Bombay High Court
Bhimsha Subanna Pawar And Ors. vs The State Of Maharashtra on 29 June, 1995
Equivalent citations: 1996(1)BOMCR212, 1996 A I H C 1, (1995) 4 CRIMES 262 (1996) 1 BOM CR 212, (1996) 1 BOM CR 212
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellants aggrieved by the Judgment and Order dated 29-5-1993 passed by the Additional Sessions Judge, Solapur in Sessions Case No. 271 of 1992 connected with Sessions Case No. 22 of 1993 convicting and sentencing them to life imprisonment and to pay a fine of Rs. 2000/- each and in default of payment of fine to further undergo two years R.I. under section 302 read with section 149 I.P.C.; to one year's R.I. and to pay a fine of Rs. 500/- in default to further undergo four months R.I. under section 323 read with section 149 I.P.C.; to three years R.I. and to pay a fine of Rs. 1,000/- each in default to undergo R.I. for 6 months each under section 148 I.P.C.; and to two years R.I. and to pay a fine of Rs. 500 each in default of payment of fine, to further undergo 6 months R.I. under section 147 I.P.C., the sentences to run concurrently, have come up in appeal before us.
2. The prosecution case as emerging from the recitals contained in the FIR and the evidence of the ocular witnesses, runs as follows :
The informant Saibabai Rajulal Pawar P.W. 5 was the wife of the deceased Rajulal Pawar. She along with the deceased, co-wife of the deceased and the children of the deceased lived in village Hotgi in Taluka South Solapur, within the limits of Police Station Valsang District Solapur. Their neighbour was appellant Bhimsha Subanna Pawar, Bhimsha's brothers Namdeo Subanna Pawar, and Ashok Subanna Pawar were residing separately from him, though in the same village. The appellant Vishwanath Bahadur Chavan who is the cousin brother of appellant Bhimsha was also residing in village Hotgi. Appellants Menjya Mastan Chavan and Bhimya Menjya Chavan are father and son inter se. They are said to be relations of appellant Bhimsha Subanna Pawar and were also residing in village Hotgi.
It is alleged that appellant Bhimsha Subanna Pawar and their brothers were thieves. They were bearing a grudge against the deceased because they had a feeling that he used to report about them to the police. It is said that some panchas tried to effect reconcilliation between appellant Bhimsha Subanna Pawar and others on one side and the deceased on the other. However, their efforts failed.
On 21-5-1992, at about 7 a.m. the informant and the deceased had gone to Solapur by a city bus to see the former's mother who was ailing. After visiting her, the same day, at about 7.30 p.m. they started back from Solapur to their village on a city bus. At about 8 to 8.15 p.m. when the bus came near the Government School, and stopped on the bus stop situated there, the informant and the deceased got down from the aforesaid bus. After they had walked a distance of about 100 steps, suddenly from a ditch, the six appellants along with co-accused. A Basu, Subhash and Rangappa emerged from the aforesaid ditch. It is alleged that Bhimsha was armed with an iron bar, Namdeo with a hunter, Ashok Subanna Pawar, Basu and Subhash with sticks, Bhimya Menjya Chavan and Rangappa with axes. It is said that Vishwanath Bahadur Chavan and Menjya Mastan Chavan were not carrying any weapons. It is said that seeing the appellants and others, with their weapons, the deceased tried to run but, on the road passing in front of the canteen, of Bashir, he was overpowered by the appellants and others who thereafter, launched an assault on him with their respective weapons. On seeing the deceased being assaulted, the informant started shouting resulting in Menjya Mastan Chavan and Vishwanath Bahadur Chavan catching hold of her. Thereafter, Ashok is alleged to have assaulted her with a stick on right leg, left arm and back. It is also stated Vishwanath shouted and asked the appellants and others accused persons to kill the deceased because, he was informer of the police. After assaulting the deceased and the informant, the appellants and others are alleged to have run away. It is alleged that they were recognised in street light.
