Criminal Appeal No. 224 of 2017 · The High Court
Case Details
2025:BHC-AUG:157-DB Cri.Appeal No.224/2017 withConnected Appeals :: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.224 OF 2017Babu s/o Limbaji KaleAge 32 years, Occu. Labour,R/o Kumbhari, Tq. & Dist. BeedAt present Balaji Nagar,Indrayani Chowk, MIDC, Bhosari,Pune.…APPELLANTVERSUSThe State of MaharashtraThrough : Police Inspector, Neknoor Police Station,Tq. & dist. Beed(Copy to be served on the Public Prosecutor, High Court of Bombay, Bench at Aurangabad)…RESPONDENT.......Mr. S.P. Chate, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent ....…WITHCRIMINAL APPEAL NO.767 OF 2018 WITHCRIMINAL APPLICATION NO.422 OF 2024Vinod s/o Madhukar GhigeAge 28 years, Occu. Agriculture,R/o Songaon, Tq. & Dist. BeedAt present Chakradhar Nagar, Cri.Appeal No.224/2017 withConnected Appeals :: 2 ::Pangri Road, Beed,Tq. & District Beed.…APPELLANTVERSUSThe State of MaharashtraThrough Police Station Officer, Police Station, Neknoor,Tq. & District Beed.…RESPONDENT.......Mr. P.N. Muley, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.768 OF 2018 WITHCRIMINAL APPLICATION NO.883 OF 2024Rajendra Alias Raju Murlidhar GhigeAge 42 years, Occu. AgriculturistR/o Songaon, Tq. & Dist. BeedPresently residing at Chakradhar Nagar,Pangari Road, Beed, District Beed.Maharashtra…APPELLANTVERSUSThe State of MaharashtraThrough the Station House Officer, Police Station, Neknoor, Tal. & Dist. Beed(Copy to be served on the Office of Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)…RESPONDENT.......Mr. A.D. Ostwal, Advocate for appellant Cri.Appeal No.224/2017 withConnected Appeals :: 3 ::Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.769 OF 2018 WITHCRIMINAL APPLICATION NO.882 OF 2024Tuljiram Alias Bappa Ashok VidyagarAge 24 years, Occu. Labour,R/o Kumbhari,Presently residing at Ambika Chowk,Shahunagar, Beed, Dist. Beed,Maharashtra…APPELLANTVERSUSThe State of MaharashtraThrough the Station House Officer, Police Station, Neknoor, Tal. & Dist. Beed(Copy to be served on the Office of Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)…RESPONDENT.......Mr. A.D. Ostwal, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.770 OF 2018 WITHCRIMINAL APPLICATION NO.884 OF 2024Sudhakar Alias Pintu Bhagwan BhaleraoAge 36 years, Occu. Labour,R/o Kumbhari,Presently residing at Ambika Chowk,
Facts
Cri.Appeal No.224/2017 withConnected Appeals :: 4 ::Shahunagar, Beed, Dist. Beed,Maharashtra…APPELLANTVERSUSThe State of MaharashtraThrough the Station House Officer, Police Station, Neknoor, Tal. & Dist. Beed(Copy to be served on the Office of Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)…RESPONDENT.......Mr. A.D. Ostwal, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.994 OF 2024The State of Maharashtra, throughPolice Station Officer, Police Station,Neknoor, Tq. & Dist. Beed…APPELLANTVERSUS1)Chandrasen Bhimrao Surwase,Age 50 years, Occu. Agri.,R/o Kumbhari, Tq. & Dist. Beed2)Bhaskar alias Bandu Digambar Survase,Age 38 years, Occu. & R/o as above. 3)Popat Manik Kokate, Age 49 years,Occ. & R/o as above.At present Shahunagar, Pangari Road, Beed Cri.Appeal No.224/2017 withConnected Appeals :: 5 ::4)Prakash Manikrao Kokate,Age 57 years, Occu. Service as Driver, R/o as above. 5)Rajendra alias RajuMurlidhar Ghige,Age 42 years, Occu. Agri.,R/o Songaon, Tq. & Dist. Beed,At present Chakradhar Nagar,Pangari Road, Beed.6)Vinod Madhukar Ghige,Age 28 years, Occu. &r/o as above.7)Tulshiram alias Bappa Ashok Vidyagar,Age 24 years, Occu. Labour, R/o Kumbhari, At present Ambika Chowk,Shahunagar, Beed.8)Babu Limbaji Kale,Age 29 years, Occu. Labour,R/o Kumbhari, at present Balaji Nagar, Indrayani Chowk,MIDC Bhosari, Pune9)Prashant alias Sugriv Bajirao Survase,Age 40 years, Occu. Agri.,R/o Kumbhari, Tq. & Dist. Beed10)Sudhakar alias Pintu Bhagwan Bhalerao,Age 36 years, Occu. Labour,R/o Kumbhari, at present Ambika Chowk,Shahu Nagar, Beed11)Satish Rajesaheb Survase,Age 50 years, Occu. Agri.,R/o