Bombay High Court
Rohit S/O. Sudesh Ramteke (In Jail) vs The State Of Maharashtra Thr. Assistant ... on 30 August, 2019
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, S.M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.228 OF 2016
Appellants : 1. Saurabh @ Dabba s/o. Vilas Adlag,
Aged about 22 years,
R/o. Old Babulkheda, Nagpur.
2. Sumit @ Sandy s/o. Ashok Bhasme,
Aged about 22 years,
R/o. Jaibhimnagar, Nagpur.
-- Versus --
Respondent : State of Maharashtra,
Through A.C.P. Ajni Division,
P.S. Ajni, Nagpur.
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Shri R.M. Daga, Advocate for appellant/Saurabh.
Shri Jaltare, Advocate for appellant/Sandy
Shri S.S. Doifode, A.P.P. for respondent/State.
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CRIMINAL APPEAL No.432 OF 2016
Appellant : Rohit s/o. Sudesh Ramteke,
Aged about 22 years,
Occupation : Now Nil,
R/o. Ambedkar Nagar,
Kunjilalpeth, Nagpur,
Tah. And District Nagpur.
-- Versus --
Respondent :State of Maharashtra,
Through Assistant Commissioner of
Police, Police Station Ajni, Nagpur,
Tah. And Distt. Nagpur.
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Shri Avinash Gupta, Senior Advocate and Shri Rakesh Tiwari, Advocate
with him for appellant.
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Shri S.S. Doifode, A.P.P. for respondent/State.
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CRIMINAL APPEAL No.38 OF 2017
Appellant : Chandrashekhar @ Chandrya
S/o. Arun Kawale,
Aged about 20 years,
R/o. Old Babulkheda,
(Presently Central Prison At Nagpur).
-- Versus --
Respondent : State of Maharashtra,
Through P.S.O. Police Station Ajani,
District Nagpur.
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Shri M.N. Ali, Advocate for appellant.
Shri S.S. Doifode, A.P.P. for respondent/State.
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CRIMINAL APPEAL No.223 OF 2016
Appellant : Ketan s/o. Ashok Shambharkar,
Age 26 years,
Occupation : Labour,
R/o. New Babulkheda, Nagpur.
(At present in Nagpur Central Prison)
-- Versus --
Respondent : State of Maharashtra,
Through P.S.O., ACP, Ajni Division,
Nagpur.
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Shri R.K. Tiwari, Advocate for appellant.
Shri S.S. Doifode, A.P.P. for respondent/State.
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CORAM : SUNIL B. SHUKRE & S.M. MODAK, JJ.
DATE : 30th August, 2019.
JUDGMENT :(Per : Sunil B. Shukre, J.)
1. All these appeals are being disposed of by this common judgment as they arise out of the same judgment and order, which have been assailed in all these appeals, they constituting the common cause for these appellants to feel aggrieved in this case.
2. The judgment and order under challenge have been rendered in Special Criminal MCOC No.7/2013 on 23/05/2016 by the Special Judge designated under MCOC Act and Additional Sessions Judge-5, Nagpur. By this judgment and order, the appellants numbering five in total have been found guilty of the offences punishable under Sections 302, 143, 147 and 148 read with Section 149 of the Indian Penal Code ('IPC' for short) and innocent of the offences punishable under Sections 3(1)(i) and 3(4) of the Maharashtra Control of Organized Crime Act ('MCOC Act' for short) and also under Sections 4 and 25 of the Arms Act. For their such guilt, the Special Judge has awarded to these appellants, such punishments as imprisonment for life and fine of Rs.2,000/- with default sentence of one year for an offence punishable under Section 302 read with ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 4 Section 149 of IPC for each of the appellants, rigorous imprisonment for three months and fine of Rs.500/- with default sentence of one month for an offence under Section 143 for each of the appellants, rigorous imprisonment of six months and fine of Rs.750/- with default sentence of two months for an offence under Section 147 for each of the appellants and rigorous imprisonment for one year and fine of Rs.1000/- with default sentence of three months for an offence under Section 148 of IPC for each of the appellants. There was one more accused, who was tried for all these offences along with the appellants, original accused No.4 - Narendra @ Naru Nandurkar, but he has been acquitted of all the offences with which he was charged in this case.
3. For the sake of convenience, we would now refer to these appellants by their nomenclature as accused and the order in which they were arrayed as accused in the charge-sheet. Appellant - Rohit Ramteke in Criminal Appeal No.432/2016 was the original accused No.1, appellant - Ketan Shambharkar in Criminal Appeal No.223/2016 was the original accused No.2, appellant Nos.1 & 2 Saurabh Adlak and Sumit @ Sandy Bhasme in Criminal Appeal No.228/2016 respectively were original accused Nos.3 & 6 and Appellant - Chandrashekhar @ Chandrya in Criminal Appeal No.238/2017 was original accused No.5. ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 5
4. It so happened that all the accused persons operating an organized crime syndicate in the vicinity of NDR Square Area, Banerjee Layout, Nagpur had cast their evil eye upon the house of one Shalu Gote, which was situated in the area of operation of the accused with a view to illegally grab the same. Accused No.1, in particular, had pressurized, on some occasions, Shalu Gote either to transfer her house in his name or pay him an amount of Rs.1,00,000/-, but Shalu Gote stubbornly refused to succumb to the pressure. Peeved over the obstinacy of Shalu Gote, the accused caused damage to her house and the incident was reported to Ajni Police Station in which deceased Santosh Sare, son-in-law of Shalu Gote, had taken a lead role. Since then, it appears that accused No.1 and all his associates in this crime had nurtured a grudge against the deceased. They found an opportunity to settle the score with the deceased in the night of 19/06/2013.
