1997(4) Crimes 86 (SC)
SUPREME COURT OF INDIA
(From Bombay High Court)
M.K. Mukherjee and K.T. Thomas, JJ.
Raju @ Rajendra etc -Appellants.
Versus
State of Maharashtra -Respondent
Criminal Appeal No. 683 of 1991
With
Criminal Appeal No. 695 of 1997
 Decided on 22-10-1997
Counsel for the Parties:
For the Appellants: Uday Umesh Lalit and Ms. K. Sharda Devi Advocates.
For the Respondent: S.M. Jadhav, Advocate.

Headnote:Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Section 2-lndian Penal Code, 1860-Section 302/34Appeals against conviction-High Court had set aside acquittal of A1 and A2 for offence under Section 302/34-Prosecution relied upon ocular evidence of PW4 and PWI2 its corroboration by medical evidence and recoveries of blood stained weapons and c1othes-PW4 and PW12 being chance witnesses-Claim of two witnesses that they had seen the incident not disputed-Incident took place on a public road-A1 was known to both of them before. Their identification of Al as one of the two miscreants who assaulted deceased with a stone-Reliable Identification of A2 by witnesses for first time in Court after 11/2years Cannot be relied upon-A2 held entitled to benefit of doubt-Conviction of Al affirmed.

       Held that the disinclination of the trial Court to accepl the evidence of the two eye witnesses and for that matter the entire prosecution case was not proper. Raju Balwe (P.W.4) testified that on the day in question he went to the shop of Gulab Ahuja (P.W.I2) on Station Road at or about 6 P.M. as he wanted to buy some earthen pots Accompanied by him they proceeded on a scooter along Rashtrabhasha Road to go to Hind Nagar for the purpose. On the way they saw a number of people present near the Ganesh temple. The alighted from the scooter and found A- 2 beating Ramkrishna with a hockey stick; and after he fell down A-1 picking up a big stone from a nearby heap and dropping it on the leg of the victim. When Ramkrishna raised cries they brought a rickshaw and after putting him in it dragged the rickshaw upto some distance towards the Railway Station. The other eyewitness namely P.W.I2 fully corroborated the above testimony of P.W.4 Both these witnesses were cross examined at length but nothing could be elicited in cross examination to discredit their claim that they had seen the assault. (Para 6)

       The other criticism levelled by the trial Court that they were chance witnesses is also wholly unmerited for in respect of an incident that takes place on a public road, the passers-by would be the best witnesses We have therefore, no hesitation in concluding that the claim of the above two witnesses that they had seen the incident cannot be disputed at all (Para 6)

       So far as the identification of A-I is concerned we find that he (A-I) was known to both of them from before. In such circumstances their identification of A-I as one of the two miscreants who assaulted the deceased with a stone cannot be questioned. (Para 7)

       In absence of any T.I parade held for identification of A-2 immediately after his arrest, we find it difficult to solely rely upon the identification of A-2 by the witnesses for the first time in Court and that too after a lapse of almost one and half years after the incident. (Para 8)

       Result: Ordered accordingly. Appea: filed by Al dismissed. Conviction of A2 set aside.