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2019 DIGILAW 1031 (BOM)

Iliyas @ Illu Nawaz Khan v. State of Maharashtra

2019-04-12

B.P.DHARMADHIKARI, PRAKASH D.NAIK

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JUDGMENT : B.P. Dharmadhikari, J. Total 9 persons were accused of offences under sections 302, 143,144,147,148, S.149 & S.120B IPC & 37(1)(a),135 of Bombay Police Act for killing one Hanif @ Allabakshish Allauddin Shaikh on 07/10/2008. Accused Nos. 1 to 8 were tried together & and vide impugned judgment & order dated 18.10.2010 passed by the Extra Joint Adhoc Additional Sessions Judge, C.R. No. 2, Sewree, Mumbai has in Sessions Trial 51 of 2010 convicted accused Nos.1 to 5 while accused Nos.6 to 8 have been acquitted. Acquittal of accused Nos.6 to 8 has not been challenged by the State or by any aggrieved before this Court. Similarly, accused No. 9 Zakir Hussain Abdul Mannan Shaikh who is stated to be the brain & principal behind the conspiracy was tried separately in Sessions Case 461 of 2013 & has been acquitted by the Sessions Judge, Greater Mumbai on 12/04/2016. This acquittal has also become final. 2. Appellants Nos.1, 2 & 4 are before this Court in Appeal 867/2010 while Appeal 957/2011 is by accused 3 & Appeal 967 of 2011 is preferred by accused no. 5. 3. It will be beneficial to note the effort of prosecution before the Trial Court as under: One Doctor by name Mohd. Fahim Shaikh and deceased Allabakhsh were partners in a medical shop. Prior to the date of incident dated 7/10/2018, about 4 days before deceased Allabakhsh informed Fahim Shaikh about dispute between himself and Jakir Shaikh on the unloading of vehicles carrying scrap. On 7/10/2008 Allabakhsh visited medical shop at 11.00 p.m. and at about 11.20 p.m. he was on his way to his residence. When he was passing by Road No.13 and turning towards lane, he was assaulted by accused No.1-Khurshid @ Mullani Harun Shaikh, accused No.2- Soheb Asifali Kazi, accused No.3-Alpraj @ Tantan, accused No.4-Sunil @ Papa and accused No.5-Iliyas @ Illu. Dawood Parkar and Jahir Idris then standing on road near house of Dawood Parkar saw them assaulting Allabaksh with weapons like bamboo, dragger, knife and chopper. After attack they ran away with weapons. Jahir Idris and Dawood Ibrahim (PW-4 and PW-5) both went to the spot and found Allabaksh with multiple injuries in pool of blood. Allabaksh was then shifted to hospital at Rajwadi where he was declared dead. 4. After attack they ran away with weapons. Jahir Idris and Dawood Ibrahim (PW-4 and PW-5) both went to the spot and found Allabaksh with multiple injuries in pool of blood. Allabaksh was then shifted to hospital at Rajwadi where he was declared dead. 4. Rajwadi hospital informed Shivaji Nagar Police Station at 11.40 a.m. and PSI Gadhave on duty went to hospital prepared inquest panchanama. He recorded statement of Mohd. Farooq Siddiqui (PW-2) which was subsequently treated as FIR and Crime No.316/2008 was registered against accused. During investigation criminal conspiracy to commit murder of Allabaksh came to surface. After arrest of respective accused blood stained clothes and consequent to discovery under section 27 of the Evidence Act blood stained weapons were seized. PW-2 produced mobile handset of deceased Allabaksh on 12/10/2018 and police collected CDR. Charge-sheet was then submitted to the competent Court. During investigation criminal conspiracy to commit murder of Allabaksh came to surface. After arrest of respective accused blood stained clothes and consequent to discovery under section 27 of the Evidence Act blood stained weapons were seized. PW-2 produced mobile handset of deceased Allabaksh on 12/10/2018 and police collected CDR. Charge-sheet was then submitted to the competent Court. After the matter was committed to Sessions Court, Court of Sessions at Sewree in Sessions Case No.51/2009 framed 7 charges which are as under: FIRSTLY: That you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh on 7/10/2008 at 11.25 p.m. on the road between plots Nos.34 and 35, Baiganwadi, Govandi, Mumbai were members of an unlawful assembly, the common object of which was to commit murder of Hanif @ Allabaksh Allauddin Shaikh and thereby committed an offence punishable u/s.143 of I.P.C. and within my cognizance; SECONDLY: That on the same date, time and place, you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh being armed with deadly weapons like chopper, knife, dagger and bamboo stick, which used as weapons of offence was likely to cause death, were members of an unlawful assembly and thereby committed an offence punishable u/s.144 of I.P.C. and within my cognizance; THIRDLY: That on the same date, time and place, you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh were members of an unlawful assembly, and in prosecution of common object of such assembly, viz., in committing murder of Hanif @ Allabaksh Allauddin Shaikh, committed offence of rioting and thereby committed an offence punishable u/s.147 of I.P.C. and within my cognizance; FOURTHLY: That on the same date, time and place accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh were members of an unlawful assembly and did in prosecution of the common object of such assembly, viz., in committing murder