Oral Judgment:
Urmila Joshi Phalke, J.
1. By this Appeal, the Appellant has challenged the judgment and order of sentence dated 14.02.2023 passed by the Additional Sessions Judge, Akola in Sessions Trial No. 163/2019 by which the accused is convicted of the offence punishable under Section 302 of the Indian Penal Code (for short “IPC”) and sentence to suffer imprisonment for life and a fine of Rs. 10,000/-, in default of fine to suffer simple imprisonment for three months.
2. Brief facts which are necessary for the disposal of the present Appeal are as under:
2(i). One unidentified man was sleeping on a bench on a railway platform at Akola. At around 09.40 a.m., the accused went near him and smashed his head by giving 4-5 blows of a heavy metal strip. Thereafter he swung the metal strip in air to deter people from getting close to him and thereafter fled away. The victim instantaneously succumbed to the death. Immediately the Railway Police were informed. One Suresh Jagannath Babar Head Constable of Railway Police visited the alleged spot of incident and made enquiry with the food vendors who were selling food at Railway Station platform who have given the description of the assailant. The assailant was searched on the basis of the description and was arrested at about 01.00 to 01.30 p.m. Thereafter on behalf of the State, said Suresh Jagannath Babar lodged the report. On the basis of the said report Police have registered the crime against the accused person.
2(ii). On registration of the crime the accused was arrested. His clothes were seized in presence of panchas. Metal strip which was in his hand when he was arrested was also seized. The Police recorded the various statements of witnesses and also requisitioned the Tahsildar to hold the Test Identification Parade (for short “T.I. Parade”) and after completion of the investigation submitted charge-sheet against the accused.
2(iii). The learned Sessions Judge framed the charge on committal of the case vide Exh.6. The contents of the charge were explained to the accused in vernacular in his language, to which he pleaded not guilty and claimed to be tried.
2(iv). In support of the prosecution case, the prosecution has examined in all 9 witnesses, which are as follows:
| (i) | PW-1 | Suresh Jagannath Babar | Exh.15 | Informant Head Constable of Railway Police Station Akola. |
| (ii) | PW-2 | Vijesh Vijaykumar Ayyanwar | Exh.18 | Eyewitness, Food Vendor at Railway Station. |
| (iii) | PW-3 | Sk. Shakil Sk. Jamal | Exh.27 | Eyewitness, Food Vendor at Railway Station. |
| (iv) | PW-4 | Vinod Vasant Gaalgude | Exh.30 | Panch witness. |
| (v) | PW-5 | Mahesh Ramlakhan Yadav. | Exh.41 | In whose presence the accused was arrested. |
| (vi) | PW-6 | Dr. Neeraja Narendra Tapre | Exh.43 | Medical Officer who conducted the postmortem. |
| (vii) | PW-7 | Pravin Wasudeorao Wange | Exh.46 | Investigating Officer. |
| (viii) | PW-8 | Mahendrakumar Suryabhan Aatram | Exh.54 | Naib Tahsildar who conducted T.I. Parade. |
| (ix) | PW-9 | Sunil Ashok Bhise | Exh.60 | Investigating Officer. |
2(vi). On the basis of the oral as well as documentary evidence, the prosecution claimed that the prosecution has proved its case beyond reasonable doubt. The defence of the accused is total denial and of false implication. The additional statement under Section 313 of the Code of Criminal Procedure (Section 351 of the Bhartiya Nagarik Suraksha Sanhita, 2023) was also recorded before this Court.
2(vii). The learned Trial Court after recording the evidence and after appreciating the same held the accused guilty and convicted him as aforestated. Being aggrieved and dissatisfied with the same, the present Appeal is preferred by the accused on the ground that there was delay in holding T.I. Parade and merely on the suspicion the accused was arrested. In fact, some unknown person has assaulted the deceased and caused his death. The evidence of alleged eyewitnesses is not trustworthy and liable to be discarded.
3. Heard Mr. Fule, learned Counsel (Appointed) for the Appellant/Accused, who reiterated the said contention that as far as the involvement of the accused in the alleged crime is concerned, is not established. The spot panchanama and inquest panchanama are drawn before registration of the crime. The T.I. Parade was held after 15 days and no explanation was put forth. Moreover, the T.I. Parade is not held as per the Criminal Manual. The evidence of PW-8/Mahendrakumar Aatram shows that, it was the Jail officials who have selected the dummy persons and the dummy persons were identical with the accused. The photograph of the accused was already published in the newspaper and, therefore, the said T.I. Parade lost its relevance.
3(i). He further submitted that, the evidence of PW-2/Vijesh and PW-3/Sk. Shakil who are the food vendors shattered during the cross-examination as they have admitted that as Police disclosed to them that he is an assailant and, therefore they are saying so. They have not witnessed the incident. For all above these grounds, he claimed acquittal of the accused.
