Bombay High Court
Kishor Mahadev Tarkar And 3 Others vs The State Of Maharashtra on 29 October, 2021
Bench: Sadhana S. Jadhav, Prithviraj K. Chavan
Appeal 922-98-127-99.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.922 OF 1998
A/W
CRIMINAL APPLICATION NO.774 OF 2006
IN
CRIMINAL APPEAL NO.922 OF 1998
1. Kishor Mahadev Tarkar ]
Age: 36 years, Occu. Service, ]
2. Satish Dattaram Amberkar, ]
Age Adult, ]
3. Sitaram Dattaram Baraskar, ]
Age Adult, ]
4. Santosh Dattaram Baraskar, ]
Age Adult, ]
All R/o Khapridevo Co-op ]
Housing Society, Parmanand Wadi,]
Parel, Mumbai-400 012. ] Appellants
(Original Accused No.1, 2, 4 and 8)
Vs
THE STATE OF MAHARASHTRA ]
(At the instance of Sr. P. I. ]
R.A. Kidwai Marg Police Station, ]
Mumbai.) ] Respondents
a/w
CRIMINAL APPEAL NO.127 OF 1999
Vijay Sahadeo Karekar ]
Age: yrs, Occu... ]
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SHAILAJA Digitally signed by
SHAILAJA SHRIKANT
SHRIKANT HALKUDE
Date: 2021.10.29
HALKUDE 16:24:48 +0530
Appeal 922-98-127-99.doc
r/o Khapridevo Co.op. Hsg. Soc. ]
Parmanandwadi, Parel, Mumbai ]
400 012. ] Appellant
Vs.
THE STATE OF MAHARASHTRA ]
(At the instance of Inspector ]
of Police, R.A. Kidwai Marg, ]
Police Station) ] Respondent
.....
Mr. Kuldeep S. Patil, for Appellants in both the Appeals.
Ms. P.N. Dabholkar, A.P.P., for Respondent-State.
.....
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 4th OCTOBER, 2021.
PRONOUNCED ON: 29th OCTOBER, 2021.
COMMON JUDGMENT: [Per Prithviraj K. Chavan, J.]:
1. By these appeals, the appellants have challenged the
judgment and order of conviction rendered by the learned
Additional Sessions Judge, Greater Bombay in Sessions Case
No.1362 of 1997 on 24th November, 1998 by which the appellants
have been convicted of the offences punishable under sections
144, 148, 302 r/w 149 of the Indian Penal Code (for short 'I.P.C').
They have been acquitted of the offences punishable under
sections 452 r/w 149 or 452 r/w 34 as well as offences under
sections 427 r/w 149 or under section 427 r/w section 34 of the
I.P.C.
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2. The prosecution case, in a nutshell, can be summarized as
follows;
Accused No.1-Kishor Tarkar was the Chief Promoter of
Khapridevi Co-operative Housing Society and rest of the accused
were his followers. Deceased Santosh Iyre (for short 'deceased
Santosh') was not a member of the said society, but he used to
attend the meetings of the said society and used to oppose the
office bearers of the society and, therefore, there was an enmity
between deceased Santosh and accused.
3. On 14th July, 1997 at about 9.15 p.m, deceased Santosh was
proceeding towards Datta Mandir. P.W.1-Pravin Iyre (complainant)
was following him. Suddenly, they noticed a mob consisting of all
the accused and others armed with deadly weapons coming
towards deceased Santosh. Deceased Santosh tried to run away,
but was chased by the mob. The mob nabbed him near one 'Shinde
Saloon' and it was alleged that absconding accused namely
Vinayak assaulted deceased Santosh by means of a chopper.
4. Thereafter, accused No.3-Vijay Karekar assaulted deceased
Santosh with a suri (knife) on his leg and neck. It is further
alleged by the prosecution that accused No.2-Satish Amberkar
assaulted deceased Santosh with a suri (knife) on his right
shoulder and accused No.1-Kishor Tarkar assaulted him with a
chopper on his right shoulder.
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5. At that time, other members of the mob were simultaneously
assaulting deceased Santosh with hockey sticks and fists. Deceased
Santosh tried to escape and entered into the house of one Vijay
Ghadi. However, it is alleged that absconding accused Vinayak,
accused No.4-Sitaram Baraskar and accused No.8-Santosh
Baraskar dragged deceased Santosh from the house of the said
Vijay Ghadi, brought him on the road and then assaulted him.
Some of the people in the vicinity came for the rescue of the
deceased Santosh. Accused, thereafter, escaped towards the hill
side.
6. It is alleged that just before the aforesaid incident, the said
mob had also assaulted one more person namely Mangesh Varpe
(P.W.7) and injured him. Deceased Santosh and injured Mangesh
Varpe were taken to KEM Hospital. Deceased Santosh was declared
brought dead on admission.
7. On the basis of the aforesaid allegations against the accused,
an F.I.R came to be registered. P.W.12-Surbhi Tripathi- Investigating
Officer visited the spot of incident. She recorded a spot
panchanama. She had seized a Maruti Car bearing registration No.
MHO-2-J-6311 which was parked on the road at the entrance of
the gate of Parmanandwadi in a damaged condition. There were
pieces of glass, stones, pieces of roof tiles as well as blood and
hair which came to be collected under panchanama and were duly
seized. The investigating Officer recorded statements of the
witnesses. She registered a crime bearing No.213 of 1997 against
some unknown persons at Kidwali Marg Police Station. Thereafter,
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the Investigating Officer visited the house of P.W.1-Pravin Iyre and
attached his blood stained clothes namely one white 'T' shirt and
one white jeans. The accused were subsequently arrested. The
seized articles were sent for chemical analysis.
8. It is the case of the prosecution that pursuant to the
voluntary statement made by accused No.3-Vijay Karekar and
accused No.4-Sitaram Baraskar while in the Police custody a suri
(knife) was produced by accused No.3-Vijay Karekar from his
residence and a hockey stick was produced by accused No.4-
Sitaram Baraskar from his residence which were seized under a
recovery panchanama.