Apart from the informant (wife of the deceased) this incident is alleged to have been seen by Bashir Tamboli P.W. 4, Jaganath Umaji Pawar P.W. 6, (brother of the deceased), Babu Umaji Pawar and Shantabai Pawar; the last two have not been examined by the prosecution.
3. After the incident was over, the informant Saibabai and Jagannath, leaving the dead body on the place of the incident in care of their relatives came to Solapur on foot and from there straight away went to Police Station Valsang in a bus where the informant lodged her complaint (F.I.R.) at 1.15 a.m. on 22-5-1992. It may be mentioned that Police Station Valsang is situated at a distance of about 30 kms. from the place of the incident, and the place of incident falls within its jurisdiction.
4. At the time of lodging of the complaint, P.S.I. Vijay Singh Ramkrishna Gaikwad (P.W. 14) was present at the Police Station Valsang. It was he who had reduced the complaint of the informant in writing. On the basis of the complaint Exh. 39 he registered the case as C.R. No. 32 of 1992 under sections 302, 147, 148, 149, 323 I.P.C. and 135 of the Bombay Police Act.
5. P.S.I. Gaikwad commenced investigation of the case. On 22-5-1992, he prepared the inquest panchanama, (Exh. 12), spot panchanama (Exh. 21) and thereafter, sent the dead body to Civil Hospital, Solapur for the autopsy. Thereafter, he recorded statements of witnesses Bashir Tamboli and eight others. The same day appellants Bhimsha, Namdeo, Ashok, Vishwanath and Menjya were arrested. On 23-5-1992, the informant produced her blood stained sari which he attached under a panchanama. It is alleged that during the course of investigation, the appellants Bhimsha, Namdeo and Ashok admitted that they could get the weapons of assault recovered and pursuant to their statements on 24-5-1992 in the presence of public panchas, Kailash Kingi P.W. 2 and Kalshetty P.W. 3 and P.S.I. Gaikwad, himself the weapons of assault were recovered; an iron bar, at the pointing out of Bhimsha, a hunter at the pointing out of Namdeo and a stick at the pointing out of Ashok. After completing the investigation, P.S.I. Gaikwad submitted the charge sheet against the appellants and co-accused Basu. Appellant Rangappa was shown to be an absconder in the charge sheet. We may also mention that against the accused Subhash, no charge sheet was submitted.
6. Going backwards, the injuries of the informant Saibabai were medically examined on 22-5-1992 at 10.00 p.m. by the Casualty Medical Officer, General Hospital, Solapur. On her person, the doctor found three contusions, one each situated at right thigh, left forearm and back respectively. In the opinion of the doctor, the aforesaid injuries were caused within 24 hours of the incident and were simple in nature.
7. The autopsy of the dead body of the deceased was conducted on 22-5-1992 between 11.25 a.m. to 12.30 p.m. by Dr. A.S. Kanaki. On the person of the deceased, the doctor found the following ante-mortem injuries :
"Incised wound on the scalp at occipital region. 2" x 1/4 " scalp deep transverse.
2. Two abrasions on the forehead 1/2 " x 1/2 " each brown.
3. Abrasion on the scalp left parietal region 2" x 1" brown.
4. Abrasion at outer corner of left eye 11/2 " x 1/2 " brown.
5. Abrasion on top left shoulder 1" x 1" brown.
6. Superfixial L-W. on left shoulder lateral aspect 4" x 1/4 " skin deep transverse.
7. P.W. post lateral aspect left arm.
3" x 1/4 " skin deep.
4" x 1/4 " skindeep.
3" x 1/4" muscle deep.
