Criminal Appeal No. 266 of 2018 · Bombaybench High Court
Case Details
2024:BHC-AUG:6593-DB 1 Cr.Appeal 266.18IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CRIMINAL APPEAL NO. 266 OF 20181.Shaikh Ayyub @ Babar Sk. Kadar,Age : 29 years, Occu : Business, R/o. Land No.28, Baijipura, Indira Nagar, Aurangabad, Tal. and Dist. Aurangabad 2.Shaikh Akbar s/o. Sk. Kadar,Age : 33 years, Occu : Business, R/o. Land No. 28, Baijipura, Indira Nagar, .. AppellantsAurangabad, Tal. and Dist. Aurangabad. (Orig. Accused) VersusThe State of MaharashtraThrough the Police Station Officer, Jinsi Police Station, Aurangabad. Tal. and Dist. Aurangabad. .. Respondent..…WITHCRIMINAL APPLICATION NO.3972 OF 2022IN CRIMINAL APPEAL NO.266 OF 2018 …ANDCRIMINAL APPEAL NO.124 OF 2023Joharabegum w/o. Shaikh Akhtar Age : 65 years, Occu : Household, .. Appellant R/o. Indira Nagar, Baijipura, Aurangabad (Orig. Complainant)Versus 1.The State of MaharashtraThrough Police Inspector, Jinsi Police Station, Aurangabad 2.Mustak s/o. Sayyed Pasha,Age : 39 years, Occu : Mechanic, R/o. Hari Masjid, Old Mondha, Tq. & Dist. Aurangabad.
Legal Reasoning
2 Cr.Appeal 266.183.Shaikh Kadar s/o. Shaikh Daud,Age : 58 years, Occu : Business, R/o. Lane No. 28, Indira Nagar, Baijipura, Aurangabad .. Respondents (Respdt Nos.2 & 3/Orig. Accused Nos.3 & 4)…ANDAPPLICATION FOR LEAVE TO APPEAL BY STATE NO.145 OF 2018The State of Maharashtra, Through Police Station Officer, .. Applicant Police Station Jinsi, Aurangabad(Orig. Complainant)Versus 1.Mustak s/o. Sayyad PashaAge : 36 years, Occu : Mechanic, R/o. Hari Masjid, Mondha, Aurangabad. 2.Shaikh Kadar s/o. Sk. Daud,Age : 54 years, Occu : Business, R/o. Lane No. 28, Baijipura, Indira Nagar, Aurangabad. .. Respondents (Orig. Accused Nos.3 and 4)…Shri. V. D. Sapkal, Senior Advocate h/f. Shri. Santosh B. Bhosle,Advocate for the Appellant in Criminal Appeal No.266 of 2018 and forthe Applicant in Criminal Application No.3972 of 2022Smt. V. S. Chaudhari, APP for the State in all the matters. Shri. Rajendra Deshmukh, Senior Advocate a/w. Shri. Vishal Chavan andShri. Rajat P. Untwal, Advocate i/by. Shri. Patel Khizar and Shri. DevangDeshmukh, Advocate for the Appellant in Criminal Appeal No.124 of2023Smt. V. S. Chaudhari, APP for the Applicant / State in ALS No.145 of2018Shri. Nilesh S. Ghanekar, Advocate for Respondent No.1 in ALS No.145of 2018 & for Respondent No.2 in Criminal Appeal No.124 of 2023….. 3 Cr.Appeal 266.18CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 05.02.2024PRONOUNCED ON : 26.03.2024JUDGMENT : [ Per NEERAJ P. DHOTE, J. ]1.Criminal Appeal No.266 of 2018 is filed under Section374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred toas the ‘Cr.P.C.’) against the conviction and sentence recorded by thelearned Additional Sessions Judge, Aurangabad, in Sessions CaseNo.261/2013 dated 09.02.2018 against the Appellants (Accused Nos.1and 2) for the offence punishable under Section 302 and 323 r/w.Section 34 of the Indian Penal Code.2.Criminal Appeal No.124 of 2023 is filed under Section378 (4) of the Cr.P.C. by the Informant against the aforementionedJudgment by which Respondents No.2 and 3 (Accused Nos.3 and 4) areacquitted of the aforesaid offence.3.Application for Leave to Appeal by State No.145 of 2018 ispreferred by the State under Section 378 (1) (b) of the Cr.P.C. againstthe aforementioned Judgment acquitting Respondents No.1 and 2(Accused Nos.3 and 4) of the aforesaid offence. 4 Cr.Appeal 266.184.The Prosecution’s case, in brief, as revealed from the paperson record is as under:4.1.The Informant / (PW No.1) Joharabegum was the residentof Galli / Lane No.32, Indira Nagar, Baijipura, Aurangabad. She washaving five (05) sons. They all were residing jointly. On 22.04.2013at about 05:30 p.m. when she came out of her house after offeringNamaz and reached near Hotel Patel, she saw the Appellants andacquitted Accused Nos.3 and 4 assaulting her son Mohammad Azar @Ajju Builder with deadly weapons and stone. Her son sustained severeinjuries. When she asked the assaulters about the said act, they pushedher and she fell down. Her another son Sk. Mohammad Athar (PWNo.4) came and intervened. He was also assaulted by them. Theassaulters were known to her and after the assault they left. Her injuredson Ajju Builder was taken to hospital, where he was declared dead.She lodged the Report with the Jinsi Police Station and Crime vide No. I-55/13 came to be registered against the assaulters for the offencepunishable under Sections 302, 307, 143, 147, 148, 149 Indian PenalCode ( for short ‘I.P.C’).4.2.During the course of investigation, the Police conducted thespot panchanama, prepared Inquest, sent the body for Postmortem,recorded statement of witnesses, arrested the accused persons, seizedthe muddemal property such as clothes of deceased, witnesses and 5 Cr.Appeal 266.18accused persons, seized the weapons of assault from the accused personspursuant to the disclosure under Section 27 of the Indian Evidence Act,sent the muddemal property for examination to the Chemical Analyzer,collected the relevant documents such as Post-mortem Report, ChemicalAnalyzer Report etc., and on completion of investigation, submitted theCharge-sheet. 