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S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Presented on : 07.12.2004.
Registered on: 07.12.2004.
Decided on : 10.11.2014.
Duration
: 9Y 11M 3D
IN THE COURT OF ADDITIONAL SESSIONS JUDGE,
NAGPUR
(Presided over by V.T. Suryawanshi)
Sessions Trial No. 453 of 2004.
The State of Maharashtra
Through P.S.O. Sadar,
Nagpur.

Exh. No. 267.

.. Complainant

Versus
1] Eknath Duryodhan Chauhan,
Aged about 40 years, Occ. Labour,
R/o Kasturbanagar, Nagpur.
2] Ajay Sudam Mohod,
Aged about 35 years, Occ. Labour,
R/o Bara Kholi, Indora, Nagpur. (Dead)
3] Sumedh Suresh Karwade,
Aged about 31 years, Occ. Labour,
R/o Kasturbanagar, Nagpur.
4] Dilip Mahadeo Shende,
Aged about 34 years,
R/o Kasturbanagar, Nagpur.
5] Pankaj Sudhakar Bhagat,
Aged about 32 years,
R/o Kapilnagar, Nagpur.

... Accused.

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Sessions Trial No. 389/2005.


The State of Maharashtra
Through P.S.O. Sadar,
Nagpur.
.. Complainant
Versus

1] Nilu @ Nilesh Sukhdeo Humane,


Aged about 30 years, Occ. Painting,
R/o Kasturbanagar, Nagpur.
2] Ritesh Sukhdeo Humane,
Aged about 32 years, Occ. Painting,
R/o Kasturbanagar, Nagpur.
3] Rajesh @ Bhedrya s/o Chandrabhan Dhongade,
Aged about 38 years, Occ. Painting,
R/o Kasturbanagar, Nagpur.
4] Ku. Usha Madhukar Narayane,
Aged about 33 years, Occ. Private Service,
R/o Kasturbanagar, Nagpur.
5] Vijay @ Bablya @ Mayur s/o Shankarrao Labade @
Shinde, Aged about 32 years, Occ. Pan Shop,
R/o Kasturbanagar, Nagpur.

6] Rajesh @ Raju s/o Dattu Urkude,


Aged about 33 years, Occ. Private work,
R/o Kasturbanagar, Nagpur.
...

Accused.

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Sessions Trial No. 151/2006.


The State of Maharashtra
Through P.S.O. Sadar, Nagpur.

.. Complainant

Versus
1] Pinki @ Manisha Ajay Shambharkar,
Aged about 28 years, Occ. Household,
R/o Kasturbanagar, Nagpur.
2] Smt. Savita Jitendra Wanjari,
Aged about 35 years, Occ. Household,
R/o Bhagirathabai Layout, Jaripatka, Nagpur.
3] Smt. Bhagratha Harichand Adkine,
Aged about 70 years, Occ. Household,
R/o Kasturbanagar, Nagpur.
4] Smt. Leelabai Raghunath Sangole,
Aged about 58 years, Occ. Labourer,
R/o Kasturbanagar, Nagpur.
5] Smt. Devangana Sukhdeo Humane,
Aged about 55 years, Occ. Household,
R/o Kasturbanagar, Nagpur. (Dead)
6] Nilesh @ Ritesh Sitaram Meshram,
Aged about 28 years, Occ. Painting,
R/o Kasturbanagar, Nagpur.
7] Manoj @ Manish Shankarrao Labade @ Shinde,
Aged about 34 years, Occ. Service,
R/o Kasturbanagar, Nagpur.
8] Vilas Shriram Bhande,
Aged about 42 years, Occ. Advocate,
R/o Kasturbanagar, Nagpur.
9] Ishwar Harishchandra Adkine,
Aged about 42 years, Occ. LIC Agent,
R/o Kasturbanagar, Nagpur.

... Accused.

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Appearance:
Mr. Ravindra Bhoyar, A.P.P. for the State.
Mr. R.K. Tiwari, Advocate for all accused.
Mr. A.K.Bhangde, Advocate for accused No.3.
OFFENCES PUNISHABLE UNDER SECTIONS 147, 148,
353 & 302 R/W 149 OF THE INDIAN PENAL CODE.

Common Judgment
(Delivered this 10th day of November, 2014)
.

Accused persons stand charged for the offences

punishable under sections 147, 148, 353 and 302 r/w 149 of the
Indian Penal Code for having formed unlawful assembly and in
prosecution

of

the

common

objection

of

such

assembly,

committed rioting, assaulted public servants and committed


murder of one Bharat @ Akku Yadav by means of deadly
weapons.
1]

Very unfortunate and unprecedented incident had

occurred in the Court of Judicial Magistrate First Class, Court


No.7, Nagpur on 13.08.2004 at about 2.35 p.m. On that day
deceased Akku Yadav and other three persons namely Suchindra
Ramteke, Nishant Sharma and Ram Gedam (accused in other
case) were to be produced before Judicial Magistrate First
Class, Court No.7. They were in police lock up of Pachpaoli
Police Station. PW-2 Head Constable Damodhar Choudhari,
PW-9

Police

Constable

Ravindra

Suryawanshi

and

Police

Constable Jaishankar Thakur were on police guard duty. They

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

went to Panchpaoli police station and brought those four


persons including deceased Akku Yadav to Court in a police van
at around 2.15 p.m. Deceased Akku Yadav and other three were
under handcuff. After getting down from the police van, all the
three police constables were taking those accused towards
Court no.7 in between 2.15 to 2.30 p.m. When they reached the
channel gate of Court no.7, suddenly 10 to 12 women and 25 to
30 men rushed to the channel gate while abusing deceased
Akku Yadav. They were asking police constables to release Akku
Yadav as they had to kill him. Immediately PW.9 PC Ravidra
Suryawanshi who was catching hold of Akku Yadav and other
three person took them inside and PW-2 HC Damodhar
Choudhari and PC Jaishankar Thakur closed the channel gate.
One API Mr. Sahare, who was passing from near the channel
gate. PW-2 HC Damodhar Choudhari took mobile phone from
API Sahare. He had informed the incident to control room and
requested for sending additional police force to the Court. As
the mob became violent, PW-2 HC Damodhar Choudhari sent
PC Jaishankar Thakur to control room for bringing additional
police staff. The mob was pelting stones and chilli powder on
deceased. Therefore, PW-9 PC Ravindra Suryawanshi took those
four persons including deceased Akku Yadav to Court hall. As
the channel gate was closed,

the mob had broken down the

northern side wooden door of Court no.7 and entered the Court
hall.

PW-2 HC Damodhar Choudhari and PW-9 Ravindra

Suryawanshi tried to prevent the mob, but the mob had


overpowered them and started giving blows to deceased with
Hattimar knife, blade of spear, Gupti, stones and glass, due to

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

which Akku Yadav fell down in the Court in front of the dais in a
pool of blood. The wall, benches and almira of the Court hall
were stained with blood.

The mob had also assaulted other

three persons (accused in other case) Suchindra Ramteke,


Nishant Sharma and Ram Gedam.
injuries.

They too had received

After inflicting the serious injuries to deceased, the

assailants had fled away.