Kumbhari, Tq. & Dist. Beed12)Mahadeo alias Sachin Baban aliasBabruwan Survase, Cri.Appeal No.224/2017 withConnected Appeals :: 6 ::Age 27 years, Occu. & R/o as above13)Sunil Gangaram Survase,Age 28 years, Occu. & R/o as above-mentioned14)Nandkumar alias Balu Madhukar Survase,Age 40 years, Occu. & r/o as above.15)Kishor alias Pappu Madhukar Survase,Age 36 years, Occu. & r/o as above.16)Hanumant alias Balu Vyankatrao Survase,Age 37 years, Occu. & r/o as above…RESPONDENTS.......Mr. S.D. Ghayal, A.P.P. for appellant – State Mr. M.B. Ubale, Advocate for Respondent Nos.1 to 4Mr. A.D. Ostwal, Advocate for Respondent Nos.5, 7 and 10Mr. P.N. Muley, Advocate for Respondent No.6. Mr. S.P. Chate, Advocate for Respondent No.8Mr. N.B. Jadhav, Advocate for Respondent Nos., 11 to 16....…WITHCRIMINAL APPEAL NO.1040 OF 2024Bhausaheb s/o Limbaji Surwase,Age 49 years, Occu. Agri.,R/o Kumbhari, Post Neknoor,Tq. Dist. Beed.…APPELLANTVERSUS1)State of Maharashtra(Copy to be served on Public Prosecutor, High Court ofJudicature of Bombay,Bench at Aurangabad) Cri.Appeal No.224/2017 withConnected Appeals :: 7 ::2)Chandrasen s/o Bhimrao Surwase,Age 50 years, Occu. Agri.,R/o Kumbhari, Tq. & Dist. Beed.3)Bhaskar @ Bandu s/o Digambar Surwase,Age 38 years, Occu. Agri.R/o Kumbhari, Tq. & Dist. Beed.4)Popat s/o Manik Kokate,Age 49 years, Occu. Agri.R/o Kumbhari, Tq. & Dist. Beed.At present Shahu Nagar,Pangri Road, Beed, Dist. Beed5)Prakash s/o Manikrao Kokate,Age 57 years, Occ. Agri. R/o as above. 6)Prashant @ Sugriv s/o Bajirao Surwase,Age 40 years, Occu. Agri. 7)Satish s/o Rajesaheb Surwase,Age 50 years, Occu. Agri. 8)Mahadeo @ Sachin Baban @ Babruwan Surwase,Age 27 years, Occu. Agri. 9)Sunil s/o Gangaram Surwase,Age 28 years, Occu. Agri. 10)Nandkumar @ Balu Madhukar Surwase,Age 40 years, Occu. Agri. 11)Kishor @ Pappu Madhukar Surwase,Age 36 years, Occu. Agri. 12)Hanumant @ Balu Vyankatrao Surwase,Age 37 years, Occu. Agri.
Legal Reasoning
Cri.Appeal No.224/2017 withConnected Appeals :: 50 ::benefit of doubt. Admittedly, both of them were not involved inmounting an assault on the deceased. In our view, therefore,their appeals deserves to be allowed. APPEALS AGAINST ACQUITTAL :46.The State and brother of the deceased preferredthese two appeals and urged for setting aside the acquittal ofthe respondents therein. Admittedly, these respondents werenot present at the crime scene. None of them played any overtact. They are sought to be fastened with criminal liability onthe ground of privy to conspiracy to commit the murder.Section 120-A defines the offence of criminal conspiracy. Itreads thus : “120A. Definition of criminal conspiracy.— Whentwo or more persons agree to do, or cause to be done(1) an illegal act, or(2) an act which is not illegal by illegal means, suchan agreement is designated a criminal conspiracy:Provided that no agreement except an agreement tocommit an offence shall amount to a criminal Cri.Appeal No.224/2017 withConnected Appeals :: 51 ::conspiracy unless some act besides the agreement isdone by one or more parties to such agreement inpursuance thereof.Explanation.— It is immaterial whether the illegal actis the ultimate object of such agreement, or is merelyincidental to that object.”47.It is said that it is very easy to allege a case ofconspiracy but difficult to prove it. According to theprosecution case, the panel of deceased Uddhav set up forGram Panchayat election in 2012 won all the seats. Therespondents were, therefore, envy of Uddhav’s progress.They, therefore, conspired to do away with him. In proof ofconspiracy, the prosecution examined P.W.20 BhasusahebSurvase, P.W.21 Mohan, P.W.22 Digambar Hade, P.W.25Ganesh and P.W.26 Chandrakant Survase.48.P.W.20 Bhausaheb Survase, brother of thedeceased, who was not an eye witness to the incident, testifiedthat the respondent Chandrasen Surwase left their group 10years prior to the incident and started working against them.He joined the group of the respondents namely