of Hanif @ Allabaksh Allauddin Shaikh, committed offence of rioting and at that time, you were armed with deadly weapons viz., chopper, knife, dagger and bamboo stick, which used as weapons of offence was likely to cause death and thereby committed an offence punishable u/s.148 of I.P.C. and within my cognizance; FIFTHLY : That on 7/10/2008 at 4.30 p.m. on the corner of Anmol Seva Sangh, Road No.14, in from of B.M.C. office, Baiganwadi, Govandi, Mumbai, you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh agreed to do or caused to be done an illegal act to commit murder of Hanif @ Allabaksh Allauddin Shaikh, an act of murder by illegal means and it was done in pursuance of the agreement between you and absconding accused Jakir Hussain Shaikh and thereby committed an offence punishable u/s.120-B of I.P.C. and within my cognizance; SIXTHLY: That on 7/10/2008 at 11.25 p.m. on the road between plots Nos.34 and 35, Baiganwadi, Govandi, Mumbai you accused Nos.1 to 8 being members of an unlawful assembly and in prosecution of the common object of such assembly, did commit murder by intentionally or knowingly causing the death of Hanif @ Allabaksh Allauddin Shaikh by assaulting him with chopper, knife, dagger and bamboo stick on his abdomen, back, face and head and thereby committed an offence punishable u/s.302 r/w section 149 of I.P.C. and within my cognizance; SEVENTHLY: That on the same date, time and place and during the course of same transaction, you accused No.1 were in possession of chopper, you accused No.2 and 5 were in possession of bamboo sticks, you accused No.3 were in possession of knife and you accused No.4 were in possession of dagger, in spite of prohibition Notification No.CP/XI (6)/JBD/LW/702(10)/08 dated 3/10/2008 issued by D.C.P. (Operation), Brihan Mumbai which was in force in Mumbai and publicly promulgated in that area and that you thereby contravened the provisions of section 37 (1) (a) punishable u/s.135 of B.P. Act and within my cognizance. 5. After the parties led evidence trial Court vide judgment and order dated 18/10/2010 punished accused Nos.1 to 5 for offence punishable under section 302 read with section 149 as well as under sections 143, 144, 147, 148 of IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs.15,000/- or in default to suffer R.I. of one year. Separate R.I. has been ordered for offence under section 143, 144, 147 and 148 which are to run concurrently with substantive sentences of accused persons. Accused Nos.1 to 8 were however acquitted for offence punishable under section 120-B of I.P.C. and under section 37(1) (a), 135 of Bombay Police Act. Accused Nos.6 to 8 have been acquitted for offence punishable under sections 143, 144, 147, 148, 302 read with 149 of IPC. 6. Sr.P.I. Shivaji Nagar Police Station was directed to file separate charge-sheet against wanted accused Jakir Manan Shaikh in relation to Crime No.316/2008. This charge-sheet was filed in due course and the trial Court then exonerated accused Zakir Hussain Abdul Mannan Shaikh on 12/4/2016 in Sessions Case No.461/2013. It found that complicity of accused No.9 in the matter could not be proved at all. Thus enemy of deceased who arranged for murder is himself exonerated. It is obvious that the initial version of prosecution can not & does not undergo any change due to subsequent acquittals. 7. Respective Counsel appearing for the accused urge that the common object to be achieved was of accused No. 9 or accused Nos. 6 to 8 who have been all acquitted by the Trial Court which has attained finality. As such, even as per the State, the main perpetrators behind the alleged crime are not now involved at all in the crime. As per earlier version of the prosecution, the accused no. 9 principal or then accused 6 to 8 his colleagues, employ convicted accused 1 to 5 to eliminate the deceased because of their alleged business rivalry. As this object & conspiracy could not be proved, the later part integral to it, viz. alleged role of these appellants as contract killers or the executors, also falls to ground. The prosecution does not allege any independent relationship amongst these convicted accused persons & no other "common object" or intention or conspiracy independently qua them is brought on record. As this object & conspiracy could not be proved, the later part integral to it, viz. alleged role of these appellants as contract killers or the executors, also falls to ground. The prosecution does not allege any independent relationship amongst these convicted accused persons & no other "common object" or intention or conspiracy independently qua them is brought on record. Alleged roles played by them therefore can not have any "mutuality" & must, if at all found to be established, be evaluated as individual acts without getting prejudiced by the role of other accused. This submission is without prejudice to their submission that the prosecution has failed to bring on record any material sufficient in the law to connect them with the crime beyond reasonable doubt. 