3" x 1/4" muscle deep.
one below another
8. L.W. post left forearm 11/2" x 3/4" skin deep.
9. C.L.W. post left forearm 11/2" x 3/4" skin deep 2 radius/ulna.
10. I.W. on lateral aspect left lumbar region near coastal margin 5" x 1/4" skiny deep transverse.
11. Chop wound on lateral aspect left knee 3" x 1" skin deep.
12. Chop wound on lateral aspect just below knee left 6" x 3" bone deep, P.W. below it, 2" x1/2" skiny deep clean cut margins.
13. Two abrasions one anterior aspect left thigh 2" x 1" and 1" x 3/4" each brown.
14. P.W. on med. aspect rt. leg above ankle 11/2" x 1/2" skin deep transverse.
15. Abrasion on post, aspect rt. elbow 1/2" x 1/2" brown.
16. I.W. on back lumbar region 5" x 1/4"oblique.
17. Abrasion on back left scapular region 3" x 1" brown oblique and below in 3" x 1" brown transverse. All I.W. are having clean margins, all above injuries are ante mortem in nature.
In the opinion of the doctor, death of the deceased was primarily on account of shock and haemorrhage, on account of head injury and injuries on the limbs.
8. The case was committed to the Court of sessions in the usual course where charges under sections 147 I.P.C., 148 I.P.C., 302 read with section 149 I.P.C. and 323 read with section 149 I.P.C. were framed against the appellants to which they pleaded not guilty and claimed to be tried. During the trial, any large number of documents were admitted by both the sides, they being post mortem report of the deceased, injury report of injured Smt. Saibabai, inquest panchanama and report of the Chemical Analyst. That is the reason in the instant case, neither the doctor who performed that autopsy on the dead body of the deceased nor the doctor who medically examined the injuries of the informant Saibabai have been examined.
9. In the trial Court, apart from tendering voluminious documentary evidence, prosecution examined as many as 14 witnesses. In defence, no witness was examined from the side of the appellants.
10. The learned trial Judge believed the evidence adduced by the prosecution and passed the impugned judgment. Hence, this appeal.
11. We have heard Mr. V.M. Thorat for the appellants and Mr. D.G. Bagwe, Additional Public Prosecutor for the State of Maharashtra (respondent). We have also perused theoral evidence adduced by the prosecution in the instant case and the various exhibits tendered and proved by it. After giving our anxious consideration to the matter, we have reached the conclusion that there is no merit in the appeal of the appellants Bhimsha Subanna Pawar, Namdeo Subanna Pawar, Ashok Subanna Pawar, and Bhimya Menjya Chavan. We however, feel that so far appellants Vishwanath Bahadur Chavan and Menjya Mastan Chavan are concerned, the prosecution case against them is not free from doubt and they deserve benefit of doubt. We now propose giving our reasons for reaching the aforesaid conclusion.
12. In the instant case, in all the prosecution examined three eye witnesses namely Bashir Tamboli, P.W. 4, Smt. Saibabai P.W. 5 and Jagannath Pawar P.W. 6. Out of these witnesses, Smt. Saibabai is an injured witness. It is well settled that if the testimony of an injured witness inspires confidence, the same by itself can be sufficient for sustaining the finding of conviction.
13. We have gone through the evidence of Saibabai P.W. 5 and in our opinion, it inspires confidence. As stated earlier, she is an injured witness. To us, her presence on the place of the incident appears to be extremely probable and natural. Her evidence is that on the date of the incident at about 7.30 a.m. she along with the deceased had gone to Solapur to see her mother, who was ailing. She also stated that at about 7.30 p.m. from Solapur in a city bus, they departed for their village. She further stated that at about 8.15 p.m. when the bus had reached near the place of incident, from a ditch the six appellants along with Basu, Rangappa and Subhash emerged with their respective weapons. She stated that all of them launched an assault on the deceased; Bhimsha with a iron bar, Namdeo with a hunter, Ashok, Subhash and Basu with sticks and Bhimya and Rangappa with axes. She also stated that Vishwanath and Menjya caught hold of her and Ashok assaulted her with a stick. The manner of assault as given out by her in her statement both vis-a-vis the deceased and herself is corroborated by the nature of the injuries found in the post-mortem report of the deceased, and those found on her person by the doctor who medically examined her. In paras 6 and 7 of our judgment, we have given out in detail the injuries received by the deceased as well as by her. The autopsy report of the deceased shows that he had on his person injuries attributable to iron bar, axe and sticks. The three contusions found on her person clearly corroborate the correctness of her version that Ashok assaulted her with a stick. In our opinion, the corroboration of the manner of assault as given by her, by the nature of the injuries, found on deceased and her speaks volumes in favour of truthfulness of the prosecution story.