5. Incident, according to the charge framed against the accused persons, took place on 19.06.2013 at about 09:45 p.m. near NDR Square, Banerjee Layout, Nagpur. At that time, the deceased riding a motorcycle with his friend Saurabh Humne occupying pillion seat came to pass through the NDR Square. All the accused not wanting to squander the opportunity, obstructed the way of the motorcycle. The ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 6 rider and the pillion rider both along with the motorcycle fell down on the road. Immediately thereafter, it is alleged, accused No.1 Rohit Meshram lifted, the deceased and then he started giving fist and kick blows to the deceased. Accused No.2 Ketan Shambharkar accused No.3 Saurabh and accused No.6 Sumit @ Sandy not to be left behind also joined hands with accused No.1 in the assault and they too gave fist and kick blows to the deceased. At the same time, the other person riding pillion seat of the motorcycle, Saurabh Humne, was taken over by accused No.5 Chandrashekhar @ Chandrya and was dragged by accused No.5 to a place situated near a garage which was stated to be located in front of an Ice Cream Parlor. Accused No.5 gave 2-3 slaps to Saurabh Humne and then handing him over to accused No.4 Narendra @ Naru Nandurkar, returned to the spot where the remaining accused were busy assaulting the deceased by means of fist and kicks blows.
6. Reaching the spot where the deceased had been made to suffer the merciless shower of kicks and fist blows upon him, accused No.5 whipped out a knife and gave its multiple blows to the deceased. Accused Nos.1, 2, 3 & 6 also followed suit and gave multiple blows of the knives on the chest, abdomen and other parts of the body of the deceased. Deceased dropped to the ground in a pool of blood. The ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 7 assault, it is further alleged, did not stop there and all these accused persons lifted a cement block or a tile which was actually a lid of a sewage tank and hit it on the face of the deceased twice thereby crushing the face of the deceased.
7. Watching in horror the brutality displayed by accused Nos.1, 2, 3, 5 & 6, the other person Saurabh Humne, who was held by accused No.4 Naru Nandurkar, made an attempt at fleeing away from the spot by jerking off his hands from the clutches of accused No.4 and was successful in that attempt. Accused No.1 seeing the other person run away shouted to stop him saying that he should not be left and be killed. Accused No.4 then tried to chase Saurabh Humne but the effort was futile.
8. The incident, it is alleged, was watched by several persons but nobody came forward to speak anything about the incident as accused No.1 while running away from the spot of incident along with his associates on two motorcycles, had brandished the knife and had threatened the onlookers of dire consequences if any of them had the courage to speak a word against the accused persons. However, somebody had by that time already informed the Police Station Ajni and the police immediately swung into action. The police reached the ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 8 spot of incident and saw the aftermath of the ghastly incident. The cement block or tile covering the face of the deceased was removed. Spot-panchnama was drawn. Articles lying at the spot and which were relevant for investigation were seized. Local inquiry was made but, nobody said anything against the accused. The crime for various offences was registered against unknown accused. Dead body was sent to the Medical College and Hospital for conduct of postmortem examination. On the basis of secret information, accused Nos.1 to 5 were arrested on 29/06/2013, while accused No.6 was arrested later on. Discoveries were made and incriminating articles including the knives were recovered at the instance of the accused persons. The postmortem report was obtained. Necessary seizures were made. As it was found during the course of investigation that the accused persons were members of a crime syndicate and had committed this crime in an organized manner, sanction for invoking the provision of Section 3 of MCOC Act in the crime was obtained from the competent authority and the further investigation was carried on by an Officer of the rank of Assistant Commissioner of Police. After completion of the investigation, a charge-sheet was filed against all the accused persons and they were tried for the offences to which a specific reference has already been made earlier. The learned Special Judge acquitted accused No.4 of all the offences for which he was tried in this case, but ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 9 convicted the present appellants, who are accused Nos.1, 2, 3, 5 & 6 vide above-stated offences and in the manner stated earlier and acquitted all these accused persons of the offences under the provisions of the MCOC Act and Arms Act, as stated earlier, by the impugned judgment and order.
9. We have heard Shri Avinash Gupta, learned Senior Advocate for accused No.1- Rohit, Shri Tiwari, learned Counsel for accused No.2 Ketan Shambharkar, Shri R.M. Daga, learned Counsel for accused No.3, Saurabh, Shri M.N. Ali, learned Counsel for accused No.5 Chandrya and Shri Jaltare, learned Counsel for accused No.6 Sumit @ sandy. We have also heard Shri Doifode, leanred A.P.P. for the State. We have gone through the record of the case including the judgment and order.
10. It is not in dispute that in this case, the whole prosecution case is based upon the evidence of two key witnesses who were the eye witnesses namely, the PW-1 Akshay, and the PW-5 Mangesh, with some circumstantial evidence to give a boost to the prosecution case. Prosecution witness No.2, Santosh Humane, the pillion rider of the motorcycle rode by deceased Santosh, turned hostile and rendered no assistance to the prosecution as well as the court in finding the truth. ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 10 Similarly, the clothes seized in this case have not revealed any blood stains of human origin. So, we would be required to consider only the ocular evidence of PW-1 Akshay and PW-5 Mangesh and the relevant circumstantial evidence in order to find out the criminal liability of these appellants in the case.
11. Shri Gupta, learned Senior Advocate submits that the whole prosecution case suffers from fatal errors and therefore no credence could be attached to the evidence of PW-1 Akshay and PW-5 Mangesh as well as the findings given by the C.A. regarding presence of human blood of blood Group A on the knives and human blood on the slender stick recovered at the instance of accused No.1 and 3 (knives) and accused No.2 (slender stick). He submits that all the recoveries stated to be incriminating have been effected allegedly at the instance of accused No.1, 2 & 3 between 2 nd July, 2013 and 4th July, 2013 and the proved panchanamas show that the knives, clothes and all the articles seized in this case were deposited as property No.12/13 at Malkhana of Police Station Ajni on 12/07/2013 and that these all are admitted facts. He submits that except for the knives, all the seized articles were sent to the CA for analysis and report on 17/07/2013, while the knives were sent to the CA on 31/07/2017.
