The basic requirement for establishing the charge under section 147 or 148 is that there should be five or more persons.

 The evidence with regard to number of assailants is also not clear. It is very difficult to say that there were at least five persons who took part in the alleged offence. In our view, the charge under section 147 therefore, cannot be sustained. For the same reasons, charge under section 148 also must fail. The basic requirement for establishing the charge under section 147 or 148 is that there should be five or more persons. Since the evidence in this respect is highly shaky, we have come to the conclusion that both the charges must fail. As far as charge under section 302 r/w section 149 is concerned, it follows from the discussion of evidence that none of the appellants could be found guilty of the offence of murder with the help of Section 149 as charges under sections 147 and 148 20

of the IPC have not been proved. 

Bombay High Court

Shri Bhavesh S/O Mulchand ... vs State Of Maharashtra on 1 August, 2011

Bench: V.K. Tahilramani, M.L. Tahaliyani

1. The appellants have been convicted by the learned Additional Sessions Judge, Nagpur by his order dated 31.1.2007 for the offences punishable under sections 147, 148 and 302 r/w section 149 of the Indian Penal Code (in short "IPC"). Both of them have been sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default, to undergo R.I. for a period of four months for the offence punishable under section 302 r/w section 149 IPC. They have been sentenced to suffer R.I. for two years and to pay a fine of Rs. 500/- each, in default, R I for two years for the offence punishable under section 148 of the IPC. No separate sentence has 3
been imposed for the offence punishable under section 147 of the IPC.
2. It is the case of the prosecution that there were some disputes between the deceased and the appellant in Appeal No. 59/2007 (hereinafter referred to as the "accused No.1") due to the alleged intimacy of the accused No.1 with the girl by name Pappi. The appellant in Appeal No. 69/2007 ( hereinafter referred to as the "accused No.2") is the friend of accused no.1.

3. The alleged incident had occurred on 8th April, 2005 at about 8.30 p.m, near a grocery shop known as "Ramesh Kirana Stores", situated near Vinayak Deshmukh High School, Shantinagar, Lakadganj Police Station, Nagpur. It is alleged that the appellants and other 3 to 4 boys had assaulted the deceased Atul by means of sharp weapons and had caused following injuries to the deceased:
"1) Stab wound, left side of chest, 3 c.m. Of midline of size 1 ½ cm x ½ cm x cavity deep in third intercostal space transversely placed.
2) Incised wound, left ear pina, extending upto left zygoma of size 9.5. cm. x 0.5 c.m. x muscle deep. Ear Pina cut through and through.
3) Skin deep incised wound extending from upper border of mandible to left ear pina of size 9 c.m. x 0.5 cm. Ear pina cut 4
through and through.
4) Contused abrasion, right frontal prominence of size 1 c.m. x 1 c.m. Reddish brown.
5) Two contused abrasions, right zygoma, separated by 2 c.m. of size 3 c.m. X 1 c.m. respectively.
6) Skin deep incised wound, left side of face in lower border of mandible of size 7.5. c.m. x ¼ cm.
7) Skin deep incised wound, right side of chest in mid clavicular line in 5th intercostal space of size 0.5 c.m. X 0.5 cm. 8) Skin deep incised wound, obliquely placed extending from left axilary fold to left nipple of size 18 c.m. X 0.5. x 0.5. c.m. 9) Skin deep incised wound, obliquely placed, front of left side of chest of size 5 c.m. X 0.5. cm."

4. The above-said injuries had resulted into death of the deceased. The incident was witnessed by PW 1, but the matter was not reported to Police by him. He was later on called by brother of the deceased and was taken to Lakadganj Police Station. His oral report was recorded. On the basis of his oral report, FIR was recorded by the Investigating Officer - PW 9 Fakirrao Rote. During the course of investigation, the appellants were arrested and other accused were also arrested. Though it is not clear from the evidence as to what happened to other accused, it seems that they were juveniles in conflict with law and, therefore, their case might have been placed before the Juvenile Justice Board.
5

5. Inquest Panchnama on the dead body was also drawn. The Panchnama of the spot was drawn and inquest Panchnama of dead body of deceased Atul was also drawn. After inquest Panchnama, the dead body was sent to Medical Officer for post-mortem examination. The Medical Officer after examination of dead body, found external injuries described in paragraph 3 above.