8. According to them, the accused persons are implicated in a false & fabricated matter. The alleged murder has taken place late night on 7.10.2008 & report by PW-2 Mohd. Farooq (FIR) is registered in early hours of 8.10.2008. Though PW-28 IO Shri Pawde claims that he proceeded to the spot immediately to find out the eye-witnesses & got two viz. PW-4 Mohd. Jahir & 5 Dawood Ibrahim Parkar, he recorded their statements under S.161 CrPC on 9.10.2008. PW-4 & 5 depose that they did not inform fact of their seeing the attack to police till they went voluntarily to the police station on 9.10.2008 when their S. 161 statements were recorded. As per version of PW-2 there was darkness at the spot & he could not therefore disclose the names of the other persons who gathered on spot while according to these eye-witnesses, they could see & identify the assailants from a distance of about 35 feet & also the small weapons like dagger, knife with other weapons like chopper, bamboo sticks used by them. It is submitted they also militate with each other on role i.e. weapon with an individual accused. 9. The accused 1 to 4 are claimed to be arrested in night between 9 th & 10th October, 2008, accused 5 on 10.10.2008 in the afternoon, accused 6 & 7 on 12.10.2008 while the accused 8 was arrested on 16.10.2008. It is submitted they also militate with each other on role i.e. weapon with an individual accused. 9. The accused 1 to 4 are claimed to be arrested in night between 9 th & 10th October, 2008, accused 5 on 10.10.2008 in the afternoon, accused 6 & 7 on 12.10.2008 while the accused 8 was arrested on 16.10.2008. Though the arrest panchanamas are on record, the same only proves that accused were arrested with blood stained clothes in police station & there is no creditworthy material to demonstrate that they were away from their place of residence or absconding. 10. The seizure of the bloodstained clothes is also attacked pointing out that the so called recovery is after about 48 hours of the crime & as per State, the accused had after crime gone to their respective homes to conceal the weapons. These weapons are discovered under S. 27 of the Evidence Act at the instance of respective accused either on 13.10.2008 or then on 14.10.2008 from their homes. Thus these accused found it convenient to hide the alleged weapon at house but then did not change their clothes. The seizure either of clothes or the weapons is doubtful & needs to be discarded. 11. Not sealing separately of the clothes with proper labels for identification, inconsistency in date of forwarding letter to the CFLS for analysis & its receipt by the later are pressed into service. It is pointed out that after the alleged analysis, the individual identification of the clothes is lost & all clothes are received back in one big box. The so called pancha witnesses on seizure of clothes in police station, therefore could not have identified those clothes before the Court as all 5 shirts & full pants were mixed together. The identification in Court is therefore a farce. Accused were deprived of opportunity to cross-examine each witness on seizure or sealing of clothes. Similarly, the witnesses PW-14 & PW-16 identify the same Bamboo as weapon used by two accused. Chemical analyzer reporting blood group of deceased to be "B" or finding that group blood on two clothes or human blood on all clothes or weapons is therefore irrelevant. The police also did not produce muddemal register or malkhana register of police station to show the custody of seized property like clothes & weapons with a responsible officer till its actual dispatch to the CFLS. The police also did not produce muddemal register or malkhana register of police station to show the custody of seized property like clothes & weapons with a responsible officer till its actual dispatch to the CFLS. Respective Counsel for the accused therefore claim that the entire evidence of the circumstantial nature is therefore rendered useless. 12. Though the homicidal nature of death is not in dispute, appellants argue that PM report & medical evidence through PW-23 Doctor does not show any injury caused by the Bamboo sticks or any injury by knife on chest of deceased as narrated by PW-5. Though injury no. 5 & 6 are stated to be by chopper and injuries at sr, nos. 7 to 11 are by sharp edged weapon, the parole evidence does not connect the accused persons with those injuries. Weapons were never forwarded to this medical officer to solicit his views on possibility of deceased being injured by those weapons. 13. As against this the learned APP submits that spot panchanama Ex. 138 shows availability of electric bulb & hence, the contention that there was darkness at the time of incident is erroneous. Two eye-witnesses have supported this position when they point out how the incident occurred. They have been subjected to cross-examination and the effect thereof rules out any fabrication. PW-2 also points out few persons present on spot when he reached there and does not state that he could not see others due to darkness. The weapons pointed out by PW-4 & 5 are supported by the medical evidence. The blood group of deceased is not in dispute & it is found on clothes of the two accused. Human blood is noticed on clothes of all accused persons & on knife, dagger and chopper. The eye witnesses bring on record the accused as killers of the deceased. Even in their cross-examination, the accused persons gave important suggestions to the PW-4 & 5 which put on record presence not only of these witnesses on spot but also of accused with the weapons and lends credence to the prosecution version. 