5.The learned Additional Sessions Judge, Aurangabad framedthe Charge against the Appellants - accused and two acquitted accusedunder Sections 302 and 307 r/w. Section 34 I.P.C. at Exh.6, to which theAppellants and the acquitted accused pleaded not guilty and claimed tobe tried.6.To prove the Charge the Prosecution examined in allSeventeen (17) witnesses and brought on record the relevantdocuments. After the prosecution closed its evidence, statements of theAppellants and acquitted accused came to be recorded under Section313 (1)(b) of the Cr.P.C. They denied the prosecution’s case andevidence. On appreciation of evidence available on record, the learnedTrial Court passed the impugned Judgment and order convicting theAppellants and acquitting the Accused Nos.3 and 4. 7.Heard all the sides. Scrutinized the evidence on record. 6 Cr.Appeal 266.188.It is submitted by the learned Advocate for the Appellantsthat though the prosecution examined four (04) eye witnesses, there arematerial inconsistencies in their testimony. There is delay in recordingtheir statements by the police. The evidence available on record do notfirmly establish that the Appellants committed the said crime andsubmitted that the Prosecution has not explained as to why moreinjuries were seen in the Postmortem Report as compared to the injuriesnoted by the doctor where the deceased was initially taken. It issubmitted that the evidence on record do not establish the Chargeagainst the Appellants and they be acquitted as the Accused Nos. 3 and4 have been acquitted on the basis of the same evidence. He relied onthe Judgments which would be considered in the later part of thisJudgment. It is submitted that the Appeal be allowed.9.It is submitted by the learned APP that the evidenceavailable on record sufficiently proved the Charge against the Appellantsas well as the acquitted accused. It is submitted that there is consistencyin the testimony of the eye witnesses on the material aspects. There isdiscovery / recovery of the weapons of assault at the instance of theaccused. It is submitted that the learned Trial Court has rightlyconvicted the Appellants, however has wrongly acquitted Accused Nos. 3and 4 though there is evidence against them. The medical evidencecorroborate the testimony of the eye witnesses and the Chemical 7 Cr.Appeal 266.18Analyzer Report show the blood on the clothes of the Appellants and theweapons. It is submitted that the Appeal against Conviction bedismissed and the Appeal against Acquittal be allowed. The judgmentrelied upon by the learned APP would be considered in the later part ofthis Judgment.10.It is submitted by the learned Advocate for the Informantthat the evidence on record is consistent and proved the Charge.Though the learned Trial Court convicted Accused Nos.1 and 2, it hasacquitted Accused Nos.3 and 4 on the same set of evidence. It issubmitted that the Appeal against conviction be dismissed and theAppeal against acquittal be allowed.11.The convicted accused are referred as Appellants No.1 and2. The witnesses examined by the prosecution can be categorized asfollows:(a)Eye witnesses :- PW No.1 - Joharabegum w/o. Shaikh Akhtar, PW No.2 - Shaikh Yunus s/o. Shaikh Laddu, PW No.3 - Shaikh Javed Abdul Gani, PW No.4 - Shaikh Mohammad Athar Shaikh Akhatar(b) Medical evidence :- PW No.12 - Dr. Bhavna Santosh Takalkar, PW No.13 - Dr. Kailas Ukhardaji Zine, PW No.14 - Dr. Pushpa Sherichand Rajan. 8 Cr.Appeal 266.18(c) Panch witnesses :- PW No.5 - Mohammad Khairuddin Abdul Kadar,PW No.6 - Zuber Kajid Patel, PW No.7 - Syed Sadek Syed Aref, PW No.8 - Shaikh Haroon Shaikh Rauf, PW No.9 - Shaikh Babu Shaikh Miya.(d) The Policemen :- PW No.10 - Yunus Shah Daulat Shah,PW No.11 - Manik Bhaurao Hiwale, PW No.15 - Gafur Sadruddin Patil, PW No.16 - Archana Supadu Patil, PW No.17 - Shaikh Rehman Shaikh Jabbar.HOMICIDAL DEATH 12.The evidence of PW No.15 – Gafur Sadruddin Patil showthat on 22.04.2013 he was attached to the Jinsi Police Station as thePolice Inspector and at about 05:30 p.m. he was on patrolling duty inKatkat Gate area. He received the information on the phone thatfighting was going on in Galli No.10 of Baijipura. He conveyed theinformation to the DCP Zone and ACP and reached on the spot ofincident. He learnt that the injured was shifted to Apex Hospital and so,he went to Apex Hospital and there he saw the dead body of AjjuBuilder. Photographs of dead body was taken through the Photographer.The dead body was stained with blood and there were injuries on thedead body. The MLC at Exh.93 was already sent to the Jinsi PoliceStation. He called two panchas for the inquest. Exh.67 inquest was 9 Cr.Appeal 266.18prepared by him in the presence of the panchas. The body was referredto Ghati hospital, Aurangabad for postmortem vide letter at Exh.114.His cross-examination show that after receipt of information, withintwenty (20) minutes he reached on the spot and he was there for ten(10) minutes. His evidence show that he conducted the spotpanchanama at Exh.65, where blood was found and Jambiya cover andStones were seized in the presence of panchas. 