{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.673 OF 2009 1. Bhaskar @ Basha Sardar Kale Age-65 years, Occ-Agril 2. Nana Bhaskar Kale Age-27 years, Occ-Labour 3. Nana Subrao Kale Age-32 years, Occ-Labour 4. Lala Rajaram Kale Age-34 years, Occ-Agril 5. Rani Suresh Kale Age-22 years, Occ-Household All R/o Kanherwadi, Pardhi-Pidhi Tq-Kallam, Dist-Osmanabad 6. Mohajabai Chagan Shinde Age-50 years, Occ-Household R/o Para, TQ-Washi, Dist-Osmanabad 7. Bibhishan Rajaram Kale Age-38 years, Occ-Agril R/o Kanherwadi, Pardhi-Pedhi Tq-Kallam, Dist-Osmanabad VERSUS The State of Maharashtra RESPONDENT {2} ....... Mrs.S.S.Jadhav, Advocate for the appellants Mr.B.V.Wagh, APP for respondent State Mr.S.A.Dhengale Advocate h/f Mr.B.A.Dhengale to assist APP. ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 18th October 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By this appeal, the appellants have questioned the correctness of the judgment dated 22.12.2009 passed by Additional Sessions Judge. Osmanabad in Sessions Case No.35/2009. By the said judgment the appellants were convicted for an offence punishable u/s 302 r/w 149 and 120-B of the Indian Penal Code and were sentenced to life imprisonment and to pay a fine of Rs. 5000/- each, in default to suffer further RI for one year. The appellants were also convicted for the offence punishable u/s 201 r/w 149 of the Indian Penal Code and sentenced to suffer RI for one year and to pay a fie of Rs.1000/-, in default to suffer RI for six months. The appellants were also convicted for an offence punishable u/s 147, 148, 323, 504 and 149 of the Indian Penal Code and on all counts sentenced to suffer RI for one year. 2. Such of the facts, as are necessary for the decision of this appeal, can be summarized thus - {3} a) Shrinivas Patil, Police Patil of village Hasegaon lodged a report at Kallam police station on 09.05.2008 that a dead body of an unknown person aged about 32 years is lying on Hasegaon- Itkur Road. Accordingly an ADR No.22/2008 u/s 174 of the Criminal Procedure Code was registered. Thereafter the inquiry was entrusted to Police Sub Inspector Bhaskar Tambare (PW-13). During the inquiry PSI Tambare visited the spot and drew Spot Panchanama (Exhibit-71) in presence of Panch witnesses, at that time some photographs of the spot of the incident as well as photographs of the dead body were also taken. Thereafter inquest Panchanama (Exhibit-30) was drawn and Nana Shankar Kale (PW-1) identified the dead body as the dead body of Laxman Kale. Thereafter the body was sent for PM to Rural Hospital, Kallam. Dr.Sadashiv Gayasamudre (PW-2) conducted the autopsy and noticed the following injuries on the dead body of Laxman. 1. Contusion and abrasion on the left side of the chest size 8X6 cm Anterior aspect, reddish in colour, five abrasions of size 1X2 cm each. 2. Contusion and abrasion on left arm with shouder on lateral aspect, size 10X4 cm. 3. Abrasion left arm on middle third, lateral aspect, 2X3 cm 4. Contusion with abrasions on th left elbow of size 4X3 cm 5. Contusion with abrasion on the left forearm lower 1/3 rd lateral aspect, 2X3 cm 6. Contusion on left chest, lateral aspect, 6X8 cm {4} 7. Contusion with abrasion on anterior aspect middle third on left thigh, 2X2 cm 8. Contusion with abrasion on left leg, middle third, on anterior aspect, 4X3 cm 9. Contusion with abrasion on left foot on dorsal aspect,2x3 cm 10.Contusion on right thigh medial aspect on lower third,6x8cm 11.Contusion on right thigh, 10X8 cm on lateral aspect 12.Abrasion on right leg, on middle third of size 4x2, 1x2, 1x3 cms. 13.Abrasion on right foot 1x2 cm 14.Contusion with abrasion on right hypochondria, 6x8 cm anterior lateral aspect 15.15Contusion with abrasion on right chest, lateral aspect, 2x3 cm 4x3 cm, 2x2 cm, 1x1 cm, 1x2 cm 16.Contusion with abrasion on lumbar spinal region, 4x2 cm Right paraspinal region, 2x2 cm On left side 17.Contusion on right chest scapular region, 10x2 cm 18.Contusion on left zygomatic area, 4x3 cm 19.Abrasion on left right neck, 5X1 cm each two in number. 20.Abrasion on right cheek, 2x1 cm two in number 21.Contusion on right mastorid region 3x5 cm 22.C.L.W.1 ½ X ½ X ½ cms on occipital region. 