14. Learned APP argues that none of the prosecution witnesses on seizure of clothes or on discovery of weapons have turned hostile & nothing fruitful has come out of their cross-examination. 14. Learned APP argues that none of the prosecution witnesses on seizure of clothes or on discovery of weapons have turned hostile & nothing fruitful has come out of their cross-examination. As the bloodstains on clothes of accused/appellants and on weapons with them, are thus established, their involvement in the offence is also proved by the circumstantial evidence. These prosecution witnesses have been cross-examined but then no inconsistency in clothes identified by them in Court & or police station. Similarly, the CFLS has after verifying the seals completed the analysis & there is no challenge to it in cross-examination. Office of CA has thereafter bundled all clothes together & forwarded the same to the Police and said act can not confer any benefit on the accused. It does not change the description of clothes in seizure panchanama. No right of accused persons is defeated or lost and they have not made any such attempt to show even the prejudice before the trial court. Even both Bamboos were returned back as one article & hence, PW-14 & 16 both identified different sticks of bamboo which find mention as Art. 1. PW-23 has connected the weapons with injuries on deceased & hence, with crime & the accused persons. 15. He contends that the common object can preexist or may be developed at 11th hour and may be proved by joint conduct of accused persons. Omission to prove the conspiracy or the common object then envisaged, does not mean that convicted accused did not share common intention. He requests the Court to uphold the convictions & to dismiss the appeals. 16. Lastly, to substantiate that the so called omissions or improvements are not brought on record as per law, he invites attention to the judgment of Hon. Apex Court in Tahsildar Singh & Ors. vs, The State of Uttar Pradesh (5/5/1959-SC). He submits that no portion in S. 161 statements of either PW-4 or 5 is marked or read out to the IO. Hence, evidence of these eye-witnesses in Court must be relied upon as done by the Trial Court. 17. Parties have relied upon the material on record to which we will make reference at relevant place in the body of this judgment. Judgments cited by them shall also be considered similarly. 18. We find it convenient to begin with the concept of unlawful assembly and common object. 17. Parties have relied upon the material on record to which we will make reference at relevant place in the body of this judgment. Judgments cited by them shall also be considered similarly. 18. We find it convenient to begin with the concept of unlawful assembly and common object. In State of Maharashtra vs. Kashirao and Ors.,(2003) 9 LJSOFT(SC) 4, the Hon. Apex Court observes in paragraph 12 as under : "A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly." 19. In Kailash s/o Shankar Khadse Vs. State of Maharashtra, (2011) 8 LJSOFT 105, the Division Bench of this Court has in paragraph 26 observed that in so far as other accused are concerned, their individual acts constituting offence or overt acts are not proved. Though their presence is proved, as the meeting of minds and common object is not proved, Sections 147, 148 and 149 of Indian Penal Code are not attracted, and they cannot be held liable for the acts of Accused No.1. In State of Maharashtra Vs. Ashok Narayan Deshmukh & ors., (2009) 3 LJSOFT 56, in paragraphs 61 & 62 the Division Bench of this Court has observed that respondent Nos.1, 3, 5 and 7 before it cannot be convicted under Section 302 and 307 both read with Section 149 of the I.P.C. as there is no evidence to show that common object of the unlawful assembly was to cause death of Anna Koli and his brothers. Since there was no evidence to show common object to cause damage to property, the accused/respondents cannot be convicted under Section 427 read with Section 149 of the I.P.C. There is no evidence to show that there was common object to enter Court building and commit crime, though some did enter in search of Anna and in the process caused damage to property of the Court and committed offence of criminal intimidation, but their identity is not proved. 20. Thus in present facts when the accused 6 to 9 are already acquitted of all offences including S.302 & S.149 IPC, the prosecution can not expect the Court to examine the alleged acts of accused as collective or common. Conspiracy & common object as alleged could not be substantiated & hence, the motive prompting the appellants to commit crime is itself absent. State can not & has not attempted to even plead any other common object or intention or understanding. The alleged acts of the accused therefore must be appreciated as their personal or individual acts without affecting in any way the act/s of others. This is naturally subject to finding out whether said act/s are established by the prosecution by legally admissible evidence. 