PrakashKokate, Popat Kokate, Bhaskar Surwase, Pintu Bhagwan Cri.Appeal No.224/2017 withConnected Appeals :: 52 ::Bhalerao, Prashant Bajirao Survase, Balu Madhukar survase,Pappu Madhukar Survase, Babu Limbaji Kale, TulshiramAshok Vidyagar, Satish Rajesaheb Survase, Balu VyankatSurvase, Sunil Gangaram Survase, Sachin alias MahadeoSurvase etc. He further testified that, there were otherinstances as well besides of dispute over a right of way. Thiswitness was examined to make out a case of motive as well.This witness testified that, the car involved in the incident wasdriven by appellant Babu in the village and other respondentsused to sit therein and roam in the village by rotation. Hisevidence as regards conspiracy i.e. meeting held by theserespondents at Veterinary Hospital at Neknoor is based onhear-say. He had learnt the same from witness DigambarHade (P.W.22). It, therefore, cannot be said that the evidenceof this witness furthered the prosecution case to make out anoffence of conspiracy to commit murder. 49.P.W.21 Mohan testified that, on 12/3/2013, i.e.about a week before the incident, he had been to Swagat BeerBar to dine. In the neighbouring cabin in the hotel, somepeople were sitting and talking loudly under the influence of Cri.Appeal No.224/2017 withConnected Appeals :: 53 ::liquor. He further testified that, those persons were saying thatthere was no alternative than to eliminate Uddhav Surwase.He further testified that, one of those persons took aresponsibility of everything i.e. defend in the Court of law to theone who would eliminate Uddhav. He then testified that, hepeeped in the cabin to see that those were the respondentsnamely Prakash, Popat, Sugriv, Chandrasen, Bhaskar andsome others. He even identified them before the Court. Onbehalf of some of the respondents, the presence of thiswitness in the hotel and even in the cabin (No.10) has beenadmitted during cross-examination. This witness was,however, confronted with his police statement, which is silentto record therein that he peeped in the neighbouring cabin.This is vital omission amounts to contradiction. Needless tomention, all the contradictions or omissions have been dulyproved by the defence by confronting the concerned witnessesand the investigating officer who has recorded the statements.50.The conduct of this witness, however, indicatesthat, although he informed the same to Uddhav, who laughed itoff, he did not prefer to intimate the same to the police nor did Cri.Appeal No.224/2017 withConnected Appeals :: 54 ::Uddhav feel to do so. The statement of this witness wasrecorded on 8/4/2013 i.e. 19 days after the incident.51.Then comes P.W.22 Digambar Hade. It is in hisevidence that, before the incident, he had been to weeklymarket at village Neknoor. According to him, he witnessed ameeting held under a Neem Tree towards left side ofVeterinary Hospital and discussion was going on. As thosepersons were from village Kumbhari, he went there. In thesaid meeting, Sachin Survase, Balu Survase, Popat Kokate,Sugriv Survase, Chandu Survase, Sunil Survase, SatishSurvase etc. were present. Some other persons were alsopresent. He, however, could not name them. After taking apause, he pointed out towards the person sitting in the last rowin the east corner and said that Prakash Kokate was alsopresent. All these persons were sitting together. According tohim, Chndu (Chandrakant) said, “Unless Uddhav is finished,the villagers will not be happy. Respondents Popat, Prakashand Bandu took the responsibility to defend in Courts of lawthe one who would come forward and eliminate Uddhav. Cri.Appeal No.224/2017 withConnected Appeals :: 55 ::52.This witness could not give the day, date and timeby which he had seen these respondents sitting at Neem Treenear Veterinary Hospital at Neknoor on weekly bazar day. Hedid not approach the police on his own immediately afterhaving heard about the conspiracy. His statement wasrecorded on 25 March (Hade to check) i.e. 5 days after