Criminal Appeal No. 344 of 2019 · Bombaybench High Court
Case Details
2024:BHC-AUG:13319-DB 1 Cr.Appeal344.19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CRIMINAL APPEAL NO.344 OF 20191.Sachin Vitthal Suryawanshi,Age : 39 years, Occu : Agriculture, R/o. Kerul, Tq. Ashti, Dist. Beed2.Nitin Sanjay ShindeAge : 32 years, R/o. Bayejabai Jeur, Ahmednagar 3.Sayyad Gaus Sayyad Noor ..(As per directions of the Hon’ble High Court’s order dated 05.01.2024, separate Appeal is filed) 4.Bhausaheb Mohan Sable,Age : 35 years, R/o.Kerul, Tq. Ashti, Dist. Beed 5.Mahendra Sevakram Mahajan,Age : 31 years, R/o. Kerul, Tq. Ashti, Dist. Beed … Appellants Versus 1.State of MaharashtraThrough Police Inspector, Police Station, Peth Beed Tq. & Dist. Beed 2.Pushpa w/o. Balu @ Ravindra KhakalAge : Major, Occu : Household, R/o. Khakalwadi, Tal. Ashti, Dist. Beed … Respondents…. Shri. R. G. Hange and Shri. A. R. Hange, Advocate for the Appellants inCriminal Appeal No.344 of 2019 and for Applicant in CriminalApplication No.265 of 2024 Shri. S.D. Ghayal, Addl. P.P. for the Respondent / State Shri. S. J. Salunke, Advocate for Assist to PP and for Respondent No.2 inCriminal Appeal No.344 of 2019, and for Respondent No.2 in CriminalApplication No.265 of 2024 …. 2 Cr.Appeal344.19WITH CRIMINAL APPLICATION NO.265 OF 2024 IN CRIMINAL APPEAL NO.344 OF 2019….ANDCRIMINAL APPEAL NO.39 OF 2024Sayyed Gaus Sayyed Noor Age : 33 years, Occu : Nil, R/o. Surya Nagar, Pipeline Road, Ahmednagar, Dist. Ahmednagar .. Appellant Versus 1.The State of Maharashtra2.Pushpa w/o. Balu @ Ravindra Khakal,Age : 38 years, Occu : Household, R/o. Khakalwadi, Tq. Ashti, Dist. Beed .. Respondents ….Ms. Ashwini A. Lomte, Advocate for Appellant in Criml Appeal No.39 of2024 and for Applicant in Criminal Application No.168 of 2024 Shri. S.D. Ghayal, Addl. P.P. for the Respondent / State…..WITHCRIMINAL APPLICATION NO.168 OF 2024 IN CRIMINAL APPEAL NO.39 OF 2024….ANDCRIMINAL APPEAL (ST. ) NO.585 OF 2019The State of Maharashtra Through : Police Inspector, Police Station, Peth Beed, Tal. & Dist. Beed .. Appellant Versus 3 Cr.Appeal344.191.Sachin Vitthal Suryawanshi,Age : 32 years, Occu : Agriculture, R/o. Kerul, Tal. Ashti, Dist. Beed 2.Nitin Sanjay ShindeAge : 25 years, R/o. Bayejabai Jeur, Ahmednagar 3.Sayyad Gaus Sayyad Noor,Age : 22 years, R/o. Surya Nagar, Aurangabad Road, Ahmednagar 4.Bhausaheb Mohan Sable,Age : 28 years, R/o. Kerul, Tal. Ashti, Dist. Beed 5.Mahendra Sevakram Mahajan,Age : 24 years, R/o. As above. .. Respondents. …..Shri. S.D. Ghayal, Addl. P.P. for the Appellant / State …..WITHCRIMINAL APPLICATION NO.1863 OF 2019IN CRIMINAL APPEAL (ST.) NO.585 OF 2019…...WITHAPPLICATION FOR LEAVE TO APPEAL BY STATE NO.124 OF 2019The State of MaharashtraThrough Police Inspector, Police Station, Peth Beed, Taluka & Dist. Beed .. Applicant Versus 1. Rajaram Appana ManeAge : 57 years, R/o. Ghogde Wasti, Bhawani Peth, Solapur
Legal Reasoning
20 Cr.Appeal344.19wherein following observations are made: “26.A witness is normally to be considered independentunless he or she springs from sources which are likely to betainted and that usually means unless the witness has cause,such as enmity against the Accused, to wish to implicate himfalsely. Ordinarily, a close relative would be the last to screen thereal culprit and falsely implicate an innocent person. It is true,when feelings run high and there is personal cause' for enmity,that there is a tendency to drag in an innocent person againstwhom a witness has a grudge along with the guilty, butfoundation must be laid for such a criticism and the mere fact ofrelationship far from being a foundation is often a sureguarantee of truth. However, we are not attempting anysweeping generalisation. Each case must be judged on its ownfacts. Our observations are only made to combat what is so oftenput forward in cases before us as a general rule of prudence.There is no such general rule. Each case must be limited to andbe governed by its own facts. 27.This is not to say that in a given case a Judge for reasonsspecial to that case and to that witness cannot say that he is notprepared to believe the witness because of his generalunreliability, or for other reasons, unless he is corroborated. Ofcourse, that can be done. But the basis for such a conclusionmust rest on facts special to the particular instance and cannotbe grounded on a supposedly general rule of prudence enjoinedby law as in the case of accomplices.” 13.There cannot be any dispute in respect of the legalproposition enumerated in the above referred Judgments. In the case inhand, from the evidence available on record, there is no dispute on thefollowing aspects: (i)The deceased Balu was the maternal uncle of the Informant (PW11 – Pravin Gondkar). (ii)Father of informant (PW11 – Pravin Gondkar) and brother of deceased Balu were working in the police department as Police 21 Cr.Appeal344.19Sub Inspector and Police Head Constable, respectively and posted at Ahmednagar. (iii)Due to grampanchayat elections, deceased Balu and some of the Charge-sheeted Accused i.e. Accused Nos.1, 2 and 4 were on inimical terms.(iv)Prior to the incident in question, the incident of assault had taken place on 26.09.2010 between deceased Balu and Sunil, Suresh, Satish and eight others and counter First Information Reports were registered for the said incident. 14.Prosecution examined PW11 – Pravin Gondkar, PW12 –Shaikh Shaker Shaikh Hidayat, PW13 – Sachin Devidas Gore and PW14– Chagan Waman Jagdale as the eye witnesses. The Prosecution’s caselargely hinges on the testimony of these four witnesses. 15.PW11 - Pravin Gondkar’s evidence show that deceasedBalu was his maternal uncle and was residing at Khakalwadi. He wasrunning workshop at Pune. He came to know that on 26.09.2010 therewas incident of assault by Sunil, Suresh, Sachin and eight others ondeceased on account of defeat in grampanchayat elections and FIR ofthat incident was lodged and the crime was investigated by AccusedNo.3 – API Mane. API Mane filed ‘B’ summary in respect of the saidcrime which was registered at the instance of deceased Balu. 22 Cr.Appeal344.1915.1.In his further evidence he deposed that in the morning of11.10.2011 he had come to Khakalwadi from Pune and as there wasYatra (fair) of Goddess on the eve of Kojagiri Purnima he along with fivepersons proceeded on two motorcycles from Kada at 05:30 p.m. forDarshan of Goddess. He was accompanied by Shaker Shaikh (PW12),Ajit Ghule, Arun Ovhal, Sachin Giri (PW13) and deceased Balu. They alltook the Darshan of Goddess and after the Darshan they talked withShakher Shinde and Chhagan Jagdale and thereafter they came nearAmbika Milk Dairy at Kerul at about 07:30 p.m. His motorcycle was infront. One Indica Car bearing Registration No. MH-12-AQ-9274 came infront of him and one two wheeler speedily came behind his vehicle.Accused No.4 got down from the Indica car with Pistol in his right handand Kukri in his left hand. Accused No.13 got down from the Indica carwith Revolver in his right hand and Sword in left hand. Behind him,Accused Nos.14 and 15 got down from the vehicle with Swords. Heasked deceased Balu to run away. Accused No.4 fired in their direction.Deceased got down from his motorcycle. Accused No.4 came runningtowards them and gave blow of Kukri in the stomach of deceased Balu.Accused Nos.13 to 15 gave blow of Sword on deceased Balu. AccusedNo.4 fired another shot towards deceased Balu. Thereafter, unknownpersons (Accused Nos.11 and 12) came on motorcycle and startedbeating him and Accused No.13 had shown them the Revolver andtherefore they could not move. The unknown persons started beating 23 Cr.Appeal344.19deceased Balu. Some persons came from Kada side and after seeing theincident, they shouted. The assaulters started running by saying thatSunil Nath (discharged Accused No.1), Sunil Suryawanshi (dischargedAccused No.2) and Mane (Accused No.3) were behind them and theywill look into the matter as per the earlier matter and their work is overand the assaulters ran away leaving their vehicles. He ran towardsdeceased who was having injuries on face and all over body and bloodwas oozing. Movements of deceased were stopped. Deceased Balu diedon the spot. Ajit Ghule gave information to Ashti Police Station onphone and the police came. His further evidence show that, thepanchanama of the dead body was prepared and dead body was sent toGovernment Hospital, Ashti. He went with the dead body. The policecalled him near dead body at 09:00 p.m. for identifying the dead bodyfor inquest. Thereafter, he went to the police station and lodged the FirstInformation Report which was at Exh.233. As he was injured, policegave him the letter for medical examination and therefore, he went toGovernment Hospital, Ashti and received treatment from the doctor. Hesustained injuries on left hand little finger, left leg and tenderness overthe body. 15.2.His further evidence show that on 12.10.2011 at about04:00 p.m. he was called by the Deputy Superintendent of Police inAshti Police Station to show the spot. He had shown the spot which wason Khilad road in front of Ambika Milk Dairy. His supplementary 24 Cr.Appeal344.19statement was recorded on 14.10.2011 wherein he gave the descriptionof the three unknown persons. His further evidence show that on04.11.2011 he was called in District Prison, Beed for T.I.P. wherein heidentified Accused Nos.11 and 12. Again his supplementary statementwas recorded. He identified the Sword and Pistol which were Articles-20 and 12 as the same. He identified the Accused who were present inthe Court. 