4. Per contra, Ms. Dhote, learned APP vehemently submitted that, PW-1/Suresh Babar immediately rushed at the spot of incident. He immediately enquired with the two vendors i.e. PW-2/Vijesh and PW-3/Sk. Shakil who have witnessed the incident. They have categorically state the manner in which the alleged incident has taken place. Not only their evidence but they have identified the accused from the T.I. Parade as well as before the Court. The identification before the Court is a substantial evidence. During investigation, the Investigating Officer arrested the accused within four hours after the incident and accused was found holding blood stained metal strip in his hand. First time the accused has taken defence that he is suffering from mental disorder, while cross-examining the Investigating Officer, this defence is not supported with any evidence.
4(i). On the contrary, the prosecution evidence is in the nature of direct evidence by examining PW-2/Vijesh and PW-3/Sk. Shakil who are the eyewitnesses. PW-1/Suresh immediately rushed to the spot. The postmortem report i.e. postmortem conducted by PW-6/Dr. Neeraja Tapre shows that, the death is caused due to the injury sustained by the deceased. The evidence of the prosecution witnesses further substantiated by the CA reports, which shows that there were blood stains on the clothes of the accused. The blood stains of blood group of deceased was found on the metal strip which was seized from the accused. Thus, the entire evidence is sufficient to show the involvement of the accused in the alleged offence. For all above these grounds, the Appeal being devoid of merits and liable to be dismissed.
5. The learned Counsel for the Appellant and learned APP for the State made their submissions at length and also taken us through the entire record.
6. As per the prosecution’s case, the deceased died homicidal death and to prove the homicidal death, the prosecution entirely placed reliance on the evidence of PW-6/Dr. Neeraja Tapre, whose evidence shows that, she was attached to the Government Medical Hospital, Akola as Medical Officer. The Police have forwarded the dead body of the deceased for conducting postmortem. Accordingly, she has conducted the postmortem. She has noted the postmortem report features in column No.13. She also noted the injuries in column No.17, which are as under:
(1) Laceration over left side of face near lateral end of eyebrow of size 2 cm. x 1 cm. x bone deep.
(2) Laceration over left cheek extending to left ala of nose of size 7 cm. x 1 cm. x bone deep x cavity deep.
(3) Laceration over glabella of size 3 cm. x 2 cm. x bone deep exposing fractured nasal bone.
(4) Laceration over left angle of mouth 1 cm. x 0.5 cm. x cavity deep.
(5) Laceration over left side of chin of size 2 cm. x 0.5 cm. x muscle deep.
(6) Laceration over right side of chin below lower lip 2 cm. x 0.5 cm. bone deep to cavity deep.
(7) Laceration of right upper lip of size 1 cm. x 1 cm. with missing right upper central and lateral incisor with alveolar margins blood infiltrated.
(8) Laceration of size 1 cm. x 1 cm. over right side of chin 2 cm. below injury no. 6 bone deep to cavity deep.
(9) Laceration of size 1 cm. x 0.5 cm., 1 cm. lateral to injury no.7.
(10) Laceration of size 5 cm. x 1 cm. over dorsum of right hand, red in colour &
(11) Abrasion over right side of neck of size 4 cm. x 0.5 cm. located 1 cm. lateral to midline and 10 cm. below right angle of mandible red in colour.
6(i). As per her evidence, all the injuries mentioned in para-17 were antemortem caused within 4 to 6 hours before death.
6(ii). On internal examination, she found following injuries:
Evidence of diffuse under scalp hematoma over occipital region and left tempro-parietal area, red in colour.
Skull-Vault and base-describe fractures, their sites, dimensions, directions etc.
(1) Fracture dislocation of left frontal bone with bony defect of size 3 cm. x 2 cm.
(2) Fracture dislocation of clenoid process of base of skull.
(3) Communited fracture dislocation of orbital plate of left and right side.
(4) Fracture dislocation of maxillary bone of left side corresponding to injury no.5.
(5) Comunited fracture dislocation of bones of left orbit corresponding to external injury mentioned in column no. 13 and injury no.1 of column no. 17.
6(iii). Her evidence further shows that, all fracture margins were blood infiltrated. The death was unnatural. The probable cause of death was the injuries mentioned in para nos. 17 & 19. The injuries at sr.no. 1 to 8 of column no.17 can be caused due to a hard, blunt and heavy object. Cause of injury no. 11 is hard and rough impact. Such injuries can be caused if the person is hit by another person with hard and blunt object. The said postmortem report was prepared by her alongwith Dr. Gadge and Dr. Kulkarni. The said postmortem report is at Exh. 44. She denied the possibility that, such injuries are possible if a person falls on a railway track. She further denied that, postmortem report has been prepared purely on the basis of information received from the Police. Her cross-examination further shows that, the said postmortem was conducted in presence of the Senior Doctor.
