Dismissed

The State v. M.H. Ishad and Ors. v Mohan Hareshwar Ishad and Others.

Bombay HC18 Feb 2005APEAL/773/1988

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against acquittal of five accused in a murder case. Relying on weak eyewitness identification and a flawed identification parade, the Court held the prosecution failed to prove guilt beyond reasonable doubt, affirming the Trial Judge's decision.

What did the court decide?

Appeal dismissed; bail bonds of the accused persons cancelled.

The State vs M.H. Ishad and Ors. Vs Mohan… — Murder and Culpable Homicide | Bombay HC (2005)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CRI. APPELLATE JURISDICTION

¶3

 CRIMINAL APPEAL NO. 773 OF 1988

¶4

 The State of Maharashtra ... Appellant

¶5

V/s

¶6

1. Mohan Hareshwar Ishad,

¶7

 At Kasarhat, Kalyan, Dist. Thane.

¶8

 2. Anil Gopal Salvi alias Mandke,
 At Shahasadan Chawl No.2,
 Room No.5, Ganesh Peth,
 Dadar, Bombay.

¶9

 3. Sabhandand Sitaram Patwardhan,
 At Daji Lele Wada, Parnaka,
 Kalyan, Dist. Thane.

¶10

 4. Viju alias Nelson Vijay Abel,
 At Ghatkopar, Pantnagar,
 Bldg.No.139/3758, Bombay-75.

¶11

 5. Raju alias Dnyaneshwar Tukaram Gaikwad,
 At Rajewadi, Bhimnagar,
 Tansa Pipe Line Zopadpatti,
 Ghatkopar, Bombay. ... Respondents

¶12

 Mr. D.S. Mhaispurkar, A.P.P. for the appellant State.

¶13

 Mr. G.H. Keluskar for the respondent No.3.

¶14

CORAM: R.M.S. KHANDEPARKAR &
 P.V. KAKADE, JJ.

¶15

DATED: 18TH FEBRUARY, 2005

¶16

ORAL JUDGMENT (Per Kakade, J.):

¶17

 1. The State has preferred this appeal against the

¶18

¶19

 judgment and order passed by the II Addl. Sessions
 Judge, Thane, dated 14.3.1988 acquitting all the 5
 accused persons of the charge for offences punishable
 under Sections 147, 148, 302 read with Sec. 149 of the
 I.P.C. and Sec. 135 of the Bombay Police Act.

¶20

 2. Pending the appeal, respondent accused Nos. 1, 2 &
 4 have died, therefore, appeal stands abated against
 them. In other words, the appeal is now lies only
 against accused Nos. 3 and 5.

¶21

 3. The facts giving rise to the prosecution case, in
 brief, are thus -

¶22

 Victim Dilip Kapote was the active worker and Shakha
 Pramukh of Kalyan Taluka Shivsena. The incident in
 question occurred on 5.10.1986 at about 9.00 p.m. at
 Kalyan on Bhiwandi Agra Road in front of the Bombay
 Battery Shop. Those were the days of Navratri festival
 at the Durgadi Fort situated on a billock at Kalyan.
 There was on that night Navratri festival celebration.
 Witness Harishchandra Hardas (PW-6) was the President of
 Navratri Utsav Committee. Opposite the Bombay Battery
 Shop on the other side of the road, there is Namskar
 Mandal. Deceased Dilip Kapote was residing near Namskar

¶23

¶24

 Mandal. Accused No.1 Mohan was formerly a member of
 Shivsena. He was also employed as a driver on an
 ambulance car of Shivsena. About 4 years prior to the
 incident, accused No.1 Mohan left Shivsena and started
 his own garage. It was situated at Agra Road. Witness
 Subhash Apte (PW-5) was working in the garage of accused
 No.1. After leaving Shivsena, accused No.1 Mohan joined
 the Hindusena and became President of the Hindusena.
 Ravindra Kapote (PW-8) is the brother of victim Dilip
 Kapote. He is also a member of Shivsena. Witness
 Prakash Walanj (PW-2) is the owner of the Bombay Battery
 Shop. In front of his shop there is a shed. Adjacent
 to his shop in the building there is a garage.