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12. Shri Gupta further submits that there is no evidence brought on record by the prosecution whatsoever as to where all the seized articles between the period from 2-4th July 2013 till their deposit in malkhana were lying and in what manner. This would, he further submits, create a doubt about the same articles allegedly seized from the accused persons being sent to the chemical analyzer and in the same conditions in which they were at the time of their seizure and as such, the evidence in the nature of CA reports would have to be ignored.
13. Shri Gupta further submits that admittedly the statements of two witnesses were recorded by Police on 12/07/2013 under Section 161 Cr.P.C. and the by the Judicial Magistrate in September, 2013 under Section 164 of Cr.P.C., which was after inordinate delay from the date of incident and no satisfactory explanation has been given by any of the prosecution witnesses and as such this delay has dealt a fatal blow to the prosecution case.
14. Shri Gupta further submits that apart from the fundamental mistakes pointed out earlier by him, there are certain important admissions as well as omissions in the evidence of both the key witnesses, PW-1 and PW-5. He further points out that even the ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 12 evidence of these two witnesses is not consistent on some of the material aspects of the whole incident.
15. Shri Tiwari, learned counsel for accused No.2, Shri Daga, learned counsel for accused No.3, Shri Mir Nagman Ali, learned counsel for accused No.5 and Shri Jaltare, learned Counsel for accused No.6 have made their submissions in similar vein as the learned Senior Advocate for accused No.1 in defence of the respective accused persons they represent. According to Shri Tiwari, learned counsel for accused No.2, PW-5 admitted that he had read the police statement before entering the witness box, which has created a doubt about his credibility. He has also pointed out that both the eye- witnesses were under the influence of police as admittedly, they were assisted by police constables before their depositions, and the police constables were also present in the Court hall at the time of the deposition of PW 1. Shri Daga, learned counsel for accused No.3 additionally has pointed out the discrepancy between the evidence of PW-1 and PW-5 in so far as the role attributed to accused no.3 is concerned. Shri Ali, learned counsel for accused No.5 pointing out from the evidence of defence witness No.1 submits that according to the defence witness, the person who ran the ice parlor and from where the eye witnesses have allegedly seen the incident, has stated in ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 13 categorical terms that from the ice cream parlor, the spot was not visible. Shri Jaltare, learned counsel for accused No.6, in his effort to point out some additional factors has submitted that there were material omissions in the evidence of the key witnesses which create doubt about the role attributed to accused No.6.
16. Shri Doifode, learned A.P.P. for the State, however, has expressed his complete disagreement with the argument so advanced on behalf of the appellants. He submits that when the ocular evidence is found to be trustworthy and this case being one such case, such evidence would require no corroboration. He submits that while accused Nos.1 to 5 were arrested on 29/06/2013, the accused No.6 was at large for some days more and was arrested on 06/07/2013 and so, it is only after this date that the fear of accused started subsiding. The statements of the two key prosecution witnesses were recorded on 12/07/2013 hardly after a delay of about six days, which he further submits, has been satisfactorily explained not only by the witnesses themselves but also the facts and circumstances of the case. He says that the terror of all the accused persons was so great that it prevented the eye-witnesses from coming forward to give any information to the police regarding the murder committed by the accused persons. He submits that the fear of these witnesses began immediately after the ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 14 incident when accused no.1 threatened them with dire consequences, if they revealed anything against them or about the incident to anybody including the police. In addition to that he submits, the mother of PW-1 and sister of PW-5 had also advised PW-1 and PW-5 to not speak anything against the accused and about the incident. He submits that this only added to the apprehension entertained by these witnesses about their own safety and, therefore, in spite of intermittent visits of the police to their residence, these witnesses chose to remain silent. He also submits that this fear of the witnesses disappeared only when the last of the six accused persons was arrested and it was after 06/07/2013. He also submits that even the Investigating Officer has given an explanation and he has not been cross-examined on this aspect of the matter.
17. Shri Doifode, learned A.P.P. further submits that there are hardly any omissions in the police statements of the key prosecution witnesses as these witnesses have admitted that the facts which they stated before the Court for the first time, were not stated by them before the police when their statements were recorded. He further submits that there are also no material contradictions in their respective testimonies rather their testimonies support each other. He further submits that the circumstantial evidence also corroborates the ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 15 ocular evidence, here. He points out that stains of human blood of Group-A have been found on the knives recovered from accused No.1 Rohit and accused No.3 Saurabh and also on the slender stick or twig recovered from accused No.2 Ketan. He further submits that none of the accused persons has given any explanation in this regard. He further submits that even otherwise, if the ocular evidence is trustworthy, corroboration from the circumstantial evidence is not required and in this case, the evidence of the eyewitnesses is completely reliable.
18. Shri Doifode further submits that there is also evidence about motive of the accused persons which can be gathered from the previous incident which took place on 28/09/2012 in respect of which offences were registered against the accused regarding their damaging the house of one Shalu Gote, whose son-in-law was the deceased and the accused then using obscene words against Shalu Gote, also issued a threat to bring under control her son-in-law deceased Santosh. Thus, he submits that this is a fit case wherein no interference with the impugned judgment and order is required.
19. Before we deal with the evidence relevant for ascertaining the role of the convicted accused persons in the present crime, we find ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 16 it necessary to first address the issue of homicidal nature of death of Santosh Sare. In fact, the evidence brought on record by the prosecution puts a stamp of confirmation on such nature of death of Santosh Sare in the night of 19.6.2013.
