-(1)- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 1126 OF 2002 APPEAL NO. 1126 OF 2002 APPEAL NO. 1126 OF 2002 Vasant Dattatraya Zakane .... appellant versus The State of Maharashtra ... Respondent. Shri D.G. Khamkar for the appellant. Shri P.S.Hingorani APP for Respondent. CORAM; CORAM; CORAM; V.G. PALSHIKAR & V.G. PALSHIKAR & V.G. PALSHIKAR & SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED; DATED; DATED; 12th October, 2006. 12th October, 2006. 12th October, 2006. JUDGMENT JUDGMENT JUDGMENT (Per Palshikar J.): (Per Palshikar J.): (Per Palshikar J.): 1. Being aggrieved by the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Solapur in Sessions Case No. 33 of 2001 on 1-2-2002 the appellant accused has preferred this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before us. 2. With the assistance of the learned Advocate for the appellant as also the learned Public Prosecutor we have scrutinised the entire evidence on record and reappreciated the same. -(2)- 3. The prosecution case in brief is that the appellant earned his livelihood by cultivation of his land. The deceased Sukhdeo Krishna Salunkhe was working with the appellant for the past two years prior to incident. It is alleged that 15 days prior to the incident, the appellant had beaten the deceased severely. On 8-11-2000 at about 3.30 p.m. it is alleged that appellant beat the deceased. The informant Nivruti Salunkhe came to search for Sukhdeo (deceased) at around 6.30 p.m. He searched in the crop of Jowar in the fields of the appellant, but was unable to find him. He later on returned to the fields with his friends at 8.00 p.m. and made further search. He then found Sukhdeo lying in the crop of Jowar. A message was sent to the police Patil who arrived thereafter. The police Patil asked the informant to stay near the dead body while he informs the Police station. The police along with inspector Vidhat arrived on the spot, but the body allegedly found missing. In the morning, the statement of informant was recorded and crime came to be registered vide C.R. No. 146/00. After completion of investigation the charge sheet came to be filed and the case was committed for trial. During the trial, the appellant was found guilty of offence under sec. 302, 201 of IPC and sentenced the appellant to life imprisonment. Hence the present appeal. -(3)- 4. The prosecution examined in all 10 witnesses to prove its case and the learned trial Judge convicted the accused as aforesaid. This order is challenged by the learned advocate appearing on behalf of the appellant on several grounds. Basically, according to him, the prosecution has completely failed to prove guilt of the accused. There are several major contradictions, omissions and material improvements, which completely shaken the foundation of the prosecution case. The important witnesses, who were available were not been examined and therefore the order is liable to be set aside. 5. P.w.no.1 Vitthal Sakhare is the panch witness to prove the spot panchanama, where according to the prosecution, the murder took place. P.w.2 Maulluddin Maniyar was examined as the person present when the police has seized the clothes of the accused under panchanama. However, he has turned hostile and therefore his evidence is not of much importance. P.w.3 is one Madhukar. He claims to be an eye witness. He saw the quarrel between the accused and the victim, but did not intervene. He was accompanied by one Smt.Kalavati. He does not know the cause. He does not know the reason why the quarrel was taking place. He has not informed anybody about his witnessing of the quarrel. P.w.4 Ramchandra is the person who discovered -(4)- the dead body and informed the police about it. P.w.5 Manad Salunkhe is the wife of the deceased. She speaks of the assault which took place about 15 days prior to the incident. She is not an eye witness. She is not able to give any concrete suggestion in regard to the existence of motive on the part of the accused to kill the victim. P.w.6 Nivrutti is the person on whose testimony the whole incident evolves. According to this witness, he learnt about the prior assault by the accused on the deceased. He then speaks of discovering the body of the victim at about 8.00 p.m. in the field where jowar was cultivating. This person was asked to stay there near the body and the Police Patil went to inform the police station. When the police came, the body was not at the spot where it was alleged to be found. The reason given by this witness is interested. According to him, the accused came there when he was standing there alone, he recognised the accused by his voice. The accused threatented him and therefore he stood upon the road. He then saw the accused took the body from the spot where it was found, to the spot where it was again found subsequently by the police. P.w.7 Kalappa is the Head constable who noted the complaint regarding death of the victim and the body being found in Sunil Patil’s field. P.w.8 Shantaram is the executive Magistrate who made panchanama of the body discovered near Kukadi canal. He has made the -(5)- panchanama and proved it. P.w.9 Mohan Vidhate is the investigating officer and P.w.10 is Dr. Saroj Khot who proved the post mortem report and proved that the death of the victim was homicidal. It was on the basis of this evidence that the order of conviction was recorded. 6. A perusal of the evidence of P.w.6 clearly gives out that he is only a confused witness and is unable to say anything correctly. If this witness is to be believed, about the spot where the incident has occurred which is 16 ft. away from the spot where the body was found, it is impossible to believe that any person can carry a dead body for 15 to 16 ft. away. There are no eye witness. It is also impossible to believe that a person asked to guard the dead body will leave it for the accused to take it away without creating any commotion. There appears to be serious lacuna in the case of the prosecution. The prosecution has failed to prove exactly at what place the incident happened, how the dead body was shifted from the spot, the spot panchanama by P.w.1 and the panchanama recorded by Tahasildar. The entire evidence therefore appears to be improbable and the prosecution has made severe attempts to prove that the accused was the person who committed murder. We are unable to rely on any of the witnesses examined by the prosecution. -(6)- 7. In our opinion, the prosecution has completely failed to prove that the accused was guilty. Therefore the appeal is allowed. The impugned order is therefore liable to be set aside. It is set aside. Accused be set at liberty forthwith if not otherwise required. xxxxx