13.The evidence of PW No.6 – Zuber Majid Patel show that on22.04.2013 he was called by the police at the Apex Hospital at about07:00 to 07:30 p.m. The dead body of Ajju was in the hospital. Therewere many injuries on the dead body. The inquest at Exh.67 wasprepared. There is no challenge to the evidence of this witness. Theinquest at Exh.67 corroborate the evidence of this panch witness and thePolice Officer.14.The evidence of PW No.5 – Mohammad Khairuddin showthat on 22.04.2013 at about 10:00 to 10:30 p.m. when he came inGalli No.28/29 of Baijipura he saw the crowd near the hospital ofDr. Shah. He went there. PW No.15 – Gafur Sadruddin Patil called himfor panchanama. Khalil was the another panch. The spot was in front ofShah Hospital. There was blood on the ground. The handle of Jamiya,two stones, cotton stained with blood, impression of hands stained with 10 Cr.Appeal 266.18the blood were seen on the spot of incident. Police collected the articlesand prepared the spot panchanama, which was at Exh.65. Nothing hascome in his cross-examination to discard his evidence. His evidence iscorroborated by the evidence of PW No.15 – Gafur Sadruddin Patil. 15.The evidence of PW No.12 - Dr. Bhavna Santosh Takalkarshow that she was running Apex Super-speciality Hospital atAurangabad. She was the qualified doctor. On 22.04.2013 at 08:00 p.m.one Sk. Azar Sk. Akhtar @ Ajju Builder was brought to her hospital andhe was declared dead on admission. She noted ten (10) injuries on thedead body.16.The further evidence of PW No.12 - Dr. Bhavna SantoshTakalkar show that she sent the MLC, a copy of which is at Exh.93, tothe Jinsi Police Station. The medical papers prepared by her during thecourse of the medical examination of the body, are at Exh.96. Thehistory was given by the brother of deceased and it was noted in thepapers. Her not knowing the brother of deceased prior to the incident isinconsequential. Not mentioning in the medical papers as to who gavethe history does not lead to discard her evidence. The aforesaid exhibitscorroborate the evidence of this doctor witness. 17.The evidence of PW No.13 – Dr. Kailas Ukhardaji Zine show 11 Cr.Appeal 266.18that he was the Head of the Department in the Government MedicalCollege and Hospital, Aurangabad having long experience in the field ashe conducted more than ten thousand postmortem examinations. On23.04.2013 the dead body of Shaikh Azar Shaikh Akhtar @ Ajju Builderwas brought for post-mortem examination by P.I. G.S. Patil of Jinsi PoliceStation (PW No.15). Team of doctors comprising himself, Dr. S.A.Waghmare, Dr. V. P. Meshram and Dr. C. S. Bujare conducted thepostmortem examination between 01:40 p.m. to 02:40 p.m. on the sameday. The body was well nourished and well built. The face showed thedried blood cells and injuries. There were blood stains on hands, rightarm, forearm, left hand arm, both thighs, shoulders, back and pelvicregions. On external examination, they found 30 injuries in the nature oflacerated wounds, stab wounds, abrasions and incised wounds. Oninternal examination, he noted severe injuries in the nature of underscalp contusion, under scalp hematoma, undisplaced fracture, displacedfissure fracture, etc.18.The further evidence of PW No.13 – Dr. Kailas UkhardajiZine show that the blood was preserved for detection of blood groupingand gave the cause of death as “Shock and hemorrhage due to multiplestab and incised injuries.” He deposed that the injuries mentioned inColumn No.17 and 19 of the postmortem report were sufficient to causedeath in ordinary course of nature. On receipt of the report from the 12 Cr.Appeal 266.18Chemical Analyzer, the opinion regarding cause of death was fortified.The Postmortem Report at Exh.104 corroborate the evidence of thiswitness. 19.Though, it is brought in the cross-examination ofPW No.13 – Dr. Kailas that the signatures of all the doctors are notappearing on each page of the postmortem report, he deposed thatsignature of one of the doctors was appearing on each page of thepostmortem report. He denied that the incised wound and stab injurywere possible due to fall on hard or blunt object or on knife or sword.Not taking the clinical notes while giving the opinion regarding theinjuries, non-examination of the clothes of deceased and weapon at thetime of the postmortem, non-mentioning of time of death, manner ofdeath and method adopted in causing the death in the postmortemreport will not affect his testimony.20.One of the contention of learned Advocate for theAppellants is that if we see the evidence of the doctors i.e. PW No.12 –Dr. Bhavna Santosh Takalkar and PW No.13 – Dr. Kailas Zine there isvariance in the number of injuries present on the deceased and it is forthe prosecution to explain the same. If we see the evidence of both thesaid witnesses including inquest, PW No.12 – Dr. Bhavna examined thebody and declared dead on admission, whereas the evidence of
Decision
