1 criapl-283.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 283 OF 1992 The State of Maharashtra Appellant versus 1. Rajendra Ramchandra Bhosale 2. Kailas Ramchandra Bhosale 3. Haridas Ramchandra Bhosale 4. Abhimanyu Ramchandra Bhosale 5. Sanjay Ramchandra Bhosale 6. Ramchandra Apparao Bhosale 7. Bhaskar Gyandeo Jadhav 8. Vithal Apparao Bhosale 9. Achut Vithal Bhosale 10. Shivaji Vithal Bhosale 11. Dnyandeo Mahadeo Shinde. Respondents. -------- Shri V. D. Godbharale, A.P.P. f or the appellant - State. Shri M.B. Kolpe, Advocate, for Resp. Nos. 1 and 3 to 11. 2 criapl-283.92 Coram : A. H. Joshi and A. R. Joshi, JJ. Date : 20.09.2011. Judgment (Per: A. H.Joshi, J.) 01. This is State appeal against the judgment and order of acquittal rendered by learned Sessions Judge, Osmanabad, on 30.4.1992, in Sessions Case No.129 of 1991. 02. The respondents-accused persons were charged for offences punishable under Sections 147, 148, 302 read with Section 149 for having caused death of Tanaji Kondiram Pawar, and under Section 253 read with Section 149 of the Indian Penal Code. 03. In the post mortem examination report (Exh.66), the cause of death of Tanaji is shown to be "Haemorrhagic shock, secondary to the injury of heart and lungs.". In column No.17 of the post mortem report, the injuries which are stated to be accountable to cause of death, are injury Nos. 1 and 2 which read as follows:- "1. Oblique incised wound on Rt. side of neck in posterior trangle 4 cm x 0.5 cm skindeep. 2. Incised penetrating wound on anterior border of right axilla 4 cm. below and lateral to Rt. neeple, spine shaped, 4x3 cm. (max.) with directed medilax downwards and deep in 4th and 5th rib space.", 3 criapl-283.92 and internal injury corresponding to the external injuries, is shown in column No.20 (d) which reads: "20(d). Right lung. Middle lobe, incised penetrated at lower border, wound corresponds to Injury No. 2 of Column No. 17 and Injury No. (a) and (b) of Column No.17 presence of Haematoma, of about 100 ml. Blood." These injuries were caused by a dagger. 04. The prosecution has relied upon five purported eye witnesses, namely, PW-3 Shankar Rathod (Exh.68), PW-5 Narayan Pawar (Exh. 70), PW-5 Badrinarayan Gulabchand (Exh.71), PW-7 Dattatraya Pawar (Exh.75) and PW-8 Jankabai Narayan (Exh.76). 05. On perusal of testimonies of aforesaid witnesses, it is seen that PW Nos. 5, 7 and 8 are of no use for the prosecution, as their testimonies do not disclose any specific words attributing any act which would involve the accused persons in the commission of alleged offences. 06. Testimonies of PW Nos. 3 and 4 do name the accused persons. It would, therefore, be useful to refer to their versions on the basis of which, the accused persons have been involved in the offences. 4 criapl-283.92 07. PW-3 Shankar states in his evidence as to involvement of accused No.1 Rajendra, as follows: "Those people then abused me and questioned my authority and power to record the panchanama and also snatched the papers regarding occurrence report. Accused No. 3 Haridas then gave me pushes and made enquiry about Tanaji. At that time Tanaji was coming. After seeing him, they started to abuse Tanaji. Thereafter they started to give kicks and fist blows and beating by stones. When we were advising them not to assault or given beating to Tanaji, Accused Rajendra assaulted Tanaji with the dagger. As a result of assault, Tanaji sustained injuries and was fallen down. After assaulting Tanaji, Accused Rajendra and others have ran away from the spot. I have then filed the complaint against the Accused at police station Kallam for this occurrence after ascertaining the names of the Accused from the relatives of the deceased. " 08. Insofar as testimony of PW-4 Narayan Pawar is concerned, the manner of narration about involvement of accused persons, is concurrent with what PW-3 Shankar has stated. 09. Both, PW-3 and PW-4, admit that there was group of about 50 to 60 persons who had arrived at the scene of offence. 10. Use of dagger is attributed to accused No.1 Rajendra, while no role whatsoever is attributed to other accused persons. 11. The witnesses, who were examined to prove the recovery, have all turned hostile and the alleged recovery of dagger, is from the open place. The recovery of dagger is thus not proved 5 criapl-283.92 12. Now, the questions which arise before this court are:- (a) Whether the testimonies of the witnesses, who were examined to involve all accused and prove unlawful assembly, and who had no prior acquaintance with accused No.3, and named only one accused person, that too without background of prior acquaintance, are to be believed ; and (b) Whether PW-4 Narayan could be said to be adequate witness to convict one of the accused persons in the background that it was unlawful assembly of large number of 50 to 60 members and they had committed the alleged offences ?. 13. In the given situation, and considering the manner in which the prosecution has couched its story, involvement of all other accused persons, except accused No.1 Rajendra, is not even adequately described. 14. The aspect, to be dealt with is as to whether naming the sole accused by only one witness, that too in one line, and failure of prosecution to prove recovery under Section 27 of the Evidence Act, could constitute sufficient material to convict the accused. Moreover, the background that the nexus of weapon with the accused has come under serious doubt, in absence of direct and/or circumstantial evidence, has also to be borne in mind. The answer, essentially, is in the negative. 15. We are conscious of the fact that the evidence relied on by the prosecution is voluminous, but the same is scanty in quality. The 6 criapl-283.92 prosecution has thus failed not only to prove all the charges, but also involvement of even one accused i.e. accused No.1 Rajendra beyond any cloud of reasonable suspicion. 16. In the result, we find that the appeal has no merits. The appeal is, therefore, dismissed. sd/- sd/- (A. R. JOSHI, J.) (A.H. JOSHI, J.) pnd/criapl-283.92