21. Appreciation of the witnesses on record is called for now. First information report in the matter is lodged by one Mohd. Farooq Siddiqui (PW-2). He claims that his shop closes between 11 .00 to 11.30 at night. On 7/10/2008 at 11.25 p.m. he was in shop. People started running helter skelter and hence he made inquires and then after closing shop went to spot where he found deceased lying unconscious. He called his two relatives and brought injured in a taxi to Rajawadi hospital. He was declared dead there. He states that his statement was recorded by police in hospital and that statement is at Exhibit 41. He has been cross examined on behalf of accused Nos. 2 and 4 and he states that at spot about 15-20 persons were present. His relatives to whom he had called were also present at spot. As there was darkness at spot, he could not tell names of persons present there. His deposition therefore does not show that he was aware of accused persons or their names. His statement at Exh.41 is against unknown persons and it is recorded on 8/10/2008. 22. His relatives to whom he had called were also present at spot. As there was darkness at spot, he could not tell names of persons present there. His deposition therefore does not show that he was aware of accused persons or their names. His statement at Exh.41 is against unknown persons and it is recorded on 8/10/2008. 22. His supplementary statement appears to be recorded on 12/10/2008. He, in that statement states that he had retained mobile phone of deceased lying on spot with himself and forgot to hand it over to police, hence vide supplementary statement he handed over the same to police authorities. 23. Pw-4-Mohd. Idris and PW-5-Dawood Parkar are claiming to be eye witnesses. PW-28-Shri Pawde, Investigating officer states that he recorded their statements separately on 9/10/2008. PW-28-Shri Pawde has deposed that after learning about the incident, he went to the spot to verify whether there were eye witnesses. Two eye witnesses PW-4-Idris and PW-5- Parkar were available and he recorded their statements. His cross examination shows that from 9/10/2008 till date of filing of charge-sheet he was the Investigating Officer. Thus, PW-28-Shri Pawde claims that he recorded statement of two eye witnesses at spot. 24. Pw-4-Mohd. Idris has deposed that on the date of incident he was talking with PW-5-Parkar near corner of the house of PW-5-Parkar. He heard some noise viz. "Alla". He turned back side and saw accused No.1- Khurshid assaulting deceased by bamboo. He had earlier seen accused No.3 Tantan @ Alpraj carrying bamboo, accused No.4-Papa @ Sunil carrying chopper, accused No.2-Soheb carrying small knife. He then states that accused No.5- Illu was assaulting the deceased by fist blows. Thereafter they ran away with weapons. 25. His cross examination shows that he did not go to hospital and also did not attempt to save deceased. He also states that before recording his statement by police on 9/10/2008, he did not inform anybody that he was eye witness. He had seen police visiting the spot, but did not approach them. He had told police that accused No.1-Khurshid had assaulted deceased with bamboo but, he could not explain why this fact did not appear in his statement. He further stated that he also told police that accused No.3 Tantan was carrying bamboo but, again could not explain why this fact was not appearing in his police statement. He had told police that accused No.1-Khurshid had assaulted deceased with bamboo but, he could not explain why this fact did not appear in his statement. He further stated that he also told police that accused No.3 Tantan was carrying bamboo but, again could not explain why this fact was not appearing in his police statement. He further states that he alone went to police station where his statement was recorded. Then 5-10 months thereafter PW-5-Dawood Parkar also came there. He had gone to police voluntarily. He had told police that accused No.2-Soheb was carrying small knife and accused No.4-Sunil @ Papa was carrying chopper. He could not explain why said fact did not appear in his police statement. He also could not explain why the fact that accused No.5-Illu assaulted deceased by fist blows did not appear in his police statement. 26. Deposition of PW-5-Dawood Parkar is similar. He states that when deceased was taking turn in the lane accused No. 2-Soheb assaulted the deceased with bamboo on backside of his head and the deceased fell down his mouth facing the sky. Accused No.4-Sunil @ Papa assaulted the deceased by chopper on face. Accused No.3-Tantan assaulted by knife on chest and back. Accused No.1-Khurshid assaulted the deceased by chopper on right side of head and accused No.5- Illu assaulted deceased by bamboo on back. This witness also identified two bamboo pieces Article 1, chopper Article 2; knife Article 3 and dagger Article 4. 