15.3.From the above discussed evidence of PW11 - PravinGondkar, it is seen that according to PW11 - Pravin Gondkar, Report waslodged at his instance. However, in his cross-examination he deposedthat he did not get the crime number of incident dated 26.09.2010 andhe was not knowing in which police station and under what section thecrime was registered in respect of the incident dated 26.09.2010. Hiscross-examination show that crime number and section of the incidentdated 26.09.2010 were mentioned in the Report which he was unable totell from where he got that information. He deposed that he did not tellthe police about the crime number and section while lodging the Reportand he was unable to tell on what basis the police mentioned the same.It is thus clear that the aforesaid contents of the Report were not as perthe Informant (PW11 – Pravin Gondkar). It is the case of defence /Accused, as seen from the suggestions given, that the said Report waswritten in the handwriting of Sandeep Khakal (brother of deceasedBalu) who was in the police department. The Prosecution has not 25 Cr.Appeal344.19examined the Policeman who scribed the Report at Exh.233. In the lightof said cross-examination, it was necessary for the Prosecution toexamine the Policeman who scribed the said Report. It is needless tostate that the report is to be taken as per narration of the informant.When some thing, not reported by the informant finds place in thereports, the report falls within the cloud of suspicion. 15.4.Though PW11 - Pravin Gondkar deposed of witnessing theincident, in cross-examination he admitted that he was standing neardead body, police came on the spot and he did not make any complaintbefore police. He deposed that he was unable to tell whether the policemade any enquiry about the incident with the people who had gatheredon the spot. He further admitted that dead body of Ravindra was takento Ashti Police Station in the police vehicle and he was present in thevehicle and they reached Ashti Civil Hospital between 08:30 to 09:00p.m. He further admitted that he did not make any complaint to policewho were present in the Ashti Hospital in respect of the incident. Hisfurther cross-examination show that he lodged the Report with AshtiPolice on next day after 03:30 a.m. From this, it is clear that though thepolice had come on the spot of incident and carried the dead body in thepolice vehicle to the hospital and PW11 – Pravin Gondkar was with thepolice all throughout, he did not utter anything in respect of the incidentto the police. This conduct of PW11 – Pravin Gondkar who was closelyrelated to deceased and not reporting the incident to the police who 26 Cr.Appeal344.19were very much present for considerable time, creates reasonable doubtabout he being the eye witness to the incident. 15.5.In evidence of PW11 – Pravin Gondkar, he deposed of firingfrom the firearm by Accused No.4 twice, first one in their direction andsecond one towards deceased. However, the medical evidence do notshow any firearm injury to deceased Balu. The evidence of PW19 –Nitin Ninal, who conducted the Post-mortem on the body of Balu, inclear terms deposed that while conducting Post-mortem he did notnotice any firearm injury. Further, in his cross-examination the letter atExh.431 was confronted to him on which he deposed that he had gonethrough the said letter issued by ASI B. B. Jadhav dated 12.10.2011 andadmitted that in the said letter history of assault was mentioned asassault by firing near neck. The Prosecution has not examined the saidASI B.B. Jadhav, who was the author of the said letter for the bestreasons known to them. Further, the evidence of PW21 – JyotiKshirsagar, the Investigating Officer who conducted the SpotPanchanama it has come that two cartridges were not found on the spotof incident. 15.6.As regards the evidence of PW11 - Pravin Gondkarregarding assault on him by the unknown assaulters, in his cross-examination he admitted that he was injured in the night of incidentand so he took treatment in the hospital and at that time he told the 27 Cr.Appeal344.19doctor as to who had caused the injury and its reasons and the doctorhad written down the said information. The said admission do not leadto the only inference that the defence admitted the injury on PW11 –Pravin Gondkar in the very incident, as contended by learned Addl. P. P. 15.7.The Prosecution has brought on record medical evidence inrespect of the injury on PW11 - Pravin Gondkar by examining PW17 –Balaji Pandurang Gutte, who was the Medical Officer at Rural Hospital,Ashti. In his evidence he deposed that PW11 – Pravin Gondkar hadcome to the clinic where he examined him and found three injuries inthe nature of abrasion on right index finger, left leg upper 1/3rd and leftankle joint which were simple in nature and age of injuries was within24 hours. The Injury Certificate at Exh.410 is brought on record in theevidence of this witness which was issued by him. Though in hisevidence PW17 – Balaji Gutte deposed that history narrated to him wasassault on 11.10.2011 at 07:30 p.m. the same is not corroborated byExh.410 wherein the history of assault is shown as on 07.11.2011. Headmitted that as per Medical Jurisprudence of Dr. Parikh it is mandatoryto mention in the MLC brief history of the case as alleged beaten bywhom, with what, when and where and further admitted that all thefacts were not mentioned in the MLC at Exh.410. He further admittedthat the injuries mentioned in MLC at Exh.410 were not visible and itcould be seen on careful examination. His cross-examination furthershow that the date of issuance of MLC was not mentioned on the 28 Cr.Appeal344.19certificate i.e. Exh.410 and it was not issued immediately after makingentry in MLC register and after examining the injured. He admitted thatafter seeing the nature of injury, they mention that it is fresh within 6(six) hours, within 12 (twelve) hours etc. As seen from his evidence, hedeposed that the injuries were within 24 (twenty four) hours. Had theinjury been caused in the incident which according to PW11- PravinGondkar took place at 07:30 p.m., there would have been mentionedabout the freshness and age of injuries within 6 (six) or 12 (twelve)hours. Thus, the evidence in respect of injury on PW11 – Pravin Gondkaris shaky and do not conclusively establish that it was caused only andonly in the incident. 15.8.Though PW11 - Pravin Gondkar deposed of identifyingAccused Nos.11 and 12 in the T.I.P. in District Prison, Beed on04.11.2011, admittedly there is no T.I.P. memo in evidence. It is truethat pursuant to the provisions of Section 291A of the Cr.P.C. the saiddocument is admissible, however, the said exercise of bringing the saiddocument in evidence by giving exhibit number is not done. It was theduty of the Prosecution and / or of the learned Trial Court. Thus, theevidence in respect of identification by PW11 – Pravin Gondkar ofunknown assaulters in T.I.P. is liable to be rejected for want ofsubstantive evidence of the witness who conducted the T.I.P. 16.Evidence of PW12 – Shaikh Shaker Shaikh Hidayat show 29 Cr.Appeal344.19that he knew deceased Balu and also PW11 – Pravin Gondkar.The incident occurred between 07:00 and 07:30 p.m. on 11.10.2011 infront of Ambika Dairy, Kerul and at that time he accompanied deceasedBalu, Pravin Gondkar (PW11), Ajit Ghule, Arun Ovhal and Sachin Veer.After the Darshan, he, Pravin and Balu were proceeding to the house ofPravin (PW11) on motorcycle. Ajit Ghule and Arun were following themon another motorcycle. When they reached near Ambika Dairy, oneIndica car abruptly came and blocked their way. Accused No.4 got downfrom the car and he was possessing Revolver in his left hand and Kukriin right hand. PW11 – Pravin Gondkar asked deceased Balu to run awayfrom the spot. Accused No.4 rushed towards deceased Balu andassaulted him on stomach with Kukri. Accused No.4 also fired oneround towards him and PW11 - Pravin Gondkar. Thereafter, AccusedNo.13 got down from the car and he was having Pistol and Sword in hishand. Thereafter, Accused Nos.14, 15 and 16 got down from the car.They all were possessing Swords in their hands. Accused No.13assaulted deceased Balu on right side of stomach with the Sword andalso pointed his Pistol towards them. Accused No.15 and Accused No.16assaulted on both the thighs of deceased Balu by knives. Thereafter,three unknown persons came on motorcycle on the spot. Out of thethree unknown persons, one assaulted deceased Balu with Sword on hisright shoulder and head, the second unknown person assaulteddeceased Balu by Sword on his right chest and third unknown person 30 Cr.Appeal344.19assaulted him and PW11 – Pravin Gondkar by iron pipe on back,shoulder and wrist. After deceased Balu fell down, Accused No.14 saton his chest and assaulted him on his eyes, neck and chest by Sword andso Balu died on the spot. Thereafter, all the Accused along with theirweapons went towards water tank road. The said incident took placedue to the grampanchayat election. In his evidence he identified theAccused who assaulted him. He deposed that Accused No.9 andAccused No.8 were not present at the time of the incident. He identifiedSword and Pistol which were Articles – 20 and 12, respectively as thesame which were used in committing the crime. 16.1.His further evidence show that on 13.10.2011 the policerecorded his statement. On 04.11.2011 he was called in the jail whereinhe identified two (2) Accused persons out of twelve (12) persons in theidentification parade. His statement was recorded on 05.11.2011wherein he told the names of the Accused to whom he had identified inidentification parade. On 03.01.2012 his statement under Section 164of the Cr.P.C. was recorded before the concerned Magistrate, which wasat Exh.370.16.2.Though PW12 – Shaikh Shaker Shaikh Hidayat deposed ofwitnessing the incident, he remained silent for two days. He admittedthat after he saw Balu Khakal was dead, police came there after half anhour and at that time he did not give any information to the police 31 Cr.Appeal344.19regarding the incident. He further admitted that the body of deceasedBalu Khakal was carried in ambulance in which he also went to the AshtiHospital where police were present and he did not give any informationto the police regarding the incident. He further admitted that heattended the funeral of deceased Balu Khakal and police were present atthat time. His evidence show that even while recording his statement on13.10.2011 i.e. after 2 days, the persons by name Arun Ovhal, SachinGire, Ajit Ghule and Chagan Jagdale were present in the Police Station.Suggestion is given that since he was not the eye witness to the incidentand reached the spot when incident was over, therefore he did notinform the police immediately. This conduct of PW12 – Shaikh ShakerShaikh Hidayat gives rise to reasonable doubt about his presence on thespot of incident. 