PW-2 HC Damodhar Choudhari had

chased and caught hold of one of the assailants, but the other
assailants came to his rescue and by overpowering him, got the
said assailant rescued and fled away.
2]

On receiving the message of the incident, PW-12

Senior P.I. Mahesh Sawai came to the spot and after making
enquiry with PW-2 HC Damodhar Choudhari, he prepared the
spot panchanama Exh.93 in the presence of panchas.

One

Hattimar knife, broken glass pieces, wooden plank and one


blade of spear, Chappal etc. were found on the spot.

PW-12 P.I.

Sawai had seized all those articles under the spot panchanama
and then sent the dead body of Akku Yadav to Mayo Hospital.
PW-2 HC Damodhar Choudhari went to police station and
lodged report Exh.77.

On the basis of his report, crime was

registered against accused no.1 Eknath Chauhan and other 15


to 20 unknown persons. PW-12 P.I. Sawai himself took up the
investigation.

He had recorded the statements of PW-9 PC

Ravindra Suryawanshi and PC Jaishankar Thakure. He had also


recorded the statements of Court employees Mr. Madhukar
Dawande, Kishor Datir and Devendra Bachhil and the brother of
deceased PW-11 Yuvraj Yadav. PW-2 HC Damodhar Choudhari,

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

and PW. 9 PC Ravindra Suryawanshi were also referred to Mayo


Hospital for examination and as the further investigation was
ordered to be handed over to C.I.D., PW.12 PI Sawai

handed

over investigation to Dy. S.P., C.I.D. PW-16 Babanrao Porate.


Postmortem examination was held over the dead body. Medical
Officer found 73 chop wounds, stab wounds, incised wounds,
linear abrasions etc. over the dead body of deceased. Medical
Officer had opined that deceased died of hemorrhagic shock due
to multiple stab and chop wounds to trunk and head.
3]

On the next day of incident PW-16 Mr. Porate had

seized the uniforms of PW-2 HC Damodhar Choudhari under


seizure form Exh.79.

He had also seized the clothes of those

three persons who were with deceased Akku Yadav under


seizure memo Exh.162 and the

blood stained clothes of

deceased Akku Yadav under seizure form Exh.83. After four to


five days of the incident, he had seized the uniforms of police
constables PW-9 Ravindra Suryawanshi and Jaishankar Thakur
under seizure forms Exh.56 and 58 respectively. On 26.08.2004
PW-16 Dy. S.P. Porate had arrested accused no.1 Eknath Chavan.
He had recovered blood stained clothes and one knife at the
instance of accused Eknath. He had also seized the clothes of
accused Sumedh Karwade, Dilip Shende and Pankaj Bhagat at
their instance.

The sealed weapons were sent to L.M.J. Mayo

Hospital. Medical Officer had opined that the injuries received


by the deceased could be caused by those weapons. PW-16 Dy.
S.P. Mr. Porate had sent the letter to Special Judicial Magistrate
for holding test identification parade of accused Eknath

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Chauhan, Sumedh Karwade, Dilip Shende, and other accused.


The witnesses had identified most of the accused persons. The
viscera as well as the seized properties were sent to R.F.S.L. for
chemical examination. The blood samples of the accused
persons were also collected and they were also sent to R.F.S.L.
for analysis. As per the C.A. report the blood group of deceased
was of group 'A' and

the blood stains found on the almira,

chairs, wooden plank, knife, dagger and the blood stained earth
collected from the spot were found to be stained with blood
group 'A'. No blood of group 'A' was detected on the clothes and
any weapons seized from the possession of accused persons
except accused no.1 Eknath Chauhan.
4]

It is alleged that deceased Akku Yadav was a

notorious criminal.

Several offences like murder, attempt to

commit murder, extortion, criminal intimidation, robbery, theft


etc. were registered against him. He was harassing the people
of Kasturba Nagar locality. Due to persistent harassment at the
hands of deceased, the accused persons who were residents of
Kasturba Nagar were fed up and therefore, out of hatred they
had committed the murder of deceased Akku Yadav as they were
apprehending that deceased could be released on bail. After
completion of the investigation PW-16 Dy. S.P. Mr. Porate had
submitted

charge-sheets

initially

against

accused

persons

involved in Sessions Trial No. 453/2004 and thereafter against


accused in Sessions Trial Nos. 389/2005 and 151/2006 before
the competent Court, who on its turn, committed the those
cases to this Court for trial of accused.

5]

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Since all those three charge-sheets were arising out

of the same crime, my learned predecessor has clubbed all those


cases in Sessions Trial No.453/2004.
6]

Charges for the offences punishable under sections

147, 148, 353 and 302 r/w 149 were framed against accused
persons, to which they pleaded not guilty and claimed to be
tried.
7]

Defence of the accused persons as revealed from the

mode of cross-examination and their statements recorded under


section 313 of the Code of Criminal Procedure is that of total
denial and false implication.

According to accused persons,

deceased was a notorious criminal.

Several offences of murder,

attempt to commit murder, theft, robbery, extortion, criminal


intimidation etc. were registered against him. He was harassing
the people for no fault on their part. He had created terror in
Kasturba Nagar locality.

Due to his unlawful activities the

people in the locality were fed up. They had made complaints
with Jaripatka police, but no cognizance of their complaints
were taken.

On the other hand, police were giving protection

to deceased.

Therefore, people of the locality had taken the

protest march against the police as they were protecting illegal


activities of deceased Akku Yadav.

It was because of inaction

on the part of police and hatred of people against Akku Yadav,


they had committed his murder.

It is their defence that they

were neither the members of the unlawful assembly nor had


they assaulted deceased. They have been falsely implicated in

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S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

this case only on the basis of suspicion.

They claim to be

innocent.
8]

In order to prove the charges, prosecution has

examined in all 16 witnesses. Out of them, PW-2 HC Damodhar


Choudhari, PW-9 PC Ravindra Suryawanshi, PW-10 Santosh
Yadav and PW-11 Yuvraj Yadav are the eye witnesses to the
occurrence.

PW-1 Dipak Deoghare is the panch witness to the

seizure of register from police station, seizure of uniforms from


police constables and clothes at the instance of Sumedh
Karwade, Dilip Shende, Raju Dhongde, Nilesh Humane and
Nitesh Humane. PW-3 Pramod Nagre is also the panch witness
to the seizure of register and uniforms from police constables
and clothes at the instance of accused Shende, Humane, Raju
Bhedrya, Raju Urkude etc.

PW-4 Bandu Kamble is also panch

witness, in whose presence Station diary Exh.55 and uniform of


PW. 9 PC Ravindra Suryawanshi was seized on 17.08.2004 i.e
after four days.

PW-5 Suresh Tiwari is the panch witness to the

spot panchanama, but he has not supported the prosecution.


Panch witness PW-6 Gokuldas Bairagi has proved the spot
panchanama Exh.93.

PW-7 Rajesh Mule is the panch witness to

the seizure of clothes of Ram Gedam, an accused in another


case.

This witness has not supported the case.

PW-8 Sunil

Wankhede is the panch witness to the memorandum and


recovery panchanama of the blood stained clothes and knife at
the instance of accused no.1 Eknath Chauhan. PW-12 Senior P.I.
Sawai is the Investigating Officer. PW-13 Prakash Somkuwar is
Special

Judicial

Magistrate

who

had

conducted

test

11

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

identification parade of accused persons in Sanskrutik Bhavan


and also in Central Jail, Nagpur.