7. Besides the postmortem report, the prosecution placed reliance on the inquest panchanama. PW-4/Vinod Gaalgude acted as a panch on the said inquest panchanama. As per his evidence he was called to act as a panch. In his presence, the dead body of the deceased was shown to him. He has noted the injuries on the person of the deceased. The deceased has sustained the injuries on his head as well as other parts of the body i.e. face and forehead. Accordingly, the inquest panchanama was drawn, which is at Exh. 32. Though PW-4/Vinod is cross-examined by the learned Counsel for the Accused, however, as far as the injury part is concerned, nothing incriminating s brought on record to show that there was any reason for causing such injuries.
8. A medical witness, who performs a postmortem examination, is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by the Hon’ble Apex Court in the case of Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy and another, reported in 1960 SCR (3) 1, wherein the Hon’ble Apex Court observed that “the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim’s person.” Thus, the testimony of medical witness is very important and it can be safely accepted. The evidence adduced by the Medical Officer corroborated by the inquest panchanama shows that the deceased died homicidal death.
9. In the recent judgment also, the Hon’ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs. The State of Bihar, reported in 2022 Live Law (SC) 402, dealt with the evidentiary value of the medical evidence and observed that the evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this Court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged.
10. Thus, the prosecution has succeeded in proving that the death of the deceased is homicidal one.
11. Besides the medical evidence, the prosecution has also relied upon the direct evidence to prove the charge against the accused. As per the prosecution case, PW-2/Vijesh Ayyanwar was an eyewitness of the incident. He deposed that, he is a food vendor working at railway platform everyday and used to be on the platform from 08.00 a.m., to approximately 08.30 p.m in the evening. On 07.06.2019, he was on platform Nos. 4 and 5 alongwith his friend Shakil, Sanjay and Saurav. Near the staircase of platform Nos. 4 and 5, one unknown person was sleeping on a bench at a distance of 25-30 feet from them. He heard noise and, therefore, he looked towards that bench and witnessed one 25 to 30 years man was assaulting by means of metal strip
on the face and head of the person who was sleeping. He gave 3 to 4 repeated blows. The assailant was wearing checks shirt and blue colour pant. They went near the said person but the assailant started swinging the said metal strip in the air and, therefore, they pushed themselves towards backside and thereafter the assailant alongwith the said metal strip fled away towards Washim end. He specifically stated that, he can identify the said person if he is shown to him. Accordingly, he has identified the accused who was produced through video conferencing. He also identified the said weapon i.e. metal strip Article-A, clothes of the accused i.e. green and yellow colour checks shirt and blue colour pant Articles-B & C. His evidence further shows that, he was also called in Akola District Prison for identifying the accused and he has identified the accused.12. On the similar line, another eyewitness PW-3/Sk. Shakil Sk. Jamal was also examined. He narrated the similar story that, on 07.06.2019 he alongwith PW-2/Vijesh, Saurav and Sanju were standing on platform Nos. 4 and 5. One person was sleeping on the bench near the staircase of platform No.4. At the relevant time, one person came there holding metal strip and started assaulting the person who was sleeping. The assailant was approximately 25 to 26 years old wearing blue, green and yellow colour checks shirt and blue colour pant. The person who was sleeping has sustained the bleeding injuries. They tried to intervene but the assailant has swung the metal strip towards them and, therefore, they pushed themselves towards backside and thereafter the assailant left the place. He has identified the said metal strip as well as the clothes of the accused. He also stated that, on 18.06.2019 he received the notice from the Police to remain present in T.I. Parade. He went to Akola District Prison for identification purpose and identified the accused.
13. Both these witnesses are cross-examined at length. During cross-examination the attempt was made to show that, the statement was not made immediately after the incident. PW-2/Vijesh has admitted that, his signature was obtained at Police Station after writing. On the point of T.I. Parade, it was suggested that he was taken by the Police for T.I. Parade and photograph was shown to him before T.I. Parade which he denied. The suggestions were given to him that he was not the eyewitness of the incident. However, the said suggestions were also denied by him. It was further suggested that, at the time of T.I. Parade only accused was in the jail uniform, whereas the other accused were in a casual dress, which was also denied by him. This witness admitted that, the dummy persons who were alongwith the accused during T.I. Parade were not of the same age and similar in looks. It was suggested to him that, prior to his deposition he met the Government Pleader though he admitted the same but he denied that he was tutored regarding his deposition. On the contrary, the cross-examination confirms that during cross-examination accused was shown to the witness and it was confirmed that he was the same person and the witness have accepted the same. In a subsequent cross-examination of PW-2/Vijesh, he admitted that the photograph of the accused was published in the newspaper. Thus, the defence has tried to bring it on record that T.I. Parade was not held as per the requirement of law.