20. The incident is alleged to have taken place at NDR Square, Banerjee Layout at about 9.45 pm of 19.6.2013. According to the prosecution, at that time, deceased Santosh Sare was riding a motor-cycle with PW 2 Saurav occupying its pillion seat. The prosecution story is that just prior to 9.45 pm, the deceased along with PW 2 Saurav happened to pass through NDR Square on the motor- cycle when the accused persons led by accused no. 1 obstructed the way of motor-cycle and caused it fall down and thereafter they launched brutal assault not only by means of fist and kick blows, but also knives and finally cement-concrete tile on the person of Santosh Sare, while they also spirited away PW 2 Saurav to a spot some distance away from the spot of incident and subjected him to beating by kicks and fist blows. This prosecution story for its truthfulness would have to be verified by appreciating the evidence of the eye witnesses and other supporting evidence, if any. But, the fact remains that deceased Santosh was subjected to severe assault at the spot of incident at about 9.45 pm of 19.6.2013. This is evident from the spot ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 17 panchanama (exhibit 97), inquest panchanama (exhibit 82) and the evidence of PW 8 Dr Jaydeo Borkar, the Medical Officer who conducted post-mortem examination on the dead body of Santosh Sare in between 2.30 pm and 4.30 pm on 26.6.2013 which is supported by the post-mortem report vide exhibit 83.
21. The spot panchanama and inquest panchanama do show that deceased Santosh Sare was lying in supine condition at the spot of incident with his face being covered completely by a cement concrete tile. This cement-concrete tile had crushed the face of Santosh Sare and made it beyond visible recognition. These documents also show that several injuries including stab injuries were inflicted to Santosh Sare that made deceased Santosh lay at the spot of incident lifeless in a pool of blood. PW 8 Dr Jaydeo Borkar in his post-mortem examination had noticed in all 23 external injuries of varying nature from lacerated injuries, stab injuries to abrasive injuries. On internal examination, PW 8 Dr Jaydeo Borkar has also found corresponding injuries present on such internal organs as scalp, skull, brain, thorax, left lung, abdomen, stomach, small intestine, large intestine and kidneys. These injuries, in his opinion, were ante-mortem and made PW 8 Dr Jaydeo Borkar further opine that death of Santosh Sare was due to shock and haemorrhage produced by the injuries seen and noted by him in the ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 18 post-mortem report. Neither the spot panchanama nor the inquest panchanama nor the evidence of Dr Jaydeo Borkar nor post-mortem report has witnessed any dispute or challenge worth the name from the accused.
22. The evidence discussed above would make us feel convinced that there is not an iota of doubt to conclude that Santosh Sare was intentionally handed out a premature death brought out in a brutal and extremely painful manner by brutal human beings not one but mostly many as the nature of assault suggests. This raises a question - who are these brutes ?
23. According to the prosecution, these appellants who are accused nos. 1, 2, 3, 5 and 6 are responsible for causing such homicidal death of Santosh and in order to prove its case against these accused persons, the prosecution relies upon the evidence of PW 1 Akshay Uike, PW 5 Mangesh Tichkule and also Chemical Analyzer's Reports. Let us first examine the ocular evidence.
24. PW 1 Akshay Uike is a painter by profession. According to him, at about 8-8.15 pm on 19.6.2013, he along with his friend PW 5 Mangesh came to NDR Square and stood in a lane beside NDR Square. ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 19 He says that after some time, he heard a noise which would emanate on a motor-cycle taking to the ground. He further says that he and his friend saw two persons falling down along with the motor-cycle and then both of them saw accused nos. 1 to 6 as launching an assault, firstly upon the rider of the motor-cycle and then on the pillion rider of the motor-cycle. He has narrated the sequence of events as they unfolded one after another culminating into stabbing of the rider of the motor-cycle with knives by accused no. 5, accused no. 1 and accused no. 3 with the finale of smashing of face of the rider of the motor-cycle by a cement-concrete tile by accused no.1, accused no. 2, accused no. 3 and accused no. 6. He further says that he and his friend saw the incident from the ice-cream parlour and the distance between the spot of incident and the ice-cream parlour was of about 70-80 feet.
25. PW 1 Akshay has further stated that after the assault was over, all the accused went away from the spot of incident riding two motor-cycles, with each motor-cycle occupied by three accused persons. He also says that while leaving the spot of incident, accused no. 1 threatened all the on-lookers who had gathered at the spot of incident with dire consequences if they disclosed the incident to police. He then states that he and his friend were frightened and both of them went back home. He further says that on reaching home, he narrated ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 20 the incident to his mother who advised him not to disclose the incident to anybody and that he should forget the incident. He assigns the reason for such advice. He says that the advice was so given by his mother because of the terror of the accused persons in his locality. He also states that as the accused persons were not arrested, he carried a fear in his mind to speak anything about the incident before the police. He maintained that after arrest of the accused persons, he along with his friend went to the Police Station to narrate the incident on their own which was about 2/3 weeks of the incident and then police recorded his statement as per his say.
26. PW 5 Mangesh Tichkule, a driver by profession and friend of PW 1 Akshay Uike, has also narrated the incident in a manner having similarity on many aspects of the incident as disclosed by PW 1 Akshay Uike and dissimilarity on some of the aspects spoken about by PW 1 Akshay which are also significant. As far as the assault on the person of Santosh Sare by means of kick and fist blows, knives and cement-concrete tile is concerned, his version substantially matches with that of PW 1 Akshay. However, there are some significant deviations in his narration.
27. PW 1 Akshay says that he along with PW 5 Mangesh first ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 21 went to lane nearby NDR square and then both of them watched the incident from the ice-cream parlour. PW 5 Mangesh says that he along with his friend Akshay had been to ice-cream parlour at about 8.00 pm to 8.30 pm at NDR square. He states that both of them were standing in the lane of ice-cream parlour from where, according to him, the incident was witnessed by him and his friend PW 1 Akshay. So, there is a variation between these two versions as to from where they saw the incident from the ice-cream parlour or the lane of the ice-cream parlour ? There is no other evidence brought on record, which would clear this discrepancy. The defence witness (DW 1) adds another dimension. He says that the spot is not visible from the railing of the ice-cream parlour and there is nothing in his entire evidence to say that this statement is untrustworthy. So, the doubts continue - from which place the incident was seen or was it really seen ? And, these doubts stay all throughout.
