According to the prosecution A 4 A 5 were seen before the occurrence in the companypany of A 1, A 2, A 3, A 6 A 7 and after the occurrence, they were seen by other witnesses, namely, PWs.3 4 as going away from the scene of occurrence on a light blue companyoured scooter along with the absconding accused Mehfooz A 7 .
Evidence of PW 4 is that after PW 3 left for the hospital he talked with the ladies who came to the place of occurrence after the incident and thereafter went to the hospital.
As per the prosecution, A 1, A2, A3 A 6 had paid money to A 4 and A 5 for killing the deceased and pursuant thereto A 4 and A 5 had shot the deceased from a close range.
The High Court in its judgment dated 8.11.2004 partly companyfirmed the judgment of the Trial Court in companyfirming the death sentence against A 4 A 5, but reversed the companyviction of the other three accused, i.e. Shambhu A 1 , Sapna A 2 and Sattanarain Sattu Sen A 6 and the charge of companyspiracy failed and they were acquitted.
Prosecution also relied on the evidence of Shishir Tiwari PW 4 who was also on a scooter and was going to the house of the deceased to meet him.
If one reads the evidence of PW 3 and PW 4 it would appear that one is totally insulated from the other as if they are strangers and reside in different islands.
1206/2005, as well as Shambhu A 1 , Sapna A 2 and Satyanarain Sattu Sen A 6 being Crl.
PW 4 claimed to have seen PW 3 with the help of PW 2, PW 17 and Gopal Jain lifting the deceased in the Matiz car and driving it away with Umesh Singh PW 2 .
PW 4, an athlete, and in his Tracksuit was obviously having a sound physique.
On hearing the shots and the shouts of PW 3, the nearby cable operator Brajendra Keshwani PW 17 , Umesh Singh PW 2 and one Gopal Jain number examined by the prosecution came to the place of incident.
In view of the evidence discussed above it is absolutely natural for PW 4 to immediately talk with PW 3 to find out about the incident.
The State Government also filed an appeal against the dismissal of petition for enhancement of sentence of these accused being Crl.
They had suffered a disclosure statement and which had resulted in discovery of the weapon of assault and the Ballistic Expert had given the report, according to which it was proved that weapon of assault recovered from the Appellants had been used by the deceased.
About the presence of PW 4 at the place of occurrence, this Court has some serious doubts which shall be discussed later.
After Umesh then came Gappu of Jain family, who also reside in our same apartment and then came out my wife and after her when we were lifting Mallu Bhaiya to put him in the car then his wife Zarina also arrived there.
According to prosecution A 4 and A 5 were identified by witnesses in the T.I. Parade, their finger prints were found on the car and on the recovered scooter.
The State Government also filed special leave petitions against the judgment of the Honble High Court acquitting Gobind A 3 , being Crl.
PW 4 then on his scooter went to the Marble Hospital.
A. Nos.1180 1181/2005 before this Court.
4081/2005.
The Trial Court companyvicted A 1, A 2 A 6 under Sections 302/120B and gave them life sentence.
A 7 is the brother of A 2.
PW 4s evidence is that he was companying to meet the deceased Asim Chansoriaji.
PW 3 drove that car with PW 2 in the front seat to Marble Hospital and PW 3 got the report written in the hospital which is marked Exhibit P 11.
PW 4 also admitted that he knows PW 3.
Then PW 3 came outside his apartment and started shouting.
1205/2005.
Then he stopped his scooter and saw another scooter at a distance of 60 70 feet and that scooter was started and three persons boarded it and that scooter took a turn to reach the road and drove past me.
This is admittedly a case based on circumstantial evidence and the evidence of PW 3 and PW 4 form the main plank on which rests the prosecution case of circumstantial evidence.
The accused persons were allegedly identified by PWs 3 and However in his evidence PW 3 never stated that he saw PW 4 in the place of occurrence.
A 7 being an absconder, trial against him did number companymence.