14. Similarly, PW-3/Sk. Shakil was also cross-examined and some omissions are brought on record. It was suggested that, one passenger came from Intercity Train and assaulted the deceased and death of the deceased is caused, which is denied by him. He also denied that, he was taken for the T.I. Parade by the Police and accused was also shown to him by the Police before T.I. Parade. The cross-examination shows that, the dummy persons are approximately of the same age. He also denied that, they were different in looks. The evidence specifically shows that, during cross-examination there was similarity in the face though there was some kind of difference in the age of the dummy persons. Thus, the entire contention of the defence that, the dummy persons were not selected as per the age and as per the built of the accused, is denied by both the witnesses i.e. PW-2/Vijesh and PW-3/Sk. Shakil.
15. PW-1/Suresh Babar is the Police Head Constable of Railway Police Station, Akola, who has lodged the report on behalf of the State. His evidence shows that, on 07.06.2019 he was deputed on duty at Railway Station in a booking office. At about 09.40 a.m., he received a message that one unknown person has assaulted another unknown person by hitting him on head. It was further informed that, the said unknown person is lying on platform Nos. 4 and 5. He immediately rushed to the spot and found one person sustained injuries is lying on the platform. The said person was wearing white strip black colour T-Shirt and Ash colour pant. At the spot two vendors were present and he made enquiry to them and they disclosed the description of the person who assaulted the person sleeping there. He immediately searched for the said person but he could not found and at about 01.00 to 01.30 p.m., he received the phone call from Police Station that the person described by the food vendors was found and taken into custody.
16. His cross-examination shows that, he was acquainted with the food vendors Shakil and Vijesh. He admitted that, report i.e. Exh. 16, the timing of lodging of the report is not mentioned. He further admits that, during morning hours at platform Nos. 4 and 5 a Train which proceeds towards Washim enters in the platforms. It was further suggested that, at the same day the statements of PW-2/Vijesh and PW-3/Sk. Shakil were not recorded. The defence put to these witnesses was that, the deceased falls on the railway track due to dash by the other Train and died, which is denied by them.
17. The another material witness examined by the prosecution is PW-5/Mahesh Yadav vide Exh. 41. To some extent he has not supported the prosecution case but he deposed that, on the day of incident at about 10.30 to 11.00 a.m., he was proceeding alongwith milk can, at that time, one person ran from his backside. He was caught by some persons and was holding something in his hand. Police caught him. As he was present there, the Police obtained his name as witness. During cross-examination by learned APP he admitted that, the metal strip which was in the hand of the person who was caught, was having blood stains. He also admitted that, the person was caught and handed over to the Police. During cross-examination again he left the loyalty towards the prosecution and denied that in his presence the Police caught the said person. Thus, PW-5/Mahesh has not supported the prosecution’s case but his evidence to the extent of caught hold the accused and having the metal strip in his hand stained with blood has came on record.
18. The another material evidence as per the prosecution is the evidence of PW-4/Vinod Gaalgude, who acted as a panch on spot panchnama, inquest panchanama and seizure memo. His evidence shows that, on 07.06.2019 his superior asked him to act as a panch. Therefore, he went at platform No. 4, wherein Police have drawn the spot panchanama. The place of incident was near the platform No.4, where the person was lying and sustained the bleeding injuries. Below the head of the said person there was one saffron colour handkerchief and slipper chappal. The said articles were seized by the Police. The clothes which were on the person of the deceased were also seized. T-shirt of the deceased is at Article-D, pant at Article-E, a pair of slipper at Article-F, saffron colour dupatta at Article-G, one match box at Article-H, one blood stained piece of marble Article-I. Accordingly, the spot panchanama was prepared which is at Exh.31 and seizure memo is at Exh. 33.
19. On the same day in the evening at about 06.00 p.m., he again called at the Police Station, wherein one person was seen by him holding one ‘tiber patti’ in his hand, who was wearing green colour shirt and jeans pant. The Police have seized the clothes of the accused and the ‘tiber patti’ in his presence. Accordingly, seizure memo was prepared vide Exh. 34. His cross-examination shows that, the suggestion given to him that on the day of incident he had been to Village Gaigaon was denied by him. He admitted that, at about 06.00 p.m., the accused was in a lockup. He also admits that, from the railway track at some distance such type of ‘tiber strips’ are lying but he denied that the said ‘tiber strips’ are lying near the Railway Station. He further admits that, when he reached the Police Station the said metal strip was in the Police Station but he denied that the said tiber strip was shown to him by the Police. Thus, from the cross-examination the attempt was made to show that the tiber strip was brought by the Police and thereafter it was seized but the accused was not holding the same.
