1 Apeal 541-93 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.541 OF 1993 1. Pintya alias Avinash Pawar ..Appellants Age : 21 years 2. Baban Shankar Rade Age : 21 years 3. Shankar Dnyaneshwar Jadhav Age : 22 years Residing at Upper Indira Nagar, Pune  37. V/s. The State of Maharashtra ..Respondent Mr.Prakash Naik, Advocate, for the Appellants Ms Alpa T. Javeri, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 8TH APRIL, 2011 ORAL JUDGMENT . This Appeal is directed against appellants' conviction by the learned Additional Sessions Judge, Pune, for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code and 2 Apeal 541-93 sentence of rigorous imprisonment for four years with a fine of Rs.2,500/- or in default further rigorous imprisonment for four months imposed upon the appellants by the learned Additional Sessions Judge upon conclusion of Sessions Case No.330 of 1991. 2. Facts which are material for deciding this Appeal are as under :- The deceased Mahadeo Pandurang Rade was residing at Upper Indira Nagar, Chawl No. 44/24 Bibbewadi at Pune. The accused persons are also resident of the same locality. On 25th March, 1991 when Mahadeo had gone to his house to have meals served to him, Pintya alias Avinash called the victim out of the house. Thereafter, all the accused persons assaulted the victim with a knife. Victim's sister, Leelabai, was witnessing the incident and raised cries for help. The appellants ran away. Leelabai carried the victim to the house of Chingubai and from there went to the 3 Apeal 541-93 police outpost to give a report. The police picked up the victim and admitted him for treatment to Sassoon Hospital. The victim died on 5th April, 1991 while taking treatment. An offence, which in the mean time, has been registered was converted to one of murder punishable under Section 302 read with Section 34 of the Indian Penal Code after the death of the victim. After performing inquest, victim's dead body was sent for Post Mortem examination, police recorded statements of witnesses and on completion of investigation sent charge sheet in the Court of JMFC, Court No.8, Pune, who committed the case to the Court of Sessions, Pune. 3. The learned Additional Sessions Judge to whom the case was assigned charged the appellants of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Since appellants pleaded not guilty, they were put on trial at which 4 Apeal 541-93 prosecution examined in all 11 witnesses in its attempt to bring home guilt of the appellants. After considering the prosecution evidence in the light of defence of denial and false implications, the learned Additional Sessions Judge held the appellants guilty for the offence punishable under Section 325 of the Indian Penal Code and convicted and sentenced them as mentioned in the earlier part of the Judgment. He acquitted them for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. He did not hold the appellants guilty of the offences punishable under Sections 504 and 506 of the Indian Penal Code. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned Counsel for the appellants and the learned APP for the respondent  State. With the help of both the learned Counsel I have gone through the record. P.W.1 Leela Bhanudas Ghembude, 5 Apeal 541-93 victim's sister claims to have been an eye witness to the incident. P.W.2 Chandrabaga Ram Kathe was also supposed to have been an eye witness but did not support the prosecution. P.W.3 Chingubai Zumber Bhise is the person at whose house the victim was said to have been taken by Leelabai after the assault, but Chingubai's version deviates from that of Leelabai. P.W.4 Sunil Narayan Koli is panch at spot as well as recovery panchanama but he has not supported the prosecution case as to recovery. P.W.5 Dr. Sami conducted Post Mortem examination. P.W.6 Bal Shankar Haldankar is a panch witness. P.W.7 Shantaram Bapu Gaikwad, Police Naik carried the injured person to the hospital. P.W.8 Yeshwant Baburao Shirke conducted the inquest upon the dead body. P.W.9 Dr. Sundar Rajan treated the victim before the victim died. Since the investigating officer in this case had died, his writer constable Hanumant Babanrao Hinghe has been examined as P.W.10. P.W.11 Police 6 Apeal 541-93 Constable Ramesh Gopal Ovhal had written dying declaration of the victim which is proved at Exhibit 31. 