PW-14 Sujata Darwade was

the owner of TATA Sumo in which accused persons came to the


Court. This witness has not supported the prosecution. PW-15
P.I. Arun Tembhare has been examined to prove that on
8.08.2004 i.e before five days of the incident the mob had come
to the Court to attack deceased and accused persons were
member of the said mob, and PW-16 Dy. S.P. Porate is the
Investigating Officer. As against this, accused have led no
evidence in support their defence.
9]

I have heard Mr. Bhoyar, learned A.P.P. for the State

and the learned advocates for the accused at length and have
carefully gone through the entire record of the case including
the written notes filed by the learned A.P.P. and the case law
cited by the parties.
10]

Mr. Bhoyar, learned A.P.P. for the State has submitted

that murder of deceased Akku Yadav in the hall of Court no.7 by


a mob is not disputed.

It is also not disputed that PW-2 HC

Damodhar Choudhari, PW-9 PC Ravindra Suryawanshi and


Police Constable Jaishankar Thakur had brought the deceased
and other three persons to Court no.7 from Panchpaoli police
station. It is also not disputed that the mob had attacked
deceased near the channel gate and when the constable closed
the channel gate and deceased was taken to Court Hall, the mob
had broken down the side wooden door of the hall of Court no.7.
PW-2 HC Damodhar Choudhari, PW-9 PC Ravindra Suryawanshi

12

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

were with deceased. Therefore, according to learend A.P.P. that


it is but natural that these witnesses had witnessed the incident.
PW-10 Santosh Yadav, the nephew and PW-11 Yuvraj Yadav, the
real brother of deceased had seen the incident from the broken
wooden door of the Court. These four eye witnesses have
referred the names of most of the accused in their respective
evidence and identified most of the accused persons. PW-2 HC
Damodhar Choudhari and PW-9 PC Ravindra Suryawanshi have
stated that the mob had overpowered them and assaulted
deceased with deadly weapons.

The chilli powder and some

weapons were found on the spot which supports the version of


these witnesses. These witnesses have also identified the
weapons before the Court.

Human blood was found on the

uniform of PW-2 HC Damodhar Choudhari and this fact shows


presence of this witness on the spot of incident. Most most of
the accused persons were identified by the eye witnesses in test
identification parade to be the assailants of deceased.

Blood

stained clothes and one knife was recovered at the instance of


accused no.1 Eknath Chauhan which corroborates the evidence
of aforesaid witnesses that he had assaulted deceased with knife
along with other accused.

According to learned A.P.P., the

evidence available on record is sufficient to hold some of the


accused guilty for the offences, if not all the accused. Learned
A.P.P has submitted that all the above four witnesses are natural
witnesses and therefore minor omissions, contradictions and
discrepancies appearing in their evidence do not render their
evidence unbelievable. Delay in lodging the F.I.R and also
holding the test identification parade cannot be given much

13

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

importance. In order to further canvass his argument, learned


A.P.P has

placed reliance on following decisions: 1] Pargan

Singh v. State of Punjab, 2014 ALL MR (Cri) 3775 (SC), 2] State


of M.P. v. Mansingh and others, (2003) 10 SCC 414, 3] Leelaram
v. State of Haryana (1999)9 SCC 525, 4] Amar Singh v. Balvir
Singh (2003)2 SCC 518, 5] Vijay Shinde v. State of Maharashtra
(2008)2 SCC 670, 6] B.K.Channappa v.
(2006)12 SCC 57, 7] Bipin Mondal v.
(2010)12 SCC 91, 8]

State of Karnataka,
State of West Bengal

State of Rajasthan v. Smt. Kalki and

another (1981)2SCC 752, 9] Daya Singh v.

State of Haryana

(2001) 3 SCC 468, and 10] State of U.P v. Devendra Singh


(2004) 10 SCC 616.
11]

As against this, Mr. Tiwari, learned advocate for the

accused refuted the aforesaid submissions of the learned A.P.P.


and submitted that there is absolutely no cogent, reliable and
consistent evidence to hold any of the accused guilty for the
offences. Learned advocate submitted that PW-2 HC Damodhar
Choudhari has nowhere stated

that any of the accused had

assaulted deceased with any weapon. He has stated that he was


knowing some of the persons who had gathered on the spot of
incident

and

they

were

accused

Eknath

Chauhan,

Usha

Narayane, one lady by name Borkar Bai and Pankaj Bhagat,


Urkude Humane and Pinki. However, he has not named any of
those persons as the assailants of deceased in his report Exh.77
except accused no.1 Eknath Chauhan whose name was told to
him by one ASI Mr. Sirsat. Said ASI Sirsat was not examined in
this case. Moreover, though he has identified some of the

14

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

accused in test identification parade, he has admitted that the


photographs

of

the

accused

persons

were

published

in

newspaper as well as on news channels and therefore, the test


identification parade has no significance.

PW-9 PC Ravindra

Suryawanshi allegedly present in the Court hall at the time of


incident while catching hold of the deceased.

But, no blood

stain was found on his clothes particularly when the blood stains
were spread high on the walls of the Court hall, almira, chairs,
benches etc. The blood stains of the blood group of deceased
were not found on the clothes of both the constables which
shows that both the constables had fled away from the Court
hall as the mob had become violent and they had not seen the
assailants of the deceased.

Learned advocate has pointed out

the admission given by PW-9 PC Ravindra Suryawanshi that


departmental enquiry was initiated against him and PW-2 Head
Constable Damodhar Choudhari and the allegations were
against them that they had fled away from the spot leaving the
deceased in the Court hall. Not only this, PW-11 Yuvraj Yadav
has candidly admitted that no policeman was present in the
Court hall when his brother was being assaulted. Therefore,
according to learned advocate, the evidence of both the
constables cannot be believed. As regards the evidence of other
two eye witnesses PW-10 Santosh Yadav and PW-11 Yuvraj
Yadav, learned advocate pointed out that interior part of the
Court is not visible from the broken wooden door through which
these witnesses said to have seen the incident. Soon after the
incident PW-10 Santosh Yadav met the police, but he did not tell
them that he had seen the incident. The statements of both the

15

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

witnesses were recorded after a gap of considerable time and


moreover their evidence does not inspire confidence.

The

evidence of all these four so called witnesses is neither


consistent nor acceptable.

The test identification parade was

held after the gap of considerable time apart from the fact that
the photographs of the accused persons were published in the
newspapers and telecast on news channels. The Special Judicial
Magistrate has not even enquired with the witnesses whether
they had an opportunity to see the accused persons in the mean
time. The test identification parade was not conducted in a
manner as laid down in Criminal Manual and therefore, the
identification parade must be discarded. Learned advocate
further submitted that the witnesses have not identified most of
the accused persons. Even PW-9 PC Ravindra Suryawanshi has
not

identified

main

identification parade.

accused

Eknath

Chauhan

in

test

The evidence in respect of the recovery

of blood stained clothes and the knife at the instance of accused


no.1 Eknath Chavan is not consistent.

