LALA @ANURAG PRAKASH AASRE versus THE STATE OF MAHARASHTRA on 24 August 2021

LALA @ANURAG PRAKASH AASRE

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal No. 540 of 2018)

AUGUST 24, 2021

[SANJAY KISHAN KAUL ANDHRISHIKESH ROY, JJ.]

Penal Code, 1860: ss. 302, 120B, 147, 148 and 324 –Unlawful assembly with common object of causing death –Prosecution case that dispute between the parties – Deadly assaulton victim by 10-12 persons carrying sharp edged weapons – Victimlater succumbed to his injuries – Informant also sustained injuries– FIR by the injured informant wherein six accused named, howeverappellant not named but his physical description given – In thesupplementary statement u/s. 161 CrPC appellant identified by name– Conviction and sentence of accused including appellant u/ss. 302,120B, 147, 148 and 324 – Upheld by High Court – Interferencewith – Held: Not called for – Though FIR silent on the name of theappellant, prosecution case cannot be discarded on basis thereof,when other reliable evidence available – Colloquial variation alsowould not render the identification unreliable – Test identificationparade-TIP for the appellant was unnecessary as he was specificallyidentified by the prosecution witnesses as the person who wieldedsword and inflicted the injuries – Failure to conduct the TIP wouldnot vitiate his conviction – Identity of the appellant as one of theattacking group members and his specific role in the assaultestablished beyond doubt – Prosecution produced cogent evidenceof the appellant being part of a conspiracy by all the accused inthe assault which led to the death of the victim and injuries to theinformant and others – Evidence – First Information Report – TestIdentification Parade.

Draft Rules of Criminal Practice, 2021: Guidelines RegardingInadequacies and Deficiencies in Criminal Trials’ – On facts,confusion created by multiple versions of statements and depositionsin the projection of either side – Reference to the Guidelines –Necessity of.

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ADismissing the appeal, the Court

HELD: 1.1 The appellant was not named in the FIR by theinjured informant. The prosecution however tried to co-relatethe appellant as the one who was described as ‘heightened personhaving long nose’ in the FIR. This has been done through theBevidence of PW1, PW2, PW4, PW6 as recorded herein. [Para12][509-H; 510-A]

1.2 The contention of the appellant’s counsel that thesupplementary statements identifying the accused by name werenot produced before the courts below, do not appear to be entirelyCcorrect. The trial court records clearly reveal that PW1’sstatement identifying the accused by name, was available beforethe Sessions Court. It is also plausible that the accused with thealias Lala could be referred by the witnesses as ‘Lalya’. Thecolloquial variation is not so far removed so as to render theidentification unreliable, particularly when no other person byDsuch name is amongst the accused group. [Para 13][510-B-C]

1.3. While it is true that the FIR is silent on the name ofthe appellant, this Court cannot entirely throw out theprosecutorial case on such a basis as other reliable evidence areavailable in the case. The FIR is certainly the starting point ofEthe investigation, but it is well within the rights of the prosecutionto produce witness statements as they progress further into theinvestigation and unearth the specific roles of accused person.The FIR as is known, only sets the investigative machinery, intomotion. [Para 14][510-D-E]F

1.4. In the instant matter, two courts have concurrentlyconcluded that appellant’s name not being specifically mentionedin the FIR, would not justify his acquittal as he was specificallyidentified by PW2, PW4 and PW6. In view of his positiveidentification by the eye witnesses, the TIP not being conducted,Gwas held to be immaterial. The eye witnesses here have ascribedthe same specific role to the appellant and narrated the events insame chronology, without material discrepancies. Furthermore,this case involves multiple persons attacking in a group with

deadly weapons and it is not reasonable to expect recollection ofevery minute details by the eyewitnesses. [Para 15][510-E-G]

