The main legal point established in the judgment is the requirement for reliable evidence, proper identification procedures, and the significance of the scene of the offense in reaching a decision.

JUDGMENT :

Sadhana S. Jadhav, J.

1. The appellants are convicted for the offence punishable under section 341, 397, 302 read with section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/- each i.d. to suffer further R.I. for 30 days by the learned Sessions Judge, Gr. Bombay vide Judgment and Order dated 2nd February, 2012 in Sessions Case No. 440 of 2010. Hence, this appeal.

2. Such of the facts necessary for decision of these appeals are as follows:

(i) On 27/3/2010, one Mahendra Morya lodged a report at the police station alleging therein that he works as a wireman at Chembur. While returning home, he has to take bus from Ghatkopar to Oshiwara. On 26/3/2010, he reached Oshiwara at about 9.45 p.m. He wanted to answer nature’s call, but found the toilet locked. He therefore, went behind the toilet on the open ground. There were two more persons standing there.

(ii) He saw 3 persons coming from the right side. One of them was armed with wooden plank. The other two persons dragged him into darkness. He could not rescue himself. He was hit on his head by wooden plank.

(iii) The other two persons tried to rescue him. One of them was Sachin who was assaulted by those three persons. The said miscreants snatched the cell phone and wrist watch of the complainant. They also assaulted other persons present there. Someone at the bus stop had called the police. All the 3 injured were taken to Cooper hospital.

(iv) The police had learnt that the other 2 injured were Sachin Nandgavale and Arun Yadav. Sachin had succumbed to the injuries.

On the basis of his report, Crime No. 111 of 2010 was registered at Oshiwara Police Station for offence punishable under section 302, 397 read with 34 of the Indian Penal Code against unknown persons. In the course of investigation, accused Sunil Kharwar and Prasad Jadhav were arrested on 27/3/2010. The third accused happens to be a juvenile in conflict with law.

3. At the trial, the prosecution examined as many as 25 witnesses to bring home the guilt of the accused. Since this is a case of direct evidence, it would be necessary to scrutinize the oral testimony of the complainant and the eye witnesses. P.W. 1 Mahendra Morya is the complainant. P.W.11 Pappu Shaikh is an eye witness and P.W. 15 Arun Yadav happens to be the injured eye witness.

4. P.W.1 Mahendra Morya has deposed in consonance with his first information report. According to him, his narration has been rightly recorded in the FIR, which is marked at Exh. 18. The complainant had stated that his cell phone was also snatched from him. He had given the description of his black coloured Nokia 5030 handset. On 22nd April, 2010, he had been to Arthur Road Jail for test identification parade. He had identified the accused persons and mentioned the role played by each of them. He has denied the proposition that there is no possibility of noticing the incident behind wall when he was at bus stop or in the toilet. There is a clear admission that he had gone to answer nature’s call behind the wall. It is admitted that the height of the wall is little more than his height and his height is 5 ft. He further admitted that there is a distance of about 10 ft. between the bus stop and the door of the toilet. In any case, neither the accused nor the deceased and the witnesses had used the toilet. The witness has further stated that he was assaulted by wooden plank on his head and he fell down on the same place, but within 10 to 15 minutes he reached the road and had spoken to unknown person who did not accompany him in the hospital. He did not know the names of the assailants when he was taken to the hospital. He was discharged on 4th day, but he had not reported to the police station.

The police had sent a letter to him to which he responded by going to the police station. There are material omissions in the evidence of P.W. 1.

5. On being confronted by his previous statement, it is admitted that he had not disclosed t