IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 420 OF 2003 1. Uttam Vaman Lokhande ] Age – 33 years, Occu.-Agriculture ] R/o.Pirachi Kuroli, ] Taluka-Pandharpur, Dist-Solapur. ] ] 2. Parmeshwar Vaman Lokhande ] Age – 26 years, Occu.- Agriculture] R/at.Pirachi Kuroli, ] Taluka -Pandharpur, Dist-Solapur ] ] 3. Vaman Gena Lokhande ]..Appellants Age – 63 years, ] /Accused. Occupation – Agriculture, ] R/at.Pirachi Kuroli, ] Taluka – Pandharpur, ] District – Solapur. ] Verses The State of Maharashtra ].Respondents Mr.P.R.Arjunwadkar for the Appellants. Mrs.P.H.Kantharia, A.P.P. For the State. CORAM : BILAL NAZKI and A.R. JOSHI, JJ. DATED : 2ND MARCH, 2009. JUDGMENT :- (Per Bilal Nazki, J.) 1 By an order passed by IV Additional Sessions Judge, Pandharpur in Sessions Case NO. 75 of 2000 on 14th February, 2003, the Appellants have been convicted for the offence punishable under section 302, 323, 324 and 504 read with section 34 of Indian Penal Code. They have been sentenced to various offences including sentence of imprisonment of life under section 302 read with section 34 of Indian Penal Code. Under section 302 read with section 34 they are also sentenced to pay fine of Rs.100/- and in default of payment of fine to suffer further imprisonment for seven days. Under section 324 read with section 34 they are sentenced rigorous imprisonment for nine months and fine of Rs.500/- and in default of payment of fine to suffer further imprisonment of two months. Under section 323 read with section 34 they have been sentenced to suffer rigorous imprisonment for nine 2 months with fine of Rs.500/- and in default of payment of fine further imprisonment for two months and under section 504 read with section 34 they have also been sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs.400/- and in default of payment of fine to suffer further imprisonment for two months each. 2. The case of the prosecution was that one Shri Chandrakant Naiknavare filed a report on 27th April, 2000 in the Pandhapur Taluka Police Station informing the police that on 26th April, 2000 there was marriage of his brother Bibhishan. The accused are distant relatives and reside at some distance from his house. He had been to the house of one of the accused two days prior to the marriage for giving Invitation Card. Accused No.2 was not at home. Hence, Invitation Card was given to his wife Janabai. Janabai told him to give Card to her 3 husband personally. Thereafter, the informant came back without delivering Invitation Card to the accused at his house. On 25th April, 2000, there was programme of applying Turmeric to the Bridegroom. The accused came infront of his house at about 7.00 to 7.30 p.m. and abused the informant and his family members in filthy language. On 26th April, 2000 the marriage of Bibhishan was performed. The accused and their family members did not attend the marriage. At about 7.00 p.m., the informant, his cousin Hanumant, one Sambhaji Balasaheb, Raghunath, Bandu and others were playing Lazim infront of the temple of Maruti. Thereafter, when he came and sat at his house, accused No.3 Vaman started to abuse him and his family members by standing infront of his house on account of not giving the marriage Invitation Card. His cousin Hanumant went running to that place and asked Vaman as to why he abused a day before and as to why he 4 was abusing them. The altercation took place between them. Hence, the informant went running to that spot. The informant saw the three accused while beating Hanumant. There was a knife with accused No.2 and a stick with accused No.1. There was chilly powder with accused No.3. Informant saw Accused No.2 Parameshwar while stabbing Hanumant on the left side of his chest with knife. He saw accused No.1 beating Hanumant with stick on his head. Accused No.3 threw chilly powder on the body of Hanumant. At that time, informant and his sister Champabai and informant's aunt Sasabai intervened. At that time, the accused gave warning that they would see them and abused them. Accused No.1 Uttam gave stick blow on informant's head. Accused No.3 threw chilly powder in his eyes. Because of the stick blow received on the head, the informant fell down. The incident took place at about 9.00 p.m. The informant was taken by his 5 relatives to his house. His sister Champabai was also injured because of beatings given by the accused. They were then taken to the Cottage Hospital, Pandharpur alongwith Hanumant. After examining, Hanumant was declared dead by the Medical Officer. Other witnesses had received severe injuries. 4. On the basis of the allegations, F.I.R. came to be registered, investigation started and accused were arrested. The charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. 5. Prosecution produced eight witnesses, out of them three were panch witnesses. Prosecution has also examined the Doctor who conducted the Post Mortem on the dead body and also treated injured witnesses including the accused. P.W.4 and 5 are 6 eye witnesses. P.W.7 and 8 are Police officers who were assigned with the investigation of the case. The learned counsel for the Appellants submits that the conviction in this case is misplaced because the whole case was dependent on the testimony of P.W.4 and 5 who were projected as eye witness in this case and if their testimony is not believed then, there remains no evidence which could connect the accused persons with the offences, to which they are sought to be connected. His main ground as to why the testimony of P.W.4 and 5 was not believable was that they did not disclose true and complete event before the Court at the time of trial or before the police at the time of enquiry. 