13 Cr.Appeal 266.18PW No.13 – Dr. Kailas Zine show that he conducted the postmortem andfound thirty (30) injuries, which obviously was a deeper examination.This variance cannot be said to be fatal for the prosecution.21.The cross-examination of the above referred witnesses showthat the Homicidal Death of Shaikh Mohammad Azhar @ Ajju Builderdue to the injuries found on the body is not seriously disputed by thedefence. Thus, in view of the above discussed evidence, it is establishedby the prosecution that Shaikh Mohammad Azhar @ Ajju Builder diedhomicidal death. EYE WITNESSES TO THE INCIDENT 22.PW No.1 – Joharabegum is the mother of the deceased AjjuBuilder. She was the resident of Baijipura and residing jointly with hersons including the deceased. PW No.2 – Shaikh Yunus was the residentof Galli No.26, New Baijipura and working in one tailoring shop situatedon the corner of Galli No.26. PW No.3 – Shaikh Javed was the residentof Kiradpura and working in one tailoring shop which was near GalliNo.12, Baijipura. PW No.4 – Shaikh Mohammad is the brother ofdeceased Ajju Builder. He was residing in Baijipura with PW No.1 –Joharabegum and four (04) brothers. These aspects in the evidence ofthe aforesaid witnesses are not in dispute. 14 Cr.Appeal 266.1823 (a). One of the contention of learned Advocate for theAppellants is that there is delay in recording the statement of PW No.3 -Shaikh Javed. He placed reliance on the Judgment in the case of DeorajDeju Suvarna and others vs. State of Maharashtra, 1994 (4) Bom.C.R.85 wherein the observations in the case of Ganesh Bhavan Patel andanother vs. State of Maharashtra, AIR 1979 SC regarding delay havebeen reproduced wherein it is observed that:“22. The Apex Court in the case of (Ganesh Bhavan Patel and anotherv. State of Maharashtra), reported in A.I.R. 1979 S.C. pg. 135 hasobserved:-"Delay of few hours, simplicitor in recording the statements of eyewitnesses may not by itself amount to serious infirmity in the prosecutioncase. But, it may assume such a character if there are concomitantcircumstances to suggest that Investigator was deliberately marking timewith a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. Thus, under the facts and circumstances, ofthe case delay in recording the statements of the material witnesses castsa cloud of suspicion on the credibility on the entire warp and woof of theprosecution story." In para 18 of the same decision, the Apex Court observed : "Normally, in a case where the commission of the crime is allegedto have been seen by witnesses who are easily available, a prudentinvestigator would give to the examination of such witnesses precedenceover the evidence of other witnesses". For the reasons stated above, we have no hesitation in holding that SunilShirsat did not see the incident. The learned Trial Judge erred in evenbelieving him with respect to the date, time and place of incident.” (b)He further relied on the judgment in the case of BhagwanBabu Ghotkar and Ors. vs. The State of Maharashtra, 2001 ALL MR (Cri)1569 wherein there was unexplained delay of eleven (11) days inrecording the statement of the witness under Section 161 and it was 15 Cr.Appeal 266.18held that ‘it will be unsafe to accept the evidence’.24.Admittedly, the statement of PW No.3 - Shaikh Javed wasrecorded on the 9th day from the date of incident. His evidence showthat from the date of incident till recording his statement he was presentin Aurangabad. He also attended the funeral of deceased. After theincident and prior to recording his statement, the police persons werecoming in the area for enquiry. Till recording his statement he had notalk with anybody about the incident. This delay of nine (09) days hasnot been satisfactorily explained by the Prosecution. Considering theextent of delay in recording statement of PW No.3 - Shaikh Javed, hisevidence is required to be kept out of consideration and is kept so.25.Evidence of PW No.4 - Shaikh Mohammad Athar show thathis statement was recorded on the 4th day from the date of incident. Hisevidence show that he was injured witness and was in the hospital till02:00 to 02:30 a.m. of 23.04.2013. His evidence further show thatwhen he was in the Ghati Hospital, police had come to him for enquiryabout his injuries and he had given information to the police regardinghis injuries, but police did not reduce into writing the information givenby him. He was in Aurangabad after the incident till his statement wasrecorded. He was not knowing that after the incident police werecoming in their area for making enquiry. The evidence of PW No.15 - 16 Cr.Appeal 266.18Gafur Sadruddin Patil show that no explanation is sought by the defencein respect of the said evidence of PW No.4 – Shaikh Mohammad Athar.Thus, recording of delayed statement of this injured witness will not befatal for the prosecution.26.The evidence of PW No.1 - Joharabegum show that shewent to the police station and lodged the report at Exh.29 at about10:30 p.m. The evidence of PW No.16 – Archana Supadu Patil showthat on 22.04.2013 between 09:00 to 09:30 p.m. one lady had come tothe police station. Report of one lady was taken in respect of theincident and she made entry in the station diary at 22:50 hours. Herevidence show that Exh.29 was the same report which was in herhandwriting and under the signature. 