28. The variation goes on further. According to PW 5 Mangesh, asccused no. 4 Naru Nandurkar and accused no. 5 Chandrashekhar @ Chandrya, after the rider and pillion rider of the motor-cycle had fallen down on the ground, carried the pillion rider off to a nearby garage. But PW 1 Akshay says that accused no. 4 Naru was already standing near the garage while accused no. 5 Chandrya had ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 22 dragged the other person (pillion rider) to garage in NDR Square. PW 1 Akshay says that accused no. 5 Chandrya subjected the second person to beating by means of stick and kicks near the garage, ascribing no role to accused no. 4 Naru in this beating. PW 1 Akshay says that after beating the second person, accused no. 5 left him in the custody of accused no. 4 Naru while accused no. 5 walked over to a place where accused no. 1 Rohit was busy beating the first person (rider of the motor-cycle). PW 5 Mangesh says that this second person was subjected to beating near the garage by both the accused no. 4 Naru and accused no. 5 Chandrya. These are further discrepancies, which, in our opinion, are significant, given the fact they were something which were noticeable without mistake even by a person not keenly watching the incident.
29. As regards dealing of stab injuries to the motor-cycle rider, PW 1 Akshay says that first use of knife against the rider of the motor-cycle was made by accused no. 5 Chandrya and then the same knife was taken by accused no. 1 Rohit from the hands of accused no. 5 Chandrya and used for inflicting stab injuries to the motor-cycle rider. PW 1 Akshay also says that accused no. 2 Ketan drew forth a knife and gave its blows to motor-cycle rider. He further says that accused no. 1 Rohit, accused no. 2 Ketan, accused no. 3 Saurabh and ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 23 accused no. 6 Sandy all lifted the cement-concrete tile which was kept as a lid over a nearby sewage tank and banged it on the face of the deceased. However, PW 5 Mangesh has given a sightly different version. He agrees that the first blow of knife was given by accused no. 5 Chandrya. He also agrees that accused no. 1 Rohit took the knife from the hands of accused no. 5 and gave it's 2-3 blows on the abdomen and chest of Santosh Sare. But, he also adds that accused no. 3 Saurabh took the same knife from the hands of accused no. 1 Rohit and used it for dealing its blows to the deceased, a fact not stated by PW 1 Akshay. He further says that accused no. 2 Ketan gave knife blows using his own knife, but again he ascribes additional role to accused no. 6 stating that using his own knife, accused no. 6 gave its blows to the deceased. So, PW 5 Mangesh has added two more accused persons viz. Accused no. 3 Saurabh and accused no. 6 Sandy as assailants who dealt knife blows to the deceased. As regards the use of the tile for crushing the face of deceased by accused no. 1 Rohit, accused no. 2 Ketan and accused no. 6 Sandy, PW 5 Mangesh, however, reiterates the stand of PW 1 Akshay. These discrepancies, in our opinion, could perhaps be explained on account of missing of some of the details of the incident by witnesses owing to too many things happening at the same time and hence are not really significant. But, we must say, the variations, discrepancies and doubts pointed out by ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 24 us in preceding paragraphs cannot be dismissed as insignificant.
30. Now, if we consider the cross-examinations of both these witnesses, we would find that many of the facts stated by them before the Court, were never stated by them either before the police or before the learned Magistrate recording their statements under Section 164 of the Code of Criminal Procedure or both and they also admitted that they did not state these facts.
31. The most important of the unstated facts or the omissions admitted by these witnesses relate to the explanation that they have voluntarily given by way of improvement before the Court about their belated disclosure of the incident to the police and consequent delayed recording of their statements under Section 161 Cr. P. C. According to PW 1 Akshay, the accused had not been arrested, that the accused had extended threats to those persons watching the incident of the dire consequences if they were to say anything about the incident to the police and that on his narration of the incident to his mother, he was advised by his mother to not tell the incident to anybody and forget everything about the incident, were the reasons for his not coming forward to disclose to the police anything about the incident. According to PW 5 Mangesh, the reasons for him to withhold the ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 25 information about the incident from police were that the accused had given a threat of teaching a lesson and on his sharing the facts of the incident with his sister, he was advised by his sister to not disclose to anyone the incident as the accused persons could also kill him. So, the reasons for these eye witnesses to not disclose the incident to the police immediately after the incident or even a reasonable period of time thereafter was the fear of the accused. The Investigating Officer PW 12 Bajrang Salunke has also given a explanation of similar kind. He has stated that due to the incident, the people in the locality were terrified and, therefore, they were not giving any information about the culprits. He has also stated that there was fear of the accused persons which made the eye witnesses withdraw themselves from the active participation in the investigation.
32. In the present case, the accused nos. 1 to 5 were arrested on 6.7.2013 and accused no. 6 was arrested on 6.7.2013. The statements of the eye witnesses PW 1 Akshay and PW 5 Mangesh were recorded for the first time on 12 th July 2013 and their statements under Section 164 Cr. P. C. were recorded much later in September 2013. The fact that PW 1 Akshay was advised by his mother against any disclosure, has not been stated by him in his statement under Section 161 Cr. P. C. or in the statement recorded by the learned ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 26 Magistrate. The fact that PW 5 Mangesh was also similarly counselled by his sister, has not been stated by him in both of his statements. This has been admitted by both the witnesses. Their explanation is that they were not asked about the same by the officer recording the statements. The explanation cannot be accepted for the reason that this was a fact which was within the exclusive knowledge of the witnesses and that it was also a fact accepted by them to be material and, therefore, it was for these witnesses to have disclosed such a material fact. Then, if the witnesses knew that it was a material fact which made them voluntarily state the same in their evidence before the Court, nothing had prevented them from also similarly volunteering an explanation before the concerned officer. The explanation so given for the first time before the Court, therefore, either appears to be an afterthought on their part or a result of some sort of tutoring given to them. As regards the tutoring of these witnesses and they being influenced in some manner in giving evidence before the Court in favour of the prosecution, we would deal with the same later. Presently, we find that the explanation given by the two eye-witnesses in the nature of motherly or sisterly advise against non-disclosure of afore-stated material facts earlier is not satisfactory and, therefore, we further find that a doubt is created about their reliability.