9. A Test Identification parade was also arranged on 23 rd
August, 1997 in Arthur Road Jail wherein accused No.5-Subhash
@ Dhomya Sakharam Revane and accused No.6-Arun Babaji
Ghanekar were placed for identification by the Special Executive
Officer Mr. Chavan. It is the contention of the prosecution that
during the Test Identification parade, P.W.1-Pravin Iyre, P.W.3-
Santosh Yende and one Raju Karangutkar had identified both
accused No.5 and 6 before Special Executive Officer and panchas.
10. After investigation, a charge-sheet was filed in 13 th Court of
Metropolitan Magistrate at Dadar which ultimately came to be
committed to the Sessions Court.
11. The learned Additional Sessions Judge after hearing the
respective sides framed a charge under sections 144, 148, 302 r/w
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149, in the alternative 302 r/w 34, 452 r/w 149, in the
alternative, 452 r/w 149, in the alternative 452 r/w 34, under
section 427 r/w 149, in the alternative under section 427 r/w 34
of I.P.C. The charge was read over and explained to the accused in
Marathi to which each of them pleaded not guilty and claimed to
be tried.
12. Defence of the accused, as emerged from the cross-
examination as well as from their statements under section 313 of
the Code of Criminal Procedure (for short 'Cr. P.C') is that they had
not committed any offence and they have been falsely implicated
in this case.
13. Thirteen witnesses have been examined by the prosecution
coupled with documentary evidence in the form of panchanamas,
Chemical Analysis Report, notes of Post Mortem etc. The
prosecution had tendered muddemal property during the course
of trial.
14. The learned Additional Sessions Judge after recording the
evidence of prosecution witnesses and having heard the respective
sides, by the impugned judgment and order, convicted the accused
as stated hereinabove.
15. We heard Mr. Kuldeep Patil, learned Counsel for the appellants in
both the appeals and Ms. Dabholkar, learned A.P.P, for respondent-State.
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16. The learned Counsel for the appellants-accused took us
through the evidence of the prosecution witnesses and emphasized
that the learned Additional Sessions Judge committed a grave
error in ignoring the material omissions and contradictions on
record with respect to the alleged eye witnesses, more particularly,
the weapons held by each of them. These aspects go to the root of
the prosecution case as it is not clear as to who was armed with
which weapon.
17. Learned A.P.P supported the impugned judgment and order
of conviction.
18. There were two eye witnesses viz; P.W.1-Pravin Iyre- brother
of deceased Santosh (Exhibit 19) and P.W.3-Santosh Yende (Exhibit
24). Another eye witness is P.W.7-Mangesh Varpe, another injured-
(Exhibit 31).
19. There is no dispute that deceased Santosh died a homicidal
death which is evident from the testimony of P.W.2-Dr. Vijay
Kelvekar who conducted autopsy on the corpse of the deceased.
His evidence indicates that he noticed the following external
injuries;
(a) Incised stab wound over front of right upper arm
1.0 c.m way from upper angle of anterior axillary
fold, size of injury 1.5 c.m x 1.0 cm x muscles deep
in axilla;
(b) Incised stab wound over left side neck 4.0 c.m
below left angle of mandible 3.0 c.m away from
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midline of neck, oblique, 3.0 cm x 1.5 cm x neck
organs deep;
(c) Incised wound over right cheek, oblique, lower
end of injury 2.0 c.m away from right ear lobule
and upper end 3.0 c.m. below and lateral to right
eye outer angle size of injury 4.0 cm x 2.0 c.m x
bone deep, underneath maxilla bone cut lower and
tailing downwards 2.0 c.m.;
(d) Incised stab wound over right side neck, 1.0 c.m
below and behind right ear lobule, vertical size
was of 2.0 c.m x 1.0 c.m both angles acute;
(e) Incised chop wound on back of scalp (head),
occipital region, 12 c.m behind right ear pinna,
with skin flap from above downwards (3.5 cm).
Injury is transversely placed 9.0 c.m x 1.0 c.m x
scalp deep;
(f) Abrasion over back of chest, left side, across, upper
medial end of left scapula, 7 c.m x 0.5 c.m curved;
(g) Incised wound over right index finger on palmar
aspect of distal phalanx 2 c.m x 0.5 c.m x bone
deep, phalanx bone cut obliquely placed;
(h) Incised wound over right hand middle finger
plamar aspect lateral side on proximal phalanx 2
c.m x 0.5 c.m x muscle deep, oblique;
(i) Incised wound over right hand palmar aspect
hypothenar region, 1.0 c.m distal to wrist joint
anteroposteriorly placed, 1.5 c.m x 0.3 c.m.
muscle deep distal end tailing.
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20. On internal examination, P.W.2-Dr. Vijay Kelvekar noticed the
following injuries;
(a) On dissection of external injury No.1: It pierces
skin, subcutaneous tissues and muscles of axilla
vesseels of axilla (blood /clots in muscles of
axilla). The anterior surface of humerus bone is
nicked. Direction is medially backwards and
downwards;
(b) On dissection of external Injury No.2 : It pierces
skin, subcutaneous tissues and strap muscles and
vessels of neck. The thyroid cartilage on left side
obliquely cut and enters lqrynx along with strap
muscles carotid vessels and nerves
are cut. Blood / clots in left side neck.
Direction was injury medially upwards;
(c) On dissection of external injury No.4: It pierces
skin, subcutaneous tissues and muscles of neck.
The thyroid cartilage on right side is cut at upper
border the strap muscles and vessels with nerves
of neck in the region are cut. Blood/clots in neck
region. Direction medially downwards.
All the injuries were recent and ante mortem.
The Post Mortem report is proved at (Exhibit 22).
21. Though it is an admitted fact that deceased Santosh died a
homicidal death, yet a few admissions surfaced in the cross-
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examination of P.W.2- Dr. Vijay Kelvekar are also important.