¶25

 On 5.10.1986 Prakash Puranik (PW-2) and his neighbour
 Manohar Joshi (PW-4) were proceeding to Durgadi Fort.
 It was at about 8.45 p.m. when they reached Namskar
 Mandal on Agra Road, Prakash Puranik heard call. He
 recognised it that of deceased Dilip Kapote. He saw
 Dilip sitting on a scooter that was opposite the Bombay
 Battery Shop. In pursuance of the call, he alongwith
 Manohar Joshi proceeded towards Dilip Kapote. On
 reaching there, he introduced Manohar Joshi to Dilip
 Kapote. At that time some 5 persons came running from
 the side of Namaskar Mandal. They were armed with

¶26

¶27

 knives. They pushed Prakash Puranik to the side and
 surrounded Dilip Kapote. There was pushing and shoving
 and in that they came under the shed of the Bombay
 Battery Shop. These persons scuffled with Dilip Kapote
 and then they started assaulting him with knives
 repeatedly. On seeing that assault, Prakash Puranik
 immediately rushed to the house of Dilip to inform his
 father and brother. Immediately he came back alongwith
 father and brother of Dilip Kapote. They found Dilip
 Kapote lying in a pool of blood with multiple injuries
 on his person. He was unable to speak.

¶28

 Prakash Puranik alongwith Manohar Joshi immediately
 rushed to Durgadi fort and informed witnesses
 Harishchandra Hardas (PW-6) and P.I. Naik (PW-14) who
 was attached to Bazarpeth Police Station, Kalyan and who
 happened to be there at Durgadi fort on account of
 bandobast duty in the vicinity. They were informed of
 the incident and the fact that Dilip Kapote was
 assaulted by five persons with daggers and knife and
 that he was lying in the pool of blood. On receiving
 the information, P.I. Naik alongwith Harishchandra
 Hardas rushed to the place where Dilip Kapote was
 assaulted. However, they found that Dilip was already
 removed from the place of assault to the hospital. In

¶29

¶30

 the hospital, Dilip was examined and it was decided that
 he should be sent to the Civil Hospital, Thane.
 Accordingly, he was removed to the Civil Hospital at
 Thane, but was found dead.

¶31

 4. Prakash Puranik when went to Bazar Peth Police
 Station, Kalyan, whose complaint was recorded by P.S.I.
 Suryagandh vide Exh.10. On that basis, C.R. No.
 219/1987 was registered under Sec. 307 of I.P.C. and
 later on it was converted into under Sec. 302 of the
 I.P.C.

¶32

 5. The investigation commenced, in which course, the
 inquest panchnama was made and body was sent to
 post-mortem examination which was performed on the next
 morning. The post-mortem report is at Exh.33 on record.
 Panchnama of the scene was prepared and the articles
 were seized in the course of the said panchnama. The
 post-mortem report revealed that there were as many as
 30 incised wounds on the body of the Dilip Kapote as a
 result of which he died. In the course of the
 investigation, accused No.1 was arrested on 13.11.1986,
 accused Nos. 2 and 3 were arrested on 15.11.1986, and
 accused Nos. 4 and 5 were arrested on 18.11.1986 under
 arrest panchanams. Accused No.1 was interrogated by the

¶33

¶34

 police in which course weapons of offence were recovered
 vide Articles 25 to 28 at his instance from the place
 where those were hidden. Similarly, accused No.3
 produced the clothes which were seized under panchnama.
 On 18.11.1986 and 23.11.1986, the Sub-Divl. Magistrate
 (PW-13) held identification parade for accused Nos. 2
 to 5 at Kalyan wherein witness Prakash Puranik (PW-1)
 identified accused Nos. 2 to 5, whereas the witness
 Manohar Joshi (PW-4) identified accused Nos. 2 and 3
 only on 23.11.1986. The seized articles in the course
 of the investigation were sent to the C.A. for
 examination whose report is received and is part of the
 record. On completion of the investigation, the
 chargesheet was sent to the Court of law. The
 Magistrate committed the case to the Court of Sessions.
 The learned Sessions Judge framed charge against the
 accused persons for the impugned offences, to which they
 pleaded not guilty. The defence of the accused is that
 of total denial of any criminal liability for which they
 were sought to be saddled. The defence is that none of
 the accused persons were involved in the assault and
 assault was committed by some other persons.

