In the above context, the contention of the
appellant’s counsel that the supplementary statements
identifying the accused by name were not produced
before the Courts below, do not appear to be entirely
correct. The Trial Court records as specifically noted
in the preceding paragraph, clearly reveal that Arun’s
(PW1) statement dated 23.01.2009 identifying the
accused by name, was available before the Sessions
Court. It is also plausible that the accused with the
alias Lala could be referred by the witnesses as
‘Lalya’. The colloquial variation, in our opinion, is
not so far removed so as to render the identification
unreliable, particularly when no other person by such
name is amongst the accused group. Much indeed is in
a name as in this case if we may take the liberty of
disagreeing with one of the most famous lines penned
down by the Bard of Avon, “Whats in a name”.{Para 13}
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 540/2018
LALA @ ANURAG PRAKASH AASRE Vs THE STATE OF MAHARASHTRA
Author: Hrishikesh Roy, J.
Dated: AUGUST 24, 2021
1. Heard Mr. Huzefa Ahmadi, the learned Senior
Counsel on behalf of the Appellant. The Respondent,
State of Maharashtra, is represented by Mr Sachin
Patil, the learned Advocate on Record.
2. The present Appeal is directed against the
analogous judgment dated 09.05.2014, whereby, inter
alia, the Crl. Appeal No.236/2011 was dismissed and the
conviction of the appellant u/S 302, 120B, 147, 148 and
Section 324 of the Indian Penal Code was upheld.
3. According to the prosecution, at around 9.45 pm
on 22.01.2009, the deceased Balu Mandpe was chit
chatting with his friends in front of his house at a
street corner. At that time, 10/12 persons arrived
there on two wheelers and hurled abuse at Balu. The
group then started assaulting Balu with sharp edged
weapons such as sword, knives, khanjar and farsa, and
after causing grievous injuries, the attackers drove
away. Balu sustained grievous injuries. Within few
minutes of the occurrence, Arun Pohankar, who too was
injured in the assault, reported the incident to
Imamwada Police Station, where many of the assailants
were named or described by appearance. The friends
rushed injured Balu to the nearby medical hospital
where, he was declared dead. In the FIR, the PW1 had
not named the present appellant but had named, Kunal
Tagde (A1), Vinod Thakre (A2), Rajput @ Nabut (A3),
Sachin Ingle (A4), Ameet Gujar (A5), Shekhar @ Husnya
(A8) in the larger group describing one of the
attackers by his build and appearance. On the basis of
the Complaint, the Crime No. 6/2009 was registered u/s
147, 148, 149, 302, 120B of the Indian Penal Code
(IPC). The police investigation commenced, and the
Investigating Officer (IO) (PW11) immediately visited
the spot and prepared Spot Panchnama and recorded
statement of the witnesses. On conclusion of
investigation, Chargesheet was filed and thereafter,
the case was committed to the Sessions Court at Nagpur.
The nine accused, including the appellant Lala @ Anurag
Prakash Aasre faced trial in the Sessions Trial no.
232/2009 on charges drawn up for offences relatable to
Sections 147, 148, 149, 302, 324, 120B of the IPC. The
defense of the Accused is one of total denial.
4. In course of trial, the prosecution presented 11
witnesses, and produced other evidence. However, none
of the accused entered the witness box or presented any
defense evidence. The learned Session Judge concluded
that the accused had formed an unlawful assembly with
the common object of causing the death of Balu Mandpe,
and had assaulted him with sharp and dangerous weapons.
According to the Trial Court, the present appellant who
was the original Accused No.6, assaulted the informant
Arun (PW1) with a sword. Accordingly, the appellant
along with others was convicted u/s 302, 120B IPC and
were sentenced to suffer imprisonment for life and to
pay a fine of Rs.5000 each, in default, to suffer
further 1 year imprisonment. The accused, including the
appellant were also convicted u/s 147, 148 of the IPC
and were sentenced accordingly. The appellant/accused
No.6 is additionally convicted u/s 324 IPC and was
sentenced to suffer rigorous imprisonment for three
years and to pay a fine of Rs.2000, in default to
suffer simple imprisonment for 6 months. All
substantive sentences were to run concurrently.
5. Four criminal appeals were then filed by the
convicted accused including the Crl Appeal No. 236/2011
filed by the present appellant. The learned counsel for
the appellant highlighted that the injured informant,
while naming six of the assailants by name, had not
named the appellant in the FIR. According to the FIR,
Page 4 of 20
when Arun (PW1) had intervened to protect Balu Mandpe,
“One tall person having longish nose attacked with
sword”. When the informant Arun(PW1) resisted the same
by his hand, he suffered a sword injury in the wrist
area of his left hand. The remaining 6 accused named in
the FIR, had carried knives, khanjar and farsa.