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33. As regards the other reasons given by PW 1 Akshay and PW 5 Mangesh about their silence for a very long time, the terror of the accused and threat of dire consequences issued by the accused, we find that they belie the conduct of these witnesses and that there are too many open ends to accept these reasons as satisfactorily explaining the inordinate delay.
34. These eye-witnesses have stated that after they learnt about the arrest of the accused that they chose to come out of their shells and of their own accord went to the police station for making necessary disclosures. Significantly, it is seen from their oral evidence that these witnesses were carrying out their daily pursuits after the incident giving an impression of their generally not living under fear. PW 1 Akshay has gone to the extent of even admitting that during the interregnum, police happened to visit his house twice and that he did not tell to the Police anything about the incident then. PW 5 Mangesh has admitted that he was attending to his daily pursuits after the incident. These witnesses have not stated anything about any particular fact which gave them an assurance that terror and fear of the accused persons was a passe making them feel safe to approach the police and disclose about the incident. At the cost of repetition, we would refer to the relevant dates in this regard. The accused nos. 1 to ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 28 5 were arrested on 29.6.2013 and accused no. 6 was arrested on 6.7.2013 and whereas statements of these witnesses were recorded on 12.7.2013. The witnesses have not stated as to when did they learn about the arrest of the accused persons and what made them feel so free as to break loose. These circumstances would show that the reasons as given by them for the delayed disclosure of incident to Police are a figment of imagination and hence unsatisfactory.
35. We have made these findings by applying the settled principles of law. For the sake of convenience, we would like to refer here to some of the cases laying down and reiterating the principles of law on the subject. They are as follows :-
A) Laxman Bapurao Ghaiwane v. The State of Maharashtra, Criminal Appeal No. 206 of 2008 decided on 6 th August 2012 by the Division Bench of this Court.
The Bench found great delay in recording statements of two witnesses which was of about three days and which was not explained in a reasonable manner by the prosecution. It, therefore, held the testimony of the witnesses as unreliable. The Division Bench further held that even though the delay by itself could not be a ground for disbelieving and discarding the entire prosecution case, in absence ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 29 of satisfactory explanation, the delay could be fatal to the prosecution.
B) Amar Ramesh Lohkare v. The State of Maharashtra (Criminal Appeal No. 521 of 2014 along with two more appeals)
decided on 4th May 2016, by a Division Bench of this Court.
The Bench took similar view as in the earlier case when it held that the delay can always be explained, but the inordinate delay without any satisfactory explanation, is certainly fatal to the prosecution case. The Division Bench, following the law laid down in the case of Vadivelu Thevar & anr v. State of Madras, reported in AIR 1957 SC 614, held that since the Court was concerned with the quality and not with the quantity of the evidence, the oral testimony could be broadly classified in three categories, viz. -
(i) wholly reliable
(ii) wholly unreliable
(iii) neither wholly reliable nor wholly unreliable
The Division Bench held that in the first two categories of proof, there would be no difficulty in coming to the conclusion by accepting the evidence, but for the third category of proof, the Court had to be circumspect and must look for corroboration in material particulars coming from reliable sources, direct or circumstantial. Assessing the prosecution evidence on the touchstone of these time ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 30 tested principles of law, the Division Bench found the evidence of two eye witnesses, PW 1 Rajesh and PW 2 Vivek, as untrustworthy and unreliable, there being delay in performing their respective roles regarding disclosure of the incident, without giving any satisfactory explanation.
C) Shahid Khan v. State of Rajasthan reported in (2016) 4 SCC 96.
In this case, statements of eye witnesses were recorded after three days of the incident and that there was no explanation about the delay which occurred in recording of the statements. There was no corroboration to the evidence of the witnesses. In this setting of facts, the Hon'ble Apex Court held that unexplained silence and delayed statements to police would make the eye witnesses appear to be introduced witnesses making them wholly unreliable. D) State of UP v. Satish reported in AIR 2005 SC 1000:-
The Hon'ble Supreme Court, reiterating the same principles of law, as stated earlier, has held that there is no rule of universal application by which one can say that whenever there is any delay in recording statements of witnesses, the prosecution version becomes suspect and that the effect of delay on the prosecution case ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 31 would depend upon several factors. It has also held that if the explanation offered for the delayed examination is plausible and acceptable, there would be no reason to interfere with the conclusion recorded by the trial Court. The Hon'ble apex Court has further held that when there is a delayed examination of the witnesses, the Investigating Officer is required to be categorically asked as to why there was delay in examination of the witnesses or otherwise the defence cannot gain any advantage therefrom.
36. There is of course an explanation given by the Investigating Officer for the delayed recording of the statements of PW 1 Akshay and PW 5 Mangesh. He says that the witnesses were living under the terror of the accused persons which made them keep silence for a considerable period of time. This explanation on the face of it appears to be unsatisfactory, being an attempt on his part to explain his own mistakes in the investigation, which has caused fatal damage to the prosecution's case. This is also the argument of learned senior counsel and learned counsel for the accused persons though learned A.P.P. disagrees. The disagreement of the learned A.P.P. as we see, has no anchor in the facts and circumstance of the case. The learned A.P.P. points out that there is no categorical cross-examination of the Investigating Officer made by the accused persons in this regard. It is ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 32 true also. But the question is - has failure to cross-examine the Investigating Officer on this issue really resulted in establishing the purity of the explanation given by the Investigating Officer ? In our opinion, the answer is in the negative.