Both panch witnesses

and the Investigating Officer have also not stated about sealing
of those articles on the spot. There is also no evidence as to
where those seized property was kept till it was sent to R.F.S.L
and therefore, according to learned advocate, the recovery of
the clothes and knife at the instance of accused no.1 Eknath
cannot be connected with the commission of the offences.
Learned advocate further submitted that the police were
protecting the unlawful activities of deceased Akku Yadav due to
which the public became annoyed. The police were providing
even alcohol to the deceased when he was in police custody.

16

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Finding of alcohol in the viscera of deceased is the evidence of


police showing favour to deceased Akku Yadav which fact has
given rise to the incident.

Learned advocate further submitted

that there is absolutely no cogent, convincing and reliable


evidence against any of the accused to hold that they were the
members of the mob who had committed murder of deceased. In
support of his submissions, learned advocate has placed reliance
on the following reported rulings: .i] Maslati v. State of U.P. (AIR
1965 SC 202), ii] Busi Rao v. State of A.P., 2013 ALL MR (Cri)
355 SC iii] Siddanki Reddi v. State of A.P. (2011 ALL SCR 49),
iv] Rakehs Kahar v. State of Maharashtra, 2006 ALL MR (Cri)
3062, v] State of Maharashtra v. Dharamvir Chouhan, (2014 ALL
MR (Cri.) 1670, vi] Deoraj Suvarna v. State of Maharashtra,
(1994 Cri. L.J 3602), and vii] Dharmendra Sahare v. State of
Maharashtra, (2014 ALL MR (Cri) 3196).
12]

Following points arise for my consideration and my

findings thereon are recorded as under for the reasons to follow.


Points
1]

Findings

Whether prosecution proves that on


13.08.2004 at about 2.35 p.m. in the
hall of Court No.7, Nagpur accused
persons were the members of
unlawful assembly and in prosecution
of
the common object of such
assembly, viz. in committing murder
of Akku Yadav committed the offence
of rioting and thereby committed an
offence punishable under Section 147
of the Indian Penal Code?
.. In the negative.

17

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

2]

Whether prosecution proves that on


the aforesaid date, time and place
accused persons were the members of
an
unlawful
assembly
and
in
prosecution of the common object of
such assembly, viz. in committing the
murder of Akku Yadav commit the
offence of rioting and at that time
were armed with deadly weapons i.e.
knives, dagger, blade of spear, glass
etc. and thereby committed an
offence punishable under Section 148
of the Indian Penal Code?
.. In the negative.

3]

Whether prosecution proves that on


the aforesaid date, time and place
accused persons were the members of
an
unlawful
assembly
and
in
prosecution of the common object of
such assembly, viz. to commit murder
of deceased Akku Yadav assaulted HC
Damodhar
Choudhari
and
PC
Ravindra Suryawanshi, the public
servants to wit. police officers, in
execution of their duty as such public
servants and thereby committed an
offence punishable under section 353
r/w 149 of the Indian Penal Code ?
.. In the negative.

4]

Whether prosecution proves that


deceased Akku died of homicidal
death ?
..In the affirmative.

5]

Whether prosecution proves that on


the aforesaid date, time and place
accused persons were the members of
an
unlawful
assembly
and
in
prosecution of the common object of
such assembly, viz. to commit murder

18

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

of deceased Akku Yadav, did commit


murder by intentionally or knowingly
causing death of said Akku Yadav and
thereby
committed
an
offence
punishable under section 302 r/w 149
of the Indian Penal Code ?
..In the negative.
6]

What order ?

..Accused are
acquitted.
Reasons

Point no.4 :
13]
At the outset, it will have to be seen whether Akku
Yadav died of homicidal death. In this regard medical evidence
would be relevant.

Accused persons have not disputed the

postmortem report. On perusal of postmortem report, it is seen


that deceased had received as many as 73 multiple chop
wounds, incised wounds, linear abrasions etc. all over his body.
Medical Officer has opined that deceased died of shock due to
multiple stab and chop wounds to trunk and head and all those
injuries were ante-mortem. Considering the nature of injuries, it
is evident that the injuries were neither accidental nor suicidal
and therefore, only conclusion that can be drawn is that those
injuries were homicidal and deceased died of homicidal death.
Hence, I record my finding on this point in the affirmative.
Point nos. 1 to 3 and 5 :
14]
Now it will have to be seen whether accused
persons formed unlawful assembly and in prosecution of the
common object of such assembly they committed rioting,
assaulted public servants and caused death of deceased Akku

19

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Yadav with deadly weapons.


15]

As noted above, prosecution has mainly relied on

the evidence of four eye witnesses- PW-2 Head Constable


Damodhar

Choudhari,

PW-9

Police

Constable

Ravindra

Suryawanshi, PW-10 Santosh Yadav, and PW-11 Yuvraj Yadav.


16]

Before proceeding to examine the evidence of these

witnesses, it is useful to note here that none of these witnesses


have deposed a single word against accused Sumedh Karwade,
Vijay Labde, Smt. Bhagiratibai Adkine, Leelabai Sangole and
Nilesh Meshram. There is also no other evidence against these
accused to connect them with the commission of the offences.
17]

It is not under challenge that on 13.08.2004 PW.2

HC Damodhar Chaudhari, PW.9 PC Ravindra Suryawanshi and


PC Jaishankar Thakur were on accused guard duty and they had
brought deceased Akku Yadav and other three persons from
Panchpaoli Police Station for their production before the Court
in a police Van. It is the evidence of PW.2 HC Damodhar
Chaudhari that after getting down from the Van, he and his
colleagues were taking deceased and other three persons
(accused in other case) towards Court no.7 from the side of
Family Court. When they reached near the channel gate of Court
no.7, 10 to 12 women and 25 to 30 men rushed towards them
while abusing Akku Yadav. They were saying, Akku Yadav Ko

Chhod Do, Hamko Use Khatam Karna Hai.

Apprehending

danger to the life of deceased, PW.2 HC Damodhar Chaudhari


and his colleagues took deceased and other three persons inside

20

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

the Court building and closed the channel gate. Persons form
the mob were giving blows to the channel gate. They started
pelting stones at the gate and throwing chilli powder on
deceased. As the mob became violent, PW.2 HC Damodhar gave
call to API Sahare, who was passing from near the channel gate.
He told API Sahare that the mob was trying to assault deceased
and

had requested him for help. PW.2 HC Damodhar

took

mobile from API Sahare and made phone call to Police Control
Room. He had apprised the Control room about the situation on
the spot and requested for sending additional police force. PW.9
PC Ravindra Suryawanshi had taken deceased and three other
to Court Hall of Court no.7. Since the channel gate was closed,
the mob went to side wooden door and started to brake it open.
Since the mob was trying to break open the door, PW.2
Damodhar sent PC Jaishankar to the Control room for bringing
additional police force. In the mean time, the mob had broken
down the wooden door and entered the Court Hall. PW.2 HC
Damodhar Chaudhari and PW.9 Ravindra Suryawanshi tried to
prevent the mob, but the members of the mob had assaulted
them and started giving blows to Akku Yadav with knife, Gupti,
blade of spear, glass etc. Due to the sever beating Akku Yadav
received serious injuries. He fell down beside the dais in the
pool of blood and died. Then all those persons fled away. PW.2
HC Damodhar had chased and caught hold of one of the
assailants, but some other assailants surrounded him and got
the said assailant rescued. Evidence of PW.9 PC Ravindra
Suryawanshi is substantially on the same lines.