23.Contusion with abrasion 6x4 cm two in number on right gluteal region, contusion 6x4 cm two abrasions 1x1 cm. The Medical Officer has noticed the following internal {5} injuries - No evidence of any fracture bone, the brain was pale and oedmatous. There was contusion under chest wall on both sides, plura:pale, larynx, trachea and bronchi: No foreign body was seen. Right lung: Contusion on lower lobe anterolateral aspect 5x4 cm Left lung : Contusion – antero lateral aspect lower and middle lobe 10 X 10 cm. Pericardium : intact, Heard with weight : leaft chamber-empty. Right chamber contained blood. Large vessles congested with blood. Abdominal examination – walls, peritoneum, cavity: all intact, Bucal cavity, teeth, tongue and pharynx: Teeth 32 8/8 8/8 in number in tact, tongue intact within oral cavity. Oesothagus : pale. Stomach and its contents : Watery fluid about 200 ml. No abnormal smell, no mucosal congestion. Small intestines and its contents : empty with slight semi-digested food. Large intestines and its contents : Gaseous distention with fecal matter. Liver (with weight) and gall bladder, intact. Contusion on right lobe antero lateral aspect 6x6 cm. Tancreas and kidneys : intact, pale. Bladder- empty. Organs of generation : intact, evidence of seminal emisison. Accordingly, Postmortem report (Exhibit-36) was prepared and thereafter cousin of the deceased (PW-1) Nana lodged a report (Exhibit-34) at Kallam police station and thereafter crime No. 63/2008 was registered against all the appellants. Thereafter appellants were arrested and statements of certain witnesses were {6} recorded. b) During the custody, appellant No.2, Nana Bhaskar Kale made a voluntary statement (Exhibit-57) in presence of witnesses and at his instance one stick and a wire (Articles 6 and 7) were recovered under seizure Panchanama (Exhibit-58). On 18.05.2008, further investigation in the crime was entrusted to PW-12 Annarao Gaikwad. On 20.05.2008, appellant No.3 Nana Subrao Kale made disclosure statement (Exhibit-59) which resulted in recovery of a stick (Article 5) under a seizure memo (Exhibit-60). Thereafter the seized property was sent to Chemical Analyzer along with forwarding letter (Exhibit-72). Circle Inspector prepared a map of the scene of offence and after completion of the investigation charge sheet was filed against all the accused before JMFC, Kallam. Thereafter the case was committed to the Court of Sessions, Osmanabad. c) It appears that the Additional Sessions Judge, Osmanabad framed charge (Exhibit-22) against the appellants to which they pleaded not guilty and claimed to be tried. d) It appears that to substantiate the charges leveled against the accused the prosecution has examined in all 13 witnesses including the PW-1 complainant, PW-2 Dr.Sadashiv, who has conducted the PM, PW-3 Mukesh Patel, a peon attached to land development bank, PW-4 Anil & PW-5 Dattu, who claim to be {7} the eye witnesses to the incident, PW-6 Ramdas & PW-7 Dnyandev Pancha witnesses, who do not remain loyal to the prosecution, PW-8 Rajendra-a witness to disclosure statements of appellants No.2 and 3 and recovery of weapons, PW-9 Chhaya Ronge, Police Head Constable, who had recorded the FIR, PW-10 Gajanaj Todkar, the photographer, PW-11 Pandurang carrier of the articles to the office of the CA and PW-12 Gaikwad, ASI and PW-13 Bhaskar Tambare, PSI, the investigating officers. Considering the evidence on record, the trial court has convicted the appellants, as stated earlier. 3. In this background, heard learned counsel for the appellants followed by the submissions of learned APP, who is assisted by learned counsel for original complainant. 4. Before considering the rival submissions, it is necessary to advert to the evidence of material witnesses, as the case of the prosecution mainly rests on the evidence of two witnesses PW-4 Anil and PW-5 Dattu. 