1.5. Test Identification Parade was unnecessary in theinstant case as the identity of the appellant was known to thewitnesses and he was specifically identified by PW1 and PW2 asthe person who wielded sword and inflicted the injuries. In theface of appellant’s such identification by name in the testimony ofthe eye witnesses, it can be safely concluded that the failure toconduct the TIP for the appellant would not vitiate his conviction.[Para 17][511-F-G]

1.6. The identity of the appellant as one of the attackinggroup members and his specific role in the assault is establishedbeyond doubt. The prosecution has produced cogent evidenceof the appellant being part of a conspiracy by all the accused inthe assault which led to the death of the victim and injuries toPW1 and others. As such, the conviction of the appellant by thetrial court, as upheld by the High Court, cannot be faulted. Thus,there are no grounds to interfere with the impugnment judgmentof the High Court. [Paras 18, 19][511-G-H; 512-A-B]

Munshi Singh Gautam v. State of M.P. (2005) 9 SCC631 : [2004] 5 Suppl. SCR 1092 – relied on.

In Re: To Issue Guidelines Regarding Inadequacies andDeficiencies in Criminal Trials’ Suo Moto Writ (Crl.)No.1/2017 – referred to.

Case Law Reference

[2004] 5 Suppl. SCR 1092relied onPara 17

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.540 of 2018.

From the Judgment and Order dated 09.05.2014 of the High Courtof Judicature of Bombay at Nagpur Bench, Nagpur in Criminal AppealNo.236 of 2011.

Huzefa Ahmadi, Sr. Adv., Satyajit A Desai, Ms. Anagha S. Desai,Satya Kam Sharma, Shubham Singh, Kishor Lambat for M/s Lambatand Associates, Advs. for the Appellant.

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ASachin Patil, Rahul Chitnis, Aaditya A. Pande, Jeo Joseph, Advs.for the Respondent.

The Judgment of the Court was delivered by HRISHIKESH ROY, J.

B1. Heard Mr. Huzefa Ahmadi, the learned Senior Counsel on behalfof the Appellant. The Respondent, State of Maharashtra, is representedby Mr Sachin Patil, the learned Advocate on Record.

2. The present Appeal is directed against the analogous judgmentdated 09.05.2014, whereby, inter alia, the Crl. Appeal No.236/2011 wasCdismissed and the conviction of the appellant u/S302, 120B, 147, 148 andSection 324 of the Indian Penal Code was upheld.

3. According to the prosecution, at around 9.45 pm on 22.01.2009,the deceased Balu Mandpe was chit chatting with his friends in front ofhis house at a street corner. At that time, 10/12 persons arrived there onDtwo wheelers and hurled abuse at Balu. The group then started assaultingBalu with sharp edged weapons such as sword, knives, khanjar andfarsa, and after causing grievous injuries, the attackers drove away.Balu sustained grievous injuries. Within few minutes of the occurrence,Arun Pohankar, who too was injured in the assault, reported the incidentto Imamwada Police Station, where many of the assailants were namedEor described by appearance. The friends rushed injured Balu to thenearby medical hospital where, he was declared dead. In the FIR, thePW1 had not named the present appellant but had named, Kunal Tagde(A1), Vinod Thakre (A2), Rajput @ Nabut (A3), Sachin Ingle (A4),Ameet Gujar (A5), Shekhar @ Husnya (A8) in the larger groupFdescribing one of the attackers by his build and appearance. On thebasis of the Complaint, the Crime No. 6/2009 was registered u/s 147,148, 149, 302, 120B of the Indian Penal Code (IPC). The policeinvestigation commenced, and the Investigating Officer (IO) (PW11)immediately visited the spot and prepared Spot Panchnama and recordedstatement of the witnesses. On conclusion of investigation, ChargesheetGwas filed and thereafter, the case was committed to the Sessions Courtat Nagpur. The nine accused, including the appellant Lala @ AnuragPrakash Aasre faced trial in the Sessions Trial no. 232/2009 on chargesdrawn up for offences relatable to Sections 147, 148, 149, 302, 324,120B of the IPC. The defense of the Accused is one of total denial.