21

18]

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

PW.2 Damodhar Chaudhari further deposed that he

knew some of the persons who had gathered there and those
persons were accused Eknath Chavan, Pankaj Bhagat, Urkude,
Humane, Usha Narayane, Borkarbai, and Pinky.
19]

PW.2 Damodhar has stated that after about 20

minutes, police force from Sadar Police Station and Control


room came to the spot and thereafter he went to police station
Sadar and lodged report Exh. 77. During the incident his clothes
were torn. Police seized his clothes on the next day under
seizure panchanama Exh. 79.

PW.2 Damodhar has further

stated that he was called to Central Jail for identification of


accused persons from time to time on 25.10.2004, 15.01.2005,
5.02.2005 and 3.11.2005 and he had identified accused Ekanath
Chavan, Dilip Shende, Pankaj Bhagat, Urkude, Humane, Usha
Narayane, Borkarbai and Pinky in test identification parade.
20]

PW.9 Ravindra Suryawanshi has stated that when he

and PW.2 Damodhar Chaudhari were resisting the mob, some


persons were inflicting injuries to deceased Akku Yadav.
According to him, he knew those persons by their faces. He had
identified accused Nilesh Humane, Rajesh Dhongade, Ritesh
Humane, Eknath Chavan, Pankaj Bhagat, Rajesh Urkude and
Pinky Shambharkar by pointing
Court.

finger

at them before the

He says that on the day of incident API Atram had

recorded his statement. After 5 to 7 days he, PW.2 Damodhar


Chaudhari and Jayshankar Thakur were called to C.I.D. Office
for recording their statements along with their uniforms. PW.9

22

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Ravindra Suryawanshi says that his uniform was stained with


blood at places, which was seized from his possession under
seizure memo Exh. 56.
21]

Aforesaid evidence of both these witnesses will have

be tested with reference to their cross-examination and other


evidence available on record. It must be noted here that PW.2
HC Damodhar has nowhere stated in his entire evidence that
the accused persons to whom he had identified had in fact
assaulted the deceased.

What he has stated is that

those

persons had gathered there. He has not attributed any overt act
against any of the accused persons. He has admitted in his cross
examination that there used to be crowd at 2.30 p.m. in the
Court. There were other Courts i.e. Court nos. 8 and 1 near
Court no.7. Accused persons, policemen and the relatives of
accused used to come to the Court.

Therefore, even if it is

accepted that accused persons as referred to by PW.2 HC


Damodhar in his evidence were present at the time of incident,
it cannot be said that they were the assailants of deceased as no
specific overt act has been attributed against any of them. They
may be the litigants, relatives of some accused or even the
spectators.
22]

As noted above, PW-2 HC Damodhar Choudhari

has stated that he knew some of the accused persons. He has


stated their names before the Court. He has admitted in his
evidence that he had narrated the incident in his report in
detail. Since PW.2 HC Damodhar knew some of the accused, he

23

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

was expected to have named them in F.I.R. But, he has not


named them in F.I.R except accused no.1 Eknath Chavan. PW.2
HC Damodhar has admitted that he had not stated in his report
that he was knowing even accused no.1 Eknath Chauhan.

He

has further admitted that he had not given description of any of


the assailants like his height, built or physique. On perusal of
the F.I.R. Exh.77 it is seen that name of accused no.1 Eknath
was told to PW.2 HC Damodhar Chaudhari by ASI Sirsat, buckle
no.2852. ASI Sirsat has not been examined in this case. PW-2
Damodhar Choudhari has nowhere mentioned in his report Exh.
77 that he knew the assailants of the deceased even by their
faces.
23]

PW-2 HC Damodhar Choudhari has stated that the

persons in the mob had thrown chilli powder on deceased at the


channel gate. However, the spot panchanama Exh.93 does not
show chilli powder near the channel gate of Court no.7. PW-2
Damodhar Choudhari further says that after arrival of the police
force to the spot of incident, he went to police Station, Sadar.
He has further stated that he was not even present at the time
of spot panchanama.

The evidence of PW-12 Senior P.I. Mr.

Sawai shows otherwise. According to PW.12 PI Sawai when he


came to the spot of incident at around 3.00 p.m,PW-2 Damodhar
Choudhari was present there. He had made enquiry with him
and then prepared spot panchanama Exh.93. There is reference
of the presence of PW-2 Damodhar Choudhari

in spot

panchanama Exh.93 that he was present there. This falsifies the


version of PW-2 Damodhar Choudhari

that he went to Police

24

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Station Sadar immediately on arrival of the police force to the


spot of incident. Printed F.I.R. Exh.78 shows that the report was
lodged at 5.55 p.m.

If at all PW-2 Damodhar Choudhari had

immediately went to police station Sadar, he could have lodged


report soon after 3.00 p.m. However, the evidence of PW-2
Damodhar Choudhari does not show as to where he was after
3.00 p.m. till 5.55 p.m.

He has not explained the delay in

lodging the report.


24]

PW-2

Damodhar

Choudhari

claims

that

his

uniform was torn and stained with blood. The C.A. report shows
that human blood was detected on his uniform. His uniform was
seized on the next day of incident. The Investigating Officer
could have seized his uniform on the day of incident itself if
really it was torn and stained with blood. No explanation is
forthcoming on the part of prosecution as to why uniform of
PW2 HC Damodhar was not seized on the day of incident when
he came to lodge the report. From this, inference could be
drawn that his uniform was neither torn nor was it stained with
blood and therefore, it was not seized on the day of incident.
25]
Eknath

PW-2 Damodhar Choudhari claims that accused


Chauhan,

Dilip

Shende,

Pankaj

Bhagat,

Urkude,

Humane, Usha Narayane, Borkarbai and Pinki were present in


the mob and he had identified them in test identification parade.
However, he does not say that those accused had assaulted
deceased.

PW. 9 PC Ravindra has identified accused Nilesh

Humane, Rajesh Dhongade, Ritesh Humane, Eknath Chauhan,

25

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Pankaj Bhagat, Ritesh Urkude and Pinki Shambharkar before


the Court to be the assailants of deceased.
26]

However, it must be noted here that PW.9 PC

Ravindra Suryawanshi had identified only two accused namely


Pankaj Bhagat and Pinki Shambharkar in test identification
parade. He has not identified any other accused as referred to
by him in his evidence to be the assailants of deceased. He has
tried to give boost to the prosecution case by naming more
accused to whom he had not identified in test identification
parade.
27]

So far as identification of some the accused in test

identification

parade

is

concerned,

PW-2

HC

Damodhar

Choudhari has candidly admitted in his evidence that after the


incident the photographs of accused persons were published in
newspapers
identification

and

telecast

parades

of

on

news

accused

channels.

persons

The

were

held

test
on

25.10.2004, 15.01.2005, 5.02.2005 and 3.11.2005. The incident


was occurred on 13.08.2004. Needless to say that there was
considerable

delay

in

holding

test

identification

parade.