20. The material piece of evidence of which the prosecution has placed reliance on the evidence of PW-8/Mahendrakumar Aatram, who was serving as a Naib Tahsildar. As per his evidence, on June 2019 a requisition was given to him for holding T.I. Parade. Therefore, on 20.06.2019 he issued a letter to the Superintendent, District Prison, Akola for holding T.I. Parade on 21.06.2019. The said letter is at Exh.57. However, he could not hold the T.I. Parade on 20.06.2019 and, therefore, he held the T.I. Parade on 21.06.2019. His evidence shows that, on 21.06.2019 he reached at District Prison, Akola. He requested the Superintendent, District Prison, Akola to provide him dummy persons of the similar age of the accused and of similar built. The Superintendent, District Prison, Akola has secured six persons.
20(i). He has already carried two persons to act as a panch in the jail premises. At the time of holding T.I. Parade except he and other two panchas no other person was present. Thereafter he asked the dummy persons to stand. He also asked the accused to stand alongwith the dummy persons at the place as per his choice and also informed him that he can change the clothes if he wants. Thereafter the accused has chosen the place at No.4 in the queue. Thereafter the first witness was called namely Vijesh Ayyanwar i.e. PW-2. The said witness was asked to identify the accused. Said Vijesh has identified the accused who was standing at No.4. Accordingly, he prepared the identification memorandum, which is at Exh. 21.
20(ii). Thereafter he called another witness namely Md. Shakil i.e. PW-3. Before Md. Shakil was called, the accused was informed that he can change the place as well as his clothes, to which he denied. Thereafter witness Md. Shakil came in the room and identified the accused who was standing at serial No.4. He was asked to sit in a different room. The identification memorandum is at Exh.22.
20(iii). Thereafter other witness Saurabh Madhukar Ghadge was also called. Before calling him some instructions were given to the accused but he denied to change the place as well as change the clothes. Thereafter the witness was called and witness Saurabh has identified the accused. The identification memorandum panchanama of witness Saurabh is at Exh. 23.
20(iv). Thereafter another witness Sanjay Kewal Ranjitkar was called. Before he was called in the room, similar instructions were given to the accused but he denied to change the place as well as the clothes. The witness has identified the accused. The identification memorandum is at Exh. 24. Thereafter he prepared the Identification memorandum panchanama Exh. 25. This witness has denied that prior to the identification parade Police met him. During his cross-examination his experience of holding T.I. Parade was also brought on record. He stated that, before this T.I. Parade, in 20 to 25 matters he has taken the identification parade. He denied that, witness PW-2/Vijesh met him before T.I. Parade. He further denied that, all the dummy persons were wearing similar type of dress but he admitted that he has not mentioned in the panchanama regarding the clothes of the accused. Thus, from the cross-examination the attempt was made to show that, the T.I. Parade was not held as per the rules.
21. PW-7/Pravin Wange and PW-9/Sunil Bhise both are the Investigating Officers, who have narrated about the investigation carried out by them. Though some omissions are brought on record by the learned Counsel for the Accused but omissions are not put to the Investigating Officers. Thus, those omissions are not proved by the defence.
21(i). PW-7/Pravin Wange was cross-examined on the aspect that, when accused was arrested at that time he had injuries on his head which was not disclosed in the entire charge-sheet. Thus, from the contention of the defence that the injuries sustained by the accused was not explained by the prosecution. However, the evidence of the Investigating Officer shows that, the medical certificate of the accused was included in the investigating papers.
22. Besides the oral evidence, the prosecution also placed reliance on the scientific evidence in the form of CA reports.
23. As per the evidence of PW-4/Vinod the spot panchanama was drawn on 07.06.2019 and the articles from the spot were seized on 07.06.2019. The clothes of the deceased were also seized on 07.06.2019. The seizure memo is also of 07.06.2019. The muddemal receipt placed on record is also of 07.06.2019. Similarly, the metal strip and clothes of the accused were also seized on 07.06.2019 at about 06.10 p.m. and on the same day the said articles were deposited with the muddemal clerk and muddemal receipt is of 07.06.2019. The requisition given to the Deputy Director, Forensic Lab, Amravati is of 10.06.2019.
24. Thus, within three days of the seizure of clothes, same were forwarded to CA. The CA reports are at Exhs. 67 to 71. Exh. 68 is regarding the analysis of blood gauze piece, nail clipping and scalp hair of the deceased, which was received in the CA office on 11.06.2019. The blood guaze piece is of blood group ‘B’. Exh. 69 is the CA report in connection with the clothes of the deceased. The articles which were found on his person i.e. thread, kada, metal ring and cloth piece, pair of chappals and one dupatta, wherein the blood group ‘B’ was found on shirt, bandi, pant, underwear, cloth piece, right foot chappal, left foot chappal, dupatta, machis, metal piece and marble piece were stained with blood group ‘B’. As per Exh. 70, the clothes of the accused i.e. shirt and pant were having blood stains but blood group is not determined, whereas the metal strip seized from the accused was stained with blood having blood group ‘B’. As per Exh. 71, the blood group of the accused was ‘AB’.