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4. In course of trial, the prosecution presented 11 witnesses, andproduced other evidence. However, none of the accused entered thewitness box or presented any defense evidence. The learned SessionJudge concluded that the accused had formed an unlawful assemblywith the common object of causing the death of Balu Mandpe, and hadassaulted him with sharp and dangerous weapons. According to the TrialCourt, the present appellant who was the original Accused No.6, assaultedthe informant Arun (PW1) with a sword. Accordingly, the appellant alongwith others was convicted u/s 302, 120B IPC and were sentenced tosuffer imprisonment for life and to pay a fine of Rs.5000 each, in default,to suffer further 1 year imprisonment. The accused, including theappellant were also convicted u/s 147, 148 of the IPC and were sentencedaccordingly. The appellant/accused No.6 is additionally convicted u/s324 IPC and was sentenced to suffer rigorous imprisonment for threeyears and to pay a fine of Rs.2000, in default to suffer simple imprisonmentfor 6 months. All substantive sentences were to run concurrently.

5. Four criminal appeals were then filed by the convicted accusedincluding the Crl Appeal No. 236/2011 filed by the present appellant.The learned counsel for the appellant highlighted that the injured informant,while naming six of the assailants by name, had not named the appellantin the FIR. According to the FIR, when Arun (PW1) had intervened toprotect Balu Mandpe, “One tall person having longish nose attackedwith sword”. When the informant Arun(PW1) resisted the same by hishand, he suffered a sword injury in the wrist area of his left hand. Theremaining 6 accused named in the FIR, had carried knives, khanjar andfarsa.

6. The incident was apparently a fallout of dispute between twogroups. The findings of both the Trial Court and the High Court on theconviction of the appellant and the other accused is primarily dependenton the ocular evidence of the 4 eyewitnesses. The learned counsel forthe appellant would firstly argue that the appellant was not amongst thesix named and other accused in the FIR. Moreover, as the prosecutionhad not arranged for a Test Identification Parade (TIP), the identity ofthe appellant is not clearly established as one of the not named personsinvolved in the assault.

7. On the other hand, the learned counsel for the State contendsthat the appellant was specifically named by the Informant in thesupplementary statement recorded immediately by the police, u/S 161 of AB

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ACrPC. It is his further submission that PW2, PW4, PW6 have also namedthe appellant in their S.161 statement. The State counsel highlights thata specific charge u/S 324 is framed against the present appellant as theperson who gave the sword blow on the informant (PW1). Therefore,the counsel argues that the involvement of the appellant in the incident,and being one of the assailants, is beyond doubt as he was identified byBall the witnesses and there was no necessity to conduct a TIP for theappellant.

8. In order to appreciate the rival contentions, we must carefullyconsider the evidence presented against the appellant by the prosecution.At the outset however, we are constrained to note on few errorsC(typographical or otherwise), with regard to the FIR, witness statementsand supplementary statements, presented at different stages of this case.These documents have variations either in the translation or in thetranscription, when supplied by the respective counsel to the Court.

9. In the above context, we may benefit by referring to the DraftDRules of Criminal Practice, 2021 notified on this Court’s directions inSuo Moto Writ (Crl.) No.1/2017 ‘In Re: To Issue Guidelines RegardingInadequacies and Deficiencies in Criminal Trials’. The confusioncreated by multiple versions of statements and depositions in the projectionof either side is compelling us to reiterate the necessity of referring toEthese Guidelines. This Court’s order dated 20.04.2021 reflects the preciseconcerns which we have faced in appreciating the evidence presented, “The Court noticed common deficiencies which occur in courseof criminal trials...These related, amongst others, to the mannerin which documents (i.e. list of witnesses, list of exhibits, list ofFmaterial objects) referred to are presented and exhibited in thejudgment, and the lack of uniform practices in regard to preparationof injury reports, deposition of witnesses, translation of statements,numbering and nomenclature of witnesses, labeling of materialobjects, etc. These very often lead to asymmetries and hamperappreciation of evidence, which in turn has a tendency ofGprolonging proceedings, especially at the appellate stages.”