27.The cross of PW No.16 – Archana Supadu Patil is on thepoint of sending copy of the FIR to the Court and the omissions.Recording of the FIR in the presence of the relatives of the informantcannot be reason to discard the FIR. Though there is cross on the pointof delay, the crime took place at 17:30 hours and the crime wasregistered at 22:30 hours, it cannot be said that there was delay when ithas come in the evidence of the Informant that she had gone to thehospital where her deceased son was taken. 17 Cr.Appeal 266.1828.The learned Advocate for the Appellants relied on thejudgment in the case of Audumbar Digambar Jagdane and Another vs.State of Maharashtra, 1999 Cri. L.J. 1936 wherein the omissions in thetestimony of the witness in the case therein were taken intoconsideration. He further relied on the judgment in the case of Hem Rajand Others vs. State of Haryana, 2005 Cri. L. J. 2152 wherein thetestimony of the eye witness was not found reliable. 29.Learned APP relied on the Judgment in the case of NarayanChetanram Chaudhary vs. State of Maharashtra, 2000 AIR (SC) 3352wherein it is observed that,“Only such omissions which amount to contradiction inmaterial particulars can be used to discredit the testimony of thewitness. The omission in the police statement by itself would notnecessarily render the testimony of witness unreliable. When theversion given by the witness in the Court is different in materialparticulars from that disclosed in his earlier statements, the caseof the prosecution become doubtful and not otherwise. Minorcontradictions are bound to appear in the statements of truthfulwitnesses as memory sometimes plays false and the sense ofobservation differ from person to person. The omissions in theearlier statement if found to be of trivial details, as in the presentcase, the same would not cause any dent in the testimony ofPW2. Even if there is contradiction of statement of a witness onany material point, that is no ground to reject the whole of thetestimony of such witness.”30.Coming to the evidence of three (3) eye witnesses i.e.PW No.1 - Joharabegum w/o. Shaikh Akhtar, PW No.2 – Shaikh Yunuss/o. Shaikh Laddu and PW No.4 - Shaikh Mohammad Athar, they knewthe accused persons i.e. Appellants and the acquitted accused. Their 18 Cr.Appeal 266.18evidence show that deceased Ajju Builder contested the election of theAurangabad Municipal Corporation which were held in the year 2010.The said election was also contested by acquitted accused no. 3 - Mustaks/o. Sayyed Pasha. They both lost the election. Due to the said defeatin the election, quarrel had taken place between the Appellants andacquitted accused on one side and deceased Ajju builder on the otherside. The report / complaint in that regard was given by deceased AjjuBuilder with the Jinsi Police Station. Though in the evidence of PWNo.15 – Gafur Sadruddin Patil it has come that during investigation itwas not found that deceased Ajju Builder filed any complaint againstMustak builder, the evidence of these three witnesses is consistent onthis aspect which established inimical terms between both the sides andit remained undiluted. 31.The evidence of said three eye witnesses show that at about05:30 p.m. on 22.04.2013 the incident of assault on deceased had takenplace in Baijipura area. According to PW No.1 – Joharabegum after theNamaz she came out of her house to bring vegetables and at that timeshe witnessed the incident. According to PW No.2 – Shaikh Yunus heoffered prayer in the Noor Masjid and after that when he was on his waytowards his house by walk, he witnessed the incident. According to PWNo.4 – Shaikh Mohammad, he was standing in the gallery of his houseand he noticed the incident and so he immediately came down and 19 Cr.Appeal 266.18reached the spot of incident. As regards the spot of incident and time ofincident is concerned, there is consistency in the evidence of these fourwitnesses.32.Though it is the contention of the learned Advocate for theAppellants that PW No.1 – Joharabegum was the Chance Witness.Admittedly, she was the resident of area where the incident had takenplace, therefore her presence cannot be said to be unnatural. Eventhough she happened to be near the spot of incident by chance, herevidence cannot be discarded on the ground that she was the ChanceWitness. 33.The evidence of PW No.1 - Joharabegum, PW No.2 - ShaikhYunus and PW No.4 – Shaikh Mohammad Athar show that theywitnessed the actual assault on the deceased - Ajju Builder. There isconsistency in their evidence in respect of the assault by the Appellantson the deceased. It is true that according to PW No.1 – Joharabegum,Appellant No.1 was having sword in his hands, whereas according to PWNo.2 – Shaikh Yunus and PW No.4 – Shaikh Mohammad Athar theAppellants No.1 and 2 were having the knives in their hands. This byitself will not be sufficient to discard their testimony on the aspect ofvariance of the weapon when there is consistency in the evidence on theaspect of assault on deceased by the Appellant Nos.1 and 2. In all 20 Cr.Appeal 266.18probability she mistook the metal rod, referred in the history given tothe hospital where deceased was initially taken, as seen from theevidence of PW No.12 – Dr. Bhavna Santosh Takalkar, as the Sword.Thus, the said variance will not affect the prosecution evidence. Thereis further consistency in their evidence that the Appellant No.2 assaulteddeceased Ajju Builder with stone in his head. The inconsistency in theirevidence is in respect of body parts on which the assault was made.When there are more than one assailants, the variance in the evidence ofthe eye witnesses in respect of manner of assault and assault on bodyparts is natural. 