6. The incident was apparently a fallout of dispute
between two groups. The findings of both the Trial
Court and the High Court on the conviction of the
appellant and the other accused is primarily dependent
on the ocular evidence of the 4 eyewitnesses. The
learned counsel for the appellant would firstly argue
that the appellant was not amongst the six named and
other accused in the FIR. Moreover, as the prosecution
had not arranged for a Test Identification Parade
(TIP), the identity of the appellant is not clearly
established as one of the not named persons involved in
the assault.
7. On the other hand, the learned counsel for the
State contends that the appellant was specifically
Page 5 of 20
named by the Informant in the supplementary statement
recorded immediately by the police, u/S 161 of CrPC. It
is his further submission that PW2, PW4, PW6 have also
named the appellant in their S.161 statement. The State
counsel highlights that a specific charge u/S 324 is
framed against the present appellant as the person who
gave the sword blow on the informant (PW1). Therefore,
the counsel argues that the involvement of the
appellant in the incident, and being one of the
assailants, is beyond doubt as he was identified by all
the witnesses and there was no necessity to conduct a
TIP for the appellant.
8. In order to appreciate the rival contentions, we
must carefully consider the evidence presented against
the appellant by the prosecution. At the outset
however, we are constrained to note on few errors
(typographical or otherwise), with regard to the FIR,
witness statements and supplementary statements,
presented at different stages of this case. These
documents have variations either in the translation or
Page 6 of 20
in the transcription, when supplied by the respective
counsel to the Court.
9. In the above context, we may benefit by referring
to the Draft Rules of Criminal Practice, 2021 notified
on this Court’s directions in Suo Moto Writ (Crl.)
No.1/2017 ‘In Re: To Issue Guidelines Regarding
Inadequacies and Deficiencies in Criminal Trials’. The
confusion created by multiple versions of statements
and depositions in the projection of either side is
compelling us to reiterate the necessity of referring
to these Guidelines. This Court’s order dated
20.04.2021 reflects the precise concerns which we have
faced in appreciating the evidence presented,
“The Court noticed common deficiencies which
occur in course of criminal trials...These
related, amongst others, to the manner in
which documents (i.e. list of witnesses,
list of exhibits, list of material objects)
referred to are presented and exhibited in
the judgment, and the lack of uniform
practices in regard to preparation of injury
reports, deposition of witnesses,
translation of statements, numbering and
nomenclature of witnesses, labeling of
material objects, etc. These very often lead
to asymmetries and hamper appreciation of
Page 7 of 20
evidence, which in turn has a tendency of
prolonging proceedings, especially at the
appellate stages.”
The Draft Rules also dictate the manner in which
depositions must be translated. The practice of
translating any relevant document must not differ so
significantly across forums and submissions by parties
to cast severe aspersions on evidence, which may
otherwise be not warranted. Idiosyncrasies of
colloquial terms, used for naming an accused, could
well be the difference between conviction and acquittal
of an accused.
10. Taking a cue from above and to ensure that we
rely on the correct facts and documents, we have read
and relied upon the relevant original Trial Court
Records for this judgment. It is important to record
that the variation extended to certain aspects on
identification of the accused and as such to avoid any
confusion, we have relied exclusively upon materials as
they appear, in the original records.
Page 8 of 20
11. The relevant contents of the FIR as on record
with the Sessions Court (Exh. 103), read as under: -
“………………….One tall person having longish nose
attacked with sword and I obstructed with my
arm. As a result, I sustained injury near my
left wrist. Out of remaining persons, I know 1)
Vinod (Surname not known) who was holding
knife, 2) Amit Gujar who was holding knife, 3)
Kunal who was holding knife, 4) Bhimya’s
brother Husnya who was holding khanjar
(dagger), 5) Sachin who was holding sword, and
6) Nabut who was holding Farsa (battle-axe).
They along with some five to six people killed
Balu by delivering blows on his chest...”
11.1 The informant Arun (PW1), in his evidence deposed
that “one person with strong build tried to assault
Balu Mandpe with the sword and at that time I
intervened and the blow of the sword landed on my left
wrist. I sustained bleeding injury...I can identify
the person having strong build and who tried to
assault Balu Mandpe by sword and the blow landed on my
wrist when I intervened.” Accordingly, the Trial Court
recorded that “the witness has gone to the accused and
identified the strongly built person among other
accused. His name is Lala Asare.” In his cross
Page 9 of 20
examination, the PW1 stated that the first blow was
given by Lala Asare (Accused No.6) and although he
stated the same to the police, he is unable to say why
the police failed to record the appellant’s name in the
FIR. It is further stated, that “a person having a
strong built” tried to assault Balu Mandpe with a sword
but the witness cannot assign any reason as to why the
words “strong built” are not mentioned in his FIR.