14. Criminal Courts are very loath in rejecting the testimony of an injured witness because the injuries guarantee the presence of such a witness. The testimony of the injured witness is not relied upon only in those cases, where their truthfulness on matters which militate against the care of the prosecution case is under a cloud. This is not the case here. The truthfulness of Saibabai's account is reinforced by the medical evidence.
We may mention that the presence of Saibabai on the place of the incident is explained. As stated earlier she had gone with the deceased to see her ailing mother at Solapur and while the two of them were returning the present incident took place. Thus her presence on the place of the incident was very natural.
Saibabai's account of the incident appears to be very probable and has a ring of truth. In our view her solitary statement is sufficient to establish the prosecution case.
15. Saibabai's account of the incident is also corroborated by that of P.W. 6 Jagannath Pawar. The manner of assault as described by him in his deposition in the trial Court is just on the same lines as that of Saibabai. Like Saibabai's account it is corroborated by the medical evidence. In his statement in the trial Court, he has explained his presence on the place of the incident. He has stated that when the incident took place, he was standing at the bus stop (the same bus stop where Saibabai and deceased alighted on way back from Solapur). It was near this bus stop that the assault on deceased and the injured was launched by the appellants as well as by co-accused Subhash, Basu and Rangappa. He also corroborates Saibabai on the time of the incident. In our opinion, his statement also is highly natural, probable and has a ring of truth. It lends tremendous reassurance to the statement of Saibabai.
16. It is true that the third eye witness of the incident, namely, P.W. 4 Bashir turned hostile and did not support the prosecution case. However, in our opinion, even if his evidence is excluded, there remains the dependable, cogent and unimpeachable evidence of Saibabai P.W. 1 and Jagannath P.W. 6.
17. The ocular account in the instant case is also corroborated by recoveries of iron bar, at the instance of appellant Bhimsha; a hunter at the pointing out of Namdeo; and a stick, at the pointing out of Ashok. These three appellants were arrested on the day following the incident i.e. 22-5-1992. Thereafter, they are alleged to have stated before the Investigating Officer P.S.I. Gaikwad that they could get the weapons recovered. Pursuant to their statement, on 24-5-1992, the aforesaid recoveries were made. It is true that both recovery witnesses Kailash Kingi P.W. 2 and Kelshetty P.W. 3 have turned hostile and on the recoveries, we have the solitary evidence of P.S.I. Gaikwad. However, there is no immutable proposition of law of universal application that in no circumstances the solitary evidence of a Police Inspector can be the sole basis for believing recoveries. In some cases, purely on account of the dictates of prudence, the Courts look for corroboration. However, in the instant case, after going through the evidence of P.W. 14 Vijaysing Gaikwad, we strongly feel that the evidence of recoveries at the pointing out of the aforesaid three appellants can be believed on his solitary statement. Neither any animosity of these appellants with P.S.I. Gaikwad has been brought to our notice by the learned Counsel for the appellants nor any suggestion was made to P.S.I. Gaikwad that he foisted these recoveries. In the over all analysis of the statement of P.S.I. Gaikwad we feel that it would be safe to believe his uncorroborated statement in respect of recoveries.