16.3.His cross-examination show that, his evidence that, theAccused No.4 got down from the car, he rushed towards deceased Baluand assaulted him, then he fired one round towards him and Pravin(PW-11), thereafter Accused No.13 stepped down from the Indica car,thereafter Accused Nos.14, 15 and 16 stepped down from the car andthree unknown persons came on motorcycle and one of them assaultedBalu by Sword and the person stepped down from Indica car waspossessing Sword in his hand, were the omissions in his statement givento the police. Thus, the said evidence on material aspects is notcorroborated by his previous statement. 32 Cr.Appeal344.1916.4.Further, the evidence of PW12 - Shaikh Shaker ShaikhHidayat that he was the witness in the case filed by deceased Baluagainst Accused No.4 establishes that this witness was on inimical termswith Accused No.4. 16.5.Evidence of PW12 - Shaikh Shaker Shaikh Hidayat that heand PW11 – Parvin Gondkar were assaulted by unknown persons withiron pipe on back, shoulder and wrist is contrary to the medicalevidence. The evidence of PW17 - Balaji Gutte who was the MedicalOfficer at the relevant time at Rural Hospital, Ashti show that heexamined PW12 - Shaikh Shaker Shaikh Hidayat on 12.10.2011 around03:15 a.m. and found one simple injury in the nature of contusion onright forearm middle 1/3rd, size 1/4th c.m. x 1/4th c.m. The age of thesaid injury was within twenty four (24) hours caused by hard and bluntobject. The Injury Certificate at Exh.411 is brought on record in theevidence of this Medical Officer. PW17 -Balaji Gutte, Medical Officeradmitted that the injury mentioned in MLC at Exh.411 was not visibleand it can be seen on careful examination. PW12 – Shaikh ShakerShaikh Hidayat in his evidence deposed that he had muffled injury.PW17 - Balaji Gutte admitted that all the facts are not mentioned inMLC at Exh.411 and he was aware that as per the medical jurisprudenceof Dr. Parikh it was mandatory to mention in the MLC brief history of thecase as alleged beaten by whom, with what, when and where. Hefurther admitted that he had not mentioned the date of issuance of the 33 Cr.Appeal344.19said MLC certificate. He further admitted that each doctor is havingseparate MLC book and MLC does not bear the serial number. 16.6.Further, the evidence of PW19 – Nitin Subhash Ninal, whohad conducted the Post-mortem on deceased Balu, show that, if anyperson assaults by iron pipe with force, then wheel marks may appearon body corresponding to the size of iron pipe. The evidence in respectof injuries on PW11 – Pravin Gondkar as dealt above do not correspondto the injuries which may be suffered due to assault by iron pipe. Thus,evidence of PW12 - Shaikh Shaker Shaikh Hidayat about assault on himand PW11 – Pravin Gondkar by iron pipe by unknown assaulters isrequired to be seen with doubt. 16.7.Further, evidence of PW12 - Shaikh Shaker Shaikh Hidayatshow that on the day of incident he and PW11 – Pravin Gondkar weretogether from 03:00 p.m. to 06:30 p.m. According to PW11 – PravinGondkar the incident occurred at about 07:30 p.m. From thisthe presence of PW12 - Shaikh Shaker Shaikh Hidayat on the spot ofincident further becomes doubtful. 16.8.PW12 – Shaikh Shaker Shaikh Hidayat’s evidence show thatfor the identification parade he came to Beed along with PW11 – Pravin,PW13 – Sachin Girhe, Ajit Ghule and Arun Ovhal. He deposed that heidentified two Accused persons in the T.I.P., he admitted that they knewthat they have to identify Accused No.11 and Accused No.12 in 34 Cr.Appeal344.19identification parade. This admission of PW12 - Shaikh Shaker ShaikhHidayat show that the witnesses knew as to whom they were to identifyin the identification parade. Further his evidence do not show as towhich Accused he identified at the time of recording his evidence, towhom he identified in the TIP. Thus, the evidence of PW12 – ShaikhShaker Shaikh Hidayat regarding identification melts down. 17.PW13 - Sachin Devidas Gore deposed that the incident tookplace on 11.10.2011 in front of Ambika Dairy, Kerul at about 07:15 p.m.to 07:30 p.m. He came from Choba Nimbgaon for Darshan at about05:30 p.m. He reached at Ambedkar Chowk, Kada and saw Arun Ovhaland Ajit Ghule in the chowk. They both were going for Darshan. At thattime, deceased Balu, PW11 – Pravin Gondkar and PW12 – ShaikhShaker came on one motorcycle. He, Arun Ovhal and Ajit Ghuleproceeded on one motorcycle and deceased Balu, PW11 – PravinGondkar and PW12 – Shaikh Shaker proceeded on another motorcyclefor Darshan of goddess at Kerul. At about 06:30 p.m. they reachedvillage Kerul and took Darshan and thereafter came out of temple atabout 07:00 p.m. One Shekhar Shinde and Chagan Jagdale metdeceased Balu. Thereafter they proceeded towards Gondkar vasti. Byproceeding on the motorcycles they reached Ambika Dairy where he sawAccused No.4 holding Pistol in one hand and blood stained Sword inanother hand. They parked motorcycles near electric pole. At that timeone unknown healthy person was manhandling PW11 - Pravin and he 35 Cr.Appeal344.19gave blow of Sword on the head and right shoulder of deceased Balu.At that time Accused No.15 and Accused No.16 gave blow of knives onboth the thighs of deceased Balu. Thereafter unknown person stabbeddeceased Balu on his left chest by Sword and deceased Balu fell down.Thereafter Accused No.13 stabbed deceased Balu in the stomach by hisSword. He pointed Pistol towards them. Thereafter, Accused No.14 saton the chest of the deceased Balu and assaulted him with Kukri on neck,chest and face. 17.1.His further evidence show that on 13.10.2011 he was calledat Ashti Police Station where his statement was recorded. On04.11.2011 he was called at Central Prison, Beed for identificationparade. In the identification parade, he identified Accused No.4 andAccused No.8 amongst 12 persons. After identification parade, hisstatement was recorded. On 05.11.2011 he was called at Ashti PoliceStation where the police showed him Article-12 Pistol and Article-20blood stained Sword. He identified the said Articles as the same whichwere used in the crime. His supplementary statement was recorded. On03.01.2012 his statement under Section 164 of the Cr.P.C. was recorded.He deposed that he identified the Accused to whom he identified in theTIP and he knew rest of the Accused persons in the Court. 17.2.Evidence of PW13 – Sachin Devidas Gore nowhere showthat firing had taken place at the time of incident, unlike PW11 – Pravin 36 Cr.Appeal344.19Gondkar and PW12 – Shaikh Shaker. Further his evidence is completelysilent in respect of assault by unknown persons on PW11 – Pravin andPW12 – Shaikh Shaker. His cross-examination show that when policecame on the spot after half an hour, he was present and neither policeenquired with him nor he disclosed anything to the police. He admittedthat he did not disclose the incident to anybody, before disclosing to thepolice after two (2) days of the incident. This conduct of PW13 – SachinGore appears strange. Further, he deposed that he was unable to tellwhether he had seen deceased Balu in injured condition when hereached Ambika Dairy. His evidence recorded before the learned TrialCourt in respect of identification is vague. Recording by the learned TrialCourt in Para No.5 of the testimony of PW13 – Sachin Gore that, thewitness has identified the Accused with their names present before theCourt as per their sitting serial number and their names are confirmed,is completely vague. Evidence do not show as to which Accused thiswitness had identified. Thus, the evidence of PW13 - Sachin DevidasGore is required to be seen with doubt. 18.PW14 – Chagan Waman Jagdale deposed that he knewdeceased Balu and knew of the incident dated 11.10.2011. His evidencenowhere show that he witnessed the incident. His evidence show that on11.10.2011 when he was going for Darshan in village, deceased Balumet him who was accompanied with PW12 – Shaikh Shaker and PW11 –Pravin Gondkar and paid condolence to him in respect of death of his 37 Cr.Appeal344.19brother Dattu. Thereafter, they all three went on the motorcycle and heproceeded for the temple. After he came out of temple, he receivedinformation that incident took place near Ambika Dairy. He went thereand saw deceased Balu was lying in the pool of blood and PW11 - PravinGondkar and PW12 – Shaikh Shaker were standing nearby. The policecame on the spot. His statement was recorded on 13.10.2011.18.1.His cross-examination show that his evidence that he wentfor Darshan in the temple, was an omission in his police statementwhich was proved through the Investigating Officer who recorded hisstatement. In his cross-examination, the topography of the village Kerulis brought on record. It show that there were two temples of goddess intheir village. There is no clear evidence as to in which temple thedeceased Balu and witnesses had gone. 19.The above discussed evidence of three witnesses i.e. PW11– Pravin Gondkar, PW12 – Shaikh Shaker and PW13 – Sachin Gore, whoare examined as the eye witnesses, is neither concrete nor give therequired assurance that they were eye witnesses to the incident. ThoughPW14 – Chagan Jagdale deposed of meeting deceased, PW11 – PravinGondkar and PW12 – Shaikh Shaker, his evidence nowhere show atwhat time they came across. Evidence of PW21 – Jyoti LaxmanKshirsagar, SDPO who investigated the crime show that she wasconfronted with the document and she deposed that as per the 38 Cr.Appeal344.19document there might be no electricity supply at the time of incident. Itis the case of the defence that there was no electric supply in the villageat that point of time, as seen from the suggestions given to thewitnesses. Though the evidence on record show that on the day of theincident there was Kojagiri Pornima, that is not sufficient to give therequired assurance about the identification of the assaulters. Even forthe sake of argument, it is accepted that the above witnesses were theeye witnesses to the incident, their identification evidence cannot beaccepted in the light of evidence about no electricity at the relevanttime. When the testimony of the eye witnesses is found to be shaky anddoubtful, the evidence of PW14 – Chagan Jagdale will not take the caseof Prosecution any further. On evaluation of evidence of the abovereferred four witnesses, we come to the conclusion that their evidencecannot form the basis to hold that the Prosecution has proved theCharge.20.The other evidence brought on record by the Prosecution isin respect of discovery / recovery during the course of investigation. Itis submitted by learned Addl. P. P. that the Prosecution has brought onrecord the evidence of discovery / recovery of clothes, vehicle, weaponsat the instance of convicted Appellants. He submitted that this evidenceof discovery / recovery becomes relevant under Section 27 of the IndianEvidence Act (for short, ‘Evidence Act’) and goes to prove the Charge. 