37. We would say that it is difficult to lay down as proposition of law that in all cases where the explanation given by the witnesses or the Investigating Officer on the delayed recording of the statements under Section 161 of Criminal Procedure Code is not contravened in the cross-examination by the accused, the explanation must be accepted as of diamond quality regardless of intrinsic worth of the explanation. There is no denying the fact that prosecution can always draw advantage from the failings and follies committed by the accused in the conduct of the cross-examination of a prosecution witness. But, it can do so only as a support, as an assurance, as a corroboration to the truthfulness of the fact stated in the examination -in-chief and not as the original proof of the fact itself. A fact which necessarily has to be proved by the prosecution must be established by it first and then only failure to deny the fact or subject it to the test of cross- examination would result in its complete acceptance or admission by the accused. Of course, there can be a situation where peculiar questioning in the cross-examination of the prosecution witness brings ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 33 on record new material clearly incriminating the accused. These situations are different and can shorten the task of the prosecution to prove the guilt of the accused. But, that situation is different where a fact is obscurely or untruly stated in the examination-in-chief itself. If the fact stated in the examination-in-chief is vague, unclear or does not ex-facie depict the truth, no failure to cross-examine a witness on such a fact would be sufficient to draw any inference about proof of fact stated in the examination-in-chief. This is for the reason that burden of proof in a criminal case is always on the prosecution and it would shift to the accused when the initial burden is discharged by the prosecution.
38. In the present case, the explanation given by the Investigating Officer is immanently not of sterling quality. Apart from it is being of vague nature, it also appears to be untrue. The reasons for such a conclusion are to be found in the facts and circumstances brought on record in the prosecution's evidence.
39. According to the prosecution evidence, Investigating Officer, knew that there were witnesses to the incident and that nobody was coming forward to say anything about the incident. The Investigating Officer had also visited at least twice the house of PW 1 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 34 Akshay in between the period from the date of incident i.e. 19.06.2013 and recording of the statement of PW 1 i.e. on 12.07.2013 and that he had also asked PW 1 Akshay if he knew anything about the incident to which admittedly, the answer given to him by PW 1 was that he was not aware of the same. The statements of the two eye-witnesses were recorded with inordinate delay and witnesses did not give any categorical explanation about the reason for their maintaining silence about the incident upto a particular date. According to eye-witnesses, they were also advised respectively by their mother and sister to not disclose anything about the incident to anybody. The eye-witnesses also admitted the fact that advice so given to them by their mother and sister was not stated about by them at the time of recording of their statements. They say that they were not asked anything about the delay by the Investigating Officer, if it is true. In any case, an Investigating Officer who had come to naught despite knowing that possibly there were some eye-witnesses would certainly ask the witnesses approaching him after an inordinate delay as to what made them speak up and why on that day they were coming to him. The evidence of the Investigating Officer does not throw any light on this important aspect of the case. In a case like this any reasonable man would expect the Investigating Officer to visit the spot of incident and nearby areas and make public the arrest of all the accused, just to allay ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 35 fear, if any, of the probable eye-witnesses so that they came forward and assisted the investigation. The Investigating Officer has maintained silence in this regard as well, and no explanation either has been offered by him. So, the explanation given by the Investigating Officer is rejected.
40. Learned Additional Public Prosecutor has referred to us the case of Sunil Kumar & anr v. State of Rajasthan reported in AIR 2005 SC 1096 in support of his argument that the eye witnesses in the present case having been threatened with dire consequences by the accused persons if they disclosed the incident to anybody, the delayed recording of their statements cannot be treated as severely affecting the prosecution case. With respect, we disagree. We have, for the reasons stated earlier, found the explanation given by the eye witnesses and also the Investigating Officer as completely unsatisfactory and as such, the argument cannot be accepted.
41. Learned Additional Public Prosecutor has also referred to us the cases of Ranbir & ors v. State of Punjab reported in (1973) 2 SCC 444; Sheo Shankar Singh v. State of Jharkhand & anr reported in (2011) 3 SCC 654 and Mahadeo Laxman Sarane & anr v. State of Maharashtra reported in (2007) 12 SCC 705.
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42. The cases of Ranbir and Sheo Shankar lay down the same principles of law governing the delayed recording of statement of a witness as discussed earlier. They say that mere delay in examination of a particular witness does not, as a rule of universal application, render the case of the prosecution suspect and it would all depend upon the explanation, if any, the Investigating Officer may offer for the delay. In Ranbir, it is also held that the fact of delayed examination of a witness must be put to Investigating Officer so as to enable him to explain the delay, if any, in examining the particular witness. In the present case, the Investigating Officer has himself given the explanation for the delay, but the same has been found to be unsatisfactory, for the reasons stated earlier.
43. The case of Mahadeo is on the point of effect of improvements made during the course of deposition of a witness. The Hon'ble Apex Court held in the facts and circumstances of that case that the improvements which made the trial court suspect the veracity of the eye witnesses, were really not there and that in the first information report, important facts were implicitly stated and that it was not expected of an informant to disclose all minute details of the occurrence in his report. In the present case, there are many improvements in the depositions of the eye witnesses, PW 1 Akshay ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 37 and PW 5 Mangesh, which being material, as discussed earlier, have amounted to contradictions, thereby magnifying their already doubtful testimonies.
44. The facts and circumstances discussed above reasonably create a possibility of PW 1 Akshay and PW 5 Mangesh being manufactured witnesses for several reasons. Their explanation and also of the Investigating Officer on delayed recording of their statements has been found to be unsatisfactory. Secondly, the evidence of PW 1 Akshay and PW 5 Mangesh shows that both of them were, as found earlier, leading a life during the period from the date of incident till recording of their statements, in a way which could be called as unperturbed, showing no signs of any dread. They were not confined to their homes rather appeared to be carrying out their daily pursuits as usual. PW 1 has gone to the extent of even informing the Investigating Officer on being questioned by him that he did not know anything about the incident, which, even if examined in the context of his initial fear, cannot ultimately be taken to be true for the reason that even after arrest of the accused persons, for several days, PW 1 Akshay did not come forward to disclose about the incident. Thirdly, both the witnesses were given active help by the Investigating Officer either in recording of their statements or giving of evidence before the Court or ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 38 both. PW 1 Akshay has admitted that he was given general information about the investigation by the Investigating Officer before recording of his statement and that he came to the Court alongwith two Police Constables. Similarly, PW 5 Mangesh has also admitted that before he entered the witness box, he went through his police statement. If they were genuine witnesses, we do not think, they would have been required to be told about the case in this manner. Then, such help given by the prosecution to the key eye-witnesses was not a case of refreshing of the memory of the witness by referring to the copy of his statement under Section 161 of Criminal Procedure Code after seeking permission of the Court in terms of Section 159 of the Indian Evidence Act, 1872, it having been done much before the examination of the witness on oath and not while the witness was under examination. It was all carried out behind the back of the Court and also the accused persons. If these witnesses were genuine, they would not have required any such help from the Investigating Officer. But the fact remains that it was given and that too in a manner not permissible under the law. That only shows that both the eye- witnesses are wholly unreliable and not only that, the kind of assistance given to them by the Investigating Officer has vitiated their testimonies before the Court and rendered their evidence tainted. ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 39
45. Apart from the testimonies of two eye-witnesses being wholly not trustworthy and even tainted, there are some more facts and circumstances, which further push the prosecution case into realm of doubt. To give some examples, we would refer to some of them, which in our opinion are significant.