Admittedly, this witness did not mention time of death. However,
he admits that in a medico legal cases time of death assumes
significance. He volunteered that usually the Doctors do not
mention time of death but when they were specifically asked by
the Investigating Officer then only they mention time of death. He
admits that in the present case the Investigating Officer did not
seek his opinion as to what kind of weapons could cause the
injuries noted on the dead body of deceased Santosh. He admits
that in the present case, Investigating Agency had not shown any
of the weapons to him in order to ascertain any nexus between the
injuries and the weapons alleged to have been used. Be that as it
may. Evidence of P.W.2- Dr. Vijay Kelvekar (Exhibit 21) and the
evidence of P.W.4-Parshuram Sawant, (Exhibit 25) who acted as
panch on inquest established the fact of homicidal death of the
deceased.
22. Since homicidal death has been established, it will have to
be seen whether prosecution has succeeded in establishing a
nexus between fatal injuries resulting into death of the deceased
Santosh vis-a-vis the complicity of each of the assailants and the
weapons alleged to have been used by them.
23. The prosecution has come up with a case that all the accused
had formed an unlawful assembly; armed with deadly weapons
with a common object of committing murder of deceased Santosh.
It is also the case of prosecution that all the accused had
committed house trespass into the house of one Vijay Ghadi which
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is near the Saloon and after dragging deceased Santosh outside,
they inflicted several blows on his person resulting into his death.
24. The evidence of P.W.1-Pravin Iyre who is also an informant
reveals that residents of the slum area had formed a society by
name Khapridevi Co-operative Housing Society for the purpose of
rehabilitation of hutment dwellers under the scheme of
Government of Maharashtra. Admittedly, deceased Santosh was
not the member of the society. However, according to P.W.1-Pravin
Iyre, dispute amongst the members of the society was going on, on
account of whether they would be provided with 180 square feet
of plot area or 220 square feet of plot area to each of the member
of the society. It was a dispute which was essentially between the
Chief Promoter and members of the society. As a matter of fact,
deceased Santosh had no business to attend and take active part
in the said meeting as he was not the member of the society.
25. The evidence of P.W.1-Pravin Iyre further indicates that on
14th July, 1997 at about 5.00 p.m, there was a dispute between one
Seema Gadade and Sudhakar Shinde. Seema Gadade was
assaulted by Sudhakar Shinde. Both were residents of the same
area. In the same night around 9.15 p.m when he was present in
his house along with his mother and deceased Santosh, somebody
had pelted stones from outside upon the roof of their house. He
along with deceased Santosh came out of the house and noticed
pieces of soda water bottles lying in front of their house.
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26. Deceased Santosh proceeded towards the open ground. He
was followed by this witness. They noticed accused No.1-Kishor
Tarkar, accused No.2-Satish Amberkar and accused No.3-Vijay
Karekar along with accused Vinayak Gaikwad, accused No.8-
Santosh Baraskar and other members running towards their house.
He witnessed accused Vinayak armed with a chopper, accused
No.1-Kishor Tarkar armed with another chopper, accused No.3-
Vijay Karekar armed with suri (knife), accused No.2-Satish
Amberkar armed with a knife while accused No.8- Santosh
Baraksar and accused No.4-Sitaram Baraskar were armed with
hockey sticks. They were abusing while approaching towards the
house of this witness. Deceased Santosh frightened and turned
back. However, he was followed by the mob near a saloon run by
one Mr. Shinde. His evidence further indicates that accused
Vinayak Gaikwad dealt a blow of chopper on the rear side of the
head of deceased Santosh. Accused No.3-Vijay Karekar inflicted a
blow of knife on the left side neck of deceased Santosh. Accused
No.2-Satish Amberkar hit the deceased on his right shoulder by
means of a knife. Accused No.1-Kishor Tarkar hit deceased
Santosh with a chopper on the right cheek and rest of the
members of the assembly assaulted deceased Santosh with hockey
sticks as well as by fist blows.
27. Deceased Santosh tried to escape from the clutches of the
accused, and in that attempt, entered into the house of one Vijay
Ghadi which is near the saloon. However, accused No.8- Santosh
Baraskar, accused No.4 -Sitaram Baraskar and Vinayak dragged
deceased Santosh from the house and again assaulted him. P.W.1-
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Pravin Iyre raised hue and cry for help. Hearing his shouts, one
Raju Kalgutkar, Vijay Ghadi and Mangesh Rane came over there.
By that time, the assailants made their escape good towards the
hill side through a lane by the side of a public lavatory alongwith
their weapons.
28. Deceased Santosh was lying on the road with bleeding
injuries. With the assistance of Vijay Ghadi, Mangesh Rane and
Raju Kalgutkar, this witness picked him up and took him to the
K.E.M Hospital in a jeep. The jeep was given by one Bunty. On
examination, the Doctor declared him dead. The reason for non
examination of Vijay Ghadi by the prosecution has had an adverse
impact upon the prosecution, for, he could have been the best eye
witness from whose house deceased Santosh was dragged by the
assailants.
29. The evidence of P.W.1-Pravin Iyre further indicates that
P.W.7-Mangesh Varpe had also sustained bleeding injuries in the
same incident over his head, right leg and was also admitted in
K.E.M Hospital. Upon inquiry, P.W.7- Mangesh Varpe informed this
witness that he too was assaulted by the same assailants.
30. P.W.12-Surbhi Tripathi-Woman Police Sub Inspector arrived
at K.E.M Hospital and inquired with the injured as well as this
witness. She recorded the statement of this witness also. The First
Information Report is proved at (Exhibit 20).
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31. The evidence of P.W.1-Pravin Iyre further indicates that after
recording his statement and complaint, his elder brother Dilip
arrived at K.E.M Hospital and asked him to go to the house and
stay with their mother. After the incident, P.W.1-Pravin Iyre was
again called by the Police in Arthur Road Jail for attending a Test
Identification Parade to identify the suspects namely Subhash
Revane and Arun Ghanekar. As already stated, they have been
acquitted by the trial Court. Even otherwise, Test Identification
Parade was a farce since witnesses already knew the suspects.