¶35

 The learned Trial Judge proceeded to record the evidence
 of the prosecution and came to the conclusion that the

¶36

¶37

 prosecution had failed to establish that the assailants
 of the victim at the relevant time and place were none
 else than the accused persons and, therefore, the result
 of such failure on the part of the prosecution to
 establish the identity of the accused persons, all of
 them came to be acquitted of all the charges framed
 against them. Hence the appeal.

¶38

 6. We have heard the learned A.P.P. for the appellant
 State as well as the learned counsel for the respondent
 accused persons. With their help we have also perused
 the entire prosecution evidence on record.

¶39

 7. At the outset, it may be noted that, it is the case
 founded upon the eye-witness account as there are as
 many as 3 eye-witnesses brought forward by the
 prosecution besides other substantial evidence on
 record. However, on careful scrutiny of the eye-witness
 account, it is found that none of the eye-witnesses have
 positively identified any of the assailants at the
 relevant time and place. Moreover, the identification
 parade held in the course of the investigation has also
 become suspect and, therefore, the evidence regarding
 identity of the assailants is found to be doubtful of
 which benefit has been given to the appellants. In view

¶40

¶41

 of this position, the circumstantial evidence being
 already weak in nature, could not sustain and
 prosecution failed to bring home the guilt.

¶42

 8. It may be noted that it is not in dispute that Dilip
 Kapote, at the relevant time and place suffered
 homicidal death. It is also clear from the medical
 evidence on record that he suffered as many as 30
 incised wounds which were inflicted with hard and sharp
 object like knife and dagger. The injuries were not
 sufficient in the ordinary course of nature to cause
 death as per the statement made by the medical officer.
 The main question around which the entire case revolves
 is regarding the identity of the crime. In other words,
 it is required to be seen whether the prosecution
 evidence is sufficient to bring home the guilt against
 the accused persona as sought to be proved by the
 prosecution.

¶43

 9. PW-1 Prakash Puranik and PW-4 Manohar Joshi and PW-2
 Walanj are claimed to be the eye witnesses. Out of
 them, witness PW-2 Walanj, as his evidence shows,
 appears to be the eye-witness of attack but does not
 know that the accused were the assailants of Dilip
 Kapote. So far as PW-1 Puranik and PW-4 Joshi are

¶44

¶45

 concerned, their evidence requires independent

¶46

 appreciation. PW-4 Joshi stated in his evidence that,
 in that night he was with Prakash Puranik and both of
 them were going to Durgadi fort. While they were
 passing by Namskar Mandal, Puranik received call from
 some person sitting on a scooter in front of Bombay
 Battery shop. He proceeded towards that man and he
 (Manohar Joshi) followed him. While Puranik was

¶47

 introducing him, 4-5 persons came their from back side
 armed with knife and daggers and assaulted the person
 who was on the scooter inflicting several blows causing
 multiple injuries to him. He fell down from the
 scooter. The person who was assaulted was deceased
 Dilip Kapote. His next version is consistent with that
 of Puranik as to what was done afterwards. He
 identified accused Nos. 2 and 3 in identification
 parade held on 23.11.1986. PW-2 Walanj claims that, on
 that night at about 9.00 p.m. he was working in his
 shop. He saw Dilip Kapote having come there and sat on
 his scooter that was parked adjacent to the shed of his
 shop. Then he heard Dilip having called Puranik and saw
 Puranik having gone to Dilip Kapote and then both
 talking with each other, at which time he went to the
 garage, he heard a cry and found that Dilip Kapote was
 shouting. He saw that Kapote was fallen down from the