39 Cr.Appeal344.1921.It is submitted by learned Advocates for the convictedAppellants that the evidence in respect of the discovery / recovery isneither trustworthy nor fulfills the requirement of Section 27 of theEvidence Act. They relied on the following Judgments in support oftheir submissions:(a)Bodh Raj vs. State of Jammu and Kashmir, 2002 AIR (SC)3164 wherein it is observed that, ‘The statement which is admissible under Section 27 of theEvidence Act is the one which is the information leading todiscovery. Thus, what is admissible being the information, the samehas to be proved and not the opinion formed on it by the policeofficer. In other words, the exact information given by the Accusedwhile in custody which led to recovery of the articles has to beproved. It is, therefore, necessary for the benefit of both theAccused and Prosecution that information given should berecorded and proved and if not so recorded, the exact informationmust be adduced through evidence. The basic idea embedded inSection 27 of the Evidence Act is the doctrine of confirmation bysubsequent events’’.(b)The Hon’ble Supreme Court of India in Criminal Appeal No.985 of 2010, Babu Sahebagouda Rudragoudar vs State ofKarnataka, has observed thus: ‘when the Investigating Officer steps into the witness boxfor proving such disclosure statement, he would be required tonarrate what the Accused stated to him. The Investigating Officeressentially testifies about the conversation held between himselfand the Accused which has been taken down into writing leadingto the discovery of incriminating fact(s).’ It is further observedthat, ‘Similar view was taken by the Hon’ble Apex Court in the caseof Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, whereinthis Court held that mere exhibiting of Memorandum prepared bythe Investigating Officer during investigation cannot tantamount toproof of its contents. While testifying on oath, the InvestigatingOfficer would be required to narrate the sequence of events whichtranspired leading to the recording of the disclosure statement’. (c)The Hon’ble Supreme Court of India in Criminal AppealNo.2143 of 2024 (arising out of SLP (Cri.) No.4626 of 2024)Hansraj vs. State of Madhya Pradesh decided on 19.04.2024 heldas under:‘in the case of Ramanand alias Nandlal Bharti v. State ofUttar Pradesh has postulated that for proving a disclosure memo 40 Cr.Appeal344.19recorded under Section 27 of the Indian Evidence Act, 1872 at theinstance of the Accused, the Investigating Officer would berequired to state about the contents of the disclosure memo and inabsence thereof, the disclosure memo and the discovery of factsmade in pursuance thereto would not be considered as admissiblefor want of proper proof.’ It is further observed that, ‘It is alsoimportant to note that the Prosecution did not lead any evidence toshow that the recovered articles were sealed at the time ofrecovery or that they were kept secure in the malkhana.’22.In the case in hand PW5 – Keshav Vishnu Jagtap deposedthat on 21.10.2011 he was called to the Police Station, Ashti by PW21 –Jyoti Kshirsagar, Dy.S.P. The Accused No.4 was brought before him. TheAccused No.4 disclosed that clothes were kept in one lodge and weaponswere thrown in the river and he was ready to show both the places.Exh.201 Memorandum was prepared. Thereafter, Accused No.4 ledthem in the Government vehicle which proceeded as per the directionsgiven by Accused No. 4. While proceeding towards Manmad, he pointedtowards river near Dhorgaon where the vehicle was stopped and they allgot down. The police searched in the river but due to heavy waternothing was found. Thereafter they all went to one Residency lodge atManmad wherein Accused No.4 pointed towards one room, which wasopened by the lodge owner and one red colour full shirt, one jean pantand other five to six clothes were produced by Accused No.4 which werehaving blood stains. The said clothes were seized under the Panchanamaat Exh.202. 23.PW21 – Jyoti Kshirsagar, SDPO, who investigated the crime 41 Cr.Appeal344.19also deposed of the statement given by Accused No.4 and the saidAccused leading them to one river at Dhorgaon from where nothing wasfound. Thereafter they went to one Monut lodge at Manmad from wherethe said Accused produced the clothes which were seized under the saidpanchanama. 24.Both PW5 – Keshav Jagtap and PW21 – Jyoti Kshirsagaridentified clothes at Articles-13 to 19 as the same clothes. Their evidencenowhere show that the said Articles were sealed when they were madeavailable by the Accused No.4. In her evidence PW21 – Jyoti Kshirsagaradmitted that before the panchanma at Exh.202 at Munot lodge, Policehad visited the said lodge on 14.10.2011 and while preparing the saidpanchmana at Exh.202 they had knowledge about the lodge. Shefurther admitted that on 14.10.2011 after putting their lock to the saidroom, its keys were with her. This clearly establishes that the said roomwas in the possession and control of the police prior to the disclosurestatement and police knew the said place. Therefore, the said evidencein respect of the discovery / recovery at the instance of Accused No. 4cannot be held to be relevant and is liable to be rejected. 25.The evidence of PW6 – Ganesh Dattatraya Kakade showthat on 22.10.2011 he was called in the police station wherein PW21 –Jyoti Kshirsagar, Dy.S.P. was present. One vehicle was seized in hispresence under the panchanma at Exh.204. On the contrary, the 42 Cr.Appeal344.19evidence of PW21 – Jyoti Kshirsagar show that, under the saidpanchanama at Exh.204, the motorcycle was seized from the house ofAccused No.11. There is contrary evidence in respect of the seizure ofthe said vehicle under Exh.204 and thus, it is discarded. Moreover, howthe said vehicle was connected with the crime is not proved by theProsecution.26.Further, evidence of PW6 – Ganesh Kakade show that againon 01.11.2011 he was called at Police Station wherein PW21 – JyotiKshirsagar was present and Accused No.11 was brought before him andhe made statement that his clothes were at his house and he was readyto produce the same and accordingly, the Memorandum at Exh.205 wasprepared and thereafter the said Accused led him and police in policevehicle to his house in village Jeour from where the clothes at Articles-21 and 22 were seized under the Panchnama at Exh.206. His cross-examination show that on 01.11.2011 he was called at about 07:30 p.m.and he proceeded to his village at 09:00 p.m.27.PW21 – Jyoti Kshirsagar, Investigating Officer deposed thatAccused No.11 gave statement that he was ready to produce the clothesand Memorandum at Exh.205 was prepared to that effect and theclothes Articles-21 and 22 were seized at his instance from Jeour whichwere seized vide panchanmaa at Exh.206. Her evidence nowhere show 43 Cr.Appeal344.19as to from where the said Articles i.e. clothes were seized. Further, in hercross-examination it has come that on 01.11.2011 she left Georai (whichwas place of her actual posting) and she did not reach Ashti till 12 noon.She admitted that it was mentioned in Exh.205 Memorandumpanchanama that she was present. There is no dispute that the saidExh.205 Memorandum show the timing 10:30 to 10:45. From this, itbecomes clear that PW21 – Jyoti Kshirsagar was not present when thesaid Memorandum was prepared. Moreover, the timing of coming toPolice Station and leaving for his village as considered in the above parashow that she was also not present at the time of preparing the Exh.205and 206. Thus, her evidence in respect of seizure of clothes fromAccused No.11 pursuant to Memorandum at Exh.205 and 206 is liableto be rejected. Moreover, the evidence of PW6 - Ganesh Kakade andPW21 - Jyoti Kshirsagar nowhere show that the said clothes were sealed,even if their evidence is accepted for the sake of argument. 28.The evidence of PW7 – Laxmikant Maroti Kadam show thathe was called by the police on 24.10.2011 where PW21 – JyotiKshirsagar, S.D.P.O. was present. The Accused No.12 was broughtoutside the locker and he gave statement that he had thrown theweapon and was ready to produce it and Memorandum at Exh.208 wasprepared. He further deposed that at the instance of the said Accused,the weapon like Sword at Article-20 was seized from the grass on the 44 Cr.Appeal344.19eastern side of the road at village Chinchpur which was seized under thepanchanama at Exh.209. Regarding such disclosure and seizure PW21 –Jyoti Kshirsagar deposed that Accused No.12 gave statement that he wasready to produce the weapon and Memorandum at Exh.208 wasprepared. Article-20 weapon like Sword was produced by the saidAccused from near village Chinchpur which was seized under thePanchanama at Exh.209.29.The evidence of PW21- Jyoti Kshirsagar is completely silentas to from which place the Article-20 was seized at the instance ofAccused No.12. Further, the above evidence of PW7 – Laxmikant Kadamand PW21 – Jyoti Kshirsagar is completely silent about presence of anyblood or stains on the said Article and it was sealed after it was seized.Further, this evidence gets severe blow by the admission of PW21 – JyotiKshirsagar that on 24.10.2011 she left Georai at 07:00 a.m. and was notable to tell the exact time when she reached Ashti on that day. Sheadmitted that on that day she was not in Ashti at 07:30 a.m. She furtheradmitted that it was mentioned in Exh.208 Memorandum that she waspresent at Ashti. Admittedly, the said Memorandum at Exh.208 show thetime 07:30 to 07:40 pm. Thus, it is clear that the said Memorandum wasprepared in absence of PW-21 - Jyoti Kshrisagar. Thus, this evidence ofdiscovery / recovery at instance of Accused No.12 – Syed Gaus isrejected. 