25. On the basis of the above said oral as well as documentary evidence, prosecution claimed that prosecution has proved the guilt of the accused.
26. As far as the medical evidence is concerned, which is already observed that no other reasons brought on record to show that the deceased has sustained injuries due to some other reason. The defence has questioned the reliability of the evidence of PW-2/Vijesh and PW-3/Sk. Shakil. Admittedly, PW-2/Vijesh and PW-3/Sk. Shakil are the independent eyewitnesses. They neither acquainted with the deceased nor acquainted with the accused. Their presence on the spot of incident was also natural as they were working as food vendors on the said platforms. They have categorically stated regarding the incident and the manner in which the incident has occurred. They have described the description of the assailant to PW-1/Suresh Babar and on that basis the accused was searched. They have not only identified the accused during identification parade but also identified before the Court. During their cross-examination the attempt was made to show that they were not present there but the attempt was futile as they have categorically stated about their presence and the reason behind their presence at the spot of incident. They have denied that, some other person has caused the death of the deceased. Thus, as far as the incident is concerned, from the evidence is not shattered during cross-examination.
27. The law as to the appreciation of evidence is settled. The appreciation of the ocular evidence, there is no straight jacket formula. In the case of Balu Sudam Khalde & Anr. Vs. The State of Maharashtra in Criminal Appeal No. 1910/2010 decided by the Hon’ble Apex Court on 29.03.2023 laid down the principles for appreciation of ocular evidence in a criminal case as follows:-
“APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.”
28. In the light of the above said principles if the evidence of PW-2/Vijesh and PW-3/Sk. Shakil is appreciated, admittedly, they are the independent witnesses. Their presence on the spot is also natural as they are working as food vendors. The fact that they are working as food vendors are not denied by the defence during cross-examination. Law does not require a fact that requires to be proved on absolute terms bereft of all doubts. What law contemplates is that for a fact to be considered to be proven, it must eliminate any reasonable doubt. Reasonable doubt does not mean any trivial, fanciful or imaginary doubt, but doubt based on reason and commonsense growing out of the evidence in the case. A fact is considered proof if the Court, after reviewing the evidence, either believes it exists or deems its existence probable enough that a prudent person would act on the assumption that it exists.
29. On this aspect, the evidence of PW-2/Vijesh and PW-3/Sk. Shakil appears to be probable, cogent and reliable one and nothing is on record to disbelieve the version of these witnesses.
30. The evidence of these witnesses is further criticized on the ground that, though they were present during the T.I. Parade but while holding the T.I. Parade PW-8/Mahendrakumar Aatram has not followed the due procedure and, therefore, this evidence is not helpful to the prosecution. It is vehemently submitted by the learned Counsel for the Accused that, the photograph of the accused was published before the T.I. Parade and PW-2/Vijesh has admitted the same. Therefore, the said T.I. Parade is not helpful to the prosecution.
31. He invited our attention towards the cross-examination of PW-2/Vijesh, wherein PW-2/Vijesh has specifically admitted that, the age of all the persons who were in the T.I. Parade was not similar and they were not similar in the looks also. He also admitted that, the photograph of the accused was published in the newspaper and, therefore, T.I. Parade is not of much substance.
32. On perusal of the evidence of PW-2/Vijesh and PW-3/Sk. Shakil, admittedly, PW-2/Vijesh has admitted regarding the photograph but his evidence shows that he specifically stated that, he has not seen the said photograph in the newspaper but he admitted that, he was aware that the photograph was published in the newspaper. But at the same time, PW-3/Sk. Shakil has denied all these contentions. PW-3/Sk. Shakil has also denied that, the photograph was shown to him before T.I. Parade. He also denied that, the dummy persons who were standing alongwith the accused for T.I. Parade were not of the same age and of not having similar looks. He stated that, there was some difference between their age but their faces were approximately similar.
33. The Criminal Manual speaks about procedure for holding identification parade. It shows that an Executive Magistrate should remember that he is person who conducts parade and he will be in full and sole charge of the entire proceedings. The Executive Magistrate/Honorary Magistrate should first acquaint himself, very briefly, with the facts of the case and find out who is to be put in the parade for identification and who are the witnesses to be called up for identification. The parade should be arranged in a room or a place which is such that the identifying witnesses, as well as the persons connected with the Police, should not be able to look into it. For the identification parade of one accused, there should be at least half a dozen persons placed in the parade. Not more than two accused should be placed in any single identification parade. The Executive Magistrate shall choose dummy persons identical with the personality of the suspected accused who is to be identified.