32. P.W.1-Pravin Iyre in his further examination-in-chief testified
that the articles which were shown to him during the course of the
trial were as follows;
(a)chopper-Article-1,
(b)gupti - Article -2
He identified a chopper held by accused No.1-Kishor Tarkar. Two
different knives held by accused No.3 Vijay Karekar and accused
No.2-Satish Amberkar and hockey sticks held by accused No.8-
Santosh Baraskar and accused No.4- Sitaram Baraskar.
33. The evidence of P.W.3-Santosh Yende is quite similar to that
of P.W.1-Pravin Iyre.
34. Interestingly, P.W.1-Pravin Iyre testified that deceased
Santosh was assaulted on the left side of his neck but when the
gupti (sword stick) was shown to him, he called it a suri (knife).
Knife and sword stick are altogether different kinds of weapons.
He admits that he very well knew the difference between knife,
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sword, gupti and suri. If that being so, how he could call a sword
stick as knife? He admits that sword sticks can only be used for
mounting an assault, whereas, a knife can be used for cutting
vegetables. He admits in the cross-examination that he did not
state before the Police as to who was armed with the sword stick
which is a material omission. He had correctly described the sword
stick in his evidence. Despite knowing the difference between the
weapons he describes sword stick as knife is nothing but a height
of stupidity.
35. He admits that he had not described any of the weapons
before the Police. He further admits that he had witnessed all the
weapons for the first time in the Court. He further admits that
none of the accused were armed with iron bars. However, he had
so stated before the Police. Thus, there are material contradictions
and omissions in the evidence of this witness which renders his
testimony unworthy of credit.
36. P.W.1-Pravin Iyre further admits in his cross-examination that
he had not witnessed as to who had pelted stones towards his
house. There is a material contradiction brought on record, in the
sense, that what had been stated before the Police is that he
noticed that deceased Santosh was surrounded by a mob near
Shinde Saloon and was being assaulted by them. If that being so, it
is difficult to believe as to whether he had really witnessed each of
the accused named above armed with specific weapons and their
assault upon deceased Santosh. When he was confronted with the
said portion from his statement before the Police, he admits that
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the said statement, perhaps, had been incorrectly recorded by the
Police. But, in the next breath, he deposed that he might have
been so stated before the Police.
37. P.W.1-Pravin Iyre was further confronted with the statement
made before the Police wherein he had stated that accused No.2-
Satish Amberkar had inflicted a blow on the right shoulder of
deceased Santosh by means of a sharp weapon, which, according
to his version is an incorrect statement recorded by the Police. He
admits that he only heard Vinayak abusing deceased Santosh and
none other. He further admits that he did not state before the
Police that all the accused were abusing deceased Santosh. As
such, it would be unsafe to rely upon such untrustworthy and
shaky evidence which suffers from material omissions and
contradictions.
38. It is an admitted fact that there was a dispute in the society
on account of rehabilitation of the slum dwellers and the question
was whether each member of the society would be allotted 180 or
225 square feet of plot area. The dispute was between the Chief
Promoter and the members of the society. It is difficult to digest as
to how there can be a motive for the accused to assault the
deceased as deceased was, admittedly, not a member of the society
and, therefore, there appears to be no reason for the accused to
have any grudge against deceased Santosh. It has come in the
cross-examination that deceased Santosh was telling the members
of the society that they would be getting plots admeasuring 180
square feet and not 225 square feet. Obviously, there would be
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some other members of the society having some grudge against
the deceased because of his tendency to misguide or mislead the
members. It appears that his attitude was incendiary.
39. P.W.3-Santosh Yende spoke in tune with P.W.1-Pravin Iyre in
so far as the incident of assault upon deceased Santosh by the
accused is concerned. Admittedly, due to fear, P.W.3-Santosh Yende
did not dare to intervene or tried to save deceased Santosh from
the clutches of the accused persons. One can understand such
conduct of a human being, for, everybody, cannot be expected to
be courageous enough to intervene in such an incident.
40. Testimony of this witness is rebutted by the defence to a
considerable extent which also creates a reasonable doubt as to
whether he had, in fact, witnessed each of the assailants armed
with different weapons assaulting deceased Santosh? He admits in
the cross-examination that there were about ten Chief Promoters
of the Housing Society like accused No.1-Kishor Tarkar. There are
about 400 to 500 slums/hutments in the area of Paramanandwadi.
He candidly admits that he had not stated the description of any of
the weapons held by any of the assailants before the Police at the
time of recording his statement. It goes without saying that in
examination-in-chief he had improved his version by testifying
about the various weapons held by each of the accused.
41. According to this witness, on the day of the incident,
deceased Santosh had called him at about 9.20 p.m to discuss the
problems between members of the society and the office bearers
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and to find a way out. Deceased Santosh had also called some
other persons of the locality. He admits that he is a member of
rehabilitation committee formed by the Government of
Maharashtra and belongs to Bhartiya Janata Party. His evidence
reveals that when he was informed by the Police that deceased
Santosh has succumbed to the injuries, he admits that he did not
disclose the Police that he witnessed the incident nor he disclosed
the names of the assailants. This is quite strange as to when this
witness had named the assailants? He says that he was afraid and,
therefore, he did not approach the Police and did not report the
incident.
42. This witness also very well knew the difference between
sword, chopper, gupti and suri. He admits that he did not state
before the Police at the time of recording his statement that one of
the members of the mob inserted a gupti (sword stick) in the body
of deceased Santosh. He could not remember whether he had
stated that some of the members in the mob were armed with iron
bars. He did not notice iron bar in the hands of any of the
members of the mob.
43. Further admissions of P.W.3-Santosh Yende indeed dealt a
fatal blow to the prosecution story and renders his testimony quite
doubtful as to whether he had really witnessed the incident. He
admits that he had not stated before the Police that accused No.1-
Kishor Tarkar hit deceased Santosh with a chopper and on the
right side of head of Mangesh Varpe, but he had stated that
accused No.1-Kishor Tarkar inflicted a blow of chopper on the
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head of Mangesh Varpe. He even did not state before the Police
that he noticed deceased Santosh coming towards Datta Mandir
from his house and reached near one grocery shop of one Gupta.