45 Cr.Appeal344.1930.The evidence of PW8 – Satish Vitthal Takale show that on22.10.2011 he was called at Ashti Police Station by PW21 – JyotiKshirsagar. Accused No.4 was brought before him. The said Accusedgave disclosure statement that the Pistol and cartridges were hidden inthe field of Limbaji Prabhu Suryawanshi and was ready to produce it.The Memorandum at Exh.221 was prepared. He further deposed thatthe said Accused led the police and panchas in government vehicle onNagar road and the vehicle was stopped near southern side of electricDP on Kinhni phata. The Accused took them in the crop of Jowar in thefield of Limbaji and produced one Pistol which was hidden under theearth in green colour plastic bag along with two cartridges which wereseized under Exh.222.31.PW21 – Jyoti Kshirsagar also deposed that Accused No.4produced the Pistol and Memorandum at Exh.221 was prepared andArticle-12 (collectively Pistol, two empty cartridges and two fire bullets)were seized at his instance from field of Limbaji situated at village Kerul.32.The above discussed evidence in respect of the seizure ofthe fire arm and other cartridges will not take the case of Prosecutionany further since there is no evidence that deceased Balu suffered firearm injury. Mere recovery / discovery of the weapon is not sufficient to 46 Cr.Appeal344.19prove the offence. Its use in the crime is required to be proved by theProsecution.33.The evidence of PW9 – Kailas Ramesh Dhonde show that on18.10.2011 he was called at Police Station and Police had shown twovehicles which were seized in his presence under the Panchanama atExh.202 and 204, respectively. He deposed that he did not know as tohow both the said vehicles had come in the police station. The saidevidence do not take the case of Prosecution any further.34.The evidence of PW10 - Santosh Bhimrao Ajbe show that hewas called at Ashti Police Station on 13.10.2011 wherein one KrishnaSable (Accused No.7) was present. There were Articles like one silvercolour Sword, two wooden Sticks and one Tata Sumo (four wheeler).The said Articles were taken out from the said four wheeler and wereseized under the Panchanama at Exh.230. His cross-examination showthat the vehicle was standing in the premises of police station and thedoors of the said vehicle were opened in his presence and those werenot locked at that time. This evidence also do not take the case ofProsecution any further.35.The evidence of PW4 – Mahesh Janardhan Sonawane showthat on 11.11.2011 he was called at Ashti Police Station where one ArunAnarse produced one memory card which was seized under the 47 Cr.Appeal344.19Panchanama at Exh.182 (memory card at Article 29). He was againcalled on 15.10.2011 in Police Station wherein one Nitin Kadam, DineshKekan (Accused No.5) and Shaikh Adam (Accused No.6) were presentand mobile phones at Articles-25 to 27 were seized from their possessionunder the panchanama at Exh.183. He was again called on 22.10.2011at Ashti Police Station wherein mobiles at Articles-30 and 31 were seizedfrom the possession of Nitin (Accused No.11) and Syed Gaus (AccusedNo.12) under the Panchanama at Exh.184.36.The Prosecution examined Nodal Officers of mobilecompanies i.e. PW22 – Jitendra Nagpal, PW23 – Dattaram ShantaramAngre, PW24 – Dhananjay Dattatraya Yadao, PW25 – Gokul RambhauRasal, PW26 – Rajesh Sampatrao Gaikwad, who were working inBharati Airtel Company, Idea Company, TATA Teli Services, BSNL andReliance Teli Communication, respectively. In their evidence CDR’s ofseveral mobile phone numbers are brought on record. Perusal of theirevidence only Indicate as to in whose name the mobile numbers wereregistered. Nothing is pointed out from the Prosecution side as to howthis evidence would lead in establishing the Charge. Neither the learnedAddl. P.P. nor the Advocates for the convicted Appellants referred thesaid evidence at the time of the arguments. Thus, the said evidence ofseizure of mobile phones and call details takes the case of Prosecutionno further. 48 Cr.Appeal344.1937.The evidence of PW3 – Sainath Baban Dhobale show thathe was the panch for the panchanama at Exh.172 under which theclothes of deceased Balu were seized.38.The evidence of PW20 – Ganinath Surwase show that hewas running the Hair Saloon near the spot of incident. His evidenceshow that he did not support the Prosecution. Though he wascross-examined by the Prosecution, nothing material, which would helpthe Prosecution in establishing the Charge against the convictedAppellants, came in his evidence.39.The evidence of PW29 – Nilesh Nandu Sonawane andPW30 – Rahul Bharat Bhise show that since they did not support thecase of Prosecution, they were cross-examined by the Prosecution,however nothing material which would help the Prosecution inestablishing the Charge against the convicted Appellants came in theirevidence.40.The evidence of PW31 – Pradeep Bhingardive show that hewas dealing in purchase and sale of vehicles and Accused No.7 wasworking as driver with him on Tata Sumo vehicle. He further deposedthat he purchased the motorcycle from Ganesh Palve and he sold both 49 Cr.Appeal344.19the vehicles to Accused No.7. In his cross-examination he admitted thathe was not the legal owner of both the said vehicles and the transactionof both the said vehicles with Accused No.7 was not legal. Even hisevidence will not take the case of the Prosecution any further. 41.The evidence of PW32 – Arjun Bhola Chavan show that hewas serving in the Maharashtra State Road Transport Corporation. InDecember-2010 he was having Tata Sumo vehicle and Accused No.7 wasdriver on the said vehicle. He further deposed that he handed over simcard to him for a period of four to five months and the said Accused didnot return it to him and left the services. Since the evidence of phonecall detail is of no assistance to the Prosecution, this evidence will leadthe case of Prosecution nowhere.42.The evidence of PW33 – Ganesh Raosaheb Palve show thathe was in the business of Auto Finance and used to purchase and saletwo wheelers. In June-2011 he sold motorcycle bearing No. MH-16/AH-7519 to Bhingardive from Nagare. He admitted that he had no legaldocument to show that he purchased and sold the said motorcycle.43.The evidence of PW27 – Yuvraj Bayaji Ajetrao show that hewas working as the Deputy Secretary in Department of Home,Mantralaya and processed the proposal received from the Director 50 Cr.Appeal344.19General of Police, Mumbai seeking permission to prosecute the AccusedNo.3 and he issued the sanction order at Exh.562.44.The evidence of PW1 – Shaikh Alim Jan Mohd. show thathe acted as the Spot Panch of the Spot Panchanama at Exh.163 fromwhere motorcycle and Indica car were seized. His cross-examinationshow that on 11.10.2011 it was stormy and rainy weather in theevening. 45.If we see the evidence of PW2 – Santosh Baban Shelke whoacted as the Panch witness for the Inquest that the inquest was carriedbetween 9:00 p.m. and 10:00 p.m. Admittedly, crime was not registeredwhen the said Inquest was prepared. Admittedly, the Police Officer whoprepared the said Inquest is not examined by the Prosecution. InColumn No.2 of the said inquest, which is for act and section, 302, 34IPC is written. On this it is the submission of learned Advocate for theconvicts / Appellants that this clearly show that the assaulters were lessthan five (5). The Prosecution could not throw light on this aspect.46.The evidence of PW15 – Popat Sheshrao Jadhav show thatin the year 2011 he was serving as driver at Ashti Police Station andAccused No.3 was In-charge of the said police station. On 10.10.2011 atabout 09:30 p.m. they started patrolling from Ashti towards Kada and 51 Cr.Appeal344.19stopped at Genning of Surnil Suryawanshi at village Sheri. SaidAccused No.3 decided to take lunch and since he (PW15 - Popat) was onfast, he purchased groundnut and waited for Accused No.3. Thereafter,they returned to Ashti Police Station. This evidence takes the case ofProsecution nowhere.47.The evidence of PW16 – Shriram Patil Sonawane show thaton 10.10.2011 he stopped at Raj Dhaba while coming back home aftervisiting ‘Santkrupa Agency’. At that time Accused No.3 came to thedhaba in sumo jeep along with driver. He took tea and left the dhaba.Since he did not support the case of Prosecution, he was cross–examinedby the Prosecution, however nothing material has come which wouldfurther the case of Prosecution.48.The evidence of PW28 – Akhilesh Kumar Singh show thatfrom 15.10.2011 to 21.01.2013 he was the In-charge of Ashti Talukaand this crime was handed over to him for investigation on 29.03.2012.The earlier investigation was carried out by PW21- Jyoti Kshirsagar. Hisevidence show that on 31.03.2012 he filed Charge-sheet against AccusedNo.3 - Mane and took steps in respect of absconding Accused.49.The evidence of PW18 – Mahesh Sarjerao Jagtap show thathe knew deceased Balu. He deposed about enmity between deceased 52 Cr.Appeal344.19Balu and Sunil Nath, Sachin Suryawanshi and Sunil Suryawanshi due togrampanchayat elections. He deposed that Accused No.3 had calleddeceased Balu Khakal, him and Mukund Navale at the Kada PoliceStation, wherein Sunil Nath and Sunil Suryawanshi were