¶48

¶49

 scooter inside the shed and further was being assaulted
 by 4-5 persons. Seeing that assault, he got frightened
 and so shut the door of the garage. When there was
 commotion outside, he opened the door and came out of
 the garage. He found Dilip Kapote was lying in a pool
 of blood. Perusal of the testimonies of eye-witnesses,
 therefore, shows that presence of witnesses Puranik as
 well as Joshi appears to be quite natural as stated by
 them. There was nothing impossible or improper that
 both of them were going by the road at which time Dilip
 Kapote was near the shop and Puranik was called by him
 and hence they approached Dilip Kapote. There was
 attempt by 4-5 persons armed with knives and daggers.
 However, PW-1 Puranik has stated that, after seeing the
 assaults on Dilip Kapote, he immediately went to his
 house to inform his father and brother. The question
 which arose from their testimonies is regarding the
 identity of the accused as the assailants. Before we
 consider the claim as to identification, it is necessary
 to bear in mind the circumstances which were attaining
 the case. The incident had taken place at night time.
 The panchnama of the scene of offence which clarifies
 the situation that, in front of the Bombay Battery Shop
 there was a shed, then there is a garage to the Bombay
 Battery Shop. The scooter on which Dilip was sitting

¶50

¶51

 was in front of the garage and just near the shed.
 There was pool of blood found in the shed. This
 indicates that the assailants assaulted the victim Dilip
 Kapote on that spot. The attack on Dilip was sudden by
 4-5 persons. The assailants came from the back side.
 Witness Puranik was talking with Dilip Kapote who was
 sitting on the scooter facing towards south. So, it is
 clear that the witness Puranik was also facing towards
 the north. The assailants came running and as soon as
 they reached, they started attacking Dilip Kapote. Both
 the witnesses Puranik and Joshi became stunned seeing
 the sudden attack as they have said admitting candidly
 that they got frightened and what was in their mind is
 to save themselves. Witness Joshi further admitted that
 he witnessed the incident. Joshi further admitted that
 he had no occasion to know the accused and that he had
 not seen them prior to the incident. He was not knowing
 any of them. The very fact that he was being introduced
 to Dilip shows that even he was not knowing Dilip.
 Witness Puranik claimed before the Court that he knew
 the accused and he identified them. Lastly, it is
 material to note that neither of them had stated in the
 evidence that they saw the assailants in the light of
 electric tube light and electric bulb. It is not their
 say that tube light and electric bulb were burning at

¶52

¶53

 that time and in the light of that they saw the
 assailants. It is also to be further noted that Puranik
 on noticing the assault, immediately rushed to the house
 of Dilip to inform his father and brother. After he
 returned accompanying them, he noticed that Dilip was
 lying in a pool of blood. All this aspect show that
 witness Puranik had no opportunity to see the assailants
 when they went away. So far as Joshi is concerned, he
 claimed that he got frightened on seeing the assault and
 so he immediately turned back and ran towards Namaskar
 Mandal and kept standing near a tree. The evidence of
 Prakash Puranik clearly shows that assailants came from
 his back side and started assaulting Dilip Kapote. When
 the assault was going on, other witnesses immediately
 rushed to the house of Dilip Kapote to inform his father
 and brother. Moreover, his claim that he was knowing
 assailants and recognised them also appears to be
 doubtful. If that was so, the question is, what
 prevented him from disclosing the names of the
 assailants to witness PW-6 Hardas and P.I. Naik who
 came on the scene immediately after they were informed
 about the same. What was disclosed by him that Dilip
 Kapote was assaulted by 5 persons and he was lying in
 the pool of blood. What is more surprising is that,
 even in his complaint which he lodged in the police

¶54

¶55

 station he did not give the particulars and description
 of the assailants. He would have given their names as
 well as the names of other eye-witnesses, if he had
 identified them. Hence his evidence is riddled with
 doubts and, therefore, appears to be unsafe to accept
 it.