He further admits that he had stated before the Police that accused
No.3-Vijay Karekar inserted the gupti in the neck of deceased
Santosh. However, this is proved to be an omission which is
material in the given state of circumstances. He further testified
that he had stated before the Police that accused No.3-Vijay
Karekar hit the deceased with a sharped edge weapon like suri on
the neck of deceased Santosh. He had not stated before the Police
that deceased Santosh shouted for help. Even the fact that after
the assault all the accused ran way towards the side of the public
lavatory along with their respective weapons is also proved to be
an omission. Thus, the evidence of these two witnesses is quite
shaky with material omissions and contradictions.
44. Now, it would be expedient to scan the evidence of P.W.12-
Surbhi Tripathi - Woman Police Sub Inspector attached to R.A.
Kidwai Marg Police Station and Investigating Officer who had
conducted some part of the investigation. There are two
Investigating Officers. Another Investigating Officer is P.W.13-
Anandrao Jadhav attached to Main Control Room.
45. Some vital admissions given by P.W.12-Surbhi Tripathi in her
cross-examination would demonstrate as to how the investigation
in this case had been carried out in a most casual and perfunctory
manner resulting into miscarriage of justice.
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46. P.W.12-Surbhi Tripathi admits in her cross-examination that
she did not note the timing of recording statements of witnesses
during investigation. She admits that till recording of inquest
panchanama, P.W.1-Pravin Iyre was present in the hospital, but
neither did she notice blood stains upon his clothes nor made any
attempt to seize the clothes of P.W.1-Pravin Iyre which were on his
person at the time of the incident and while bringing deceased
Santosh to K.E.M Hospital. This is a material lacuna in the
investigation. She admits that P.W.1-Pravin Iyre was not present on
the spot at the time of panchanama. He was neither asked to point
out the place of incident nor any attempt was made to take him to
the spot which also creates a doubt as to by whom the spot of the
incident was shown to the Investigating Officer. She admits that
during investigation, it did transpire that Vilas Ghadi, Rajendra
Kalgutkar, Mangesh Rane, Shobha Deolekar moved injured to
K.E.M Hospital. However, prosecution has not examined any of
these witnesses which also creates a doubt as to reasons for
withholding the evidence of these material witnesses.
47. P.W.13-Anandrao Jadhav was suggested in the cross-
examination that evidence of those witnesses was withheld, for,
had they been examined, they would have exposed the falsity of
the prosecution case. Though P.W.13-Anandrao Jadhav has denied
the suggestion, the suggestion is not without any substance. Be
that as it may.
48. P.W.12-Surbhi Tripathi in her further cross-examination
admits that at the time of recording the complaint of P.W.1-Pravin
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Iyre, he did not state as to which side the assailants ran away. She
also admits that during investigation, none of the witnesses had
stated before her that any of the assailants were armed with sword
stick. None of the witnesses had stated before her that any of the
assailants were armed with iron bars and had used the same in
assaulting the deceased. P.W.12-Surbhi Tripathi did not inquire
with the witnesses about the description of the weapons held by
each of the assailants at the time of recording their statements.
She admits that P.W.7- Mangesh Varpe had not pointed out the
spot of incident. No questions were asked to him by this witness.
She admits that there is no mention of timing of commencement of
the panchanamas and conclusion of the same qua attachment of
clothes of P.W.1- Pravin Iyre which is at (Exhibit 28). She gives an
explanation that it remained to be mentioned due to inadvertence
which is unacceptable.
49. P.W.12-Surbhi Tripathi admits that she had not recorded the
statement of any of the neighbourers of deceased Santosh
including that of Vijay Ghadi. She admits that the copy of the F.I.R
had not been forwarded to Metropolitan Magistrate 13 th Court,
Dadar till the date of recording her evidence i.e 19 th November,
1998. She admits that she had not asked any of the witnesses to
point out the house of any of the accused, though, admittedly they
were residents of the same locality.
50. Thus, it has been rightly suggested by the defence in the
cross-examination that the F.I.R is a fabricated document prepared
in collusion with the complainant as the investigating agency could
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not probe and nab the real assailants involved in the said incident.
However, the suggestion was denied by this witness.
51. P.W.7-Mangesh Varpe, (Exhibit 31) was the Chief Promoter of
the society at the relevant time. Accused No.1-Kishor Tarkar was
also a promoter. Accused No.2- Satish Amberkar, accused No.7-
Sudhakar Shinde, Jaywant Kapdi and others were also the
promoters.
52. P.W.7-Mangesh Varpe testified that on 14 th July, 1997 at
about 9 to 9.30 p.m, he was sitting near Datta Mandir. He heard a
commotion and pelting of stones, soda water bottles etc. He
noticed a mob of around 10 to 12 boys coming around him.
Accused No.1-Kishor Tarkar, Vinayak Gaikwad and Vishwas were
at the forefront armed with weapons like chopper, dagger etc. He
could not identify other members of the mob but testified that they
too were armed with some weapons.
53. The mob reached near this witness and accused No.1-Kishor
Tarkar inflicted a blow of chopper on the front side of his head.
Vinayak Gaikwad inflicted a blow of chopper on his left leg due to
which he sustained bleeding injuries. Accused Vinayak Gaikwad
inflicted second blow on his right leg. He fell down.
54. Accused Vishwas tried to hit him with the weapon in his
hand but he could not succeed. He became unconscious and gained
consciousness only in K.E.M Hospital at about 9.45 to 10.00 p.m. There
were three stitches on his head and three stitches on his left leg.
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55. P.W.7- Mangesh Varpe identified the chopper used by
accused No.1-Kishor Tarkar while assaulting him at the time of the
incident. However, he was not in a position to give description of
the chopper. He described that the blade was narrow towards both
ends and it was a big weapon. His cross-examination further
reveals that none of the Police Personnel inquired with him
anything about the incident during his admission in the hospital.