18. The question which perturbs us is as to whether would it be prudent and safe to sustain the finding of conviction recorded by the trial Court against the appellants Vishwanath Bahadur Chavan and Menjya Mastan Chavan. After giving our anxious consideration to the matter we feel that the answer to this question would have to be in the negative.
We now propose to give our reasons for arriving at the aforesaid answer.
Firstly it was a case of pre-planned murder. As mentioned earlier the prosecution case was that the deceased and his wife Saibabai on the morning of 21-5-1992 at about 7.30 a.m. had gone to Solapur where Saibabai's mother was ailing and the same evening at about 7.30 p.m. they left Solapur in a bus for their village and when at about 8.15 p.m. the same day they had alighted from the bus and were proceeding towards their village from a ditch the six appellants and three accused persons came out. In other words the appellants and the aforesaid co-accused persons had prior information about the time of return of the deceased and Saibabai and hence they concealed themselves in the aforesaid ditch and were waiting for them to come. Since it was pre-planned murder, we think it to be extremely improbable that appellants Vishwanath Bahadur Chavan and Menjya Mastan Chavan would have participated in the same without carrying any arms with them. This could have been understandable had the murder had taken place on the spur of the moment. The absence of arms in the hands of appellants Vishwanath and Menjya renders their participation in the instant crime highly improbable.
We further find that there was no direct motive for these appellants to participate in this incident. There was no enmity between these appellants on one side and the deceased and informant on the other. In the earlier part of our judgment, we have stated that the motive alleged by the prosecution was that the appellant Bhimsha had a feeling that the deceased used to inform police about his nefarious activities and hence he was inimical to him. This in our view may be a plausible reason for the participation of Bhimsha and his brothers Namdeo and Ashok. However, it is too hazardous and unsafe to believe the prosecution case that because of their relationship with Bhimsha these appellants participated in the crime on the converse it may be that on account of their relationship with Bhimsha these appellants have been falsely implicated in the instant case. Unlike appellants Bhimsha, Ashok, Namdeo and Bhimya, who are alleged to be armed with iron bar, hunter, stick and axe respectively and whose participation is clinched by the nature of the ante mortem injuries found on the person of the deceased (Ashok's participation is also fixed by the presence of blunt weapon injuries on the body of Saibabai) there can be no question of any corroboration by medical evidence with respect to the participation of these two appellants because they are alleged to have participated in the incident, unarmed.
In other words, we have to fall back on ocular testimony with respect to the participation of appellants Vishwanath and Menjya. We have stated earlier that out of three eyewitnesses, P.W. 4 Bashir Tamboli turned hostile. The other two witnesses Saibabai and Jaganath P.W. 6 being the brother and wife of the deceased respectively are highly interested witnesses. In the background of the reasons enumerated above we do not think that it would be prudent and safe to sustain the conviction of appellants Vishwanath and Menjya on the testimony of these two witnesses. In our judgment, these appellants may or may not have participated in the incident. Since we are not in a position to conclude with definiteness either way the safer course would be to give them the benefit of doubt.
19. Mr. V.M. Thorat, learned Counsel for the appellants made a number of submissions before us. He firstly contended that the claim of Saibabai of being an injured witness should be taken with a pinch of salt because being the wife of the deceased she could volunteer to become an injured witness and, her injuries were located on non-vital parts of the body, were simple in nature, and were examined nearly 26 hours after the incident. We regret that we cannot accede to the submission of Mr. Thorat for reasons more than one. In the first place, we find that the doctor who had medically examined Saibabai gave out the duration of her injuries as twenty four hours old and this fits in with the time of the incident. The incident is alleged to have taken place at about 8.15 p.m. on 21-5-1992 and Saibabai's injuries were examined on 22-5-1992 at 10.00 p.m. Secondly, we are not prepared to believe that Saibabai who was aged about 45 years, would have chosen to get injuries manufactured, particularly on the posterior portion of her right thigh.