present.Accused No.3 threatened deceased Balu that next time he will befinished and he will see how the Charge-sheet is filed. Thereafter, theydrove them out of police station. His cross-examination show that hewas not the witness to the incident of assault which had taken placeafter the grampanchayat election. Though he deposed that he reachedthe spot of incident where Balu Khakal was lying dead, he did notdisclose the police who were present there that the Accused No.3 hadthreatened deceased Balu to kill him. His evidence at the most showenmity between deceased Balu and Accused No.3, Accused No.4 andnothing more. 50.The evidence brought on record by the Prosecution isevaluated as discussed above. The evidence of witnesses examined aseye-witenss do not inspire confidence about they being the actual eyewitnesses to the incident. Their evidence cannot form the basis touphold the conviction. Admittedly, the learned Trial Court disbelievedthe testimony of the eye witnesses. Other corroborative piece ofevidence in the nature of discovery / recovery is discarded beinguntrustworthy and not in accordance with the law. There are C.A. 53 Cr.Appeal344.19Reports brought on record by the Prosecution at Exhs.449, 450, 451,452, 453, 454, 455 and 456. The said C.A. Reports show human bloodon all the Articles which comprise of earth, pair of chappels, scrappingsin the polythene, bunch of hair, clothes and Sword, except Article No.11which is full open shirt. The said C.A. Reports further show that theArticles earth, pair of Chappels, bunch of hair, full jean pant, full shortshirt, sandow baniyan, nicker, Sword, half open shirt, full short shirt,half T-shirt and full pant were having stains of blood group ‘B’. The C.A.Reports further show that the blood of deceased was ‘B’. The bloodgroup of Accused No.4 was ‘inconclusive’. The blood group of AccusedNo.13 was ‘AB’. The blood group of Accused No.12 was ‘A’. The bloodgroup of Accused No.14 was ‘B’. The blood group of Accused No.11was ‘B’. When the evidence of discovery / recovery of the clothes andweapons at the instance of convicted Appellants is discarded, the saidC.A. Reports would not be of any assistance for the Prosecution.Moreover, the blood group of deceased Balu and some of the Appellantsis similar. Thus, learned Trial Court in our considered view erred inrecording conviction on the basis of C.A. Reports by virtue of Section106 of the Indian Evidence Act. No doubt, the provisions of Section 106of the Indian Evidence Act shifts the burden on the Accused to explain,however, it is for the Prosecution to first establish its case and dischargetheir burden and only thereafter the provisions of Section 106 of theIndian Evidence Act would come into play for the matters which are 54 Cr.Appeal344.19exclusively within the knowledge of accused persons. Further, theCharge under the Arms Act and the Maharashtra Police Act fails for wantof evidence in respect of required Sanction and promulgation ofrequired Notification.51.In view of the above discussion, it is not possible tomaintain the conviction recorded by learned Trial Court. The evaluationof the evidence do not warrant interference in the order of acquittalrecorded by learned Trial Court. Eventually the Appeals filed by theconvicts / Appellants succeeds and the Appeal filed by the State againstthe acquittal fails. Resultantly, we proceed to pass the following order:ORDER(i)Criminal Appeal Nos.344 of 2019 and 39 of 2024 filed by theconvicts are allowed.(ii)Criminal Appeal (St.) No.585 of 2019 and Application for Leaveto Appeal by State No.124 of 2019 are dismissed.(iii)Judgment and Order dated 19.03.2019 passed by the learnedAdditional Sessions Judge, Beed in Sessions Case No.16/2012 convictingand sentencing the Appellants - Sachin Vitthal Suryawanshi, NitinSanjay Shinde, Bhausaheb Mohan Sable and Mahendra SevakramMahajan in Criminal Appeal No.344 of 2019 and Appellant – SayyedGaus Sayyed Noor in Criminal Appeal No.39 of 2024 for the offence 55 Cr.Appeal344.19punishable under Sections 147, 148, 302 r/w. Sec.149 of the IndianPenal Code is hereby quashed and set aside.(iv)Appellants - Sachin Vitthal Suryawanshi, Nitin Sanjay Shinde,Bhausaheb Mohan Sable and Mahendra Sevakram Mahajan in CriminalAppeal No.344 of 2019 and Appellant – Sayyed Gaus Sayyed Noor inCriminal Appeal No.39 of 2024 are acquitted of the offence punishableunder Sections 147, 148, 302 r/w. Sec.149 of the Indian Penal Code.(v)Appellants - Sachin Vitthal Suryawanshi, Nitin Sanjay Shinde,Bhausaheb Mohan Sable and Mahendra Sevakram Mahajan in CriminalAppeal No.344 of 2019 and Appellant – Sayyed Gaus Sayyed Noor inCriminal Appeal No.39 of 2024 be released forthwith, if not required inany other crime.(vi)Record & Proceedings be sent back to the Trial Court.(vii)Pending Criminal Application/s, if any, stands/stand disposed of. ( NEERAJ P. DHOTE, J. )( R. G. AVACHAT, J. )GGP
Arguments
4 Cr.Appeal344.192.Sachin Vitthal SuryawanshiAge : 32 years, occu : Agriculture, R/o. Kerul, Tal. Ashti, Dist. Beed 3.Dinesh Vitthal Kekan,Age : 32 years, Occu : Agriculture, R/o. Hanuman Nagar, Manmad, Tal. Nandgaon, Dist. Nasik 4.Sahikh Adam Sk. Akbar,Age : 37 years, R/o. Shivneri Colony, Ranjangaon, Shembapunji, Tal. Gangapur, Dist. Aurangabad 5.Krushna Mohan Sable,Age : 24 years, R/o. Kerul, Tal. Ashti, Dist. Beed 6.Sandeep Murlidhar Kale,Age : 20 years, R/o. As above. 7.Dadasaheb Haribhau Phalle,Age : 25 years, R/o. As above. 8.Nitin Sanjay Shinde,Age : 25 years, R/o. Bayejabai Jeur, Ahmednagar 9.Sayyad Gaus Sayyad Noor,Age : 22 years, R/o. Surya Nagar, Aurangabad Road, Ahmednagar 10.Bhausaheb Mohan SableAge : 28 years, R/o. Kerul, Tal. Ashti, Dist. Beed 11.Mahendra Sevakram MahajanAge : 24 years, R/o. As above. 12.Ashok Haribhau Phalle,Age : Major, R/o. As above. .. Respondents …..Shri. S.D. Ghayal, Addl. P.P. for the Applicant / State ….. 5 Cr.Appeal344.19CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 08.05.2024PRONOUNCED ON : 04.07.2024JUDGMENT [ PER NEERAJ P. DHOTE, J. ] :.These Appeals and Applications arise out of the Judgment andOrder dated 19.03.2019 passed by the learned Additional SessionsJudge, Beed in Sessions Case No.16/2012 convicting and sentencing theAccused Nos. 4, 11 to 14 for the offence punishable under Sections 147,148, 302 r/w. Sec.149 of the Indian Penal Code (for short, ‘I.P.C.’) andacquitting Accused Nos.3 to 9 and 11 to 15 for the offence punishableunder Sections 109, 120B, 201, 212, 307 of the IPC and for the offencepunishable under Sections 3 r/w. Sec. 25, 4 r/w. Sec. 25 of the Arms Actand for the offence punishable under Sections 37 (1)(3) r/w. Sec. 135 ofthe Maharashtra Police Act. The case against Accused No.17 is droppedon the basis of report under Section 169 of the Code of CriminalProcedure (hereinafter referred to as the ‘Cr.P.C.’). The Police StationPeth, Beed was directed to file separate Charge-sheet against abscondingAccused Nos.10 and 16, on their arrest. The fine amount ofRs.1,00,000/- (Rupees One Lakh Only) is directed to be paid to the wifeof deceased as compensation vide Section 357 of the Cr.P.C.2.Criminal Appeal Nos. 344 of 2019 and 39 of 2024 are underSection 374 (2) of the Cr.P.C. by the convicted Accused Nos.4, 11, 13, 14 6 Cr.Appeal344.19and convicted Accused No.12, respectively. Application for Leave toAppeal by State No.124 of 2019 is against the acquittal recorded by theTrial Court. Criminal Application No.1863 of 2019 is for condonation ofdelay by the State in preferring the Appeal under Section 377 of theCr.P.C. for enhancement of punishment awarded by the Trial Court.The Prosecution’s case as revealed from the Police Report is as under :2.1.In the elections of Grampanchayat of village Sheri (bk.),Tal. Ashti, Dist. Beed held on 30.08.2010, panel of Accused No.1 - SunilNarayan Nath and Accused No.2 - Sunil Baburao Suryawanshi(both discharged by this Court vide order dated 07.04.2014 and21.10.2013, respectively) lost the election and the panel of deceasedBalu @ Ravindra Khakal (hereinafter referred to as ‘deceased Balu’) waselected. Both the said discharged Accused conspired with Accused No.3to eliminate deceased Balu. The said conspiracy was hatched in onehotel in village Kerul on 10.09.2010 wherein the Accused Nos.4, 13, 15,16 and Sunil Baburao Suryawanshi were present.2.2.On 26.09.2010 in village Kerul, quarrel took place betweendeceased Balu on one side and Accused No.4 on the other side whichturned violent. Accused No.4 lodged the Report for the said incidentagainst deceased Balu and others with the Ashti Police Station andCrime No.122/2010 came to be registered for the offence punishable 7 Cr.Appeal344.19under Sections 147, 148, 149, 326, 452, 324, 504, 506 of the I.P.C. r/w.Section 25 (1) of the Indian Arms Act. For the said incident, deceasedBalu lodged the Report with Ashti Police Station against Accused No.4and others and Crime No.123/2010 came to be registered for theoffence punishable under Sections 147, 148, 149, 326, 324, 504, 506 ofthe IPC r/w. Section 25 (1) of the Indian Arms Act. The Accused No.3,who was posted as Assistant Police Inspector at Ashti Police Station, filedCharge-sheet in the aforementioned Crime No.122/2010 and submitted‘B’ summary report in the aforesaid Crime No.123/2010.2.3.One Crime bearing No.124/2010 was registered againstdeceased Balu for the offence punishable under Section 302 r/w. 34 ofthe IPC with the Ashti Police Station on the report lodged by VitthalDhondiba Suryawanshi for murder of wife of Accused No.4. Due to thatthere was enmity between deceased Balu and Accused No.4. Thedischarged Accused Sunil Nath and Sunil Suryawanshi, by taking benefitof the said rivalry, successfully made Accused No.4 to be on their side.2.4.On 10.10.2010 Accused No.3 and the discharged Accusedhatched conspiracy and instigated Accused Nos.4, 11, 12, 13, 14, 15 and16 by informing them about the conspiracy. 