He further admits that he did not disclose name of any of the
assailants during that period in K.E.M Hospital. Even he did not
disclose name of any of the assailants to P.W.1-Pravin Iyre. He
could not remember whether P.W.1-Pravin Iyre had disclosed
names of any of the assailants. Doctors in the hospital did not ask
him name of the assailants.
56. This is something quite strange and unbelievable, for,
normally Doctors do ask history of the assault to a patient
admitted with such injuries. At least, P.W.1-Pravin Iyre could have
mentioned the names of the assailants to P.W.7-Mangesh Varpe
since the assailants were not strangers to both of them.
57. P.W.7-Mangesh Varpe further admits in the cross-examination
that he did not remember whether he had stated before the Police
as to whether he was hit on his head on front side though he was
fully conscious when his statement was recorded by the Police. He
was unable to remember as to whether accused No.1-Kishor
Tarkar, accused No.2-Satish Amberkar, accused No.7-Sudhakar
Shinde were the promoters of the Housing Society. He admits that
his blood stained clothes were not seized by the Police during the
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investigation. As can be seen from the tenor of his language that
his evidence is also full of doubts and inconsistencies. It is quite
difficult to place implicit reliance upon the testimonies of either
P.W.1-Pravin Iyre, P.W.3-Santosh Yende or P.W.7- Mangesh Varpe in
so far as the incident of assault by the accused is concerned.
Moreover, no motive behind the assault upon this witness has been
proved.
58. On the aspect of discovery of fact under section 27 of the
Indian Evidence Act, P.W.9-Shantaramm Wairkar (Exhibit 34)
deposed that accused No.1-Kishor Tarkar, accused No.2-Satish
Amberkar voluntarily made a statement before the Police while in
the custody on 4th August, 1997 to the effect that accused No.1-
Kishor Tarkar would produce the blood stained clothes as well as
the weapon used by him while assaulting deceased Santosh which
he had kept at his residence.
59. Accused No.2-Satish Amberkar voluntarily made a statement
that he would also produce the weapon used in assaulting
deceased Santosh as well as blood stained clothes from his house.
60. Accordingly, memorandum of panchanama was prepared by
the Investigating Officer which is at (Exhibit 35). His evidence
further reveals that accused No.1-Kishor Tarkar led the Police party
and panchas to his house which is near Pimple tree. Accused No.2-
Satish Amberkar pointed out his house. He entered into his house.
He was followed by this witness and the Police officers. He took
out one bundle kept in the cupboard and after opening it they
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noticed one gupti (sword stick) with wooden cover having wooden
handle as well as bluish coloured full pant and one white coloured
full shirt having flower design of yellowish colour stained with a
blood. No blood stains were found on the pant. The sword stick
was found stained with blood when taken out from it's cover.
61. Thereafter, accused No.1-Kishor Tarkar took the Police team
to his house at the distance of 25 feet away from the house of
accused No.2-Satish Amberkar. He entered into his house. He was
followed by the Investigating Officer and this witness. He took out
a box beneath the cot and opened the same. The box contained a
brownish coloured full pant, one full shirt with faint bluish colour
having square design. He also took out one chopper from the box
stained with blood. All the articles were duly seized under a
panchanama. It is proved at (Exhibit 35). Admittedly, this witness
is resident of the same locality and knew both the accused as well
as their houses. From the tenor of his language, it is difficult to
believe that accused No.1-Kishor Tarkar and accused No.2-Satish
Amberkar had, in fact, voluntary made statement before him in
view of the fact that P.W.13-Anandrao Jadhav, the Investigating
Officer in his evidence testified that during interrogation of
accused No.1-Kishor Tarkar and accused No.2-Satish Amberkar
had shown their willingness to make a statement in connection
with the case and subsequently their memorandum panchanama
came to be recorded. It is apparent that the memorandum
statements given by accused No.1-Kishor Tarkar and accused No.2-
Satish Amberkar were not at all voluntary and perhaps they might
have been forced to make such statements while in the Police custody.
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62. Secondly, there is no evidence connecting the said discovery
vis-a-vis the incident of assault and the arms held by each of them
in view of the evidence of P.W.1-Pravin Iyre, P.W.3-Santosh Yende
and P.W.7-Mangesh Varpe as discussed hereinabove.
63. It is interesting to note that P.W.13-Anandrao Jadhav in his
cross-examination admits that the lock up entries, Muddemal
entries and station diary entries were not made by him personally.
His candid admission as regards continuous interrogation of
accused No.1 to 4 till the date of recovery panchanama was drawn
also falsifies the voluntarily disclosure statements made by the
accused while in the Police custody.
64. He further admits that the similar type of weapons were
lying at the Police station being muddemal property of the
concerned C.R.No. He further admits that none of the witnesses
had stated before him that gupti (sword stick) had been used for
assaulting the deceased or injured in this case. He had not
recorded statement of EPR Constable on duty in K.E.M. Hospital.
He further admits that he did not remember whether he had put
any special identification mark on any of the articles after it's
recovery. He further admits that the bamboo cover of gupti
(sword stick) Article-2 had a white and faint green original colour
and it was not painted with any colour. The original colour of the
handle of the sword stick had not been noted in the panchanama.
65. He admits that the hockey stick and knife Article 10 and
Article 11 produced before the Court on the very day of recording
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evidence of pancha witness i.e P.W.10-Atul Shinde, as, according to
this witness, the articles were not traceable in the storeroom. This
shows the casual and perfunctory manner of conducting the
investigation. The evidence of P.W.13-Anandrao Jadhav further
reveals that no report of search of the above articles was produced
before the Court and that P.W.12-Surbhi Tripathi had orally
reported him that muddemal articles No.10 and 11 are not
traceable from the storeroom and the work of searching the
articles was going on. What else is required to be stated as regards
the genuineness of the weapons of offence produced by the
Investigating Officer before the trial Court. It is ridiculous that the
Investigating Officer further admits that it is not necessary to make
any report to senior Police Officer about non traceability of the
articles stored in the storeroom. He had gone to the extent in
admitting that he did not remember whether P.W.3-Santosh Yende
and P.W.7-Mangesh Varpe were in K.E.M. Hospital on 14 th July,
1997. He had not recorded statement of any of the family
members of Vijay Ghadi during the investigation. He further
admits that P.W.3-Santosh Yende did not state before him that accused
No.3-Vijay Karekar inserted the sword stick in the neck of the deceased
Santosh and that after the incident all the accused escaped from the
spot towards the public lavatory along with their weapons.