theincident and number of days after alleged conspiracy washatched.53.P.W.25 Ganesh testified that, a month before theincident in question, another incident took place. That time hewas proceeding on his motorbike. It was about 5.00 p.m. Hewas passing through the field of Dr. Kalyankar. He saw somepersons from village Kumbhari had gathered at a mango tree.Those persons were Popat Kokate, Bhaskar Survase, SunilSurvase, Satish Survase, Sachin survase and another 10 to 12persons which include Bappa Vidyagar, Sudhakar Bhalerao.However, he did not remember names of all other persons. Heidentified them before the Court. Cri.Appeal No.224/2017 withConnected Appeals :: 56 ::54.This witness only speaks about having seen theserespondents together at a particular place. He did not claim tohave heard anything being discussed by these persons as aplan to eliminate Uddhav. P.W.26 Chandrakant is a lastwitness on the point of conspiracy. He testified that, one daybefore the incident i.e. on19 March, a party was held in thefield of one Babruwan Surwase. He was proceeding from thatfield. It was 6.00 p.m. he saw respondents Chandrasen,Popat, Prakash and Sachin besides 7 others sitting togetherthere. 55.This witness too did not claim to have heard talkamong these persons with regard to eliminating Uddhav. Assuch, nothing was deposed to by P.W.25 and P.W.26 regardingalleged hatching of conspiracy. Section 10 of the EvidenceAct, therefore, could not be invoked. 56.As observed above, that it is very easy to allege acase of conspiracy but difficult to prove the same. in the casein hand, appreciation of the evidence of the witnesses referredto hereinabove lead us to infer the prosecution to have failed to Cri.Appeal No.224/2017 withConnected Appeals :: 57 ::make out an offence of conspiracy to commit murder and themurder to be the fall-out thereof.57.In the case of Ganesh Bhavan Patel (supra), it hasbeen observed :“Although in an appeal form an order of acquittal thepowers of the High Court to reassess the evidence andreach its own conclusions are as extensive as in anappeal against an order of conviction, yet, as a rule ofprudence, it should always give proper weight andconsideration to such matters as (1) the views of thetrial Judge as to the credibility of the witnesses; (2)the presumption of innocence in favour of theaccused, a presumption certainly not weakened by thefact that he has been acquitted at the trial; (3) the rightof the accused to the benefit of any doubt; and (4) theslowness of an appellate Court in disturbing a findingof fact arrived at by a Judge who had the advantage ofseeing the witnesses. Where two reasonableconclusions can be drawn on the evidence on record,the High Court should, as a matter of judicial caution,refrain from interfering with the order of acquittalrecorded by the Court below. In other words, if themain grounds on which the Court below has based itsorder acquitting accused, are reasonable and plausible,and cannot be entirely and effectively dislodged, ordemolished, the High Court should not disturb theacquittal.”.58.In the sequel, the appeals against acquittal fail.With this, the following order is passed. Cri.Appeal No.224/2017 withConnected Appeals :: 58 ::O R D E R(i)Criminal Appeals No.994/2024 and 1040/2024 preferredby the State and brother of the victim respectively, are herebydismissed.(ii)Criminal Appeal No.767/2018 filed by Vinod MadhukarGhige and Criminal Appeal No.768/2018 filed by Rajendraalias Raju Murlidhar Ghige are allowed. The order ofconviction and consequential sentence passed by learnedAdditional Sessions Judge, Beed, dated 10/4/2017, inSessions Case No.94/2013, convicting these appellants for theoffences punishable under Sections 302 read with Section 149and for offences punishable under Sections 147 and 148 of theIndian Penal Code are hereby set aside. The appellants VinodMadhukar Ghige and Rajendra alias Raju Murlidhar Ghige areacquitted thereof. Both of them be set at liberty forthwith if notrequired in any other case. Fine amount, if paid be refunded tothem.