned by the prosecution for not examining Special Executive Magistrate who had conducted test identification parade. According to P.W. 9, P.W. 2 Swapnil had identified Prakash Shinde accused NO. 1. Test identification parade is marked at Exh. 124. It is elicited in the cross-examination that the first room of the Tahasildar office is used by Mr. Padole, P.I. of Crime Branch i.e. Investigating Officer in the present case and the second part is in the use of police station and third part is in the use of Tahasildar. It is pertinent to note that there is categorical admission of P.W. 9 that the people who were invited to act as dummies were standing in a row when he had gone to bring the accused. The witness P.W. 2 was already present when the dummies arrived. It was therefore, easy for the witness to identify the accused who was purportedly brought under a veil since the witness has already seen the dummies. In fact, the topography of the office would show that the office of the Tahasildar is adjacent to the police station and there was single entry. It is stated in the cross-examination that two witnesses had arrived for participating in test identification parade. It is not true to suggest that five witnesses had arrived for participating in the parade.”

44. P.W.2-Harjitsing Charansing Barda is a chance witness. On the day of incident, he was present at the Chinese food centre. He noticed the assailants mounting attacks upon deceased Ketan and Siddiq. According to him, there were 7 to 8 boys who had a scuffle amongst themselves. He does not say that they assaulted SH / SGP 35 of 42 deceased Ketan and Siddiq or quarreled with them. The owner of the Chinese centre pacified the quarrel and the boys left the stall. However, they returned again with four of them armed with swords. One of the boys had dealt a blow of sword on the person of a boy sitting over there. The colleagues of that person were also being assaulted who tried to save him. This witness also attempted to rescue the injured out of humanity but sustained injury to the finger of his left hand by means of a sword. According to him, both the injured were lying over there and thereafter the assailants escaped from the spot. Later on, this witness came to know that one of the injured namely Siddiq was brother of one Javed. It is pertinent to note, as already stated, the prosecution has not examined the said Javed for the reasons best known to it. According to P.W.[2] – Harjitsing Barda, it was Javed who had carried both the injured to Y.C.M. hospital and not P.W.1-Narsingh Chavan, who claims that he had shifted the injured to the hospital, however, P.W.12-Dr. Abhijeet Lokhande falsified both these witnesses by stating that one Sijoy Thomas had brought the injured to the hospital. These aspects indeed go to the root of the prosecution case. SH / SGP 36 of 42

45. Unfortunately, P.W.2-Harjitsing could not identify any of the assailants during the trial and, therefore, his evidence is of hardly any assistance in establishing the identity of the assailants. In his cross-examination, P.W.2-Harjitsing admits that when he reached the stall he did not see the quarrel between those boys but what he noticed was that the chairs and plates were scattered. It appears that he had witnessed the second assault by means of weapons but, he is not in a position to identify any of the assailants. The evidence of this witness is, therefore, hardly of any assistance to the prosecution to prove that those were appellants and none other who had assaulted the deceased.

46. It is needless to go into the evidence as regards discovery of swords and clothes under Section 27 of the Evidence Act qua appellants-Ganesh and Chandrabhan for the simple reason that the evidence does not even remotely connect the appellants with the crime in question. There is no CA report on record indicating as to whether the blood over the swords which alleged to have been recovered was of deceased Ketan or deceased Siddiq. Even the medical evidence, as already discussed herein above, does not completely rule out the possibility of the injuries due to a SH / SGP 37 of 42 road traffic accident. It could either be a case of homicidal death or road traffic accident. The prosecution, cannot take diametrically opposite stand, for, that would destroy it’s case. The prosecution has relied upon the evidence of Doctors who said its a case of road traffic accident and also took a stand that it is a case of assault resulting into homicidal deaths. Entire edifice of the prosecution case has been collapsed due to such stand.

47. It is apparent from the record that the seized muddemal was sent to the Chemical Analyzer, belatedly, on 29.03.2010. No explanation has been given by the prosecution as to why such an inordinate delay had caused. There is no evidence that the muddemal remained with the Police Malkhana in a properly sealed condition and it reached to the office of the Chemical Analyzer in a sealed condition. The appellants have placed reliance on a judgment in the case of Ramdas Baban Marne v. State of Maharashtra reported in AIROnline 2020 Bom 3063. In the said judgment by giving reference of a decision of this Court in the case of Deoraj Deju Suvarna v. State of Maharashtra reported in 1994 Cri LJ 3602, it is held that not only should the prosecution SH / SGP 38 of 42 adduce evidence that after seizure, the articles were sealed but should also lead link evidence to the effect that till being sent to the Chemical Analyzer, they were kept throughout in a sealed condition. This is done to eliminate the suspicion that blood might not have been put on the articles subsequent to the recovery and prior to being sent to the Chemical Analyst. The ratio is squarely applicable herein.

