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2011 Supreme(Bom) 461
In the High Court of Bombay at Nagpur
A.H. JOSHI, U.V. BAKRE, JJ.
Vijay son of Nanaji Ramtekkar & Others
Versus
State of Maharashtra
Criminal Appeal No.35 of 2005 With Criminal Appeal No.74 of 2005 With Criminal Appeal No.94 of 2005
Decided on : 20-04-2011
For the Appellants:V.M. Deshpande, Anil Mardikar, R.M. Daga, Advocates.
For the Respondent: Mrs. B.P. Maldhure, Additional Public Prosecutor.
Headnote:Evidence Act, 1872 - Section 3 - IPC, Section 302 - Appreciation of evidence.
In case of a homicidal death, where deceased sustained more than 33 injuries, it would be impossible to expect from witnesses that role of each individual accused who caused such large number of injuries could be retrieved and reproduced with finest precision.
Evidence Act, 1872 - Section 11 - Plea of alibi .
A party, who pleads alibi, shoulders burden on its own to prove sure probability that accused was not present at scene of offence being present elsewhere. - In a present case a party, who pleads alibi, shoulders the burden of opening mouth. An accused is never under obligation to set up and define the defence. The task of the accused person is to exert to demolish the worthiness of the prosecution witnesses or create suspicion about their truthfulness and correctness, to enable him to persuade the Court that the prosecution has failed to prove its case fully and beyond the shadow of reasonable doubt.
The party pleading alibi undertakes on its own shoulders to prove the sure probability that the accused was not present at the scene of offence being present elsewhere.
In the present case, the accused have chosen to take the said plea of alibi, however, the Court has to record that even if every word of the defence witnesses is considered to be a gospel truth, even then accused have failed to prove that they were present at some other place than the scene of offence.
Thus, these accused can navigate outside the scene of offence only if the prosecution fails to prove their presence and specific acts, and not because of the defence taken by them.
[Indian] Penal Code, 1860 - Sections 149 and 302 - Common object.
Conclusion as to common object is always to be derived from circumstances as obtaining and as brought on record. - In the background of fact of homicidal death on account of assault by a violent mob of group of five persons who was unanimous in act of assault, evidence of prior meeting of minds is not required, if the conduct of accused persons is such that it in itself proves a common object and no separate evidence is required. Conclusion as to common object is always to be derived from the circumstances as obtaining and as brought on record.
[A.H. Joshi, J.]
1. These three Criminal Appeals are preferred by different accused persons, who were tried in Sessions Trial No. 64 of 2003 for commission of offence punishable under Section/s:-
[a] 147 and 148 of Indian Penal Code for forming an unlawful assembly with a common object of rioting, using deadly weapons to cause death of Satya alias Satyawan on 13th November, 2002 at about 10.15 p.m.;
[b] 149 of Indian Penal Code for causing hurt to Baban Khobragade, Satya, Sunita and son-in-law of complainant Baban Khobragade by sword, sticks and Gupti in prosecution of the common object;
[c] 324 of Indian Penal Code, for voluntarily causing hurt to Satya, complainant-Baban Khobragade, Kalpana and son-in-law of complainant-Baban by sword, Gupti and sticks;
[d] 302 of Indian Penal Code for intentionally and knowingly causing death of Satya by sword, Gupti and sticks;
[e] 4 of the Arms Act punishable under Section 25 of the said Act, for possessing weapons; and,
[f] 135 of the Bombay Police Act for contravening proclamation under Section 37 of the Bombay Police Act.
2. The learned Sessions Judge convicted all accused persons and sentenced them to suffer:-
[a] Life Imprisonment and to pay a fine of Rs.1000/- each, in default, to suffer Simple Imprisonment for two months each, for offence punishable under Section 302 read with Section 149 of Indian Penal Code;
[b] Rigorous Imprisonment for one year each for offence punishable under Sections 147 and 148 of Indian Penal Code;
[c] Simple Imprisonment for six months each and to pay a fine of Rs.500/- each, in default, to suffer Simple Imprisonment for one month each for offence punishable under Section 324 read with Section 149 of Indian Penal Code.
3. All accused have been acquitted of the charge of offence punishable under Section 4 read with Section 25 of the Arms Act and Section 135 of the Bombay Police Act.
4. In the trial, the prosecution has examined following witnesses:-
1. PW 1 – Baban Khobragade. : Elder brother of deceased Satyawan who lodged FIR and eye-witness injured in the incident.
2. PW 2 – Suresh Belpande : Eye-witnesses of the incident
3. PW 3 - Sau. Sunita Dahikar : who have received injuries during the assault.
4. PW 4 - Venubai Khobragade : Eye witnesses of the incident.
5. PW 5 - Priyanka Khobragade :
6. PW 13 - Annu Patel : Panch of the arrest and seizure of clothes of accused persons.
7. PW 15 - Rajesh Samarth : Panch of the Seizure of stones and coins from the spot.
8. PW 12 - Dr.Prashant Barve: Medical witness who examined and treated injured.
9. PW 14 - Dr. Rajesh Bardale : Medical witness who conducted autopsy of dead body of Satyawan.
10. PW 9 – Devendra Patil : Police Sub-Inspector, who conducted investigation.
11. PW 17 - Iqbal Sayyad : Police Inspector, under whose supervision and guidance investigations were conducted.
5. Following witnesses have turned hostile:-
1. PW 7 - Indu Dharmik : Eye-witness.
2. PW 6 - Nandlal Waghdhare : Panch of seizure of clothes of deceased.
3. PW 10 - Vijay Atkar : Panch of the Spot Panchanama.
4. PW 11 - Vinod Moundekar : Panchas of the Inquest Panchanama.
5. PW 18 - Rajesh Gour :
6. PW 16 – Jitendra Shetey : Panch of the Disclosure Memorandum & recovery of weapons from accused no.1.
6. Accused Nos. 1 to 3 raised the plea partly of denial and partly that of self-defence, in the background that the wife of Accused No.1 had lodged a counter-case against the complainant and his family members, in respect of which the FIR was registered, crime was investigated and upon filing of charge-sheet against PW 1 - Shri Baban Khobragade in present case and Satyawan Khobragade, they were tried in Regular Criminal Case No. 3 of 2003. Said counter-case was tried separately before the same Judge and has been decided on the same date when the Judgment of conviction in present case was rendered. Accused Nos. 4 and 5 raised the plea of alibi.
7. The learned Sessions Judge recorded a finding in favour of accused