(iv)Criminal Appeal No.769/2018 filed by Tuljiram aliasBappa Ashok Vidyagar and Criminal Appeal No.770/2018 filedby Sudhakar alias Pintu Bhagwan Bhalerao are dismissed, Cri.Appeal No.224/2017 withConnected Appeals :: 59 ::with slightest modification in the operative order of the TrialCourt, i.e. Section 149 is replaced by Section 34 for convictionof these appellants. (v)Criminal Appeals No.224/2017 filed by Babu Limbaji Kaleis dismissed. However, the conviction imposed upon him bythe Trial Court is modified and he is convicted for offencepunishable under Section 302 read with Section 109 read withSection 114 of the Indian Penal Code. The sentence of lifeimprisonment against him to stand unaltered, maintaining thequantum of fine as well. (vi)All the Criminal Appeals are disposed of in above terms.Consequently, all pending Criminal Applications are disposedof.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.224/2017 withConnected Appeals :: 8 ::No. 6 to 12 All R/o Kumbhari,Tq. & Dist. Beed13) Rajendra @ Raju Murlidhar Ghige,Age 42 years, Occu. Agri. R/o Songaon, Tq. Dist. Beed.Through Jail14)Vinod s/o Madhukar Ghige,Age 28 years, Occu. Agri. R/o Songaon, Tq. Dist. Beed, Through Jail.15)Tuljiram @ Bappa s/o Ashok Vidyagar,Age 24 years, Occu. Labour, R/o Kumbhari, Tq. Dist. BeedThrough Jail 16)Babu s/o Limba KaleAge 39 years, Occu. Labour R/o Kumbhari, Tq. Dist. BeedThrough Jail 17)Sudhakar @ Pintu s/o Bhagwan Bhalerao,Age 36 yerars, Occu. R/o Kumbhari, Tq. Dist. BeedThrough Jail (R.No.2 to 5 Orig. Accused No.1 to 4R.6 Orig. Accused No.9, R.7 to 12Orig. Accused No.11 to 16, R.13 to 16Orig. accused No.5 to 8 & R.No.17 is original accused No.10)…RESPONDENTS.......Mr. G.K. Naik Thigle, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for appellant – State Mr. B.B. More, Advocate for Respondent Nos.2 to 5Mr. N.B. Jadhav, Advocate for Respondent Nos.6 to 12 Cri.Appeal No.224/2017 withConnected Appeals :: 9 ::Mr. A.D. Ostwal, Advocate for Respondent Nos.13, 15 & 17Mr. P.N. Muley, Advocate for Respondent No.14. Mr. S.P. Chate, Advocate for Respondent No.16 ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 17th December, 2024Date of pronouncing judgment : 3rd January, 2025JUDGMENT (PER : R.G. AVACHAT, J.) :This group of 11 Appeals is taken up together fordecision since the challenge therein is to one and the samejudgment and order dated 10/4/2017, passed by AdditionalSessions Judge, Beed (Trial Court) in Sessions Case,No.94/2013. 16 accused persons were put on trial in the saidSessions Case. Vide impugned judgment and order, 5 of them(original accused Nos.5 to 8 and 10) were convicted while therest of the accused have been acquitted. Relevant part of theoperative order under challenge in these appeals isreproduced below :-01. Accused No. 5 Rajendra alias Raju MurlidharGhige, accused No. 6 Vinod Madhukar Ghige,accused No.7 Tuljiram alias Bappa AshokVidyagar, accused No.8 Babu Limbaji Kale and Cri.Appeal No.224/2017 withConnected Appeals :: 10 ::accused No.10 Sudhakar alias Pintu BhagwanBhalerao are convicted vide Sec. 235(2) of Codeof Criminal Procedure for the offencepunishableunder Sec. 302 r/w. 149 of IPC and sentencedeach of them to life imprisonment and to pay fineof Rs.2,000/ each in default to suffer further RIfor three months.02. Since the accused No. 5,6,7,8 and 10 have beenconvicted and punished for the major offenceunder Sec. 302 r/w. 149 of IPC, no separatesentence is passed for committing offences underSec. 147 and 148 of IPC.03. Accused No.5, 6, 7, 8 and 10 are entitled for setoff under Sec. 428 of CRPC for predetentionperiod i.e. from 6.4.2013 till today.04. Accused No.5, 6, 7, 8 and 10 are hereby acquittedvide Sec.235(1) of Cr.P.C. for committing offencepunishable under Sec. 307 r/w. 149 of IPC,120B of IPC and under Sec.25(1) of the ArmsAct.05.Accused No.1 Chandrasen Survase, accused No.2Bhaskar alias Digambar Survase, accused No.3Popat Kokate, accused No.4 Prakash Kokate,accused No. 9 Prashant alias Sugriv Survase,accused No.11 Satish Rajesaheb Survase, accusedNo. 