¶56

 10. Once we reach this position, let’s now turn to the
 evidence of indentification parade dated 23.11.1986.
 Witness PW-13 Kulkarni was the Special Judicial
 Magistrate who conducted the indentification parade and
 stated that witness Prakash Puranik identified accused
 Nos. 2 to 5 and witness Manohar Joshi identified
 accused Nos. 2 and 3. However, if we critically peruse
 the entire evidence regarding the identification parade,
 a serious doubt appears to be apparent from the record
 in that regard. In the first place, the identification
 parade was held in police control room. Admittedly,
 accused were brought much earlier and they were kept
 openly in the same premises where police station is
 situated. What is more significant is that the
 witnesses who were to identify were made to sit in the
 open space outside the police control room. Then
 identification parade was held 8 days after the arrest
 of accused Nos. 2 & 3 and four days after the arrest of

¶57

¶58

 accused Nos. 4 and 5. The investigating officer P.I.
 Takne candidly had admitted that accused No.1 was not
 sent for identification parade though it was possible.
 However, there is no explanation for such omission. The
 delay in holding the identification parade much after
 the arrest of the accused and much after the occurrence
 of the incident again leads to strong suspicion in the
 mind. If we take into account, the possisble
 circumstances surrounding the place and holding of
 identification parade, there is no doubt whatsoever that
 evidence of identification parade cannot be accepted as
 substantive piece of evidence nor it can be held to be
 corroborative to testimonies of eye-witnesses.

¶59

 11. The testimony of PW-13 Kulkarni, Special Judicial
 Magistrate also is sufficient to show that he has
 admitted that he did not ask any of the witnesses
 whether he had an opportunity to see the accused persons
 before identification parade. He did not ask any of the
 accused whether they were seen by the witnesses earlier
 in the period between the date of the incident and the
 date of identification parade. No enquiry was made by
 him in that regard and proceeded on presumption that
 everything was according to rules. Be that as it may,
 the fact remains that evidence of identification parade

¶60

¶61

 cannot be accepted.

¶62

 12. Once we reach this position, the so-called evidence
 of recovery of weapons as well as other circumstantial
 evidence on record, such as, C.A. certificate, fed into
 insignificance especially when in view of the fact that
 the evidence of eye-witnesses or identification parade
 are found to be untrustworthy and insufficient to
 inspire confidence. Therefore, we are of the considered
 view that the prosecution has failed to establish guilt
 of the accused persons beyond reasonable doubt and,
 therefore, they were entitled to the benefit of doubt.

¶63

 13. Taking into consideration all the entire evidence
 on record, therefore, we hold that the learned Trial
 Judge has rightly discarded the prosecution evidence and
 has properly come to the conclusion that the prosecution
 evidence failed to bring home the guilt for want of
 sufficient evidence on record.

¶64

 14. In the result, we do not see any merits in the
 appeal and, therefore, appeal stands dismissed. The
 bail bonds of the accused persons stand cancelled.

¶65

¶66

 (R.M.S. Khandeparkar, J.)

¶67

 ( P.V. Kakade, J. )

The State v. M.H. Ishad and Ors. v Mohan Hareshwar Ishad and Others.

Case brief

What is this about?

What did the court decide?

The State v. M.H. Ishad and Ors. v Mohan Hareshwar Ishad and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vijay Swaroopchand Gothi Vs the Special Inspector General of Police and Anr.

Vijay Swaroopchand Gothi Vs the Special Inspector General of Police and Anr.

Babasaheb Pandit Patil Vs the State of Maharashtra

Raghunath Baburao Patil Vs the State of Maharashtra

The State vs J.S. Bakhtawar Khan and 5 Ors. Vs Shri Javed Sultan Bakhtawar Khan and 5 Others

Raghunath Baburao Patil Vs the State of Maharashtra