34. In the light of the above proposition if the evidence of PW-8/Mahendrakumar is taken into consideration, which shows that he has seen the accused and dummy persons who are of similar age and of similar looks. The panchas were called by him. His evidence further shows that, he gives an opportunity to the accused to change the place and obtain the place as per his choice before witnesses were called but it was the accused who has not changed the place. He also stated about the identification by the witnesses.
35. On perusal of the identification memorandum panchnama it reveals that, he has mentioned in the panchanama that every time accused was informed whether he wants to change the place but he denied for the same. The dummy persons selected, admittedly, were not of a same age as three persons were aged about 30 to 32. So definitely there was a difference in the age of the dummy persons and the age of the accused but that difference was not much as the accused shown to be 28 years, whereas three persons were of age of 20 and three persons were of age 30.
36. The identification has by itself no independent value. During the investigation of a crime committed by persons unknown to the witnesses, the persons arrested on suspicion of their complicity in the crime have got to be confronted by the investigating authority with the witnesses so that they can find out whether they are the persons who committed the crime or not. Before the investigating authorities send up a case to Court, they must be satisfied that the persons arrested by them are the persons accused of having committed the crime. The purpose of conducting a test identification parade is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. A test identification parade should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses.
37. The test identification parade under Section 9 of the Evidence Act is not substantial evidence but it is only corroborative evidence. The purpose of holding a test identification parade during the stage of investigation is, firstly, to ensure that the investigating agency is proceeding in the right direction where the accused is unknown and, secondly, to serve as a corroborative piece of evidence when the witness identifies the accused during trial. The evidence of identification merely corroborates and strengthens the oral testimony in Court which alone in the primary and substantive evidence as to identity.
38. The evidence on T.I. Parade was also criticized on the ground that there was delay in T.I. Parade. Admittedly, for the proper administration of justice that a T.I. Parade is to be held without avoidable and unreasonable delay after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses before the test identification parade. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept in such a condition that there was no possibility for the witnesses to see him.
39. The remand report nowhere discloses that the accused was produced on 07.06.2019 before the Court by covering his face. Thus, the prosecution has not adduced the evidence that, every care was taken to ensure that there was no opportunity for the witnesses to see the accused before T.I. Parade. Therefore, the opportunity of the witnesses of seeing the accused cannot be ruled out. It is for the prosecution to prove that a T.I. Parade was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the T.I. Parade. Thus, the burden is not on the defence but it is on the prosecution. Therefore, as far as the evidence on T.I. Parade is concerned, which is not helpful to the prosecution.
40. However, PW-2/Vijesh and PW-3/Sk. Shakil have identified the accused during the trial, which is a substantial evidence. Admittedly, there was sufficient opportunity for PW-2/Vijesh and PW-3/Sk. Shakil to witness the accused at the time of incident as alleged incident has occurred on platform Nos. 4 and 5. These witnesses were also on platform Nos. 4 and 5 at a distance of 25 to 30 feet from the place where the deceased was sleeping. The accused has assaulted the deceased at the said place, therefore, the witnesses were having sufficient opportunity to witness the assailant. It is pertinent to note that, on the description given by PW-2/Vijesh and PW-3/Sk. Shakil the accused was accosted and taken into custody. Therefore, there is nothing on record to disbelieve their versions as far as the identification in the Court is concerned.
41. The evidence of PW-2/Vijesh and PW-3/Sk. Shakil is also corroborated by the medical evidence, as the evidence of PW-6/Dr. Neeraja Tapre describes the injuries on the person of the deceased and also stated that these injuries are possible by hard, blunt and heavy object. The metal strip which was seized from the accused was having blood stains and the blood stains which was found on the said metal strip is of blood group ‘B’ i.e. of the accused. Therefore, not only the oral evidence but the medical evidence corroborated by the scientific evidence discloses the involvement of the accused in the alleged offence. The blood stains are also found on the clothes of the accused but the blood group is not determined. Admittedly, the accused has also sustained the injuries. The injury certificate of the accused is on record. Considering the nature of the injury which was swelling, CLW and multiple abrasions. The medical certificate nowhere shows that, he has sustained the bleeding injuries. Therefore, the appearance of the blood on the clothes of the accused requires to be explained by the accused. The Trial Court has not put the incriminating evidence to the accused as to the blood stains are found in his clothes and, therefore, he was called before this Court and his additional statement was recorded. During his additional statement also he has not explained the blood stains found on his clothes.
42. The Hon’ble Apex Court in the case of Kishore Bhadke Vs. State of Maharashtra, reported in 2017 ALLMR (CRI) 1316, wherein it is held that the presence of human blood on clothes recovered at the instance of the accused – mere absence of evidence regarding the blood group cannot be fatal to the prosecution.
43. Therefore, there is no reason to discard the evidence i.e. CA reports which is a scientific evidence and there is no explanation for the appearance of the blood group on the clothes of the accused.