The Draft Rules also dictate the manner in which depositionsmust be translated. The practice of translating any relevant documentmust not differ so significantly across forums and submissions by partiesto cast severe aspersions on evidence, which may otherwise be notH

warranted. Idiosyncrasies of colloquial terms, used for naming an accused,could well be the difference between conviction and acquittal of anaccused.

10. Taking a cue from above and to ensure that we rely on thecorrect facts and documents, we have read and relied upon the relevantoriginal Trial Court Records for this judgment. It is important to recordthat the variation extended to certain aspects on identification of theaccused and as such to avoid any confusion, we have relied exclusivelyupon materials as they appear, in the original records.

11. The relevant contents of the FIR as on record with the SessionsCourt (Exh. 103), read as under: -

“………………….One tall person having longish nose attackedwith sword and I obstructed with my arm. As a result, I sustainedinjury near my left wrist. Out of remaining persons, I know 1)Vinod (Surname not known) who was holding knife, 2) Amit Gujarwho was holding knife, 3) Kunal who was holding knife, 4)Bhimya’s brother Husnya who was holding khanjar (dagger), 5)Sachin who was holding sword, and 6) Nabut who was holdingFarsa (battle-axe). They along with some five to six people killedBalu by delivering blows on his chest...”

11.1 The informant Arun (PW1), in his evidence deposed that“one person with strong build tried to assault Balu Mandpe withthe sword and at that time I intervened and the blow of the swordlanded on my left wrist. I sustained bleeding injury...I can identifythe person having strong build and who tried to assault Balu Mandpeby sword and the blow landed on my wrist when I intervened.”Accordingly, the Trial Court recorded that “the witness has gone tothe accused and identified the strongly built person among otheraccused. His name is Lala Asare.” In his cross examination, the PW1stated that the first blow was given by Lala Asare (Accused No.6) andalthough he stated the same to the police, he is unable to say why thepolice failed to record the appellant’s name in the FIR. It is further stated,that “a person having a strong built” tried to assault Balu Mandpewith a sword but the witness cannot assign any reason as to why thewords “strong built” are not mentioned in his FIR.

11.2 Such variation in describing the appellant being important,would bear specific discussion. While the FIR dated 22.01.2009

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Aadmittedly doesn’t disclose the name of Lala, the appellant before us,the statement recorded within few hours of the incident (but technicallythe next day post-midnight) on 23.01.2009, as noted by the Trial Courtcontains the following description, “one fair complexioned personhaving longish nose, named ‘Lalya’, attacked with sword and Iobstructed the blow with my arm.” That apart the supplementaryBstatement u/S 161 CrPC submitted by the State also identifies the assailantby name, “one heightened, white coloured boy namely Lalya attackedme with sword”.

11.3 Dharmendra Ashok Yadav (PW2) in his evidence, stated that“One person having the height and long nose, whose name wasCLala was armed with sword. He tried to assault Balu Mandpe withthe sword. Arun Pohankar intervened. The blow of sword was landedon the left wrist. He had sustained bleeding injury and he retreated.We also retreated as we were frightened. Then Lala assaulted BaluMandpe with sword. He received the blow on his head and becauseDof that he fell down”. In his cross examination the PW2 stated that hedid not know the name of the person having the sword. However, whenhe was shown the Accused No.6, he could identify him as Lala Aasre,but the PW2 is unable to assign any reason as to why same is not recordedin his statement to the police.

