Case: Deepak Bajirao Shelke Vs. State of Maharashtra

is also the pancha regarding seizure of tanker vide Exh.18 under which the said tanker was taken charge of on 16th March, 2008. He is also the pancha for identification of the clothes of the deceased by the wife of the deceased on 17th March, 2008 vide Exh.19. He is also the pancha regarding memorandum of statement allegedly made by appellant-accused No.1 pointing out the scene of offence i.e. the place where the victim was done away. He is the pancha for allegedly memorandum statements made by the appellants-accused dated 17th March,2008 pointing out the places from where both the appellants-accused took control of the tanker for further journey. It is at Exh.21. He is also a pancha for memorandum statement of the appellant-accused dated 18th March, 2008 pointing out the place where accused No.1 had kept Rs.6000/-. It is at Exh.22. This panchnama is not supported by the said witness PW No.2 and he turned hostile. He is also the pancha for panchnama Exh.23 dated 18th March, 2008 wherein accused No.2 pointed out the place where he had kept Rs.4000/-. Again for this panchnama PW No.2 had turned hostile.He is also the pancha for joint recovery at the instance of both the appellants-accused regarding the seat belt as mentioned above vide Exh.24 on 18th March, 2008 and subsequent production of Rs.4000/- from his house and jean pant and white colour shirt and also one yellow colour shirt and blue colour jean pant and pair of chappal. Apparently, according to the case of the prosecution that in the same panchnama Exh.24 in continuation of the alleged recovery at the instance of appellant-accused No.1, appellant-accused No.2 also produced his clothes and cash amount of Rs.6,000/- from his house and also pair of chappal. It must be mentioned that said PW No.2 pancha did not support the case of the prosecution either on the aspect of discovery of the seat belt or recovery of the articles at the instance of the respective accused persons. Again said PW No.2 was the pancha for seizure of 20 kilograms oil from PW No.7 under panchnama Exh.25 on 19th March, 2008. However, he turned hostile and was the pancha in the panchnama Exh.26 of 19th March, 2008 wherein allegedly appellant-accused No.1 made a memorandum statement and subsequently showed the place of Baba Dhaba. Again on this aspect said PW No.2 had turned hostile and did not support the case of the prosecution. Again same pancha was used by the investigating agency to conduct the panchnama Exh.28 on 19th March, 2008 wherein 70 kilograms oil was taken charge of from one witness Shivram Khairnar. Again said PW No.2 turned hostile and did not support the case of the prosecution on this count also. Said PW No.2 was also the pancha for the seizure of oil from PW Nos.8 and 9 and other villagers as allegedly these villagers and witnesses deposited 20 kilograms each. However, again for this panchnama said panch witness PW No.2 did not support the prosecution case and turned hostile.Again same PW No.2 was pancha for Exh.30 on 21st March, 2008 under which similar such 20 kilograms oil was seized from various villagers who were not examined by the prosecution. Also on this count PW No.2 did not support the case of the prosecution and turned hostile. Again vide Exh.31 on 22nd March, 2008 said PW No.2 allegedly acted as a panch wherein at the instance of the appellants-accused one shop was shown from where the clothes and foot wears were purchased. On this aspect the concerned shopkeeper was not examined by the prosecution and said pancha PW No.2 did not support the case of the prosecution and turned hostile. Again he was the pancha for Exh.32 dated 22nd March, 2008 wherein the appellant showed the place from where the clothes worth Rs.800/- and chappals worth Rs.239/- were purchased. Again this aspect was not fortified by this witness and he turned hostile to the case of the prosecution. Again same PW No.2 was the pancha for the panchnama Exh.33 on 23rd March, 2008 wherein allegedly appellant-accused had made memorandum statement pointing out the place where the concerned tanker was abandoned at Gurewadi road and then both the accused proceeded to hotel Yashraj. Again on this aspect PW No.2 did not support the case of the prosecution and turned hostile. Said PW No.2 also acted as a pancha on panchnama Exh 34 on 23rd March, 2008 wherein allegedly the appellant-accused showed the place from where both the accused had picked up two girls and proceeded to Hotel Yashraj. This aspect was also not supported by PW No.2 and he turned hostile to the case of the prosecution. He also acted as a pancha for the panchnama Exh.35 on 27th March, 2008 wherein the panchnama was drawn regarding taking of the samples of cotton seed oil, two liters each from four compartments of the concerned tanker.We have carefully gone through the substantive evidence of said PW No.2 and also the evidence of the Investigating Officer on this count. Specifically it must be mentioned that said pancha PW No.2 acted in almost 20 panchnamas. Out of them he had turned hostile and did not support the case of the prosecution in 14 panchnamas as detailed above. Needless to mention that use of the same pancha for almost in 20 panchnamas is definitely a circumstance doubting the case of the prosecution as to genuineness of various discoveries at the hands of the appellant-accused.19. In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than the appellants-accused committing the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to the appellants-accused and none-else as the perpetrators of the offences charged.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than thecommitting the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to these as the perpetrators of the offences charged.