27. In cross examination he accepts that he did not visit police and did not inform that he was the eye witness. He could not explain why his police statement did not contain fact of accused No.3-Tantan attacking the deceased on "chest". This word "chest" is an omission. He denied the suggestion that accused No.1-Khurshid had assaulted the deceased by bamboo or then accused No.3-Tantan was carrying bamboo. He denied the suggestion that he could not identify weapon which accused was carrying. He volunteered that there were two bulbs and light there was sufficient to identify the accused and weapons. His further cross examination on behalf of accused Nos. 2, 4 and 8 shows denial of suggestion that accused No.2- Soheb was carrying knife and accused No.4-Sunil @ Papa was carrying chopper. He denied suggestion that accused No.2-Soheb did not assault deceased by bamboo and accused No.4-Sunil @ Papa did not assault deceased by dagger. His further cross examination on behalf of accused Nos. 2, 4 and 8 shows denial of suggestion that accused No.2- Soheb was carrying knife and accused No.4-Sunil @ Papa was carrying chopper. He denied suggestion that accused No.2-Soheb did not assault deceased by bamboo and accused No.4-Sunil @ Papa did not assault deceased by dagger. Thus, in relation to the incident dated 7/10/2008 statement of this eye witness is recorded on 9/10/2008. 28. Perusal of deposition of PW-28-Shri Pawde shows that on 9/10/2008 he received case diary, immediately went to the spot to find out whether there were eye witnesses and he deposed that PW-4-Mohd. Idris and PW-5-Dawood Parkar, eye witnesses were available. He had recorded their statements. Omissions mentioned supra are put to him. He has accepted that statement of PW-4-Mohd. Idris and PW-5- Dawood Parkar were recorded at different times but he has not mentioned that time in the statement of witnesses. 29. The evidence of PW-4-Mohd. Idris and PW-5-Dawood Parkar and PW-28-Shri Pawde therefore brings on record inconsistent version. PW4-Mohd. Idris and PW-5-Dawood Parkar did not surface as eye witnesses for about 48 hours after the incident and delay in recording their statement is not even attempted to be explained by the prosecution. PW-4-Mohd. Idris does not state that he saw accused No.3-Tantan, accused No.4-Sunil @ Papa and accused No.2-Soheb attacking deceased. He only states that he saw accused No.1-Khurshid assaulting deceased by bamboo and accused No.5- Illu assaulting him by fist blows. As against this PW-5-Dawood Parkar states that accused No.2-Soheb assaulted deceased by bamboo and accused No.4- Sunil @ Papa assaulted deceased by dagger on face. Accused No.3-Tantan assaulted deceased by knife on chest and back and accused No.1-Khurshid assaulted deceased by chopper on right side of face. Accused No.5-Illu used bamboo to attack deceased on his back. There are apparent inconsistencies in weapons used and the author of injury. Dagger is not at all spoken of by PW-4-Mohd. Idris while PW-5-Dawood Parkar introduced dagger. All this is in the backdrop of fact that person reporting the offence to police first viz. PW-2-Mohd. Farooq states that there was darkness at spot. 30. Perusal of Exhibit 138 spot panchanama shows that its recording began at 3.30 a.m. on 8/10/2018 and was over at 4.30 a.m. Panchanama was written in the light of electric bulb at one Baboo Kirana stores. PW-2-Mohd. Farooq states that there was darkness at spot. 30. Perusal of Exhibit 138 spot panchanama shows that its recording began at 3.30 a.m. on 8/10/2018 and was over at 4.30 a.m. Panchanama was written in the light of electric bulb at one Baboo Kirana stores. Map along with spot panchanama mentions that it is at a distance of 27 feet from the spot, 31. This material therefore casts serious doubt on deposition of eye witnesses and their status as eye witnesses. It lends credence to the defence that prosecution has introduced them later on. 32. Though the APP has submitted that the omissions were not proved as per law, we find that the witnesses accept that a particular fact is missing in their S. 161 statements & the APP does not demonstrate that this acceptance is incorrect. The attention of concerned IO is also drawn to this position during his cross-examination. Hence, the effort of learned APP is futile. Reliance on law expounded in Tahsildar Singh is therefore unwarranted. 33. Pm report Ex. 131 is proved by PW-23 Dr. Khan. His deposition shows that the injuries no. 5 & 6 could have been caused by the chopper while injuries 7 to 11 are possible by the sharp edged weapon. Injury 7 is an incise wound below injury no. 6 measuring 1x 1/2 x 1/4 Cms while injury no. 8 to 11 are CLWs. Doctor, in chief only states that injuries 1 to 4 are possible by fall on the ground. This evidence does not bring on record any knife injury on chest of deceased & hence, falsifies PW-5 while it does not show any injury caused by two bamboos used by the accused as alleged. This casts a doubt on the credibility of version of the eye-witnesses. 34. Blood stained clothes and weapons is the next material on record. First to be arrested are accused 1 & 2 vide arrest panchanama Ex. 73. This panchanama is drawn on 02.50 Am on 10.10.2008 & records that they were already arrested & in police station. It mentions that police had another set of clothes which they handed over to accused to change & then the clothes removed by them were seized. Bloodstains are seen on front portion of the full-pant of accused 1. Bloodstains are seen on front portion of the thigh portion of full-pant of accused 2. Ex. It mentions that police had another set of clothes which they handed over to accused to change & then the clothes removed by them were seized. Bloodstains are seen on front portion of the full-pant of accused 1. Bloodstains are seen on front portion of the thigh portion of full-pant of accused 2. Ex. 73 mentions that clothes were taken in custody by police but it does not record expressly the fact of seizure or sealing of clothes of accused no.1 & 2. 