6. The Medical Officer on internal examination of dead body found the following three injuries:
"1) Cut injury present in the third intercostal space, in left side with intercostal muscle haematoma of about 50 grams, dark red in colour.
2) Cut injury through corresponding to Injury No.1 present in the pericardium, cavity contained 450 ml. blood and blood clots. 3) Stab wound was present in anterior surface of left atrium. Blood and blood clots were present. "
It was stated by the Medical Officer that the injuries were sufficient to cause death in ordinary course of nature. According to him, the cause of death was stab injury to heart. The said external injury is at Sr.No.1 above. 6

7. Statement of eye witnesses were recorded and after completion of investigation, charge sheet was submitted in the Court of Magistrate. The case was, later on, committed to the Court of Sessions. After trial, the accused have been convicted for the offences as stated herein-above.
8. The prosecution had examined in all 11 witnesses in support of its case before the trial Court. The case of the prosecution, however, was mainly based on PW 1 - Suresh Mankar, PW 2 - Ravindra Bais, PW 10 - Suresh Sambalwar, PW 3 - Ashish Ghaiwat and PW 4 -Mohan Chikhale.
9. The learned trial Court, while evaluating the evidence of these witnesses, has taken note of the fact that the witnesses were either relatives or friends of the deceased. The learned trial Court has also taken note of the fact that all the witnesses have not stated that there were five persons including the appellants. It is stated in the judgment of the learned trial Court that at least two of the witnesses, have stated that there were five or more persons including the appellants. It is on the basis of this evidence that the appellants have been convicted for the offences punishable under sections 147 and 148 of the IPC. It is found that the appellants were members of unlawful assembly, the common object of which was to commit murder of the deceased Atul. Since it was also found that they were holding arms and therefore were guilty of the offence punishable under section 148 of the IPC. 7

10. The learned trial Court has stated in the judgment that the discrepancies found in the evidence of witnesses are of minor nature and did not in any manner create doubt about the genuineness of their evidence. If one goes through the judgment carefully, it can be seen that the learned trial Judge has stated at more than one places that the identification parade even though needed, was not held. However, the learned trial Court has stated that this omission in investigation does not in any manner shake the credibility of the prosecution witnesses.

11. It is, therefore, necessary for us to see the evidence of these five witnesses on the basis of which the appellants have been convicted. Before we advert to the evidence of these witnesses, we find it necessary to mention here that maternal uncle of the deceased and one Bablu who had, according to prosecution, reached the spot immediately after the incident and who had taken deceased Atul from the spot of incident to the hospital, have not been examined. The prosecution has not given any explanation for non- examination of those witnesses. After having gone through the evidence of all witnesses, it is not clear as to by whom and how the dead body was carried to the hospital from the place of the incident. Even the Investigating Officer has not bothered to give evidence in that regard. He has stated in his evidence that the dead body was sent to Mayo Hospital for post-mortem examination. However, he has not stated as to from where the dead body 8
was sent to the hospital.

12. PW 1- Suresh Mankar was passing from near Vinayak Deshmukh High School on his bicycle at the time of the incident. According to him, he had seen the scuffle between the deceased on one hand and the appellants/ accused No.1 and 2 and their associates on the other hand. He had heard the shouts "melo re bapa". After the shouts, he reached the spot. He had seen one boy with a swordstick (gupti). He had seen the deceased lying on the spot. He had also seen that three boys fled away from the spot as soon as he reached there. As such, it can be gathered from the evidence of this witness that there were three boys who took part in the alleged assault. It is stated by him that the relatives of the deceased reached the spot and the deceased was taken to hospital. PW 1 thereafter went home. After about one-and-a-half hour, brother of the deceased came to him and took him to Police Station to lodge the report. The oral report of this witnesses is Exh.9 and the FIR is at Exh.10. He had identified both the accused during the course of trial. It is stated by him that the accused No.2 Ramesh was holding a swordstick (gupti). According to him, accused No.2 had inflicted blows on the deceased by means of swordstick. In his cross- examination, this witness has admitted that he did not know names of the accused at the time of the incident. He was not called for identification parade. He was not able to give exact number of boys who took part in 9
the alleged assault. He has stated in his cross-examination that he had told the police that accused No.2 was holding a swordstick. He was, however, unable to give explanation as to why that part of his statement is missing from the police statement. This witness had also not stated before the police that the relatives of the deceased had come and they had taken the deceased to the hospital. Though PW 1 has stated that he had told the police that the relatives of the deceased had come and had taken the deceased from the spot, the Police Officer who had recorded his statement has clearly stated that this fact was not stated by PW 1.