5. It transpired from the evidence of PW-4 Anil that appellant No.4 Rani, his cousin sister, is married and her matrimonial house is at Kanerwadi, however, as her husband is in jail, she was residing with her mother at Para. On the day of the incident, Rani and her mother were at Para and they had asked PW-4 Anil that they were going to Kanerwadi and he and Laxman {8} (deceased) should follow them. Accordingly, he and Laxman (deceased) went to Kanherwadi on a motorcycle. Appellants Rani and her mother Mohajabai enquired with Laxman whether he had affair with appellant Rani to which he denied and hence all the appellants started assaulting Laxman with sticks and iron rods. This witness states that he had fled from the spot and went to Hasegaon from there to Itkur and at about 2.30 p.m. he met his mother and brother Dattu (PW-5) at Itkur and narrated them the incident which was witnessed by him and also expressed apprehension whether Laxman was dead or alive. Thereafter all of them reached near the spot at that time Raja Kale told him to go back and hence he again went to Hasegaon from where he went to Kanherwadi and till that time, i.e. for about more than 1 and 1 ½ hour the assault on Laxman was going on. He further states that he had heard the voice of ladies shouting that Laxman is dead. Then the appellants brought one auto and take Laxman in the same and thrown him near a bridge at Hasegaon. Thereafter he came back and informed the family members of Laxman about the incident. He identified the articles 5,6 and 7 before the Court as the weapons used by the appellants to assault Laxman. It is brought on record in this cross-examination that he, Lala Shinde, Raja Kale, Subro Shinde, Rajendra Chavan, Shankar Pawar and Babu Pawar were acting as Panchas of their community. It was the custom of the community that disputes of all types were being settled by Jat Panchayat and 25% amount out of the {9} compensation is given to the Panchas whereas remaining 75 % is given to the victim. However, at the instance of Superintendent of Police, Deputy Superintendent of Police, Project Officer and Bibhishan Kale appellant No.7, the said custom was stopped and therefore, many persons from the community were annoyed against appellant No.7 as he was responsible for stopping the custom. It is also brought on record that the distance between Kanherwadi and Kallam is 7 to 8 km and Hasegaon and Kallam is 3 km. At about 12.30, he reached near Kanherwadi Pati and was present there till 2.30 p.m. In paragraph No.10 he has admitted that while on his way back to Hasegaon, though he noticed that Laxman was being assaulted by the appellants, he did not report the said incident in the police station. Though at Itkur he met Raja Kale yet both of them did not report the incident to the police. Though he returned to Para the incident was not reported to the police station at Para. In the same paragraph certain omissions are brought on record that in his statement before the police he has not stated that he had informed the incident to Dattu when he reached at Itkur. It is also brought on record at para 13 in the cross examination that Articles 5 and 6 were shown to him in the police station and it was told to him that the deceased was assaulted with the said sticks when he had accompanied with Nana Kale, the complainant. 6. Prosecution witness No.5, Dattu Shinde is the real brother of PW-4, Anil. He has stated that on the day of the incident, at about 8.00 a.m. deceased Laxman and PW-4 Anil had {10} been to him and they had requested to give them motorcycle as they intended to go to Kanherwadi to attend the Jat Panchayat on the question of affair between the deceased and appellant Rani. At about 1.30 p.m. Bansi Kale, brother of deceased Laxman, came to him and suggested that they should enquire about Laxman and Anil. Thereafter Bansi had brought a motorcycle and he and Bansi went to Itkur. There they enquired with one Rajendra as to whether Anil and Laxman had came there, to which Rajendre answered in negative and hence they proceeded to Hasegaon. When they tried to contact Laxman on his mobile, it was found switched off. Therefore, they proceeded to Kanherwadi where they noticed that the appellants were assaulting Laxman, they tried to stop the motorcycle, however, they were chased by the appellants up to Masa. Thereafter they informed Rajendra and Digha that Laxman was being assaulted and then they took lunch and went to Para and inform the relatives of Laxman about the assault. In the night at 8.00 p.m. they went to Hasegaon bridge and noticed the