12 Mahadeo alias Sachin Survase, accusedNo.13 Sunil Survase, accused No. 14 NandkumarSurvase, accused No.5 Kishor alias PappuSurvase and accused No.16 Hanumant alias BaluSurvase are hereby acquitted vide Sec.235(1) ofCr.P.C. for committing offence punishable underSec. 120B of IPC. Cri.Appeal No.224/2017 withConnected Appeals :: 11 ::2.Criminal Appeals No.224/2017, 767/2018,768/2018, 769/2018 and 770/2018 have been preferred by theconvicts. The State was granted leave to appeal againstacquittal. It is the Criminal Appeal No.994/2024. The originalcomplainant Bhausaheb Limbaji Surwase, brother of thedeceased preferred appeal against acquittal (Criminal AppealNo.1040/2024).3.For the sake of convenience, the appellants/convicts are referred to as per their serial numbers in theCharge (Exh.52).4.The case of the prosecution, in brief, was asfollows:- The First Information Report (F.I.R. - Exh.129) waslodged by P.W.13 Vinod by 10.45 p.m. on 20/3/2013. Vinod isthe son-in-law of real brother of Uddhav Limbaji Surwase(deceased). In the year 2012, Gram Panchayat elections ofthe village Kumbhari were held. All the seats were won by thepanel headed by Uddhav (deceased). Cri.Appeal No.224/2017 withConnected Appeals :: 12 :: On 20 March 2013, Vinod went to the petrol pumpof Uddhav. Both of them then went to Beed. They did theirofficial works at the offices of Public Works Department andZilla Parishad as well. Uddhav parked his motorbike at thehouse of one of his relations. Both Vinod and Uddhav startedfrom Beed to Neknoor on the motorbike of Vinod. Vinod wasriding the same. Uddhav was riding pillion. They reachednear Gawari Pati by 5.45 p.m. A white Indigo Car approachingfrom behind knocked down their motorbike. As a result, bothVinod and Uddhav fell off the motorbike, away from each other.3/4 persons alighted the car. They were armed with Kattis(instrument of harvesting sugarcane) like weapon and swordas well. They rained blows on the person of Uddhav withthose weapons. The assailants were stated to be in the agegroup of 35-40 years. It was alleged in the F.I.R. that theassault was made in pursuance of a conspiracy hatched byChadrasen Surwase, Popat Kokate, Prakash Kokate, BhaskarSurwase and others. 5.Based on the F.I.R. (Exh.129), a crime vide C.R.No.34/2013 was registered at Neknoor Police Station for the Cri.Appeal No.224/2017 withConnected Appeals :: 13 ::offences punishable under Sections 302, 307, 120-B read withSection 34 of the Indian Penal Code, since Uddhav hadsuccumbed to the injuries. 6.During the investigation, it was found that therewas a larger conspiracy to eliminate Uddhav. The main motivewas said to be victory of his panel in Panchayat elections ofthe Village Kumbhari. Some other motives have also beenattributed.7.During the investigation, a crime scenepanchanama (Exh.72) was drawn. Inquest (Exh.74) andautopsy (Exh.151) on the mortal remains of Uddhav wereconducted. P.W.13 Vinod was admitted to the hospital. Hisinjury certificate was obtained. Clothes of both Vinod and thedeceased were seized. It was found that the incident waswitnessed by two more persons namely P.W.14 Sandipan andone Shri Karande Sir (not examined). Their statements wererecorded. The appellants and the respondents came to bearrested one after the other. On arrest of the assailants/appellants, a test identification parade was held. Statements Cri.Appeal No.224/2017 withConnected Appeals :: 14 ::of persons acquainted with the facts and circumstances of thecase were recorded. All the seized articles were forwarded tothe Regional Forensic Laboratory, Aurangabad. Uponcompletion of the investigation, a charge sheet was filedagainst the appellants and the respondents in these appeals.8.The Trial Court framed the Charge (Exh.52). Theappellants and the respondents pleaded not