34.Though in the cross-examination of these three eyewitnesses omissions are brought on record, the core of their evidence inrespect of assault by these Appellant Nos.1 and 2 on deceased AjjuBuilder remained unaffected. When the witness deposes after a periodof one year from the date of incident, some omissions / improvements in/ from their previous statement is natural. However, the omissions /improvements brought in their evidence do not affect the very genesis oftheir account given in their previous statement, and thus their evidencecannot be discarded.35.As regards the omissions or discrepancies in the evidence ofthree eye witnesses is concerned, it would not be out of place to referthe observations of Hon’ble Supreme Court of India in Mritunjoy Biswas 21 Cr.Appeal 266.18vs. Pranab alias Kuti Biswas and another, 2013 Cr.L.J. 4212 (SC) whichreads thus:“It is well settled in law that the minor discrepancies are not to begiven undue emphasis and the evidence is to be considered fromthe point of view of trustworthiness. The test is whether the sameinspires confidence in the mind of the court. If the evidence isincredible and cannot be accepted by the test of prudence, then itmay create a dent in the prosecution version. If an omission ordiscrepancy goes to the root of the matter and ushers inincongruities, the defence can take advantage of suchinconsistencies. It needs no special emphasis to state that everyomission cannot take place of a material omission and, therefore,minor contradictions, inconsistencies or insignificantembellishments do not affect the core fo the prosecution case andshould not be taken to be a ground to reject the prosecutionevidence. The omission should create a serious doubt about thetruthfulness or creditworthiness of a witness. It is only the seriouscontradictions and omissions which materially affect the case of theprosecution but not every contradiction or omission (See LeelaRam (dead) through Dutt Chand v. State of Haryana and another,Rammi alias Rameshwar v. State of M.P. and Shyamal Ghosh v.State of West Bengal.” 36.It is clear from the evidence of the aforesaid three eyewitnesses that the assaulters i.e. the Appellants were known to them.The incident had occurred in the broad day light. The evidence ofPW No.2 – Shaikh Yunus show the presence of PW No.1 – Joharabegumand PW No.4 – Shaikh Mohammad Athar at the time of the incident onthe spot. The evidence of PW No.4 - Shaikh Mohammad Athar alsoshow the presence of PW No.2 – Shaikh Yunus and PW No.1 –Joharabegum at the time of incident on the spot. Their evidence showthat when PW No.1 – Joharabegum and PW No.4 – Shaikh MohammadAthar tried to intervene to save the deceased Ajju Builder who was theirson and brother, respectively, PW No.1 - Joharabegum was pushed due 22 Cr.Appeal 266.18to which she fell down and PW No.4 – Shaikh Mohammad Athar wasassaulted. Though these eye witnesses are cross-examined at length,their evidence in respect of the witnessing the incident of assault by theAppellant Nos.1 and 2 remained unaffected. 37.In her evidence PW No.1 – Joharabegum also named theacquitted accused no.3 – Mustak Sayyed Pasha and accused no.4 –Shaikh Kadak s/o. Shaikh Daud as the assaulters. The major omission inthe evidence of PW No.1 – Joharabegum that acquitted accused no.3 –Mustak Sayyed Pasha gave blow of Sword on the chest of her son andacquitted accused no.4 – Shaikh Kadak s/o. Shaikh Daud was assaultingher son by stone are proved as seen from the evidence of PW No.16 -Archana Supadu Patil. PW No.2 – Shaikh Yunus do not attribute anyrole of assault to the acquitted accused. Though, in the limitedcross-examination conducted by learned APP for the prosecution,PW No.2 – Shaikh Yunus deposed that he had seen the acquittedaccused no.3 and 4 restraining people, his cross-examination show thathis complaint was only against two persons with regard to assault on thedeceased. His evidence as against the acquitted accused is shaky andnot concrete. In his evidence PW No.4 – Shaikh Mohammad Atharspeak of involvement of acquitted accused nos.3 and 4 in the saidincident. However, his said evidence was an omission which has beenduly proved. Thus, it is clear that the testimony of these three eye 23 Cr.Appeal 266.18witnesses is inconsistent and at variance and there is material omissionwith respect to the involvement of acquitted accused nos.3 and 4. 