2.5.On 11.10.2010 between 19:00 hrs and 19:30 hrs whendeceased Balu along with witnesses had gone for offering prayers at the 8 Cr.Appeal344.19temple in village Kerul on the day of Kojagiri Purnima and reached nearAmbika Dairy, Accused Nos.4, 11, 12, 13, 14, 15 and 16 arrived on thespot in four wheeler and two wheeler with Pistol, Sword, Kukri, IronPipe and Knife and assaulted deceased Balu and the witnesses. Due tothe assault, Balu died on the spot. Since it was the time of Yatra (fair)public gathered and the Accused persons fled. 2.6.The police were informed about the incident. The policecame on the spot and shifted the dead body of Balu to the hospital.Inquest was conducted. Eye witness – Pravin Gondkar lodged the Reportwith Ashti Police Station in respect of the said incident and CrimeNo.149/2011 came to be registered for the offence punishable underSections 302, 307, 109, 147, 148, 149, 323, 120B, 212, 201 of the IPC,Sections 3 r/w. 25, 4 r/w.25, 5 r/w. 27 of the Indian Arms Act andSection 135 of Bombay Police Act against the known and unknownAccused persons. 2.7.During the course of investigation, the body was sent forPost-mortem, the Spot Panchanama was drawn, the statement of thewitnesses came to be recorded, the clothes of deceased came to beseized, the Accused (except absconding Accused) came to be arrested,the vehicles used in the crime came to be seized, the weapons used inthe crime came to be seized at the instance of the Accused, the clothes of 9 Cr.Appeal344.19the Accused persons came to be seized, Test Identification Parade (T.I.P.)was conducted for the unknown Accused, mobile phones of some of theAccused came to be seized, the Post-mortem Report and the InjuryCertificates of the injured witnesses came to be collected, the Call DetailRecords (CDRs) of mobile phones of some of the Accused and otherswere collected, the Sanction to prosecute Accused No.3, being the publicservant was issued, the muddemal was sent to the Chemical Laboratoryand on completion of the investigation, the Charge-sheet andSupplementary Charge-sheet came to be filed. 2.8.On committal, the learned Additional Sessions Judgeframed the Charge against Accused Nos.3 to 9, 11 to 16 vide Exh.131/C,146/C and 151/C for the offence punishable under Sections 302 r/w.149, 147, 148, 109 r/w. 149, 212 r/w. 149, 201 r/w. 149, 307 r/w. 149,120-B of the IPC, Sections 25 (3), 4/25 of the Indian Arms Act andSections 37 (1)(3) r/w. Section 135 of the Bombay Police Act.The Charged Accused pleaded not guilty and claimed to be tried. Toprove the Charge, Prosecution examined in all thirty four (34) witnessesand brought on record the documents. After the Prosecution closedtheir evidence, the learned Trial Court recorded the Statement ofAccused persons under Section 313 (1)(b) of the Cr.P.C. The Accusedpersons denied the Prosecution’s case. On appreciating the evidence onrecord the learned Trial Court passed the impugned Judgment and 10 Cr.Appeal344.19Order.3.Heard learned Advocate for the convicts / Appellants andlearned Addl. P. P. for the State / Prosecution. Their submissions andauthorities relied upon by them would be considered at the relevanttime while appreciating the evidence in the later part of Judgment. 4.It is submitted by the learned Addl. P. P. that there is ampleevidence on record which establishes the Homicidal Death of Balu. TheHomicidal Death of Balu is not seriously disputed by learned Advocatesfor the Appellants as seen from their submissions. On this point, theProsecution is relying upon the evidence of Inquest Panch and theMedical Officer who conducted the Post-mortem. 5.Evidence of PW2 – Santosh Baban Shelke show that on11.10.2011 he was called to Civil Hospital at Ashti where body ofdeceased Balu was shown to him. Dead body was identified by PravinGondkar (PW11). There were twenty nine (29) injuries on the deadbody. The injuries were on forehead, chest, stomach etc. The Inquest atExh.169 was prepared upon which he signed. He identified the saidinquest. His cross-examination show that he was not the relative of thedeceased. The tenor of cross-examination show that drawing of Inquestin the presence of this witness in the hospital was not seriously disputed.He denied the suggestion that his signature was taken in the police 11 Cr.Appeal344.19station. Nothing has come in the cross-examination to discard this pieceof evidence.6.The evidence of PW19 – Nitin Subhash Ninal show that hewas qualified as M.B.B.S. and M.D. in Forensic Medicine. On 12.10.2011he was serving as P.G. student at Ghati Hospital, Aurangabad and bodyof deceased Balu was referred by ASI B. B. Jadhav from Ashti PoliceStation for Post-mortem examination. On that day at about 09:15 a.m.the body was identified by Pravin Gondkar (PW11). The Post-mortemwas conducted by him and others between 01:40 p.m. and 02:40 p.m.He found twenty six (26) surface injuries on the dead body which werementioned in Column No.17 of the Post-mortem notes. He noticed theinternal injuries which were mentioned in Column Nos.19 to 21 of Post-mortem notes which were corresponding to external injuries. All theinjuries were ante mortem. The viscera was reserved for chemicalanalysis. The cause of death was ‘shock and hemorrhage due to injuryto vital organs’. He identified the Post-mortem Report at Exh.427 andalso identified provisional Post-mortem Report-cum-Death Certificate atExh.428. He deposed that all the injuries were possible by sharpweapon like Sword, Kukry and Knife and were sufficient to cause death.He identified letter at Exh.429 seeking his opinion by the InvestigatingOfficer and the letter at Exh.430 upon which he gave his opinion thatthe injuries were possible by the weapons like Sword, Kukry and iron 12 Cr.Appeal344.19pipe. He deposed that the injuries were possible by Article 20 i.e.Sword.7.The tenor of cross-examination of PW19 – Nitin SubhashNinal show that the injuries on the dead body and possibility of thesame being caused by sharp weapon were not seriously disputed. Hedenied the suggestion that he was not sure about the probable cause ofdeath and therefore, the viscera was sent for histopathologicalexamination. Through this evidence on record the Prosecution hasestablished the injuries on the dead body and the cause of death. ThePost-mortem Report show that the injuries referred therein were incisedwounds, chopped wounds, stabbed wounds and lacerated wounds.8.From the above discussed evidence on record, theProsecution has established that death of Balu was due to the injuriessuffered by him. No more discussion is required on this point. From theabove referred clear evidence on record, the Homicidal Death of Balu isproved by the Prosecution.9.It is submitted by the learned Advocates for theconvicts / Appellants that the witnesses examined by the Prosecution asthe eye witnesses are in fact not the eye witnesses as is clear from theevidence on record. The witnesses examined as the eye witnesses are theinterested and inimical witnesses. The First Information Report is 13 Cr.Appeal344.19written by the relative of the deceased who was in the police departmentand the same is shown to be given by Pravin Gondkar (PW11). Themedical evidence in respect of the injury to Pravin Gondkar (PW11) isnot trustworthy. No description of unknown persons was given in theFIR. There was no immediate disclosure of the incident, though PravinGondkar (PW11) claimed to have witnessed the incident and there wasdelay of six (6) hours in lodging the Report. There is no substantiveevidence by examining the Executive Magistrate to prove that the T.I.P.was conducted. From the evidence of eye witnesses it becomes clearthat they have not witnessed the incident and are shown to be so. Theplace of incident was public place and though the public had gatheredon the spot of incident, no independent witness was examined. Therewas no electricity at the relevant time where the incident had takenplace and therefore, no reliance can be placed on the testimony of theeye witnesses. The learned Trial Court has rightly discarded thetestimony of eye witnesses, however convicted the Appellants on thebasis of blood stains on their clothes. Leaned Advocates for theconvicted Appellants relied on the following Judgments in support oftheir contentions:(a)Hem Raj and Others vs. State of Haryana, AIR 2005 SC 2110wherein it is observed as follows: ‘the fact that no independent witness though available, wasexamined and not even an explanation was sought to be given 14 Cr.Appeal344.19for not examining such witness is a serious infirmity in theProsecution case. Amongst the independent witnesses one whowas very much in the know of things from the beginning was notexamined by the Prosecution. Non-examination of independentwitness by itself may not give rise to adverse inference againstthe Prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence atthe time of actual occurrence, the unexplained omission toexamine the independent witness would assume significance.”(b)Sunil Kundu and another vs. State of Jharkhand, 2013 AIR SCW2278 wherein it is observed as under: ‘the evidence of eye witnesses was that the Accused fatallyassaulted deceased with fire arms, knife and iron rod and alsoresorted to blank firing to drive away people. However, neithergun shot injury was found on body of deceased nor anycartridge was recovered from the place of incident. Theevidence of eye witnesses as to weapons used by each Accusedwas inconsistent which was held to be not minor inconsistencyand eye witnesses were the relatives of deceased and theirpresence was held to be doubtful’’. It is further held that, ‘thetestimony of eye witnesses was totally inconsistent with themedical evidence and suffering from improvements andtherefore the rule that ocular evidence has precedence overmedical evidence cannot be applied. The Prosecution has toprove its case beyond reasonable doubt and it cannot takesupport from the weaknesses of the defence case.’(c)Shivaji Dayanu Patil vs. State of Maharashtra, AIR 1989 SC 1762wherein it is observed thus:‘the conduct of the wife of deceased who was examined as theeye witness was found unnatural as she did not name theassailant to anybody after seeing the incident and disclosed onlywhen her statement was recorded by the Investigating Officerand her statement recorded during investigation was differentfrom her statement given at Trial’.