Thirdly, we find that no suggestion has been given to Saibabai in her cross examination that she got these injuries manufactured or they were self-inflicted injuries. The solitary circumstance that they are simple injuries and they are situated on non-vital parts of the body, would not in our judgment be sufficient to construe that these injuries were either manufactured or self-inflicted, as canvassed by Mr. Thorat.
19-A. Mr. Thorat next contended that the F.I.R. in the instant case was lodged after a considerable delay and this throws a cloud of suspicion on the truthfulness of the prosecution story. We regret that we cannot accede to this contention of Mr. Thorat either. We may mention that the incident is alleged to have taken place at about 8.15 p.m. on 21-5-1992 and the F.I.R. was lodged at 1.15 a.m. on 22-5-1992, by Saibabai P.W. 5 who received injuries during the course of the incident. In other words, the F.I.R. was lodged within five hours of the incident taking place. In this context, we would like to point out that Police Station Valsang where the F.I.R. was lodged is situate at a distance of about 30 Kms. from the place of the incident. In our view, considering that the distance to police station was about 30 Kms. a delay of five hours in the lodging of the F.I.R. is no delay. The evidence of P.W. 6 Jagannath is to the effect that the last bus had left. Therefore, we believe the statement of Saibabai that from the place of incident Solapur, they covered the distance on foot. That distance is about 15 Kms. Judicial notice can be taken of the fact that the distance between the place of the incident and Solapur is about 15 Kms. The learned Counsel for the parties also did not dispute the distance. The evidence further is that from Solapur to Valsang, Saibabai and Jagannath had gone on a bus. In these circumstances, in our view there is no delay in the lodging of the F.I.R.
19-B. Mr. Thorat learned Counsel for the appellant vehemently contended on the basis of some portions in the cross examination of Jagannath P.W. 6 that even after assault, the bus was available to Saibabai and Jagannath and they should have gone by the bus to Solapur. He invited our attention to para 4 of the cross examination of Jagannath, wherein he has stated that the same bus from which Saibabai had alighted returned via the place of incident after sometime. He contended that by it, they could have come to Solapur. Again we cannot persuade ourselves to agree with Mr. Thorat. It may be that by the time the bus returned back, Saibabai and Jagannath may well have been on their way to Solapur to lodge the F.I.R. It can also be that the bus may have been full and hence, there was no question of its stopping and picking up Saibabai and Jagannath, it cannot be definitely said that a bus was available for them for going to Solapur.
19-C. Mr. Thorat also emphatically contended that the evidence on record shows that on the way to Police Station Valsang, fell police outpost of Hotgi, and Police Station Solapur, but no F.I.R. was lodged at the aforesaid places. We are afraid that we cannot accede to this contention of Mr. Thorat either. In the cross examination of the informant, Saibabai, no question was put to her as to why she did not lodge the F.I.R. at the aforesaid places. It is true that Jagannath P.W. 6 who was accompanying Saibabai was asked whether they lodged a report at Hotgi or at Solapur and he replied in the negative. However, the cross examination did not probe further. He did not ask Jagannath as to why the F.I.R. had not been lodged at the aforesaid places.
To our mind, the conduct of the informant who was an elderly lady in lodging the F.I.R. at Police Station, Valsang cannot be faulted with for reasons more than one. Firstly, the place of the incident falls within the limits of Valsang Police Station and hence, she and Jagannath may have thought that it would be proper to lodge the F.I.R. there. Secondly, appellants Ashok and Bhimsha had been bound down in chapter proceedings from Police Station Valsang and Saibabai who must be understandably wanting that the killers of her husband should be punished might have thought that from Police Station Valsang she would get justice and hence, chose to lodge her F.I.R. there. In our judgment, there is nothing unnatural if she choose to lodge the F.I.R. at the Police Station Valsang.