66. His last admission in the cross-examination hammers a last
nail in the coffin of the prosecution story when he admits that he
did not ask description of any of the weapons held by any of the
accused while committing the offence to any of the eye witnesses
at the time recording their statements. Thus, it can be said to be a
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case with no evidence, much less, reliable and acceptable evidence
qua the crime.
67. There is one more blatant illegality in this case. P.W.10-Atul
Shinde acted as a panch witness qua the voluntary statement made
by accused No.3-Vijay Karekar and accused No.4-Sitaram Baraskar
on 13th August, 1997 while they were in the Police custody.
Incident is of 14th July, 1997. It is surprising as to how, ever since
their arrests the accused were in the custody of the Investigating
Officer for nearly a month?
68. Evidence of P.W.10-Atul Shinde indicates that while in the
Police custody, accused No.4-Sitaram Baraskar made a voluntary
statement before him and the Police that he would point out the
place where he had kept the hockey stick used by him while
assaulting deceased Santosh. Another accused i.e accused No.3-
Vijay Karekar had also made a voluntary statement before the
Police and this witness that he is ready to point out the place
where he had concealed the weapon i.e suri used at the time of
commission of the offence.
69. Accordingly, memorandum statements of both the accused
were recorded pursuant to which accused No.3-Vijay Karekar and
accused No.4-Sitaram Baraskar led the Police party along with
panchas to Parmanandwadi. On reaching Parmanandwadi, firstly
accused No.4-Sitaram Baraskar pointed out his house where his
father was present. Accused No.4-Sitaram Baraskar entered his
house and took out one hockey stick lying below the cot and
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produced the same before the Police. Handle of stick was found
cracked and front end was found having curve and flat. The Police
seized the said hockey stick and put sign label of panch witnesses
under panchanama.
70. Likewise, accused No.3-Vijay Karekar pointed out his house
situate after two houses from the house of accused No.4-Sitaram
Baraskar to the Police and P.W.10-Atul Shinde. He took out a suri
kept backside of a tin which was found on the shelf i.e. stand of
utensils. The said suri (knife) was made up of a plastic having
green colour. The suri was sharp edged and length of the blade
was 10 c.m and length of handle was 9 c.ms. The Police had
seized the same by affixing the sign labels of the panch witnesses
and tied with the red string.
71. During the course of his evidence, P.W.10-Atul Shinde
identified the hockey stick as well as the knife. At the time of
production of those articles, learned Counsel for the accused raised
an objection for producing articles before the Court, as according
to him, the articles were not produced along with the other
articles at a proper stage, but produced at the time of evidence
which would cause prejudice to the accused. The learned
Additional Sessions Judge, however, allowed production of the
weapons during the course of evidence but observed that the
objection of defence lawyer would be decided at the time of the
judgment. This is something unknown to the law and procedure.
We say so for the reason that muddemal property has to be
produced along with a charge-sheet in the Court. If muddemal
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property is allowed to be tendered during trial, entire trial
vitiates, for, muddemal property has to be produced along with
charge-sheet, otherwise there is every likelihood of tampering with
articles, weapons etc. It would be unsafe and prejudicial to the
defence of the accused. It would not be a fair trial. The Additional
Sessions Judge ought to have decided the objection then and
there. Be that as it may.
72. The evidence of P.W.10-Atul Shinde indicates that the hockey
stick and the suri- Articles 10 and 11 respectively were not found
packed, sealed or labelled under any wrapper but simply wrapped
under a newspaper dated 15th November, 1998. The evidence of
this witness came to be recorded on 18 th November, 1998, meaning
thereby, articles were wrapped just before three days they were
produced in the Court and, therefore, it is difficult to digest that
those were the very weapons used by the accused in the
commission of the offence.
73. P.W.10-Atul Shinde admits in the cross-examination that the
label bearing his signature and the signature of another panch
which was tied with red string has not been mentioned in the
panchanama. P.W.10-Atul Shinde is not a person worth believing
for the reason that he admits in the cross-examination as regards a
charge of misappropriation of Rs.40,000/- qua members of the
society was levelled against him. When it was asked as to whether
there was any written complaint of misappropriation lodged by the
members of the society against him with the Police, he answered
that he does not know. He did not say that there was no such
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complaint. He cannot be called a respectable panch witness as his
credit has been impeached. He too worked as Assistant Secretary
of Parmanandwadi proposed society.
74. He further admits that while proceeding towards the
respective houses of accused No.3-Vijay Karekar and accused No.4-
Sitaram Baraskar, the Police did not carry packing or sealing
material and that he very well knew houses of both the accused
prior to leaving the Police station. His evidence, therefore, cannot
be said to be credible. Thus, evidence of P.W.9-Shantaram Wairkar
and P.W.10-Atul Shinde needs to be discarded.
75. Now, a few lines about testimonies of defence witnesses;
Defence of the accused as regards darkness at the time of the
incident due to non supply of electricity appears probable in light
of the evidence of defence witness No.1-Sunil Shankar Gawade
who was then serving as Assistant Engineer in Bombay Electric
Supply and Transports at Mumbai (for short 'BEST').
76. His evidence indicates that at the relevant time he was
attached to Vigilance Department of BEST at Electric House,
Colaba, Mumbai. On 14th July, 1997 there was an off electric
supply in Parmanandwadi between 9.20 pm and 11.00 p.m. He
testified that the said area comes in Z.P. Zoppadpatti pillar No.141,
Circuit No.3, near Pole No.PT138/9A. The said off supply of 14 th
July, 1997 was recorded in their off supply book dated 15 th July,
1997. He further testified that Commercial Department had
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received a message at 9.20 p.m on 14 th July, 1997 about off supply
of the electricity. After receiving the message, a man from
commercial department went to verify the nature of off supply.