38.It is true that in the evidence of PW No.4 – ShaikhMohammad Athar he deposed that when he saw the incident from thegallery of his house, he immediately came down and went to the actualspot of incident. That will not lead to the inference that he did notwitness the incident as it has come in his cross-examination that 10 to15 seconds were required to reach on the spot of incident from thegallery.39.The evidence of the above three eye witnesses establish theidentity of Appellant Nos.1 and 2 as the assaulters on deceased AjjuBuilder and on PW No.4 - Shaikh Mohammad Athar. Their testimonyagainst the Appellant Nos.1 and 2 is consistent, inspire confidence andthus is accepted as against the Appellant Nos.1 and 2.SEIZURE OF BLOOD STAINED CLOTHES OF ACCUSED NOS.1 AND 2 40.Learned Advocate for the Appellants cited the Judgment inthe case of Bhanudas vs. State of Maharashtra 2006 (1) Bom CR (Cri.)22, wherein it is observed that ‘non sealing of the blood stained clothesof the accused is a serious infirmity because possibility of tamperingcannot be ruled out.’ 24 Cr.Appeal 266.1841. The evidence of PW No.15 – Gafur Sadruddin Patil,Investigating Officer show that in the night of 22.04.2023 the Appellants/ Accused No.1, 2 and 4 were brought by ACB staff to the police stationand he arrested them under the arrest memorandum at Exhs.119, 120and 121 before the panchas. His further evidence show that he seizedthe blood stained clothes of Appellants No.1 and 2. 42. The evidence of PW No.8 - Shaikh Haroon Shaikh Rauf showthat he acted as the panch for seizure of clothes of Appellants No.1 and2 in the Jinsi Police Station after the midnight. The clothes were stainedwith blood. The panchanamas for seizure of clothes of Appellants No.1and 2 were at Exhs.79 and 80. Though the panch witness is cross-examined, his evidence in respect of seizure of blood stained clothes ofAppellants No.1 and 2 remained unshaken. His acquaintance with thewitnesses is not sufficient to discard his testimony. His evidence onrecord go to show that within hours of the incident the Appellant Nos. 1and 2 were apprehended and their blood stained clothes were seized.43. In the substantive evidence of PW No.8 – Shaikh HaroonShaikh Rauf and PW No.15 - Gafur Sadruddin Patil, it has not come thatthe clothes were sealed. The clothes seizure panchanamas at Exh.79and 80 show that the articles were packed and sealed. However, in 25 Cr.Appeal 266.18absence of substantive evidence for sealing of clothes, the said seizure iskept out of consideration. DISCOVERY AT THE INSTANCE OF APPELLANTS NO.1 AND 2 44.The evidence of PW No.7 - Syed Sadek Syed Aref show thaton 25.04.2013 he was called in Jinsi Police Station, wherein PW No.15 -Gafur Sadruddin Patil was present. Appellants No.1 and 2 were broughtone by one from the lock up and they gave statement to show the placewhere Rampuri chaku and wooden rod (danda) respectively were kept.The memorandums to that effect were prepared which were at Exh.73and 72, respectively. His further evidence show that Appellants No.1 and2 led the police and the panchas in the police vehicle. At the instance ofAppellant No.1 the knife having blood stains was seized from the placenear a tree, which was in front of Shah Hospital. The wooden handlewas broken from front side. It was sealed in a polythene. The seizurepanchnanama was at Exh.75. His evidence show that at the instance ofAppellant No.2 one danda (rod) was seized from near the tree near thewall of Kabrastan which was sealed in the polythene under thepanchanama at Exh.74. Suggestion that the said knife was lying in theopen place, is denied. The evidence of PW No. 15 - Gafur SadruddinPatil corroborate the said evidence of the panch witness. The evidenceof eye witnesses also speak of the stick as one of the weapon used in theassault in addition to use of knife and stones. The discovery of abovereferred articles is established. 26 Cr.Appeal 266.18REPORTS OF THE CHEMICAL ANALYZER45.The evidence of PW No.10 – Yunus Shah Daulat Shah andPW No.11 – Manik Bhaurao Hiwale show that they were the Police Naikand Police Hawaldar, respectively at the Jinsi Police Station at therelevant time. Their evidence show that on the directions of theInvestigating Officer, they carried the sealed packets and deposited themin the office of Chemical Analyzer. PW No.10 – Yunus Shah depositedeighteen (18) to twenty (20) sealed packets to the Chemical Analyzer,Aurangabd and PW No.11 - Manik Bhaurao Hiwale deposited one sealedpacket to the Chemical Analyzer, Mumbai. They had no reason to knowas to in what condition the packets were kept before handing over it tothem. Non-mentioning of number of packets in the statement of PWNo.10 - Yunus Shah will not be sufficient to discard his testimony.46.The evidence of the aforesaid police persons is corroboratedby the evidence of PW No.15 – Gafur Sadruddin Patil, wherein hedeposed that the seized muddemal was deposited with the concernedclerk. His further evidence show that the seized articles were sent to theChemical Analyzer. The communications to that effect are brought onrecord at Exh.89, 126 and 131. His further evidence show that theChemical Analyzers’ reports were received, which were at Exhs.132 to140. 