44. The evidence of PW-2/Vijesh and PW-3/Sk. Shakil is also criticized on the aspect of delay in recording the statements. The alleged incident has taken place on 07.06.2019 and the statements of the eyewitnesses were recorded on 09.06.2019.
45. Admittedly, on this aspect, the Investigating Officer was not cross-examined and the opportunity was not granted to the Investigating Officer to explain the delay. In the case of State of U.P Vs. Satish, (2005) 3 SCC 114, which is referred in the recent judgment by the Hon’ble Apex Court in The State of Madhya Pradesh Vs. Balveer Singh, Criminal Appeal No. 1669/2012 decided on 24.02.2025, wherein it is observed that, “it is to be noted that the explanation when offered by I.O. on being questioned on the aspect of delayed examination, by the accused has to be tested by the Court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses, who were examined belatedly. It may not have any effect on the credibility of prosecution’s evidence tendered by the other witnesses.”
46. Thus, primarily it was for the accused to question the investigating Officer to explain the delay in recording the statements of witnesses. Admittedly, in the present case, the IO was not cross-examined on the aspect of delay in recording the statements.
47. In case of Gunnana Pentayya alias Pentadu & Ors. Vs. State of Andhra Pradesh, 2008 ALL MR (Cri), wherein it is held by the Hon’ble Apex Court that, mere delay in recording the statements of witnesses is not fatal unless a specific question is put to the investigating officer regarding the reason for delay.
48. In another case Firoz Khan Akbarkhan Vs. State of Maharashtra, 2025 SCC OnLine SC 627, the Hon’ble Apex Court has held that, delay in recording the statements of witnesses more so when the said delay is explained, will not aid an accused. Of course, no hard and fast principle in this regard ought to be or can be laid down, as delay, if any, in recording statements will have to be examined by the Court concerned in conjunction with the peculiar facts of the case before it.
49. In the present case, the Investigating Officer is not cross-examined on the aspect that why there was delay in recording the statement of eyewitnesses PW-2/Vijesh and PW-3/Sk. Shakil and, therefore, this ground is also not sustainable.
50. The learned Counsel for the Accused vehemently submitted that, the injuries of the accused are not explained by the prosecution.
51. The evidence of the Investigating Officer shows that, when the accused was arrested he was referred for medical examination and injuries are found on his person. His injury certificate is a part of the charge-sheet. Undisputedly, the injury sustained by the accused which was minor and superficial, is not required to explain, however, where the evidence is clear, cogent, independent and disinterested the omission on the part of the prosecution to explain the injuries is fatal to the prosecution.
52. In the instant case, admittedly, the accused has sustained simple, minor and superficial injuries and, therefore, it was not necessary to explain the same. Therefore, mere non-explanation of the injuries by the prosecution would not sufficient to give him the benefit of doubt.
53. On appreciating the entire evidence on record, the oral evidence of PW-2/Vijesh and PW-3/Sk. Shakil is corroborated by the medical evidence as well as scientific evidence. The blood stained weapon seized at the instance of the accused contains the blood stains of blood group ‘B’, which is the blood group of deceased. The presence of PW-2/Vijesh and PW-3/Sk. Shakil at the spot of incident is also natural and there is no reason for them to falsely implicate the accused as they are completely the independent witnesses. The accused as well as the deceased both were unknown to them. As already observed that, what law contemplates is that for a fact to be considered to be proven, it must eliminate any reasonable doubt. Reasonable doubt does not mean any trivial, fanciful or imaginary doubt, but doubt based on reason and commonsense growing out of the evidence in the case.
54. It is cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden is on the prosecution is only to establish its case beyond all reasonable doubts and not all the doubts. Doubts would be called reasonable if they are free from a zest for abstract and speculation. Law cannot afford any favouring other than truth. Doubts must be actual and substantial doubts as to the guilt of the accused arising from the evidence. A reasonable doubt is not an imaginary or mere a possible doubt but a fair doubt based upon reason and commonsense.
55. For the reasons discussed above, on consideration of the oral, medical and scientific evidence and other proven fact, in our considered opinion, the prosecution has proved the guilt of the accused unmistakenly to point out that he has committed the murder of the deceased on 07.06.2019. These proved facts on the basis of proved evidence, the prosecution has proved the charges against the accused beyond reasonable doubt. Though during the cross-examination of the Investigating Officer it was put that the accused was suffering from mental disorder, however, except the bare words no further evidence is brought on record to show that the accused was suffering from mental disorder.
56. For all above these reasons, the Appeal being devoid of merits liable to be dismissed. Hence, it is dismissed.
57. The fees of the learned Appointed Counsel for the accused be quantified as per rules.
58. Pending application/s, if any, shall stand disposed of accordingly.