According to both the witnesses, the incident of assault on


deceased lasted only for few minutes. Obviously they could not
get sufficient time to observe each of accused in the mob.
Probably that is why they had not even given description of any
of the accused before the police. In such circumstances, delay in
holding test identification parade is fatal to the prosecution. In
this connection, Mr. Bhoyar learend A.P.P. has placed reliance on

26

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

a case, Pargan Singh cited supra, to contend that identification


of accused after 7 years of the incident before the Court was
relied upon. The ruling cited by learned A.P.P is distinguishable
on facts. In that case, accused were absconding. Two eye
witnesses had identified accused persons in Court. They had
closely observed the accused at the time of assault.

Accused

persons had declined to appear in test identification parade for


which no explanation was given by them in their examination
under section 313 of Cr.P.C. Moreover, extra judicial confession
given

by

accused

corroborated

the

testimony

of

the

eyewitnesses. Such is not the position in the present case. Even


after the arrest of accused, their test identification was not held
for a considerable period of time. No explanation for the delay in
holding test identification parade is forthcoming. In Siddanki

Reddy cited supra the Hon'ble Supreme Court has held that
where witnesses saw assailant for a very short time when he
assaulted deceased, delay in holding test identification parade
in such circumstances is fatal to prosecution.
28]

That apart, PW.2 HC Damodhar has admitted in his

evidence that the photographs of accused persons were


published in newspapers and telecast on news channels. If the
witnesses had an opportunity to see the photographs of the
accused persons before test identification parade, the test
identification parade as well as identification of accused persons
before the Court loses its significance and as such, no reliance
can be placed on such identification.

27

29]

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Besides this, the test identification parade was not

held in accordance with law. It was the duty of the Special


Judicial Magistrate conducting test identification parade to
enquire with the witnesses whether they had seen the accused
or their photographs after the incident. Evidence of PW.13 Mr.
Somkuwar, the Special Judicial Magistrate is silent on this
aspect. However, PW-2 HC Damodhar Choudhari has admitted
in his evidence that no such enquiry was made with him by
Special Judicial Magistrate PW-13 Mr. Somkuwar.

In this

connection Mr. Tiwari, learned advocate for the accused has


placed reliance on a case, Rakesh Kahar Vs. State of
Maharashtra reported in 2006 ALLMR (Cri) 3062, wherein it
was observed by the Hon'ble Bombay High Court that it is
obligatory for Special Executive Officer to ask the witness as to
whether he had opportunity to see the suspect

or his

photograph prior to the parade. This requirement is stipulated


in the High Court Criminal Manual and it is mandatory to be
observed.

Since

no

such

enquiry

was

made,

the

test

identification parade conducted in the said case was discarded.


Therefore, though PW-2 HC Damodhar Choudhari and PW.9 PC
Ravindra Suryawanshi has identified some of the accused in test
identification parade, possibility of seeing the photographs of
the accused by them cannot be ruled out and as such no
reliance can be placed on such identification.
30]

The Special Judicial Magistrate has not conducted

the test identification parade by following guidelines laid down


in Criminal Manual.

It has brought on record in the cross-

28

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

examination of PW-13 Mr. Somkuwar that he had not selected


the dummies to similar age group and the physique

of the

accused persons. It has also brought on record that PW.13 Mr.


Somkuwar has mentioned different age of the same dummy
while conducting test identification parade of different accused
to show similarity of age group between the dummy and the
accused. In this context, Mr. Tiwari has placed reliance on a
case, Dharmendra Sahare v. State of Maharashtra (2014 ALL
MR (Cri) 3196, wherein the Division Bench of Hon'ble Bombay
High Court has held that where identification parade was held
in a defective manner without following the guidelines of
Criminal Manual, possibility of witnesses having seen the
accused before test identification parade cannot be ruled out. In
the present case, as noted above, photographs of accused were
published in newspapers and telecast on news channels. The
witnesses had opportunity to see the accused before test
identification parade. Most of the accused persons were on bail
and the witnesses had an opportunity to see them before their
test identification parade. Therefore, on this ground also, no
reliance could be placed on such identification evidence.
31]

It is important to note here that according to PW-9

PC Ravindra Suryawanshi, he was sitting with deceased Akku


Yadav in Court hall. Akku Yadav was with him under handcuff.
When the mob had assaulted Akku Yadav with deadly weapons,
his blood shot high on the wall and scattered on the almira,
benches and chairs in the Court hall, but surprisingly not a
single drop of blood was found on the seized uniform of PW-9

29

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

PC Ravindra Suryawanshi. This fact certainly cast suspicion


about the presence of this witness in the Court hall at the time
of occurrence. In cross-examination, this witness has candidly
admitted that departmental enquiry was initiated against him
and PW-2 HC Damodhar Choudhari and the allegations were
levelled against them that they ran away from the spot without
making any effort to save deceased Akku Yadav from the
assailants. Non finding of the blood stains of the deceased on
the uniform of PW-9 PC Ravindra coupled with initiation of the
departmental

enquiry

against

these

police

witnesses

strengthens the suspicion that they left Court Hall probably out
of fear of mob. As noted above, PW-9 PC Ravindra Suryawanshi
has identified only two accused i.e. Pankaj Bhagat and Pinki
Shambharkar.

However, he has not stated

anywhere in his

entire evidence that what Pankaj Bhagat and Pinki Shambharkar


had done. Whether they had assaulted deceased and if so, by
which weapon. On the other hand, he has admitted in his crossexamination that he had not stated in his statement before
police that any woman had assaulted deceased Akku Yadav. He
had also not given description of any of the assailants in his
statements except the age group of the assailants. PW-9 PC
Ravindra Suryawanshi as well as PW.2 Damodhar Choudhari
have not given even description of any person who had
assaulted them. There is also nothing on record to indicate that
they had received injury during the incident. In view of these
facts, it is very difficult to believe that both the police witnesses
had seen any of the accused while assaulting deceased with any
weapon.

30

32]

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Next eye witness is PW-10 Santosh Yadav.

He is

nephew of deceased Akku Yadav. According to him, deceased


was in police lock up at Panchpaoli police station. Deceased
had quarrel with accused Vilas Bhande and therefore, on
account of that quarrel he was in police custody. Accused Vilas
Bhande had lodged report against deceased Akku Yadav. On
12.08.2004 PW.10 Santosh had been to police station Panchpaoli
to see the deceased. He had enquired with deceased as to what
had happened, whereupon deceased told him that accused Vilas
Bhande and Usha Narayane had brought 30 to 40 persons and
demolished his house and therefore he had quarrel with accused
Vilas Bhande. Deceased had further told him that on the next
day he would be produced before the Court, so he should bring
his underwear, banian and tooth brush in Court.
33]

PW-10

Santosh

proceeded

to

narrate

that

on

13.08.2004 at about 1.30 p.m. he came to Court taking with him


the underwear, banian and tooth brush of deceased.
standing in front of Court no.7.

He was

Police brought deceased to

Court no.7 at about 2.30 p.m. under handcuff. 20 to 25 persons


from Kasturbanagar were wandering in the Court premises.
Those persons rushed to beat deceased and therefore, police
took deceased inside the Court building and closed the channel
gate. Mob had broken down the side wooden door of the Court
and entered the Court hall.

He did not know the names of the

persons who had broken down the wooden door. He was seeing
the incident through the broken door.

Accused Usha Narayane

who was in the mob had thrown chilli powder on the face of

31

deceased.

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Accused Eknath Chauhan had inflicted injury to

deceased with knife. Other persons in the mob hit the deceased
with stone, blade of spear and knives.