13. PW 2- Ravindra also knew the deceased- Atul. Both of them were working together. He had occasion to see the incident because it had occurred near his house. This witness has seen the deceased going to dispensary. According to him, the incident had occurred when the deceased was returning from dispensary. PW 2 heard shouts and, therefore, came out of his house. It was seen by him that the deceased was lying at a short distance from his house. He had also seen both the accused while fleeing away from the spot. PW 2 went near the deceased and saw that there were injuries on the person of the deceased. He had seen one injury on the chest and one injury behind the ear. Both the injuries were bleeding injuries. It is stated by him that he could identify the accused no.1 only but could not identify the other boy. This witness was declared hostile by the 10
prosecution. He had denied in his cross-examination by learned Additional Public Prosecutor that he has seen the accused assaulting the deceased by means of swordstick and a razor.

14. PW 3-Ashis was casually roaming on the road where the incident had occurred. He knew the deceased. He had seen the deceased and four boys chit-chatting at a place near the Kirana shop. According to this witness, the accused no.1 had caught hold of the deceased and then he had inflicted swordstick blows on the deceased. The accused No.2 was holding a barber razor (vastra). He had inflicted a blow on left ear of the deceased. Soon after the assault, the deceased had fallen down and all the boys ran away from the spot. According to this witness also, the maternal uncle of the deceased and one Bablu had taken the deceased to the hospital. The statement of the witness was recorded on the next day of the incident. This witness in his cross-examination has admitted that he did not know the accused prior to the date of the incident. However, immediately thereafter, he improved his version by saying that he had seen the accused Nos. 2, four to five times. The fact remains that he did not know the name of accused No.2. He had admitted that he had not stated before the police that the accused No.1 had taken out swordstick, which he had concealed inside his clothes, near the waist.
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15. Witness No. 4- Mohan is also, according to prosecution, an eye witness. He was busy in preparing torans on account of 'Gudipadwa' at about 7.00 p.m. He had witnessed the incident which had occurred at about 8.00 p.m. He had seen five small boys sitting on a place known as katta in front of Ramesh Kirana Stores. The deceased was also there. Both the accused were amongst the said five boys. It is stated by this witness that the accused No.1 started assaulting the deceased by means of a gupti. He inflicted blows on the chest of the deceased. The accused No.2 assaulted the deceased by means of barber razor. The deceased shouted loudly. It is stated by this witness that both the accused and the other boys ran away from the spot after the incident. The statement of this witness was recorded on the next day. In the cross-examination, this witness has denied that torans are sold in the morning of Gudipadwa day. This statement of witnesses is not correct. This is absolutely false inasmuch as everybody knows that torans are required in the morning of Gudipadwa and not in the evening. His statement was also recorded on the next day. In the cross-examination, this witness has stated that he had no occasion to see the said five boys. He learnt the name of accused No.2 at Police station. He was not knowing his name before he had visited the Police Station to give his statement. It is further admitted by him that the names of five boys including the accused No.2, were told to him by the police.
12

16. The cause of death is not disputed. However, it is vehemently submitted before us by the learned counsel for the accused that the witnesses are got up witnesses inasmuch as the statements of most of the witnesses are recorded late. It was brought to our notice that PW 1 who is the complainant has nowhere stated that there were five or more than five boys. According to this witness, there were 2 to 3 persons near Ramesh Kirana Stores. He had not seen anybody else except the accused nos.1 and 2. Moreover, this witness has not given any explanation as to why did he not go to the Police Station or at least to the house of the deceased. There is no explanation as to why this witness did not inform the relatives of the deceased despite the fact that he knew the deceased. It is also not explained by the prosecution as to why it was needed to call PW 1 to record his statement as an FIR. Once the police came to know about the incident from the maternal uncle of the deceased or Bablu, the statement of maternal uncle or Bablu had become FIR. The prosecution has not given any explanation as to why the maternal uncle of the deceased and said Bablu have not been examined. In fact, they were the most important witnesses in this case, inasmuch as they reached the spot immediately after the incident and took the deceased to the hospital.

17. It has also come in the evidence that there was a scuffle. No evidence had come before the trial Court regarding the identity of the other 13
accused. They might be juveniles, but it was necessary for the prosecution to fix their identity before the trial Court, as evidence in that regard would have helped the trial Court to examine the credibility of the witnesses. The evidence of witnesses adduced by the prosecution appears to be tailor-made. It does not appear to be a natural evidence. The learned trial Court was of the view that the relationship or friendship, by itself, should not be a ground for rejection of evidence. We subscribe this view of the learned trial Court. But it was also necessary to examine in the present case as to whether the relationship or friendship of the witnesses with the deceased was the reason that they had appeared as witnesses before the police. The learned trial Court should have taken pains to examine whether the witnesses on which the prosecution case is resting were really present on the spot or otherwise. The learned trial Court, we have noted, has totally ignored vital part of the cross- examination of the eye witnesses.