6. The learned counsel for the Appellants submits that it is proved from the record itself that all the accused got injured in the same incident. But, this was not at all disclosed by 7 P.W.4 and 5. P.W.4 testified in the lines of with what was stated in the charge-sheet and narrated the incident. In his cross-examination, however he said it is not true, that when they went to the Cottage Hospital, Pandharpur, all the accused were also there in injured condition. It is not true that accused Nos. 1 to 3 got injured in the same incident. Similarly, P.W.5 has not at all stated anywhere that in the same incident accused also got injured. But, in his cross examination, he has stated that it is not true that when they went to the Cottage Hospital, Pandharpur, all the accused were also there in the injured condition, he further said. It is not true to say that accused Nos. 1 to 3 got injured in the same incident and there was danger to their lives. P.W.4 and 5, who are projected as eye witnesses, categorically stated of at that of occurrence the accused were not injured. 8 6. P.W.6, who is medical officer, on the other hand, confirmed that he had examined accused on the relevant night and also identified the injury certificates at Exh.29, 30 and 31. These certificates relate to the three accused. One of the injury, which was mentioned as far as one of the accused was concerned, was dislocation of left shoulder. However, in his cross-examination, he could not confirm those injuries. He said that he had doubt as to whether accused No.2 Parameshwar had dislocation of bone of shoulder and therefore, he referred him to the Civil Hospital. He said that the injuries of accused Nos. 1 to 3 are possible by the stick, like article 12 or the stones like article 13. Therefore, the learned A.P.P. submitted that there was no severe injury caused to the accused as the doctor himself was not sure whether there was a dislocation. But, the 9 prosecution kept that also a secret from the court in informing the court as to what type of injury actually the accused had. 8. The Investigating Officer explained that during same incident the accused got injured. He stated in his evidence that the incident reported by Chandrakant and accused No.2 Parameshwar had taken place at one point of time. He further said, it is not true that he had filed the false charge- sheet under pressure from informant and had failed to investigate the matter properly. He also conceded that Accused No.2 Parmeshwar filed a report which was also registered as an F.I.R. and after Investigation the case was filed against certain accused, including P.W.No.4. 9. For these reasons, we are of the view that neither the Investigating Officer nor P.W.4 or 5 10 stated before the Court the full facts relating to the occurrence in which deceased lost his life and accused also got injured. The learned counsel appearing for the Appellant has relied on Judgments in the case of Akhwinder Singh & Ors. V/s. State of Punjab reported in (2002) 10 SCC 295, State of Rajesthan V/s. Madho & Anr. Reported in 1991 Supp (2) SCC 396, Cherlopallic Cheliminabi Saheb & Anr. V/s.State of A.P. Reported in (2003) 2 SCC 571, Lakshmi Singh & Ors. V/s.State of Bihar reported in (1976) 4 SCC 394 and Raghunath V/s.State of Haryana & Anr.(2003) 1 SCC 398. 10. For all these reasons, the testimony given by P.W.4 and 5 is not trustworthy and after perusing their evidence no conviction can be placed. After eschewing their evidence there remains no evidence to connect the accused to the guilt. 11 :: O R D E R :: i. The Appeal is, accordingly allowed. Conviction and sentence in Sessions Case No.75 of 2000 dated 14th February, 2003 is set aside. Fine if any be refunded. ii. Appellant No.2, Parmeshwar Vaman Lokhande, be released forthwith, if not required in any other case. iv. Appellant Nos. 1 and 3, who are already on bail, their bail bonds shall stand cancelled. (BILAL NAZKI, J.) ( A.R. JOSHI, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION 12 CRIMINAL APPEAL NO. 420 OF 2003 1. Uttam Vaman Lokhande ] Age – 33 years, Occu.-Agriculture ] R/o.Pirachi Kuroli, ] Taluka-Pandharpur, Dist-Solapur. ] ] 2. Parmeshwar Vaman Lokhande ] Age – 26 years, Occu.- Agriculture] R/at.Pirachi Kuroli, ] Taluka -Pandharpur, Dist-Solapur ] ] 3. Vaman Gena Lokhande ] ..Appellant Age – 63 years, ] /Accused. Occupation – Agriculture, ] R/at.Pirachi Kuroli, ] Taluka – Pandharpur, ] District – Solapur. ] Verses The State of Maharashtra ].Respondents Mr.P.R.Arjunwadkar for the Appellants. Mrs.P.H.Kantharia, A.P.P. For the State. CORAM : BILAL NAZKI and A.R. JOSHI, JJ. DATED : 2ND MARCH, 2009. :: OPERATIVE ORDER :: 13 i. The Appeal is, accordingly allowed. Conviction and sentence in Sessions Case No.75 of 2000 dated 14th February, 2003 is set aside. Fine if any be refunded. ii. Appellant No.2, Parmeshwar Vaman Lokhare, be released forthwith, if not required in any other case. iv. Appellant Nos. 1 and 3, who are already on bail, their bail bonds shall stand cancelled. (BILAL NAZKI, J.) ( A.R. JOSHI, J.) 14