1 Cri.Appeal No. 193 of 1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 193 OF 1993 WITH CRIMINAL REVISION APPLICATION NO.52 OF 1993 (1) CRIMINAL APPEAL NO.193 OF 1993 * The State of Maharashtra ..APPELLANT (Ori. Complainant) VERSUS 1. Natha s/o Baburao Karke, age 35 years, occu.nil, R/o Jategaon, Tal. GeoraI, Dist. Beed 2. Narayan s/o Vithoba Chavan, age 30 years, occupation & r/o as above ..RESPONDENTS (Ori. Accused) Mr K.G. Patil, Asstt. Public Prosecutor for the appellant; Mr M.C. Sayed, Advocate for respondents no.1 & 2 WITH (2) CRIMINAL REVISION APPLICATION NO.52 OF 1993 Natha s/o Masu, aged 51 years, occupation : agriculture, R/o Jategaon, Taluka Georai, District Beed ..PETITIONER (Ori. Complainant) 2 Cri.Appeal No. 193 of 1993 VERSUS 1. Natha s/o Baburao Karke, aged 35 years, occ. Nil, R/o Jategaon, Taluka Georai, District Beed 2. Narayan s/o Vithoba Chavan, aged 30 years, Occupation and R/o as above 3. The State of Maharashtra ..RESPONDENTS (Nos.1 & 2 - Ori. Accused) Mr K.G. Patil, Asstt. Public Prosecutor for respondent no.3. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 24th January, 2011 ORAL JUDGMENT ( PER P.V.HARDAS, J.) This appeal has been filed by the appellant - State, being aggrieved by the judgment of the Additional Sessions Judge, Beed, dated 5.12.1992, in Sessions Case No.57 of 1992 acquitting the respondents for offence punishable under section 302 read with section 34 of the Indian Penal Code. Criminal Revision Application No.52 of 1993 has been filed by the original complainant challenging the judgment of acquittal of the Trial Court. It appears that this Court had directed that this Criminal Revision Application be heard along with Criminal Appeal. 3 Cri.Appeal No. 193 of 1993 2. Wheels of investigation were set into motion by P.W.3 Natha in the lodging of his report at Exh.20. On the basis of the said report, P.W.8 Rajendra, a Police Constable, registered the offence. Inquest panchnama of dead body of deceased Saraswati came to be drawn in the presence of P.W.1 Vithal. The scene of the offence panchnama at Exh.13 also came to be drawn. A separate panchnama at Exh.25 came to be drawn in the presence of P.W.8 Bandu about the door of which the planks had been broken. Dead body of deceased Saraswati came to be referred for post mortem examination and post mortem examination came to be conducted by P.W.13 Dr. Shinde. P.W.13 Dr. Shinde noticed the following external injuries :- 1. Incised wound over chin, size 3-1/2 x 1/2 x 1/2 cm. regular with sharp weapon, age within 24 hours, 2. Incised wound over left temple frontal region, 7 x 1-1/2 x 2 cm. sharp weapon, 3. Incised wound over postero superior of left ear, 4 x 1/2 x 1 cm. upto peritoneum, 4. Incised wound over left parietal region, 6 x 1/2 x 1 cm. 5. Incised wound over left occiput, 5 x 1/2 x 1 cm. 6. Incised wound over let side of neck, below mastoid, horizontal, upto vertical column, 10 x 4 x 5 cm. 7. Incised wound over back of right shoulder, 2 x 1/2 x 1/2 cm., blouse is intact over injury. 4 Cri.Appeal No. 193 of 1993 He opined that all the injuries were ante mortem and he did not notice any injuries. He, therefore, opined that deceased died due to shock due to extensive injuries. The post mortem report is at Exh.41. On the same day he had also examined P.W.11 Rameshwar, who was an injured witness. He noticed the following injuries :- 1. Incised wound over left temporal region, size 5 x 1/2 x 1/2 cm. regular margins, direction oblique, fresh, 2. Incised wound over left ear upto ankle of mouth, size 8 cm. x 1 cm. x 1/2 cm. regular and oblique, 3. Incised wound over right occipital region, size 6 x 1 x 1 cm., regular and vertical, 4. Incised wound over back of right shoulder, size 6 x 3 x 2 cms., regular and horizontal. He accordingly issued the certificate about the injuries sustained by Rameshwar and the said certificate is at Exh.40. During custodial interrogation, accused no.1 is alleged to have expressed his willingness to point out the place where the knife was hidden. Accordingly, memorandum at Exh.27 came to be drawn in the presence of P.W.9 Uttam. The accused no.1 led the police and the panch and produced a knife which came to be seized as it was found to be blood stained. Thereafter accused no.2 is alleged to have expressed his willingness to point out the place where the axe was hidden and accordingly memorandum at Exh.29 came to be drawn in the presence of P.W.9 5 Cri.Appeal No. 193 of 1993 Uttam. The accused no.2 led the police and the panch and a knife came to be seized. Search of the house of the accused yielded blood stained clothes, which also came to be seized. The seized property came to be referred to the Chemical Analyser for examination through carrier P.W.15. The report of the Chemical Analyser shows that the knife and the clothes of accused no.1 were found stained with blood which matched that of deceased Saraswati. Further to the completion of investigation a charge- sheet against the respondents came to be filed. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the respondents for offence punishable under section 302 read with section 34 and 307 read with section 34 and 460 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 19 witnesses. 4. The pivot of the prosecution case revolves round the evidence of P.W.3 Ramesh and P.W.6 Mathurabai. Both these witnesses in their substantive evidence had claimed that they were awakened on hearing the cries of the deceased and had seen both the accused fleeing from the house of the deceased and had identified both the accused in the illumination of the street light. In cross-examination the respondents/accused have elicited omissions about these witnesses not stating in their previous statement recorded during investigation that they 6 Cri.Appeal No. 193 of 1993 had identified the accused as the persons who were seen fleeing from the house of the deceased. Further both these witnesses had gone to the scene of the offence and had noted that deceased Saraswati had sustained injuries, yet none of them disclosed their presence who were assembled at the scene of the offence about having seen both the respondents fleeing from the house of Saraswati. P.W.5 Natha, brother of P.W.4 Vasudeo had lodged the first information report at Exh.20. In the said report, it was alleged that Saraswati had been killed by unknown persons. Prosecution has also examined P.W.11 Rameshwar, who is an injured witness. Rameshwar in his evidence states that the electric line in the house was burning and in the illumination of the electric light he had identified accused nos.1 & 2 as the assailants, who had assaulted his mother deceased Saraswati. In cross-examination, however, he has fared equally badly and has admitted that he had not stated in his previous statement about seeing both the accused assaulting deceased Saraswati. Thus, the accused have been successful in eliciting the omission about the respondents/accused being named by P.W.11 Rameshwar. 5. Prosecution has also examined P.W.12 Vishwanath, who had conducted the test identification parade in which P.W.11 Rameshwar is alleged to have identified accused no.1. Apart from the infirmities in the conduct of the test identification parade in not taking adequate and proper steps to ensure that the accused were not visible to the identifying 7 Cri.Appeal No. 193 of 1993 witness, Rameshwar claims to have known accused no.1 as accused no.1 is distantly related to him. In the light of the fact that P.W.11 Rameshwar was acquainted with accused no.1, his identification of accused no.1 in the test identification parade, according to us is valueless. Importantly, in his previous statement P.W.11 Rameshwar does not name the accused as the assailants who had assaulted deceased Saraswati. 6. Thus, the only evidence on which the prosecution heavily banks upon is the discovery of the knife at the behest of accused no.1 and the report of the Chemical Analyser that the said knife was found stained with blood which matched that of deceased Saraswati. The accused had been arrested on 8.3.1992 while the alleged memorandum is said to have been executed on 17.3.1992. Obviously, if the police had taken search of the house of the accused, if the knife had been available in the house, the same would have been found by the police during the search. Thus, the delay in recording the memorandum of the accused, renders the discovery of the knife at the behest of the accused as a suspicious circumstance. Moreover, the panchnama in respect of the seizure of the knife does not recount that the knife was sealed, thus eliminating every possibility of the knife being tampered with. Similar is the circumstance in respect of the seizure of the clothes of accused. Even otherwise, the finding that the knife was stained with blood which matched that of the deceased, would not be a circumstance on the basis of which the 8 Cri.Appeal No. 193 of 1993 conviction could be sustained in the absence of any other cogent evidence relating to the complicity of the accused. 7. After giving our anxious consideration to the submissions advanced before us by the learned A.P.P. and Shri Sayed, according to us the view taken by the Trial Court is a possible view to be taken on the basis of the evidence on record. We do not notice any infirmity in the reasoning of the Trial Court to justify interference in this appeal against acquittal. Consequently, the appeal against acquittal and the revision against acquittal being sans merit are, therefore, dismissed confirming the acquittal of respondents. Their bail bonds stand cancelled. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria193.93