E11.4 Minute scrutiny of the Trial Court records reveals that the23.01.2009 statement is not just about physical descriptions. The PW2has instead noted “One man named Lalya delivered blow of swordon him”. PW2’s statement under Section 164 CrPC recorded on31.01.2009 gives clear sequence of the attack, and the specific role ofthe appellant. The witness recollects that “Lala brandished his swordFwhich got hit on Arun’s hand. Lala brandished his sword on usalso”. The supplementary statement put forward by the State containsthe following identification “One heightened, white coloured boynamely Lalya”.

11.5 The third eyewitness Sudhanshu Jadhav Rao Warade (PW4),Gmentioned about his own presence at the place of the incident and takingthe injured Balu Mandpe within 5 minutes to the hospital. According toPW4, he had informed the police that Lala @ Anurag Aasre had assaultedBalu Mandpe by sword, because of which Balu fell down. PW4’sstatement recorded on 22.01.2009 at the Imamwada P.S. names onlyHthree accused, without naming Lala. However, his statement u/S 164

recorded on 24.02.2009 does contain a detailed description of the incident,and specifically recognises the appellant by his real name and his alias.He has stated therein that “One Anurag alias Lala Aasre from amongstthem, delivered blow of sword on Balu Alias Satyendra. ArunPohankar obstructed the said blow of sword.”

11.6 The fourth eyewitness was Raju Manohar Joshi (PW6). Inhis testimony he mentioned about the presence of the appellant and otheraccused but feigned ignorance of what happened thereafter. Accordinglyas the PW4 was not supporting the prosecution case, he was cross-examined by the Assistant Public Prosecutor. In his cross-examination,PW6 mentioned that barring Lala Aasre and Sachin Ingle, all the otheraccused are residents of Chandan Nagar. Further, he knew both LalaAasre and Sachin Ingle, for the last one and a half years. In his cross-examination, on behalf of the advocate of Accused 5,6,7, the PW6 statedthat, although he had seen the incident, he did not disclose the names ofanyone.

11.7 The investigating officer in the case was Sunil S Monde(PW11), who on the date of the incident was posted as the Senior PoliceInspector in the Imamwada Police Station. PW11 reportedly recordedthe supplementary statement of the complainant and in his crossexamination, admitted that TIP of the accused persons was not carriedout in the instant case. On the issue of Supplementary Statement, the IOin his cross-examination, testified that “I had not recorded thesupplementary statement of the Complainant Arun Pohankar”. TheIO had also stated that he had truthfully recorded the statement of PW2.In his cross examination by the advocate on behalf of Accused No. 5-7,the IO stated the following “I have recorded the statement of PW2Dharmendra Yadav...PW2 has not stated before me that one personby name Lala Aasare, has assaulted with sword...PW2 has not statedbefore me that said Lala tried to assault Balu Mandpe”. In his furthercross-examination, the IO stated that PW6 knew Lala Aasre but thePW6 in his statement before the IO on the day of the incident had notstated that Lala Aasre rushed toward Balu Mandpe and assaulted himwith weapons.

12. The key issue to be decided in this appeal is whether theappellant was identified as the person wielding the sword who gave thesword blow to the Informant (PW1) and also to the deceased BaluMandpe. The appellant as earlier noted, was not named in the FIR by A

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Athe injured informant. The prosecution however tries to co-rrelate theappellant as the one who was described as ‘heightened person havinglong nose’ in the FIR. This has been done through the evidence ofPW1, PW2, P4, PW6, as recorded in the preceding paragraphs.

13. In the above context, the contention of the appellant’s counselBthat the supplementary statements identifying the accused by name werenot produced before the Courts below, do not appear to be entirely correct.The Trial Court records as specifically noted in the preceding paragraph,clearly reveal that Arun’s (PW1) statement dated 23.01.2009 identifyingthe accused by name, was available before the Sessions Court. It is alsoplausible that the accused with the alias Lala could be referred by theCwitnesses as ‘Lalya’. The colloquial variation, in our opinion, is not sofar removed so as to render the identification unreliable, particularlywhen no other person by such name is amongst the accused group.Much indeed is in a name as in this case if we may take the liberty ofdisagreeing with one of the most famous lines penned down by the BardDof Avon, “Whats in a name”.