dead body of Laxman with several injuries. It transpired from his cross- examination that the complainant is working for their community. Mohajabai, appellant No.6, is residing at Para while appellant No.5 Rani was given in marriage to Kanherwadi. Certain omissions are brought on record in his cross-examination like when he reached at Itkur, he enquired with Raja and Digha about Anil and Laxman, the appellants chased them on motorcycle till Massa and they noticed the dead body at 8.00 p.m. near Hasegaon bridge. In the further cross-examination he has admitted that appellant No.7 {11} stopped the custom of Jat Panchayat of their community and that the spot of the incident is situated at about 3-4 km from Kanherwadi. 7. Learned counsel for the appellants contended that the testimony of the alleged eye witnesses i.e. PW-4 Anil and PW-5 Dattu is not consistent with each other. It is brought to our notice that as per the evidence of PW-4 Anil, the alleged incident took place near Kanherwadi, where he and Laxman reached on a motorcycle. Admittedly, Panchanama of the scene of offence at Kanherwadi is not drawn, or at least there is no mention in the entire record. Apart from it the total evidence is silent as to what has happened with the motorcycle on which PW-4 Anil and Laxman were riding. So also it is also brought to our notice that according to PW-4 Anil he ran away from the spot at Kanherwadi after he saw the appellants were assaulting Laxman and met with his mother and brother and disclosed them about the incident, however, evidence of PW-5 Dattu is totally silence about the same that Anil had met him and had informed about the incident to him. Even the evidence of PW-4 is silent that at any point of time PW-5 Dattu had reached at the spot and had witnessed the assault on Laxman. Though he has stated that he saw the appellants took Laxman in an Ape and taken to the bridge at Hasegaon, yet as per the evidence of PW-1, this incident was not informed by Anil to the complainant. Thus, the evidence of PW-4 Anil and PW-5 Dattu is destroying the versions of each other and it is highly risky to rely {12} on the shaky evidence of these two alleged eye witnesses. Hence, the evidence of the two alleged eye witnesses is required to be discarded. 8. Apart from it, during the course of submissions, it is brought to our notice that from the evidence of PW-2 complainant Nana and PW-4 Anil that PW-4 Anil had informed about the assault on Laxman to complainant Nana at 8.30 p.m., yet no compliant was lodged with the police till 4.30 a.m. on the following morning. At the same time, it is also brought to our notice that after AD No.22/2008 was registered and inquest Panchanma was drawn in presence of complainant Nana who had identified the dead body and the said incident has taken place at 10.00 p.m. then a question is raised that before the drawal of the inquest Panchanma when both the complainant and PW-4 Anil knew about the assault on Laxman, then why they did not disclose to PW-13 about the assault by the appellants. Thus, it is clear that the story of the prosecution is not a believable or probable story. No doubt, from the medical evidence the death of Laxman is unnatural one, yet from the available evidence it cannot be concluded or even inferred that the appellants are the authors of the injuries found on the person of deceased Laxman which resulted into his death. Though the learned APP tried to support the impugned judgment and requested for dismissal of appeal and confirmation of the conviction, yet we are of the considered view that the conclusion drawn by the trial court thereby convicting the appellants for the {13} offence for which they are charged, is erroneous. In the premise, benefit of doubt goes in favour of the appellants and the appeal deserves to be allowed. 9. Criminal Appeal No.673/2009 is allowed and conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since original accused Nos.1, 2, 3, 4 and 7 are in jail, they be released forthwith, if not wanted in any other case. Bail bonds of original accused No.5 Rani Suresh Kale and original accused No.6 Mohajabai Chagan Shinde stand cancelled. Sd/- sd/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel673-09