19-D. Mr. Thorat finally contended that although the incident took place on 21-5-1992, at about 8.15 p.m. there is no satisfactory evidence about the existence of any source of light in which the witnesses could have recognised the appellants. It is true that in the F.I.R., no source of light has been mentioned. However, the informant Saibabai and Jagannath have stated in their depositions in the trial Court that they saw the incident in street light. Nothing could be elicited from them in their cross examination which would detract from this claim of theirs. We further find that P.W. 10 Ambanna Koli, peon in Gram Panchayat whose duty was to put on the street lights deposed that on 21-5-1992 he had put on the street light. After going through his statement, we finds no reason to disbelieve the same.
We regret that we cannot accede to this contention for another reason also. It is a trite that known persons can be recognised in feeble light and also by their gait, voice etc. The evidence on record is that the appellants were very well known to the witnesses from before the incident. It has come in the evidence of the informant Saibabai that appellant Bhimsha lives in her immediate proximity. It has also come in the evidence of the informant that appellants Namdeo and Ashok are brothers of Bhimsha and the remaining appellants are relations of Bhimsha. The evidence of Saibabai is to the effect that between Bhimsha and the deceased, there was enmity because, the former had a feeling that the latter had reported to the police about his nefarious activites. It is also in evidence that about an year prior to the incident, an application was made by the deceased against the appellants Bhimsha and Ashok. In view of all this evidence, it can be safely said that the appellants on the one hand and the deceased and the informant on the other were well known to one another from before the incident. A perusal of the statements of eye-witnesses Saibabai and Jagannath also show that they (especially Saibabai) came into close contact with the assailants. The autopsy report shows that the number of injuries on the deceased were as many as 17 and the injury report of the informant Saibabai shows that she sustained three injuries. In other words, the accused persons must have taken sufficient time in infliciting these injuries. Since they were known to the informant and Jagannath from before the incident and must have come in close contact with them when they assaulted them, and as the incident must have taken a fairly long time, Jagannath and Saibabai had ample opportunity to identify the accused persons particularly, because the incident took place on 21-5-1992 at about 8.15 p.m. when it must have been something in between light and darkness and not complete darkness.
Further, where the accused persons are intimately known to the witnesses from the incident, they can be recognised by them by their voice, gait etc. We are fortified in our view by the decision of the Apex Court , Kripal Singh, appellant v. State of Uttar Pradesh, respondent, in para 4 Their Lordships of the Apex Court observed thus :
'It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial. But the appellant was ultimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the sugarcane crop. Rakkha Singh had heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane. In the examination in chief, Rakkha Singh had deposed as if he had seen the actual assault by the appellant but in cross examination he stated that he had not seen the face of the assailant of Karam Singh. He asserted however, that he was able to recognise the appellant and his two brothers from their gait and voice. It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony' For the aforesaid reasons, we find no merit in this contention either.
20. Pursuant to the above discussion, we reach the conclusion that appellants Bhimsha Subanna Pawar, Namdeo Subanna Pawar, Ashok Subanna Pawar and Bhimya Menjya Chavan have been correctly convicted and sentenced on various counts by the learned trial Judge and their appeal deserves to be dismissed. However, we feel that the prosecution case against the appellants Vishwanath Bahadur Chavan and Menjya Mastan Chavan is not altogether free from doubt. By way of abundant caution, we give these appellants benefit of doubt.
21. In the result, this appeal is partly allowed and partly dismissed. The appeal of appellants Bhimsha Subanna Pawar, Namdeo Subanna Pawar, Ashok Subanna Pawar and Bhimya Menjya Chavan is dismissed. Their convictions and sentences on all the counts are confirmed. We are informed that they are in jail. They shall remain there till they serve out their sentences. The appeal of appellants Vishwanath Bahadur Chavan and Menjya Mastan Chavan is allowed. They are acquitted on all the counts. They are in jail and shall be released forthwith unless wanted in some other case. In case they have paid the fine, the same shall stand refunded to them.
22. If an application is made for a certified copy of this judgment by learned Counsel for the parties, the same shall be issued at an early date.