(d)Ashraf Hussain Shah vs. Sate of Maharashtra, 1996 CRI.L.J. 3147wherein it is observed as follows:‘the Informant and the P.W. No.2 who were friends of the deceased,their conduct in not reporting to the police the incident, although 15 Cr.Appeal344.19they were at the police station for 1 ½ hours, was held to be highlyunnatural and improbable. The said conduct was held to besufficient to hold that they did not see the incident.’(e)Ramesh Prasad Thakur & Anr vs. Ramchandra Singh, AIR 1997SC 3818 wherein it is observed as under: ‘it was the Prosecution’s case that the deceased and the personswith him were attacked by the assailants and two injured hadreceived three minor injuries. It was found that none of the saidinjuries was caused by a weapon with a sharp edge and thecontention of defence that the injured could not have escapedunhurt and two injured witnesses would have received moreinjuries’.(f)Criminal Appeal No.705 of 2011, Sk. Bilal vs. the State ofMaharashtra, wherein the observations in the case of Rana Partap vs.State of Haryana [(1983) 3 SCC 327] in respect of behaviour of thewitnesses are reproduced as under:“20. In Rana Partap v. State of Haryana [(1983) 3 SCC 327 : 1983 SCC(Cri) 601], while dealing with the behaviour of the witnesses, thisCourt has opined thus: (SCC p. 330, para 6) “6. … Every person who witnesses a murder reacts in his own way.Some are stunned, become speechless and stand rooted to the spot.Some become hysteric and start wailing. Some start shouting for help.Others run away to keep themselves as far removed from the spot aspossible. Yet others rush to the rescue of the victim, even going to theextent of counter-attacking the assailants. Every one reacts in his ownspecial way. There is no set rule of natural reaction. To discard theevidence of a witness on the ground that he did not react in anyparticular manner is to appreciate evidence in a wholly unrealistic andunimaginative way.” 21. In State of H.P. v. Mast Ram [(2004) 8 SCC 660 : (2010) 1 SCC(Cri) 1165] it has been stated that there is no set rule that one mustreact in a particular way, for the natural reaction of man isunpredictable. Everyone reacts in his own way and, hence, naturalhuman behaviour is difficult to prove by credible evidence. It has to beappreciated in the context of given facts and circumstances of the case.Similar view has been reiterated in Lahu Kamlakar Patil v. State ofMaharashtra [(2013) 6 SCC 417 : (2012) 12 Scale 710]. 16 Cr.Appeal344.1922. Thus, the behaviour of the witnesses or their reactions would differfrom situation to situation and individual to individual. Expectation ofuniformity in the reaction of witnesses would be unrealistic but thecourt cannot be oblivious of the fact that even taking into account theunpredictability of human conduct and lack of uniformity in humanreaction, whether in the circumstances of the case, the behaviour isacceptably natural allowing the variations. If the behaviour isabsolutely unnatural, the testimony of the witness may not deservecredence and acceptance.” (g)Ashraf Hussain Shah vs. State of Maharashtra, 1996 Cri.L.J. 3147wherein the observations in the case of Ganesh Bhawan Patel vs. State ofMaharashtra, AIR 1979 SC 135 in respect of the delay are reproduced asfollows: "15 ..... Delay of a few hours, simpliciter, in recording thestatements of eye-witnesses may not by itself, amount to a seriousinfirmity in the Prosecution case. But it may assume such acharacter if there are concomitant circumstances to suggest thatthe investigator was deliberately marking time with a view todecide about the shape to be given to the case and the eye-witnesses to be introduced." "18. ..... Normally, in a case where the commission of the crime isalleged to have been seen by witnesses who are easily available, aprudent investigator would give to the examination of suchwitnesses precedence over the evidence of other witnesses." (h)Badam Singh vs. State of M.P., AIR 2004 SC 26 wherein it isobserved as under:‘the mere fact that the witnesses are consistent in what they say isnot a sure guarantee of their truthfulness. The High Court beingfinal court of fact who critically scrutinize the evidence in somedetail. If the Court comes to the conclusion that the conduct of thewitnesses is such that it renders case of the Prosecution doubtful orincredible, or that their presence at the place of occurrence as eyewitnesses is suspect, the Court may reject their evidence.’(i)Rajeevan and Another vs. State of Kerala, (2003) 3 SCC 355 17 Cr.Appeal344.19wherein the observations in respect of delay in lodging the FIR and itsconsequences discussed in the case of Thulia Kali vs. State of T.N.,(1972) 3 SCC 393 are considered and it is observed that :‘First information report in a criminal case is an extremely vitaland valuable piece of evidence for the purpose of corroboratingthe oral evidence adduced at the trial. The importance of theabove report can hardly be overestimated from the standpoint ofthe Accused: The object of insisting upon prompt lodging of thereport to the police in respect of commission of an offence is toobtain early information regarding the circumstances in whichthe crime was committed, the names of the actual culprits andthe part played by them as well as names of eye witnessespresent at the scene of occurrence. Delay in lodging the firstinformation report quite often results in embellishment which isa creature of afterthought. On account of delay, the report notonly gets bereft of the advantage of spontaneity, danger creepsin of the introduction of coloured version, exaggerated accountor concocted story as a result of deliberation and consultation. Itis, therefore, essential that the delay in the lodging of the firstinformation report should be satisfactorily explained.’10.It is submitted by learned Addl. P.P. that the Prosecution’scase is based on direct evidence. The eye witnesses are also the injuredwitnesses and their evidence would stand on higher pedestal and cannotbe ignored. One of the eye witnesses is independent witness andconsistent with the first Informant. The eye witnesses have seen theassailants from short distance. Though some of the assailants wereunknown persons, the eye witnesses had the opportunity to observethem closely and they were identified in the TIP. In view of Section291A of the CrPC, TIP is admissible in evidence without formal proof bythe Executive Magistrate concerned. Though the evidence on recordshow that there was no electric supply in village at the time of the 18 Cr.Appeal344.19incident, it was the Kojagiri Purnima and the incident was seen by theeye witnesses in the headlights of the vehicles. The testimony of the eyewitnesses is corroborated by medical evidence. The evidence on recordalso show the enmity between the parties. The learned Trial Court hascommitted an error in discarding the testimony of the eye witnesses.The evidence on record establishes the Charge against all the Accusedpersons. 11.Learned Advocate appearing for Respondent No.2 i.e. thewife of the deceased in Criminal Appeal No.344 of 2019 supported thesubmissions made by learned Addl. P.P.12.Learned Addl. P.P. and learned Advocate for RespondentNo.2 in Criminal Appeal No.344 of 2019 relied on the followingJudgments in support of their submissions: (a)Criminal Appeal Nos.487, 525, 528 of 2018 dated 21.06.2023 of the Nagpur Bench of Bombay High Court, wherein the evidence ofeye witness was believed and the conviction was maintained. (b)Criminal Appeal No.1986 of 2008, Shiv Murat Kol vs. State of Madhya Pradesh dated 07.05.2018 decided by the Hon’ble Madhya Pradesh High Court holding that the evidence of T.I.P. cannot be discarded on the ground that the concerned Executive Magistrate was not examined to prove the 19 Cr.Appeal344.19proceedings of T.I.P. in view of the provisions of Section 291A of the Cr.P.C. which prescribes that such documents can be considered in evidence without formal proof by the Executive Magistrate concerned. (c)Ashok Debbarama @ Achak Debbarama vs. State of Tripura, 2014 AIR SCW 1628 in Para No.28, it is observed as follows : “28. In Commonwealth v. John W. Webster 5 Cush. 295, 320(1850), Massachusetts Court, as early as in 1850, has explainedthe expression “reasonable doubt” as follows: “Reasonable doubt ... is not a mere possible doubt; becauseeverything relating to human affairs, and depending on moralevidence, is open to some possible or imaginary doubt. It is thatstate of the case which, after the entire comparison andconsideration of all the evidence, leaves the minds of the jurorsin that condition that they cannot say they feel an abidingconviction.” In our criminal justice system, for recording guilt of the Accused,it is not necessary that the Prosecution should prove the casewith absolute or mathematical certainty, but only beyondreasonable doubt. Criminal Courts, while examining whether anydoubt is beyond reasonable doubt, may carry in their mind, some“residual doubt”, even though the Courts are convinced of theAccused persons’ guilt beyond reasonable doubt. For instance, inthe instant case, it was pointed out that, according to theProsecution, 30-35 persons armed with weapons such as firearms, dao, lathi etc., set fire to the houses of the villagers andopened fire which resulted in the death of 15 persons, but only11 persons were charge- sheeted and, out of which, charges wereframed only against 5 Accused persons. Even out of those 5persons, 3 were acquitted, leaving the appellant and another,who is absconding. Court, in such circumstances, could haveentertained a “residual doubt” as to whether the appellant alonehad committed the entire crime, which is a mitigatingcircumstance to be taken note of by the court, at least when thecourt is considering the question whether the case falls under therarest of rare category.” (d)Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364)