18. Considering the evidence of PW 1 that names of both the accused were not known to him prior to the date of the incident, it was necessary for the Investigating Officer to hold identification parade. We do not want to suggest that in almost all such cases identification during investigation is a must. At the same time, we cannot ignore the fact that PW 1 had not chosen to go to Police Station or relatives of the deceased. Names of both the accused had figured in the FIR despite the fact that PW 1 did 14
not know their names. Therefore, the Court can draw an inference that the names of the accused had been introduced at the instance of the police or relatives of the deceased. In our view, PW 1 is totally unreliable witness.
19. As far as PW 2 is concerned, this witness had come out of his house after hearing the noise. He had also not witnessed the actual incident of assault. He had seen both the accused fleeing away from the spot. Since it is case of the prosecution that there were five or more than five persons who took part in the alleged assault, the omission in the evidence of this witness with regard to other boys, is fatal to the prosecution case. This witness also appears to have been introduced only to create a false evidence against the accused Nos. 1 and 2. Had he been a natural witness, he would have stated something about the other boys also. From the evidence of this witness, it appears that he is very sure that there were only two assailants. This goes totally contrary to the prosecution case. It damages the prosecution case beyond repair. Apart from this, the witness could identify the accused No.1 only and not the other accused. Again, in the case of this witness also, identification parade was not held for which there is no explanation. Though this witness was declared hostile and though he has given certain admissions in favour of the prosecution, there is no explanation as to why did he fail to state these facts in his examination-in-chief. It was the duty of the prosecution to bring on record as to why did this witness not state those 15
facts in his examination-in-chief. Unless such a material is brought on record in the evidence of this witness, the answers given to suggestive or leading questions may not help the prosecution. The witness who had supported the prosecution during the course of cross-examination by the Prosecutor and who had not supported during the course of examination-in-chief is required to give explanation for the same. It was the duty of the Prosecutor to put questions to bring on record as to what prevented the witness to give narration of incident in his examination-in-chief. In the absence of such an explanation being on record, in our view, the favourable evidence given in answer to the suggestive questions will not help the prosecution.
20. As far as PW 3 is concerned, he has given a totally different version than the evidence of PW 1 and 2. According to this witness, he had seen the incident and four boys on the spot. It is not his case that there were five or more boys. This witness was wandering/roaming on the road without any reason. He has not stated as to how did he happen to be on the said road and as to why he had gone for roaming particularly on the said road. He was at the distance of 50 feet when the incident had occurred. This witness is ordinarily resident of Bangalore. He happened to be at Nagpur as he was a Government contractor. As such, his stay at Nagpur was temporary. It appears from the cross-examination of this witness that tiling work of the footpath was in progress. Therefore, it is possible that this 16
witness was on that road on account of his work in progress. However, he has admitted in cross-examination that the accused No.2 was not staying in the locality where this witness was temporarily staying. He was not knowing the accused No.2 prior to the date of the incident. In the case of this witness also, identification parade of the accused was not held.
21. PW 4 has stated that the deceased and five small boys were sitting on Katta. After some time there was a quarrel between the boys on one hand and deceased on the other hand. The accused no.1 suddenly started assaulting the deceased by means of Gupti and accused No. 2 had started assaulting by means of a razor. This witness happened to be near the spot of the incident because he was busy in selling torans, that being the "Gudipadwa" day. This part of evidence of this witness falsifies his whole story as it is a matter of common knowledge that torans prepared of mango tree leaves and flowers are required on Gudipadwa day in the morning session only. At the most, one may buy toran in the afternoon. After sunset, it is impossible to see any shop selling such torans anywhere in the State of Maharashtra. Though this fact has been denied by the witness in his cross- examination, but his evidence in this regard needs to be rejected in toto. His statement was recorded on the next day. He had not stated before the police that the deceased and the accused along with their friends, were sitting on the katta. It is admitted by him in his cross-examination. This witness has 17
also stated that he learnt the name of accused No.2 at Police Station. He did not know his name earlier to that. The names of five other boys were also learned by this witness from the Police.