Commercial Department had reported off supply to their Fault
Control section of Operation and Maintenance Department at
10.15 p.m. Thereafter, a person from commercial department went
to Zopadpatti pillar No. 141 and found 63 Amp. Fuse of circuit
No.3 was blown. It was replaced and the electricity supply was
restored at 11.00 p.m. Entry of off supply was recorded as entry
No.15/6 by the Operation and Maintenance Department of BEST.
77. D.W.1-Sunil Gawade had tendered extract of their computer
which corroborates his oral evidence and is proved at Exhibit 62.
This aspect fortifies the fact that at the time of the incident there
was absolutely no electricity in the area where the incident took
place. It obviously goes without saying that there was hardly any
occasion for P.W.1-Pravin Iyre to witness as to who were the
assailants and what were the weapons in their hands and whether
those weapons were used to commit murder of deceased Santosh.
A futile attempt has been made by the learned A.P.P to rebut the
testimony of this witness.
78. Similarly, another defence witness, D.W.2-Baban Namdeo
Sangle who was the Police Naik attached to LA-1 Naigaon,
Mumbai bearing PN 26266 testified that on 14 th July, 1997 he was
attached to Bhoiwada Police station as a police Constable and was
doing his duty in Police casualty in K.E.M. Hospital. Around 9.50
p.m on the same day, one Santosh Sakharam Iyre was brought in
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an injured condition by his brother namely Pravin Iyre (P.W.1) in
the casualty of K.E.M Hospital. Said Pravin Iyre was brother of the
deceased who told this witness that deceased Santosh was
assaulted by a mob in Parmanandwadi at about 9.30 p.m on 14th
July, 1997. He testified that Pravin Iyre did not tell him as to the
nature of weapons used by the mob while attacking his brother.
79. D.W.2-Baban Sangale had recorded an entry in EPR register
dated 14th July, 1997. Certified copy of the said extract is proved at
(Exhibit 64) from which it is evident that P.W.1-Pravin Iyre had
simply intimated the Constable on duty that a mob had attacked
his brother with some sharp weapon inflicting blows on his both
hands, neck and head due to which there were blood injuries and
he became unconscious. It being the first information given by the
informant to the Police who was on duty at K.E.M Hospital, he
ought to have mentioned the name of all the assailants which he
had subsequently named and, therefore, the first account of the
incident itself creates a doubt as to whether informant had an
occasion to see the real assailants or the weapons with which they
were armed? Surprisingly, D.W.2-Baban Sangale is in fact, a
witness in the charge-sheet of the prosecution. Why was he not
examined by the prosecution is a mystery, which speaks volumes.
80. Third and last defence witness is Shobha Tukaram Devalekar.
She too was the prosecution witness but the prosecution chose not
to examine her. In her evidence, she testified that at that time, she
was resident of the same area namely Maharashtra Zopadpatti
Sangh and has a shop of book binding. On 14th July, 1997, she was
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doing the work in her book binding shop when the electricity
supply suddenly went off between 9.00 p.m and 9.15 p.m.
Therefore, she went to grocery shop and brought wax candles.
She came to her shop. She lighted the wax candles in the shop.
When she was tying bundles of the books in her shop, she heard
noise of pelting of stones. She came out of the shop. However,
there was darkness. She saw two persons assaulting deceased
Santosh and, thereafter they ran away from the spot. She rushed
to the deceased Santosh who was lying in front of his house in the
pool of blood. At that time, she saw a Sumo Jeep of one Ravindra
Rane parked on the road. With the help of Mr. Ravindra Rane this
witness lifted deceased Santosh and kept him in the Sumo Jeep.
Brother of the deceased namely Pravin Iyre (P.W.1)came over there
and they took deceased Santosh to K.E.M. Hospital in the said
jeep. They kept the deceased upon a stretcher and then he was
taken inside the hospital. She further testified that the Police
Constable on duty had made an inquiry with Pravin Iyre (P.W.1).
Doctors examined deceased Santosh Iyre and declared him dead.
81. Her evidence indicates that while lifting the deceased from
the spot, her maxi was wet with blood stains. During her cross-
examination by the learned A.P.P, nothing could be elicited by
which her version can be suspected. She had no reason to depose
falsely. Rather, the prosecution could have examined this witness
to substantiate the fact that the deceased was assaulted by some
persons and she took him to the hospital along with P.W.1-Pravin
Iyre in the Sumo Jeep of one Ravindra Rane.
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82. Thus, cumulative effect of the defence witness probablises the
defence raised by the accused. As already stated, the prosecution case
itself rests on very weak footing and shaky evidence and, therefore, it is
a fit case in which the accused are entitled to be acquitted of all the
charges framed against them.
83. The learned Additional Sessions Judge has committed grave error
in placing reliance on the prosecution witnesses as the impugned
judgment is full of surmises and conjectures. The prosecution has failed
to prove the charge against any of the accused beyond all reasonable
doubts. The impugned judgment, therefore, warrants interference in the
appeal. Hence, the following order is expedient.
:ORDER:
[a] The appeals are allowed;
[b] Impugned judgment and order dated 24 th November, 1998 in Sessions Case No.1362 of 1997 is quashed and set aside; [c] Accused No.1-Kishor Tarkar, Accused No.2-Satish Amberkar, Accused No.3-Vijay Karekar, Accused No.4-Sitaram Baraskar and accused No.8-Santosh Baraskar are acquitted of the offences with which they have been charged;
[d] Their bail bonds stand cancelled;
[e] The order as regards disposal of muddemal property is maintained.
[f] In view of disposal of the appeals, Criminal Application No.774 of 2006 in Criminal Appeal No.922 of 1998 stands disposed of.
[PRITHVIRAJ K. CHAVAN, J.] [SMT. SADHANA S. JADHAV, J.] 35 of 35