11.2 Such variation in describing the appellant being
important, would bear specific discussion. While the
FIR dated 22.01.2009 admittedly doesn’t disclose the
name of Lala, the appellant before us, the statement
recorded within few hours of the incident (but
technically the next day post-midnight) on 23.01.2009,
as noted by the Trial Court contains the following
description, “one fair complexioned person having
longish nose, named ‘Lalya’, attacked with sword and I
obstructed the blow with my arm.” That apart the
supplementary statement u/S 161 CrPC submitted by the
State also identifies the assailant by name, “one
Page 10 of 20
heightened, white coloured boy namely Lalya attacked
me with sword”.
11.3 Dharmendra Ashok Yadav (PW2) in his evidence,
stated that “One person having the height and long
nose, whose name was Lala was armed with sword. He
tried to assault Balu Mandpe with the sword. Arun
Pohankar intervened. The blow of sword was landed on
the left wrist. He had sustained bleeding injury and
he retreated. We also retreated as we were frightened.
Then Lala assaulted Balu Mandpe with sword. He
received the blow on his head and because of that he
fell down”. In his cross examination the PW2 stated
that he did not know the name of the person having the
sword. However, when he was shown the Accused No.6, he
could identify him as Lala Aasre, but the PW2 is unable
to assign any reason as to why same is not recorded in
his statement to the police.
11.4 Minute scrutiny of the Trial Court records
reveals that the 23.01.2009 statement is not just about
physical descriptions. The PW2 has instead noted “One
Page 11 of 20
man named Lalya delivered blow of sword on him”. PW2’s
statement under Section 164 CrPC recorded on 31.01.2009
gives clear sequence of the attack, and the specific
role of the appellant. The witness recollects that
“Lala brandished his sword which got hit on Arun’s
hand. Lala brandished his sword on us also”. The
supplementary statement put forward by the State
contains the following identification “One heightened,
white coloured boy namely Lalya”.
11.5 The third eyewitness Sudhanshu Jadhav Rao Warade
(PW4), mentioned about his own presence at the place of
the incident and taking the injured Balu Mandpe within
5 minutes to the hospital. According to PW4, he had
informed the police that Lala @ Anurag Aasre had
assaulted Balu Mandpe by sword, because of which Balu
fell down. PW4’s statement recorded on 22.01.2009 at
the Imamwada P.S. names only three accused, without
naming Lala. However, his statement u/S 164 recorded on
24.02.2009 does contain a detailed description of the
incident, and specifically recognises the appellant by
Page 12 of 20
his real name and his alias. He has stated therein that
“One Anurag alias Lala Aasre from amongst them,
delivered blow of sword on Balu Alias Satyendra. Arun
Pohankar obstructed the said blow of sword.”
11.6 The fourth eyewitness was Raju Manohar Joshi
(PW6). In his testimony he mentioned about the presence
of the appellant and other accused but feigned
ignorance of what happened thereafter. Accordingly as
the PW4 was not supporting the prosecution case, he was
cross-examined by the Assistant Public Prosecutor. In
his cross-examination, PW6 mentioned that barring Lala
Aasre and Sachin Ingle, all the other accused are
residents of Chandan Nagar. Further, he knew both Lala
Aasre and Sachin Ingle, for the last one and a half
years. In his cross-examination, on behalf of the
advocate of Accused 5,6,7, the PW6 stated that,
although he had seen the incident, he did not disclose
the names of anyone.
11.7 The investigating officer in the case was Sunil S
Monde (PW11), who on the date of the incident was
Page 13 of 20
posted as the Senior Police Inspector in the Imamwada
Police Station. PW11 reportedly recorded the
supplementary statement of the complainant and in his
cross examination, admitted that TIP of the accused
persons was not carried out in the instant case. On the
issue of Supplementary Statement, the IO in his crossexamination,
testified that “I had not recorded the
supplementary statement of the Complainant Arun
Pohankar”. The IO had also stated that he had
truthfully recorded the statement of PW2. In his cross
examination by the advocate on behalf of Accused No. 5-
7, the IO stated the following “I have recorded the
statement of PW2 Dharmendra Yadav...PW2 has not stated
before me that one person by name Lala Aasare, has
assaulted with sword...PW2 has not stated before me
that said Lala tried to assault Balu Mandpe”. In his
further cross-examination, the IO stated that PW6 knew
Lala Aasre but the PW6 in his statement before the IO
on the day of the incident had not stated that Lala
Page 14 of 20
Aasre rushed toward Balu Mandpe and assaulted him with
weapons.
12. The key issue to be decided in this appeal is
whether the appellant was identified as the person
wielding the sword who gave the sword blow to the
Informant (PW1) and also to the deceased Balu Mandpe.