35. Next arrest panchanama at Ex. 86 is of accused no. 3 at 3.10 Am on 10.10.2008 . Observations above on Ex. 73 hold good here also but it does not mention that police had a set of other clothes which were given to this accused for changing. Bloodstains are seen on front portion of the fullpant of accused 3. Ex. 86 mentions that clothes were taken in custody by police but it does not record expressly the fact of seizure or sealing of clothes of accused no. 3. 36. Next arrest panchanama Ex. 78 pertains to arrest of accused no. 4 Sunil drawn at 5.20 Am on 10.10.2008. Our findings on Ex. 73 above apply as it is to Ex. 78 & bloodstains were seen on front portion of the fullpant of accused 4. Ex. 78 mentions that clothes were taken in custody by police but it does not record expressly the fact of seizure or sealing of clothes of accused no. 4. 37. Last panchanama Ex. 84 of accused no. 5 is recorded between 15.35 to 15.50 in afternoon of 10.10.2008. Our comments on Ex. 86 apply here also. It does not mention that police had a set of other clothes which were given to this accused for changing. It also does not record that his clothes had any bloodstains. However after stating that clothes of accused 5 were taken in custody by police, it mentions that the same were wrapped in brown paper & sealed by affixing label with signatures of pancha witnesses & police. 38. All these panchanamas are allegedly witnessed by different persons & only last panchanama Ex. 84 states that the seized clothes were sealed. All panchanamas mention that the accused were already under arrest in police station. These documents are therefore not the arrest panchanama but the seizure memos of the alleged clothes of respective accused. 39. 38. All these panchanamas are allegedly witnessed by different persons & only last panchanama Ex. 84 states that the seized clothes were sealed. All panchanamas mention that the accused were already under arrest in police station. These documents are therefore not the arrest panchanama but the seizure memos of the alleged clothes of respective accused. 39. Pw-29 Dattatraya Hankare the then API claims that he arrested accused 1,2 & 4 & brought them to police station. While on patrolling duty in night, he got credible information, visited the two spots & took them in custody. Accused 1 & 2 were apprehended at 2.40 Am and later on, accused 4 Sunil was also taken in custody. This officer does not state that accused 1, 2 or 4 were wearing bloodstained clothes when he found them. PW-26 PSI Vijay Chouhan, after secret information on whereabouts, took accused 3 Alpraj in custody at 1.00 to 1.30 Am on 10.10.2008. Both these police officers ie PW-29 & PW-26 do not point out any wrapping or labeling or sealing of clothes of these accused persons 1 to. 4. Though respective counsel for the accused have attempted to demonstrate the inconsistencies in arrest panchanamas & oral deposition of witnesses or then in identification of respective clothes of the accused persons by the pancha witnesses, we do not find it necessary to burden the records with it because of other lacunae on record which prompt us to discard the CA reports also. 40. Before pondering on the CA reports, it will be convenient to look into recoveries under S. 27 of the Evidence Act from the respective accused. On 13.10.2008, a chopper with blood like stains is seized at the instance of accused 1. It is claimed that he unearthed it from a heap of soil where it was buried near a Nala. PW-17 Firoz examined by the police to prove the statement of disclosure & later recovery has not supported the prosecution. A bamboo each is recovered at the instance of accused 2 Soheb on 14.10.2008 & accused 5 Ilyaz on 13.1.2008. We need not go into evidence of PW-16 & PW-14 in this connection since the office of CFLS has returned both these bamboos as one article. Which bamboo piece is recognized by these witnesses is therefore not clear. A bamboo each is recovered at the instance of accused 2 Soheb on 14.10.2008 & accused 5 Ilyaz on 13.1.2008. We need not go into evidence of PW-16 & PW-14 in this connection since the office of CFLS has returned both these bamboos as one article. Which bamboo piece is recognized by these witnesses is therefore not clear. Moreover, the medical evidence also does not show any injury by bamboo and CA report on bamboo is inconclusive. Prosecution could not show any human blood on any Bamboo. A knife with bloodstains is discovered by accused 3 Alpraj from the roof of his house as per panchanama Ex. 107/108 on 14.10.2008. A dagger with blood like stains is discovered by accused 4 Sunil on 13.10.2008 from the roof of his house vide Ex. 96 & 97. 41. Thus, the weapons are recovered almost 6 to 7 after the attack & 4 to 5 days of arrests. Except for chopper, the other recoveries are from the roofs or from within the house. So after the alleged offence, these accused persons went to their homes & concealed the murder weapon there but then, did not change into other clothes & were apprehended in same clothes ie bloodstained clothes roughly after 48 hours. 