14. While it is true that the FIR is silent on the name of the appellant,we cannot entirely throw out the prosecutorial case on such a basis asother reliable evidence are available in the case. The FIR is certainly thestarting point of the investigation, but it is well within the rights of theEprosecution to produce witness statements as they progress further intothe investigation and unearth the specific roles of accused persons. TheFIR as is known, only sets the investigative machinery, into motion.

15. In the present matter, two courts have concurrently concludedthat appellant’s name not being specifically mentioned in the FIR, wouldFnot justify his acquittal as he was specifically identified by PW2, PW4,& PW6. In view of his positive identification by the eye witnesses, theTIP not being conducted, was held to be immaterial. The eye witnesseshere have ascribed the same specific role to the appellant and narratedthe events in same chronology, without material discrepancies. We alsocannot lose sight of the fact that this case involves multiple personsGattacking in a group with deadly weapons and it is not reasonable toexpect recollection of every minute details by the eyewitnesses.

16. The Learned Counsel for the appellant has laid much emphasison the absence of TIP. The State counsel’s stance on this matter wasthat the TIP was rendered non-essential as the appellant was known toH

LALA @ANURAG PRAKASH AASRE v. THE STATE OFMAHARASHTRA [HRISHIKESH ROY, J.]

the eye witnesses and he was identified both by name and appearance.We may at this juncture refer to the nature of, and weightage attachedto the evidentiary value of a TIP. In Munshi Singh Gautam Vs. Stateof M.P. (2005) 9 SCC 631 Justice Arijit Pasayat writing the judgmentappropriately laid down the following : - “16. As was observed by this Court in Matru v. State of U.P.(1971 (2) SCC 75) identification tests do not constitute substantiveevidence. They are primarily meant for the purpose of helping theinvestigating agency with an assurance that their progress withthe investigation into the offence is proceeding on the right lines.The identification can only be used as corroborative of thestatement in court. (See Santokh Singh v. Izhar Hussain (1973 (2)SCC 406). The necessity for holding an identification parade canarise only when the accused are not previously known to thewitnesses…………….”

17. “………………….The identification parades belong to thestage of investigation, and there is no provision in the Code whichobliges the investigating agency to hold or confers a right uponthe accused to claim, a test identification parade. They do notconstitute substantive evidence and these parades are essentiallygoverned by Section 162 of the Code. Failure to hold a testidentification parade would not make inadmissible the evidenceof identification in Court. The weight to be attached to suchidentification should be a matter for the Courts of fact. Inappropriate cases it may accept the evidence of identification evenwithout insisting on corroboration.”

17. Having regard to the above ratio, we are inclined to agreewith the State Counsel that TIP was unnecessary in the present case asthe identity of the appellant was known to the witnesses and he wasspecifically identified by PW1, and PW2 as the person who wielded thesword and inflicted the injuries. In the face of appellant’s such identificationby name in the testimony of the eye witnesses, it can in our view, besafely concluded that the failure to conduct the TIP for the appellant willnot vitiate his conviction.

18. From the above analysis, the identity of the appellant as oneof the attacking group members and his specific role in the assault isestablished beyond doubt. The prosecution in our assessment has produced A

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Acogent evidence of the appellant being part of a conspiracy by all theaccused in the assault on the night of 22.01.1999 which led to the deathof Balu Mandpe and injuries to PW1 and others. As such, the convictionof the appellant by the trial court, as upheld by the High Court, cannot befaulted.

B19. In the result of the above finding, we find no grounds to interferewith the impugnment judgment of the High Court of Judicature at Bombay.Consequently, the appeal is dismissed. The State may consider the caseof the appellant for remission at an appropriate stage, on its own merits.It is ordered accordingly.

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Appeal dismissed.

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