But there is numberevidence of that.
Appeal No.
Hearing his shouts at first cable operator Kesharwani came out there at the incident site.
PW 3 is virtually the star witness of the prosecution.
It also very un natural for PW 4 to remain at the place of occurrence as a passive spectator and watch the incident of PW 3 taking the deceased in that Matiz car to the hospital with help of others who had companye to the place of occurrence much after he was there.
He claimed to have seen those persons who were on that scooter.
Then PW 3 with the help of those persons put the deceased on the back seat of that Matiz car.
PW 3 never whispered anything about the presence of PW 4 at the place of occurrence.
A 4 A 5 were arrested by the Jabalpur police at Ahmedabad.
It is wholly improbable that PW 4, who was known to PW 3 and was at the place of occurrence and saw PW 3 shouting for help for putting the body of the deceased in the car will number companye forward to help PW 3 especially when he was very friendly with the deceased, having a long standing relationship of 20 years.
PW 3 also stated that after companying to the place of occurrence he was shouting that the deceased had been shot at.
Aggrieved by the companyviction and death sentence imposed by the Honble High Court, Musheer A 4 and Basant A 5 , filed two special leave petitions being Crl.
In this case the Trial Court in its judgment dated 13.10.2003 acquitted A 3 and companyvicted A 4 and A 5 under Sections 302/120B of the Indian Penal Code read with Sections 25 1 b a and 27 of the Arms Act and they were awarded death penalty.
As he reached near the Bungalow of Major General in front of Park Apartment, he also claimed to have heard three shots.
Then on hearing the firing of three shots, he came out of his apartment and saw a light blue companyoured scooter, which was parked in front of the apartment, was being started by a man and after him two other persons also boarded that scooter.
PW 3 saw the accused persons from a distance of 20 steps while PW 4 saw the accused persons from a distance 60 70 feet.
From the evidence of PW 3 and PW 4, it is clear that they were present at the place of occurrence at the same time.
In this case charge sheet was filed against seven persons, namely, A 1 Shambhu, A 2 Sapna Shhjahan, wife of Sambhu, A 3 Govinda Gudda, A 4 Musheer Khan Badshah Khan, A 5 Basant Shiva Bhai Jadav, A 6 Sattanarayan Sattu Sen, A 7 Mehffooz Chotey, remained an absconder and never faced trial.
In the hospital also PW 4 did number talk with PW 3.
On the other hand, evidence of PW 3 is that he with the help of PW 2, PW 17 and Gopal Jain number examined put the body of the deceased, half of which was hanging outside the Matiz Car, in the back of that car and some of those persons sat in the car and PW 3 drove the car to the hospital.
The prosecution version as unfolded in the case is that on 29.11.2000 around 710 P.M. one Pappu Prakash Tripathi PW 3 was in his apartment.
Appeal No.
The brother of the deceased had also filed a special leave petition along with an application seeking permission for filing the same being Crl.
That was dismissed by this Court by an order dated 18.04.2005 in view of the appeals having been filed by the State Government.
They were known to each other for the last 20 years and PW 4 had a very good friendly relations with the deceased.
He saw three ladies standing near the spot and on being asked by him the wife of the deceased, Jareena Chowrariya PW 10 , who was in tears, told PW 4 that the assailants had murdered the deceased.
After him Umesh, who lives in my apartment came out.
Appeal No.
On an analysis of the evidence of PW 3 and PW 4 the presence of PW 4 in the place of occurrence is very doubtful.
PW 3 is a close relation of the deceased and lives in the same apartment where the deceased stayed.
This is very very un natural.
PW 3 also saw a Matiz car which was parked by the side of the road and he saw the body of Mallu Bhaiya, the deceased, half inside the car and the other half was lying outside the same.
1204/2005.
Appeal No.
GANGULY, J. Several appeals were heard together as they arose out of similar incidents and some companymon questions are also involved.