42. The seized clothes ie 5 shirts & 5 full-pants, are sent to CA vide letter 13.10.2008 vide Ex. 191 (colly). There on gets three faint blue full pants, a black jeans & a black old full pant. The manner of sending is recorded as through police constable PN 23866 on 14.10.2008. Thus, the constable got the clothes on 14.10.2008 but the acknowledgment of the CA office mentions date of receipt to be 13.10.2008 only. Why each forwarding letter was not exhibited by the prosecution is not clear & as such, there is no explanation on this variance in dates on record. Not only this, the acknowledgment of CA mentions receipt of 5 sealed samples but then the forwarding letter itself does not point out that clothes of each accused were separately sealed & were in a parcel. We have already noted supra that there are no separate arrest panchanamas and seizure pan of clothes of each accused. Wrapping & sealing of clothes allegedly on person of accused 5 is only mentioned. All this therefore raises a serious doubt about the procedure followed. We have already noted supra that there are no separate arrest panchanamas and seizure pan of clothes of each accused. Wrapping & sealing of clothes allegedly on person of accused 5 is only mentioned. All this therefore raises a serious doubt about the procedure followed. The emphasis on fact that office of CA has put remark that it got clothes in duly sealed samples put by the learned APP is therefore of no help. 43. After completing the analysis, when the clothes are sent back, the CFSL has put them all in one box & as such individual identity essential to connect the shirt or full pant with respective accused is therefore lost. During deposition of PW-9 Mohd. Salim , a sealed box containing 4 shirts, 1T shirt & 5 full pants was opened in Court . This witness then identified the two shirts & two full-pants as that of accused 1 & 2. He also identified his sign on a label on brown paper. When he made that signature is not apparent on record. When the witness PW-13 Babu Shaikh is examined, he is not shown all clothes but APP has put only two items to him viz. Article 19 & Article 9. He obediently identifies the same thereby implying it to be of accused no. 3. He did not depose about the description of clothes earlier & also does not assert that he would be in position to identify said clothes. He identifies his signature on label on envelop. However when envelop was prepared & label was affixed to it is not brought on record. Evidence of other prosecution witnesses also is identical & casts serious doubt on the transparency which is sine qua non in such seizure & CA report. 44. When there were large number of clothes all needed to be seized by giving it a unique identification number & by writing it on a label attached to each cloth with seal & signatures of respective witnesses so that in Court, when the cloth is produced, one will be able to comprehend the name of witness in whose presence it was sealed & seized as also the name of person from whom it was seized. Assistance of a witness may not be required to identify the particular clothing item & to connect it with its owner. Assistance of a witness may not be required to identify the particular clothing item & to connect it with its owner. So in a given case, school uniforms of all children, if seized, must be distinctively marked to avoid further confusion. Here the procedure followed by police while allegedly seizing the clothes on person of respective accused on 9.10.2008 is itself faulty. In view of this, as the clothes can not be associated with any accused with any certainty, CA report showing human blood on these clothes or blood of group B (of deceased as per Ex. 153) on clothes of accused 2,3 & 4 can not be seen as a relevant circumstance at all. 45. Forwarding letter for weapons is dated 15.10.2008 and it is part of Ex. 191 (colly). CA office has received it on 17.10.2008 ie after 48 hours. However, the mode & manner of sending it is blank ie without any writing in original R & P. CA report Ex. 155 shows that test on chopper & knife have proved inconclusive while Bamboos were unsuitable for analysis. Only on dagger, group "B" blood is detected. This position also does not lend any credence to the story of prosecution. 46. Thus, we find that the prosecution has failed to point out any reliable eye-witness. Not only this, it could not prove common object and hence, co-relation between all the accused is lost. Arrest of accused 1 to 5 has not been established by pointing out necessary documentation. Seizure of clothes from their person is again not free from doubt. CFSL reports on clothes & weapons are not properly connected with the crime or the accused. 47. We therefore proceed to pass the following order: 1. The judgment and order dated 18/10/2010 delivered by Extra Joint Ad Hoc Additional Sessions Judge, C.R. No. 2, Sweree, Mumbai in Sessions Case No. 51 of 2009 is quashed and set aside; 2. The appellants are given benefit of doubt and are acquitted of the offences charged; 3. The respondent State to set them at liberty if their custody is not required by it in any other matter; 4. Muddemal property be dealt with as directed by the trial court after the appeal period is over.