guilty. Theirdefence was of false implication. According to them, thedeceased had very many enemies. There was disputebetween him on one hand and his neighbouring landholdersover a right of way.9.The prosecution, to bring home the charge,examined 34 witnesses. The defence examined 2 witnesses.Some documents were also produced in evidence by theprosecution. On appreciation of the evidence in the case, theTrial Court passed the order impugned herein (referredhereinbove).10.Heard. Learned Advocates representing theappellants would submit that, the case had political overtures. Cri.Appeal No.224/2017 withConnected Appeals :: 15 ::The deceased was a follower of the head of Shiv SangramSanghatana. The head of the Sanghatana was a SittingM.L.A. Although the incident was said to have taken place by5.45 p.m., the F.I.R. was lodged after 5 hours of the incident.The F.I.R. was the outcome of deliberation. The informant infact suffered a minor injury. He could have been treated atOPD. There was no reason for him to have himself admittedto the hospital for 2 days. Our attention was drawn to certainmedical papers to indicate that, in spite of his allegedadmission to the hospital soon after the incident, no MedicoLegal Case was made. The Police Outpost on the premises ofCivil Hospital, Beed was even not informed. The learnedAdvocate meant to say that the police machinery consciouslygave time to the informant and his colleagues to think over,deliberate and lodge a concocted F.I.R. According to thelearned Advocate, the supplementary statement of theinformant was recorded very late. Moreover, his statementunder Section 164 of the Cr.P.C. was recorded even thereafter.Same is the case about the so called eye witness (P.W.14)Sandipan. According to learned Advocate, all the witnesses Cri.Appeal No.224/2017 withConnected Appeals :: 16 ::examined by the prosecution were either close relations of thedeceased or his friends. No independent witness from thevicinity of the crime scene was examined. The crime scenepanchanama was drawn on the following day. No explanationfor delay has been offered. The so called eye witness namelyShri Karande Sir has not been examined. The same causedprejudice to the appellants in their defence. A written notes ofsubmissions/ arguments along with a host of authorities (21 innumber) have been placed on record :-1)Budhsen & anr. Vs. State of U.P. [1970(2) SCC 128 ]2)Selveraj Vs. The State of Tamil Nadu [(1976) 4 SCC 34 ]3)Ganesh Bhavan Patel & anr. Vs. State of Maharashtra(1978) 4 SCC 371 4)Awadhesh & anr. Vs. State of Madhya Pradesh(1988) 2 SCC 557 5)State of Andhra Pradesh Vs. Dr. M.V. Ramana Reddy & ors.(1991) 4 SCC 536 6)Rajesh Govind Jagesha Vs. State of Maharashtra(1999) 8 SCC 428 7)Rajeevan & anr. Vs. State of Kerala [(2003) 3 SCC 355 ]8)Badam Singh Vs. State of M.P. [(2003) 12 SCC 792 ]9)Shankarlal Vs. State of Rajasthan [ (2004) 10 SCC 632 ] Cri.Appeal No.224/2017 withConnected Appeals :: 17 ::10)Ravi alias Ravichandran Vs. State represented by Inspector ofPolice [ (2007) 15 SCC 372 ]11)Deny Bora Vs. State of Assam [ (2014) 14 SCC 22 ]12)Naseem Khan alias Laddu Vs. State of Maharashtra2016 SCC OnLine Bom 5480 13)Harbeer Singh Vs. Sheeshpal & ors. [ (2016) 16 SCC 418 ]14)Reena Hazarika Vs. State of Assam [ (2019) 13 SCC 289 ]15)Amar Singh Vs. State (NCT of Delhi) [ (2020) 19 SCC 165 ]16)Subramanya Vs. State of Karnataka [ (2023) 11 SCC 255 ]17) Gireesan Nair & ors. Vs. State of Kerala [ (2023) 1 SCC 180 ]18) Babu Sahebagouda Rudragoudar & ors. Vs. State ofKarnataka [ (2024) 8 SCC 149 ]19)Nilesh Laxmikant Vyas Vs. State of Maharashtra & anr.2024 SCC OnLine Bom 1204 20)Digambar & anr. Vs. State of Maharashtra2024 SCC OnLine Bom 2664 21)Chandrakant Ananda Barfe & anr. Vs. State of Maharashtra2024 SCC OnLine Bom 301811.The learned Advocate would further submit that,the test identification parade was held belatedly. The convictswere not kept in veil on their arrest until the test identificationparade was held. The