22. PW 10 - Suresh Sambalwar knew both the accused. It is stated by him that he knew deceased Atul also. At the time of incident, this witness was at a Pan shop known as 'Naresh Pan Palace', Shantinagar, Nagpur. He saw quarrel between both the accused and other 4 to 5 boys on one hand and the deceased on the other hand. The said quarrel took place in front of Ramesh Kirana Stores. It is stated by this witness that accused no. 1 and 2 along with other 4 to 5 boys were assaulting the deceased. After the assault, accused no.1 and 2 and said 4 to 5 boys fled from the spot. He had seen the accused no.1- Bhavesh holding a swordstick (gupti). This was seen by him when both the accused and said 4 to 5 persons were fleeing away. According to this witness, maternal uncle of the deceased reached there within five minutes. He brought an auto-rickshaw and removed the deceased to the hospital. It is thus clear from the evidence of this witness that the assailants were more than 6 to 7 persons. What is pertinent to note in the evidence of this witness is that though he knew accused No.1 and 2 and the deceased, he did not make any attempt to intervene or go near the spot. He did not inform the Police Control Room. He also did not bother to visit Shanti Nagar Police outpost, situated in the same locality. On the next day, he has 18
visited the hospital. Clothes of the deceased were seized in his presence. It is, therefore, clear that this witness was very close to the deceased. It is not his case that he was called by the police for Panchnama. Since he had voluntarily visited the hospital, it can safely be said that this witness was knowing the deceased very well. Considering the intimacy of this witness with the deceased, his conduct at the time of alleged incident appears to be highly questionable. In the normal course, he should have intervened when the quarrel was going on. Assuming that he was scared of the accused Nos.1 as he was allegedly holding a gupti, what the minimum was expected from this witness was that he should have gone to the spot where the deceased was lying at least immediately after the incident. Though he has stated that maternal uncle of the deceased was there within five minutes, he has not stated as to what was done by him during the intervening period of five minutes. Considering the serious discrepancies in the evidence of PW 1, 2, 3 and 4 and considering the fact that almost all witnesses have described the incident in totally different manner, we are of the view that it is not safe to rely on the evidence of this witness also.

23. After having carefully examined the cross-examination of these five witnesses, we have come to the conclusion that these witnesses do not appear to be natural witnesses. As already stated, their evidence is tailor- made. Careful reading of evidence of all the witnesses shows that they are 19
very particular in describing the role of accused No.1 and 2. They are more particular in describing the role of accused No.1. However, none of the witnesses have described the role of other assailants who were present on the spot. The prosecution has not led any evidence before the trial Court as to what action was taken by the Investigating Officer in that regard. Assuming that they were juveniles, it was necessary for the prosecution to fix their role also during the course of recording of evidence. In the absence of this part of evidence, the appreciation of evidence with regard to role of accused no.1 and 2 certainly has gone in a wrong direction. Apart from this, the prosecution has not given any explanation as to why maternal uncle of the deceased Mr. Thaokar and Mr. Bais known as 'Bablu' have not been examined as prosecution witnesses. The evidence with regard to number of assailants is also not clear. It is very difficult to say that there were at least five persons who took part in the alleged offence. In our view, the charge under section 147 therefore, cannot be sustained. For the same reasons, charge under section 148 also must fail. The basic requirement for establishing the charge under section 147 or 148 is that there should be five or more persons. Since the evidence in this respect is highly shaky, we have come to the conclusion that both the charges must fail. As far as charge under section 302 r/w section 149 is concerned, it follows from the discussion of evidence that none of the appellants could be found guilty of the offence of murder with the help of Section 149 as charges under sections 147 and 148 20
of the IPC have not been proved. However, the evidence is so fragile and not reliable that even finding the appellants guilty for the offence punishable under section 302 r/w section 34 IPC is difficult.

24. For all these reasons, we have come to the conclusion that the judgment and order of the learned trial Court needs to be set aside. Both the appellants are entitled to be acquitted of all the offences for which they are found guilty. Hence, we pass the following order:
ORDER:
Both the Appeals are allowed. The judgment and order dated 31.1.2007 in Sessions Trial No. 407/2005 passed by the learned Additional Sessions Judge, Nagpur convicting the appellants for offence punishable under sections 147, 148 and 302 r/w section 149 IPC is set aside. Both the appellants shall be released form the prison immediately, if not required in any other case. The property be disposed off in accordance with the order passed by the trial Court.
JUDGE JUDGE
sahare

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