27 Cr.Appeal 266.1847.Exh.132 is the result of analysis of the articles such as earth(two samples), stones, lump of cement concrete, cover of Jambia, cottonswab and clothes of deceased and clothes of the Appellants (kept out ofconsideration), wooden log and knife handle, which show that exceptone sample of earth, human blood is detected on all the articles. ARREST AND THE DISCOVERY AT THE INSTANCE OF THE ACQUITTED ACCUSED48.The evidence of PW No.15 – Gafur Sadruddin Patil showthat the acquitted accused No.3 - Mustak Sayyed Pasha and accusedNo.4 - Shaikh Kadar Shaikh Daud were arrested on 23.04.2013 and04.05.2013, respectively. His evidence and the evidence of PW No.9 –Shaikh Babu Shaikh Miya show that Sword – Article 17 was seized atthe instance of acquitted accused No.4 - Shaikh Kadar Shaikh Daudpursuant to the disclosure under Section 27 of the Indian Evidence Actfrom his house. The Chemical Analyzer Reports do not show that theclothes of the acquitted accused and the Sword were sent for chemicalexamination as the reports are silent on that aspects. Thus, the saidseizure is of no assistance to the prosecution. INJURIES ON PW NO.4 – SHAIKH MOHAMMAD ATHAR SHAIKH AKHATAR 49.The evidence of PW No.4 – Shaikh Mohammad Athar show 28 Cr.Appeal 266.18that in the incident he suffered injury and he was taken to the GhatiHospital where he was treated. The evidence of PW No.14 – Dr. PushpaRajan show that on 22.04.2013 she was working as the Medical Officerat Ghati Hospital and at about 06:30 p.m. Shaikh Mohammad Athar(PW No.4) was brought to the casualty with the alleged history ofassault and following injuries were noticed on his person :-“1. CLW over left parietal of size 3 x 0.5 x 0.25 cm, 2. Blunt trauma over left elbow and 3. Contusion over left arm posteriorly of size 2 x 2 cms” 50.The said injuries were within 24 hours. The MLC in thatregard is at Exh.111 which corroborate her evidence. This evidence onrecord show that PW No.4 – Shaikh Mohammad Athar suffered simpleinjuries.INJURIES ON APPELLANT NO.2 51.The evidence of PW No.14 - Dr. Pushpa Sherichand Rajanshow that when she was on the duty as Medical Officer at GhatiHospital, Appellant No.2 - Shaikh Akbar Shaikh Kadar had come in thecasualty at 06:20 p.m. with his brother Shaikh Babar Shaikh Kadar(Appellant No.1). He came with alleged history of assault one hourback at Baijipura. On his examination she found the following injurieson the person of Appellant No.2 – Shaikh Akbar Shaikh Kadar. “1.CLW over right parietal of size 3 x 0.5 x 0.25 cm, 2.CLW over left parietal of size 1 x 0.5 x 0.25 cm and 3.CLW over left knee of size 3 x 1 x 0.25 cm” 29 Cr.Appeal 266.1852.The injuries were within 24 hours. The MLC at Exh.110corroborate her evidence. This evidence on record show that AppellantNo.2 suffered minor and superficial injuries. Though this witness wascross-examined, nothing has come so as to dilute her evidence.CONCLUSION53.The above discussed evidence on record have establishedthat the Appellant Nos.1 and 2 assaulted deceased Shaikh MohammadAzhar @ Ajju Builder due to which he suffered serious injuries to whichhe succumbed. The articles used in the crime came to be seized at theinstance of the Appellant Nos.1 and 2. Human blood is found on thesaid articles. Even if the corroborative evidence in the nature of recovery/ discovery of the Articles at the instance of the Appellant Nos.1 and 2 isdiscarded, the evidence of three eye witnesses i.e. PW No.1 -Joharabegum w/o. Shaikh Akhtar, PW No.2 – Shaikh Yunus s/o. ShaikhLaddu, PW No.4 - Shaikh Mohammad Athar inspire confidence inrespect of involvement of the Appellant Nos.1 and 2 in the HomicidalDeath of Ajju Builder. The omissions brought on record do not affecttheir testimony as against the Appellant Nos.1 and 2. The injuries onPW No.4 - Shaikh Mohammad Athar are proved. The prosecution hasalso proved the injuries on Appellant No.2. It is needless to state thatthe Prosecution is not bound to prove the minor and superficial injurieson the person of Appellant No.2. The essential ingredients for the 30 Cr.Appeal 266.18offence of Murder and Simple Hurt are proved against the AppellantsNos.1 and 2. The act of Appellant Nos.1 and 2’s clearly fall within thepurview of Section 34 of the I.P.C. It is settled law that unless thefindings of the Trial Court are perverse, no interference is called for.Perusal of the Judgment of the Trial Court show that even though theentire evidence on record has been accepted by the Trial Court, the finalconclusion arrived at, cannot be faulted. On reappreciation of theevidence on record, we do not find that the acquittal of Accused No.3 –Mustak Sayyed Pasha and Accused No.4 – Shaikh Kadar s/o. ShaikhDaud requires interference. On reappreciation of the evidence on record,no interference in the conviction and sentence of the Appellant Nos.1and 2 is called for. Hence, the following order:ORDER(i)Criminal Appeal Nos.266 of 2018, 124 of 2023 andApplication for Leave to Appeal by State No.145 of 2018 are dismissed. (ii) Record & Proceedings be sent back to the Trial Court.(iii)Pending Criminal Application No.3972 of 2022 standsdisposed of.( NEERAJ P. DHOTE, J. )( R. G. AVACHAT, J. )GGP