46. PW 5 Mangesh admits that he did not state before the police that after the incident the accused persons fled away from the spot on moped and motor-cycle and that he along with PW 1 Akshay had been to ice-cream parlour. Similarly, PW 1 Akshay did not admittedly state before the police and the Magistrate that he had seen the incident from a distance of about 70-80 feet and that after the incident, all the six accused persons left the spot of incident riding two motor-cycles, each of which was occupied by three of them. He also admits that when police came to his house, he told to them that he had no knowledge of the incident. The defence witness DW 1 states that spot of incident cannot be seen from the railing of the ice-cream parlour and there is a doubt, as discussed earlier, as to exactly from where the two eye-witnesses saw the incident. Then, the prosecution has not examined as it's witness mother of PW 1 Akshay and sister of PW 5 Mangesh although they had played important roles, according to the eye-witnesses, in keeping them silent over the incident for a period ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 40 of twenty-three days after the incident and for a period of six days after the arrest of the last of the accused, accused no. 6, on 6.7.2013. All these facts and circumstances cumulatively give rise to a veritable doubt about the prosecution case and, as the settled law indicates, now we would have to look for corroboration and to ascertain if any support, for removal of doubts, is coming forth or not.
47. So, what would be now necessary for us is to see as to whether or not there are any other eye witnesses or any other evidence, direct or circumstantial, which would help clear the doubt entertained by us about the creditworthiness of the two eye witnesses, PW 1 Akshay and PW 5 Mangesh. PW 4 Dilip and PW 6 Komal are respectively the father and the widow of deceased Santosh. They were not the eye witnesses and, therefore, their testimonies would be of no help to us. PW 2 Saurabh Humne was the pillion rider of the motor-cycle rode by deceased Santosh Sare. He was, therefore, a good witness in this case. But, the prosecution lost him on account of his turning hostile. Even his cross-examination taken with the permission of the court by the learned APP did not yield any useful material. There is no other direct evidence brought on record by the prosecution. Thus, the hunt for the other direct evidence which could possibly be used for corroborative purpose has stopped here. ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 41
48. Now, we would turn to the circumstantial evidence and to our great dismay, we find that it is of no value in the eye of law. The clothes of the accused persons, the knives and the stick seized from them were sent to the Regional Forensic Sciences Laboratory for chemical analysis and report. C. A. Report dated 30.12.2013 discloses that the knife seized at the instance of accused no. 1 Rohit and the knife seized at the instance of accused Chandrya were stained with human blood of "A" group. Blood of deceased Santosh has been found to be of "A" group and so also of accused no. 1Rohit, accused no. 2 Ketan and accused no. 6 Sandy as of "A" group. The stick has also been found to be having on it human blood. However, this evidence cannot be accepted and deserves to be discarded for the reason that there is a huge time-gap between seizure of the articles and their deposit in the Malkhana of Police Station. The seizures were made upto 4 th July, 2013 and the seized articles were deposited in Malkhana on 12.07.2013. No explanation has been offered whatsoever by the Investigation as to exactly where did he keep these articles from the dates of their seizure till there being deposited in the Police Station Malkhana and in what conditions these articles were kept. The Investigating Officer has simply said that these articles were in his safe custody, but has not explained as to what did he mean by that. So, there is a doubt if the seized articles were sent for analysis and report ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 42 to Chemical Analysis or not and as such this circumstantial evidence is of no value in this case, and is discarded.
49. Learned A.P.P. has also stressed upon presence of motive here. In our opinion, so far as the present accused are concerned, motive is not relevant for the reason that the direct and circumstantial evidence led by the prosecution on the commission of the crime involved here, itself has failed to show the guilt of the accused therein beyond any reasonable doubt.
50. The result of the discussion thus far made is that the evidence of the two eye witnesses PW 1 Akshay and PW 5 Mangesh is wholly unreliable so much so that they appear to be got-up witnesses and that there is no corroboration coming from anywhere to the versions stated by them before the Court. There are also some discrepancies of significant nature in their versions. They were also assisted by the Investigating Officer either in recording of their statements or testifying before the Court or both. All these aspects of the case though material were not considered by the learned trial Judge, and the result is that of a mistaken appreciation of evidence leading to ::: Uploaded on - 04/09/2019 ::: Downloaded on - 18/04/2020 01:27:29 ::: 43 conclusions not logically arising from the evidence available on record. This is a case where benefit of doubt ought to have been given to the accused persons who are appellants before us and now, the same would be given to them by us.
51. Thus, we find that the prosecution has failed to prove the charge for the offence for which the accused persons/appellants have been found guilty and convicted by the trial Court in the impugned judgment and order and that they deserve to be acquitted of the same by allowing all the appeals.
52. Accordingly, the appeals are hereby allowed. The impugned judgment and order are hereby quashed and set aside. The accused/appellants be set at liberty forthwith if not required in any other crime. Fine amounts, if paid, be refunded to the accused persons. Disposal of the property shall be as per the trial court's judgment and order.
S. M. MODAK, J. SUNIL B. SHUKRE, J.
joshi
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