48. The Chemical Analyzer’s reports are not at all useful for the prosecution as the blood groups on the entire muddemal was termed as ‘inconclusive’. Thus, the prosecution evidence insofar as it relates to the alleged recoveries and alleged seizures, does not support it’s case. No sword came to be recovered at the instance of appellant – Riyaz, either under Section 27 or under any other panchanama.

49. There is one more reason to disbelieve the prosecution on the count that deceased Ketan died a homicidal death. Apart from the medical evidence discussed herein above, prosecution has examined P.W.10-Chetan Manik Bansode who is the real brother of deceased Ketan. His evidence is of hearsay nature, in the sense, he SH / SGP 39 of 42 was not an eye-witness. He testified about what had been narrated to him by P.W.1-Narsingh. He testified that the deceased Ketan was discharged on the next day morning. However, he had again suffered pains and, therefore, he was brought back to the hospital on the same day. He was again discharged on 02.03.2010 at 07:00 am. The police came to their house and recorded his statement. On 04.03.2010, Ketan again started feeling pains and, therefore, cousin of P.W.10-Chetan Bansode admitted Ketan in the D. Y. Patil hospital. However, on 05.03.2010, he died at 10:15 a.m. The statement so recorded by the police on 02.03.2010 cannot be said to be an oral dying declaration as it is hit by Section 32(1) of the Evidence Act. It is not the case of the prosecution that the said statement was recorded when Ketan was in expectation of death. It is the settled position of law that an oral dying declaration is inherently a weak piece of evidence and hence, implicit reliance cannot be placed upon the same. This Court has held about the same in a judgment delivered in the case of Ramdas Baban Marne (supra). Paragraph nos. 31 and 32 is extracted herein below. “31. No doubt that a conviction can be recorded on the basis of the oral dyng declaration provided, it is truthful and inspires confidence of the Court. In the present case, corroboration would be necessary after taking into consideration the nature of the injuries, coupled with the fact as to whether the SH / SGP 40 of 42 injured was conscious and fit to make a statement of P.W.2, when she reached there.

32. Learned Counsel for the appellant has placed reliance upon the Judgment of this Court in the case of Milind Ramchandra Gharat reported in 2015 (1) Bom. C. R. (Cri.) 724. However, in the said case, the scribe of the dying declaration had not written the exact words in which the deceased had narrated the incident. The contents of the dying declaration were not proved and therefore, in the facts of that case, the Court has held that - ‘Apart from that, an oral dying declaration is primarily a weak piece of evidence and unless the Court finds that implicit reliance can be placed on the evidence relating to oral dying declaration, no conviction can be based on the oral dying declaration.’”

50. Admittedly, deceased Ketan had died four days after the alleged statement made to P.W.10-Chetan Bansode. Meanwhile he was discharged thrice from the hospital. If the Investigating Officer had a reasonable apprehension that the condition of deceased Ketan was so precarious that he could succumb to the injuries, why the Investigating Officer did not make any attempt to summon Executive Magistrate for recording the dying declaration of deceased Ketan?

51. The learned trial Court has not only committed errors in law and fact but also misinterpreted the evidence of the prosecution witnesses and reached an erroneous conclusion that the prosecution has proved the case beyond all reasonable doubts. SH / SGP 41 of 42 The impugned Judgment is full of surmises and conjectures. It is the settled principle of Criminal Jurisprudence that the prosecution must stand and fall on it’s own legs. It cannot derive any assistance from the defence in proving the guilt beyond reasonable doubt. The impugned Judgment and Order, therefore, warrants interference in appeal. Consequently, following order is expedient.

ORDER [i] Criminal Appeals are allowed. [ii] The impugned Judgment and Order dated 02.12.2015 passed by the learned Addl. Sessions Judge, Pune, is quashed and set aside. [iii] The appellants are acquitted of the offences with which they were charged. [iv] Their bail bonds stand cancelled. [v] Fine amount, if paid, be refunded to the appellants. [vi] The order as regards disposal of the muddemal property, is maintained. [ PRITHVIRAJ K. CHAVAN ] [ SMT.

SADHANA S. JADHAV ] JUDGE JUDGE SH / SGP 42 of 42