He knew only three

persons from the mob by their names and they were accused
Vilas Bhande, Usha Narayane and Pinki Shambharkar. Due to
sudden attack on deceased, he was frightened and left the Court
and went home.
34]

In his cross-examination he has specifically admitted

that he did not know accused no.1 Eknath Chauhan. He has


further specifically admitted that he had not seen accused no.1
Eknath while inflicting injuries to deceased with knife. So far as
accused Usha Narayane and Pinki Shambharkar is concerned,
he has admitted that he had no occasion to visit the house of
Usha Narayane and Pinki Shambharkar.

He has further

admitted that he had no acquaintance with them prior to the


incident. Therefore, it appears that he came to know the names
of these two accused after the incident from other sources. He
was not called for test identification parade. He says that
accused Usha Narayane had thrown chilli powder on deceased.
However, PW.9 PC Ravindra says that the lady who had thrown
chilli powder was not amongst the accused persons facing trial.
Therefore, it cannot be believed that accused Usha Narayane
had thrown the chilli powder on deceased. As regards accused
Vilas Bhande and Pinky Shambharkar, he has not stated
anywhere in his entire evidence as to what part accused Vilas
Bhande and Pinky Shambharka played in the commission of the
offences.

32

35]

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

It is pertinent to note here that PW-10 Santosh

claims to have seen the incident through the broken door of


Court no.7. In this regard it is useful to refer here the evidence
of PW-2 HC Damodhar Choudhari. This witness has candidly
admitted in his cross-examination that the interior of the Court
no.7 was not visible from the broken wooden door nor was it
visible from the channel gate. PW.11 Yuvraj, the brother of
deceased has also admitted that interior part of the Court no.7
was not visible from broken wooden door. If the interior of the
Court hall was not visible, it is difficult to believe that this
witness had seen anybody while assaulting the deceased
through the broken wooden door.
36]

It is equally important to note here that PW-10

Santosh Yadav met police in funeral procession of deceased.


Police had also made enquiry with his father in Mayo Hospital
about the incident in his presence. He admits that he had not
told anything to police about the incident. If really this witness
had seen the incident, he being the close relative of deceased,
he would not have kept quiet. The statement of this witness
was recorded after five months of the incident. No reason is
forthcoming as to why the statement of this witness was not
recorded at the earliest possible opportunity. No plausible
explanation is forthcoming on the part of the prosecution for the
delay in recording his statement.

All these facts cast serious

doubt on the trustworthiness of this witness.


37]

Last eye witness is PW-11 Yuvraj Yadav. He is real

33

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

brother of deceased Akku Yadav.


13.08.2004

He has sated that on

his brother was to be produced before the Court

from police station Panchpaoli and therefore he came to Court.


30 to 40 persons were present in the Court premises. Out of
them, he knew accused Eknath Chauhan, Raja Urkude, Manish
Shinde, Dilip Shende, Ishwar Adkine, Raja Bhedrya, Usha
Narayane, Devanganabai Humane, Pinki Shambharkar, Pankaj
Bhagat and Savita Wanjari. He had identified all those accused
before the Court.

However, he could not identify Pinki

Shambharkar, Dewangana Humane, Raja Urkude and Dilip


Shende. According to this witness, all those accused were
standing near Court no.7. When deceased was brought to Court
no.7, those persons rushed to beat deceased.

On seeing this,

police had closed the channel gate of Court no.7.

The crowd

had broken open the side wooden door and entered the Court
hall.

Accused Eknath Chauhan, Raja Urkude, Raja Bhedrya,

Pankaj Bhaat, Ishwar Adkine, Manish Shinde, Dilip Shende were


amongst them and they were armed with weapons.
Eknath

was

holding

big

knife

and

other

Accused

accused

were

possessing some weapons. All those persons had assaulted his


brother and killed him in Court hall. He had seen the incident
standing near the broken wooden door of Court no.7.
38]

In cross-examination

this witness has admitted in

no uncertain terms that the Court hall was not visible from the
wooden door of Court no.7. If that be so, it was not possible for
him to see any of the aforesaid accused while assaulting
deceased with any weapon. As a matter of fact, this witness has

34

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

stated in his statement before the police that he was watching


the incident by standing near the gate of Court no.8.

This

witness was confronted to his earlier statement Exh.131, which


he had denied, but the Investigating Officer contradicted him by
saying that he did state so in his statement before him.

The

evidence of PW.2 HC Damodhar shows that the interior of Court


no.7 was not visible even

from the gate of Court no.8.

Therefore, in either case it is difficult to believe that this witness


had seen the incident.

It must be noted here that the

Investigating Officer has stated that the statement of PW-11


Yuvraj Yadav was recorded on the date of incident itself.
However, PW-11 Yuvraj Yadav says that police did not record his
statement on the date of incident. He says that his statement
was recorded only once and that too after about a month of the
incident.

It is equally important to note here that PW.11 Yuvraj

Yadav has stated that due the incident he was terribly


frightened and therefore, he ran away to room no.502 where the
advocate of his brother Mr. Prakash Jaiswal used to sit. He met
with advocate Mr. Prakash Jaiswal and told him that accused
persons had assaulted his brother.
incident

and

prosecution

narrated

could

have

it

to

If really he had seen the

Advocate

examined

Prakash

Advocate

Jaiswal,

Jaiswal.

Non

examination of Advocate Jaiswal therefore leads to an adverse


inference that PW.11 Yuvraj

had neither met with Advocate

Jaiswal nor had he told the incident to him because he had not
seen the incident. Suffice it to say that the evidence of this
witness also does not appear to be convincing and reliable. It is
not possible to place any reliance on his evidence.

35

39]

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

So far as the recovery of blood stained clothes and

knife at the instance of accused no.1 Eknath is concerned,


panch witness, Sunil Wankhede (PW-8) has stated that accused
no. 1 Eknath made a confessional statement before him that one
knife stained with blood, shirt and jean pant were kept at his
house and he would show those articles and accordingly
memorandum

panchanama

Exh.98

was

prepared

in

his

presence. His evidence further shows that accused no.1 led him
and the police to Takshashila Nagar and produced from his
house one plastic bag containing shirt, jean pant and knife
stained with blood and those articles were seized in his
presence

under

seizure

panchanama

Exh.99.

In

cross-

examination this witness has stated that accused had produced


the bag from inside the hut. However, the evidence of PW-16
shows otherwise.

PW-16 Dy. S.P. Mr. Porate has stated that

accused no.1 Eknath led him to the hut and took out one plastic
bag from outside the hut kept under the bamboo mat.
further stated that he did not enter the hut.

He has

The mat was

resting against the wall of the hut from which the accused had
taken out the plastic bag. Panch witness says that the bag was
taken out from inside the hut, whereas, the Investigating Officer
says that it was taken out from out side the hut under the
bamboo mat. Evidence of both these witnesses is not consistent
with each other. Besides this, the panch witness has nowhere
stated that those blood stained clothes

and the knife were

sealed in his presence and any seal was affixed on those clothes
and knife.

There is also no evidence available on record to

indicate as to where the seized property was kept after its

36

seizure.

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Whether it was kept in Malkhana or elsewhere.