5. The evidence about the participation of the appellants thus comes in the form of eye witness account of Leelabai and dying declaration of the victim. P.W.1 Leelabai stated that when brother of the victim was called out by the Pintya alias Avinash, she also followed both of them and went to the corner of the row of houses. Thereafter, appellant Pintya alias Avinash is alleged to have stabbed the victim on hand and leg. She stated that she raised hue and cry but nobody arrived for her help. Due to the assault her brother fell down. The appellants started to run away. Her brother had sustained bleeding injuries. She then brought her brother to the house of Chingi and asked her brother to sit there. She claims to have gone to police chowki from where police jeep arrived and took 7 Apeal 541-93 her brother to Sassoon Hospital. She admitted in her cross examination that generally there used to be several persons at the spot of the incident till 11:00 p.m.. She also admitted one Ganpat Kadu was a friend of her brother but denied knowledge whether Ganpat Kadu was in the business of selling illicit liquor. She admitted that her brother Mahadeo was prosecuted for the offence punishable under Section 66(1)(b) of the Prohibition Act. She admitted in her cross examination that when she was present at the police outpost, Chingubai and her husband came there and they both informed the police that one person ran to their house and had fallen down there. She had also admitted that when she reached the house of Chingubai, some persons of the locality were also present there. She denied the suggestion that she had told the police that some unknown persons had assaulted her brother. 8 Apeal 541-93 6. This evidence of P.W.1 Leelabai has to be contrasted with the evidence of P.W.3 Chingubai, who stated that she heard cry of a person from the back side of her house and when she went to the back side she found that an injured person was there, who informed her that somebody had caused injury to him. Thereafter, she rushed to the police outpost. Thus, her evidence would rule out P.W.1 Leelabai's bringing the victim to Chingubai's house. Leelabai could have immediately corrected Chingubai in the police outpost by saying that in fact, she had brought that person to Chingubai's house within Chingubai's knowledge. In any case, there would have been no occasion for Chingubai to go to the police outpost if Leelabai had gone to inform police. If the evidence about taking the victim to Chingubai's house is excluded, the evidence about Leelabai's having actually gone to the spot to bring the victim from the spot to the house of Chingubai too would have to be 9 Apeal 541-93 excluded. Therefore, it is extremely doubtful if Leelabai had any occasion to see the incident. 7. Further, P.W.1 Leelabai stated that she had gone to the police outpost, police jeep arrived and her brother was taken to Sassoon Hospital, police had made necessary enquiry with him. Neither the information which Leelabai had given to the police nor the information which the police gathered from the victim which would have formed the FIR, is curiously not been admitted in evidence or proved at the trial. Hearing of the Appeal was adjourned to enable the APP to search for the FIR. The learned APP states that in spite of efforts she could not locate the FIR. When the information first in point of time which is received by the police is not forthcoming, it is possible that a story subsequently spun which is unreliable and cooked up afterwards, is being dished out. Therefore, the story 10 Apeal 541-93 which Leelabai subsequently creates or which appears in the dying declaration of the victim recorded at Exhibit 31 on 26th March, 1991 could not have been readily accepted by the learned Trial Judge, particularly, in the face of the fact that independent eye witness P.W.2 Chandrabaga did not support the prosecution case. P.W.3 Chingubai's version also contradicted the account given by Leelabai, and, there is no other corroborative piece of evidence which could have connected the appellants to the crime. Therefore, the learned Judge should have seen that the prosecution had failed to prove that the appellants were the authors of the injuries which were inflicted upon the victim. 8. In view of this, the conviction of the appellants for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code cannot be sustained. 11 Apeal 541-93 9. Appeal is, therefore, allowed. Conviction of the appellants for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for four years with a fine of Rs.2,500/- or in default further rigorous imprisonment for four months imposed upon each of them is set aside. The appellants are acquitted of the said offence. (R.C.CHAVAN, J.)