The appellant as earlier noted, was not named in the
FIR by the injured informant. The prosecution however
tries to co-rrelate the appellant as the one who was
described as ‘heightened person having long nose’ in
the FIR. This has been done through the evidence of
PW1, PW2, P4, PW6, as recorded in the preceding
paragraphs.
13. In the above context, the contention of the
appellant’s counsel that the supplementary statements
identifying the accused by name were not produced
before the Courts below, do not appear to be entirely
correct. The Trial Court records as specifically noted
in the preceding paragraph, clearly reveal that Arun’s
(PW1) statement dated 23.01.2009 identifying the
accused by name, was available before the Sessions
Court. It is also plausible that the accused with the
alias Lala could be referred by the witnesses as
‘Lalya’. The colloquial variation, in our opinion, is
not so far removed so as to render the identification
unreliable, particularly when no other person by such
name is amongst the accused group. Much indeed is in
a name as in this case if we may take the liberty of
disagreeing with one of the most famous lines penned
down by the Bard of Avon, “Whats in a name”.
14. While it is true that the FIR is silent on the
name of the appellant, we cannot entirely throw out the
prosecutorial case on such a basis as other reliable
evidence are available in the case. The FIR is
certainly the starting point of the investigation, but
it is well within the rights of the prosecution to
produce witness statements as they progress further
into the investigation and unearth the specific roles
of accused persons. The FIR as is known, only sets the
investigative machinery, into motion.
15. In the present matter, two courts have
concurrently concluded that appellant’s name not being
specifically mentioned in the FIR, would not justify
his acquittal as he was specifically identified by PW2,
PW4, & PW6. In view of his positive identification by
the eye witnesses, the TIP not being conducted, was
held to be immaterial. The eye witnesses here have
ascribed the same specific role to the appellant and
narrated the events in same chronology, without
material discrepancies. We also cannot lose sight of
the fact that this case involves multiple persons
attacking in a group with deadly weapons and it is not
reasonable to expect recollection of every minute
details by the eyewitnesses.
16. The Learned Counsel for the appellant has laid
much emphasis on the absence of TIP. The State
counsel’s stance on this matter was that the TIP was
rendered non-essential as the appellant was known to
the eye witnesses and he was identified both by name
and appearance. We may at this juncture refer to the
nature of, and weightage attached to the evidentiary
value of a TIP. In Munshi Singh Gautam Vs. State of
M.P. (2005) 9 SCC 631 Justice Arijit Pasayat writing
the judgment appropriately laid down the following :
-
“16. As was observed by this Court in
Matru v. State of U.P. (1971 (2) SCC 75)
identification tests do not constitute
substantive evidence. They are primarily
meant for the purpose of helping the
investigating agency with an assurance
that their progress with the investigation
into the offence is proceeding on the
right lines. The identification can only
be used as corroborative of the statement
in court. (See Santokh Singh v. Izhar
Hussain (1973 (2) SCC 406). The necessity
for holding an identification parade can
arise only when the accused are not
previously known to the witnesses…………….”
17. “………………….The identification parades
belong to the stage of investigation, and
there is no provision in the Code which
obliges the investigating agency to hold
or confers a right upon the accused to
claim, a test identification parade. They
do not constitute substantive evidence and
these parades are essentially governed by
Section 162 of the Code. Failure to hold a
test identification parade would not make
inadmissible the evidence of
identification in Court. The weight to be
attached to such identification should be
a matter for the Courts of fact. In
appropriate cases it may accept the
evidence of identification even without
insisting on corroboration.”
17. Having regard to the above ratio, we are inclined
to agree with the State Counsel that TIP was
unnecessary in the present case as the identity of the
appellant was known to the witnesses and he was
specifically identified by PW1, and PW2 as the person
who wielded the sword and inflicted the injuries. In
the face of appellant’s such identification by name in
the testimony of the eye witnesses, it can in our view,
be safely concluded that the failure to conduct the TIP
for the appellant will not vitiate his conviction.
18. From the above analysis, the identity of the
appellant as one of the attacking group members and his
specific role in the assault is established beyond
doubt. The prosecution in our assessment has produced
cogent evidence of the appellant being part of a
conspiracy by all the accused in the assault on the
night of 22.01.1999 which led to the death of Balu
Mandpe and injuries to PW1 and others. As such, the
conviction of the appellant by the trial court, as
upheld by the High Court, cannot be faulted.
19. In the result of the above finding, we find no
grounds to interfere with the impugnment judgment of
the High Court of Judicature at Bombay. Consequently,
the appeal is dismissed. The State may consider the
case of the appellant for remission at an appropriate
stage, on its own merits. It is ordered accordingly.
……………………………………………………J.
(SANJAY KISHAN KAUL)
……………………………………………………J.
(HRISHIKESH ROY)
NEW DELHI
AUGUST 24, 2021
No comments:
Post a Comment