Be

that as it may, since the articles were not sealed under the
under the signature of panchas, possibility of tampering with
those articles cannot be ruled out. Therefore, even if the blood
of the group of the deceased was found on those articles, no
significance can be attached to such recovery to establish its
nexus with the commission of the offence.
40]

Apart from the aforesaid witnesses, prosecution has

examined PW.15 PI Arun Tembhare to show that on 8.08.2004


i.e about 5 days before the incident the accused persons had
assembled in the premises of the Court to assault the deceased.
According to this

witness, on 8.08.2004 it was Sunday. On

coming to know that deceased Akku Yadav was being produced


before the Court and some persons from Kasturbanagar were
attending the Court to oppose the bail application of Akku
Yadav, he came to the Court along with police staff. When he
came to Court, he saw 30 to 40 men and 100 women present
near Dagdi Building. He gave information about it to Control
Room and requested for sending additional police force to Court
premises. Till then Akku Yadav was not brought to Court. He
had asked those persons as to why they came to Court,
whereupon they told him that they came to oppose the bail
application of Akku Yadav.

At about 4.00 p.m. Crime Branch

Police brought Akku Yadav to Court in a police jeep. The mob


rushed towards the police jeep, but the police had prevented
them. A.C.P. and D.C.P. gave understanding to those persons and
dispersed them from the Court premises.

According to this

37

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

witness, accused persons were the members of the said mob.


However, in cross-examination, he has admitted that he was not
called for test identification parade of any of the accused. He
has also not given description of those persons. He has assigned
no reason as how he had identified accused persons after about
10 years of the incident that they were the members of the mob.
In the absence of such evidence the general statement made by
this witness cannot be accepted.
41]

It may be noted here that the clothes of the other

accused were seized in the present offence, but no blood of the


group of deceased was found on their clothes. Most of the
accused

persons

were

not

identified

by

the

prosecution

witnesses in test identification parade. The persons (accused in


other case) who were with deceased had also not identified any
of the accused in test identification parade. Those three persons
were assaulted by the mob during the incident and they had also
received injuries. If any of the accused had assaulted them, they
could have identified him in test identification parade. But they
had identified none of them. This circumstance also creates
doubt on

the involvement of the accused persons in the

commission of the offences.


42]

The

incident

had

taken

place

in

Court.

The

Investigating Officer has recorded the statements of Court


employees. But, none of the court employees has been
examined, probably because they had not supported the
prosecution or they might not have identified any of the

38

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

assailants out of the mob. The evidence available on record


shows that the mob consisting more than 30 to 40 men and
women had attacked deceased. But only 21 persons have
arrayed as accused. Out of them, three were dead during the
pendancy of the case. Rest of the members of the mob were not
arrested. Therefore, possibility of assault on deceased by those
persons and false implication of accused only because they are
residents of Kasturba Nagar cannot be ruled out. This inference
finds strength from the fact that most of the accused persons
were not identified by the prosecution witnesses and no overt
act has been attributed to them.
43]

Suffice it to say that there is absolutely no cogent,

convincing and reliable evidence available on record to hold that


the accused persons were the members of an unlawful assembly
and in prosecution of the common object of such assembly, they
committed rioting, assaulted police constables in the discharge
of their duty and caused dead of deceased Akku Yadav.
44]

The submissions made by the learned A.P.P. cannot

be accepted for the reasons stated above. At the most the


evidence PW. 2 HC Damodhar shows that some of the accused
were present on the spot of incident, but he has attributed no
overt act to them. There is no acceptable evidence to hold that
they had assaulted deceased or taken

any part in the

commission of the offences.


45]

The evidence brought on record unfailingly shows

39

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

that Akku Yadav was a notorious criminal. Several criminal


cases

including murder, attempt to commit murder, robbery,

extortion, criminal intimidation etc. were registered against


him.

His real brother PW-11 Yuvraj Yadav has admitted that

about 25 offences were registered against Akku Yadav.

The

nephew of deceased PW-10 Santosh Yadav has also admitted


that serious offences were registered against Akku Yadav in
police station Jaripatka and Panchpaoali including two murder
cases.

He has also admitted that deceased Akku Yadav had

created terror in the locality. He has further admitted that the


people of the locality were fed up due to the unlawful activities
of deceased. Nevertheless, no one had right to take

law in

hand and kill a person though he is notorious criminal. Murder


of deceased in the Court cannot be justified though it was
committed out of public outcry and hatred against deceased.
46]

Before parting with the judgment certain other facts

must be taken note of. Deceased Akku Yadav was in police


custody. He was kept in police lock up in Pachpaoli police
station. The C.A. report shows that 100 ml. alcohol was found in
the viscera of deceased. This undoubtedly shows that police
were showing favour to deceased. It is regretted that police had
provided liquor to deceased while he was in police custody. It is
expected that the State will take suitable departmental action
against the concerned police officials. It is brought on record
that departmental action was taken against PI Kshirsagar of PS
Jaripatka probably because he had not taken timely legal action
against deceased though members of public were making

40

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

complainants against him. It is not known as to what had


happened thereafter. The evidence available on record and the
circumstances of the case show that it was because of inaction
on the part of police to curb the unlawful activities of deceased,
the public was compelled to take law into their hands, which has
given rise to this incident.

Indeed it was the failure of law

enforcement agency that the people dared to commit the


murder of deceased in Court where justice is imparted. It is
expected that the State will take immediate step to avoid
recurrence of such incidence and will look after the safety and
security of the Court.
47]

Since there is no cogent, convincing and reliable

evidence to hold that the accused persons were members of


unlawful assembly and in prosecution of the common object of
such assembly they had committed rioting, assaulted public
servants and committed murder of Akku Yadav, it is not possible
to hold them guilty for any of the offences. Consequently, they
are entitled to an acquittal.

Hence, I record my findings on the

aforesaid points in the negative. In the result, I proceed to pass


the following order.
Order
Accused Eknath Duryodhan Chauhan, Sumedh
Suresh Karwade, Dilip Mahadeo Shende, Pankaj Sudhakar
Bhagat,
Nilu @ Nilesh Sukhdeo Humane, Ritesh Sukhdeo
Humane, Rajesh @ Bhedrya s/o Chandrabhan Dhongade, Ku.
Usha Madhukar Narayane, Vijay @ Bablya @ Mayur s/o
Shankarrao Labade @ Shinde, Rajesh @ Raju s/o Dattu Urkude,

41

S.T. Nos. 453/04, 389/05 & 151/06 Common (J)

Pinki @ Manisha Ajay Shambharkar, Smt. Savita Jitendra


Wanjari, Smt. Bhagratha Harichand Adkine, Smt. Leelabai
Raghunath Sangole, Nilesh @ Ritesh Sitaram Meshram and
Manoj @ Manish Shankarrao Labade @ Shinde, Vilas Shriram
Bhande and Ishwar Harishchandra Adkineare are hereby
acquitted under section 235 (1) of the Code of Criminal
Procedure of the offences punishable under Sections 147, 148,
353 and 302 r/w 149 of the Indian Penal Code.
discharged.

Their bail bonds stand cancelled and sureties

Muddemal properties i.e. knives, blade of spear be


confiscated to State and other property being worthless be
destroyed after the period of appeal is over.

Nagpur
Dated 10.11.2014.

(V.T.Suryawanshi)
Addl. Sessions Judge-5
Nagpur