Superintendent of Police held a Press Cri.Appeal No.224/2017 withConnected Appeals :: 18 ::Conference on the next day of the incident. Names of thealleged suspects along with their photographs were publishedin the local dailies. All the canons of holding a valid testidentification parade were thrown to wind by the ExecutiveMagistrate who conducted the same. The informant had notgiven description of the assailants. One and the same set ofdummies were there for three rounds of test identificationparade held for identification of the appellants separately. Theso called dummies were not of the complexion, height anddescription in all respects including the age were (compatible)with the suspects. A host of authorities have been relied on soas to urge for discarding such test identification parade andevidence in relation thereto. 12.On the question of recovery of Kattis pursuant to adisclosure statement made by the appellants SudhakarBhalerao (original accused No.10), the learned advocate wouldsubmit that, it was an open place. The photographs of the socalled disclosure statement and recovery pursuant theretowere digitally snapped. Although the photographer wasexamined in proof of the photographs, no certificate under Cri.Appeal No.224/2017 withConnected Appeals :: 19 ::Section 65-B of the Evidence Act was produced since thephotographs were obtained from the camera in the CD, andthen in a pen drive for being produced as evidence before theCourt. The learned Advocate would further submit that, theMedical Officer did not give the exact time of death of thedeceased. Instead of reiterating the submissions made by thelearned Advocate, we would prefer to deal with the same whileappreciating the evidence in the case.13.So far as regards reliance on the 21 authoritiesrelied on are concerned, we have closely perused the same.Needless to mention, the Head Notes of most of the casesindicate that the observations made therein were based on thefacts and circumstances therein. It is reiterated that, there canhardly be a precedent to be relied on for deciding a criminalcase since no two cases are similar in facts. A difference of afact herein and there makes all the difference. With all humilityat our command, the authorities relied and the propositionstherein are on our mind while deciding the present appeals. Cri.Appeal No.224/2017 withConnected Appeals :: 20 ::14.The learned A.P.P. would, on the other hand,submit that, the case was based on eye witness account. Oneof them was an injured eye witness. Evidence of an injuredeye witness carries more weight. The witnesses have noreason to falsely implicate the appellants and the respondents,leaving the actual culprits. According to learned A.P.P., thesuggestions given to the prosecution witnesses indicateadmission as to presence of the eye witness at the crimescene. He relied on the following two authorities :-(1)Balu Sudam Khalde & anr. Vs. The State of Maharashtra2023 LiveLaw (SC) 279(2)Birbal Nath Vs. The State of Rajasthan & ors.(Criminal Appeal No.1587/2008, decided on 30/10/2023)15.According to learned A.P.P., no two persons couldhave a photographic memory. Reaction of every person to oneand the same incident may differ in very many respects. Theevidence of the eye witnesses are consistent in materialparticulars. He, therefore, urged for dismissal of the appealsagainst conviction and urged for allowing the appeal againstacquittal. Cri.Appeal No.224/2017 withConnected Appeals :: 21 ::16.The learned Advocate for the victim madesubmissions on the lines of the submissions made by thelearned A.P.P. He took us through certain observations madeby the Trial Court. According to him, it was a brutal murder.The theory of conspiracy too has been duly proved.17.Let us now turn to the evidence on record andappreciate the same. The incident took place by little past 5.30 p.m. atGawari Pati. Uddhav Surwase suffered 22 injuries. Most ofthem were incised wounds. The same indicates the assailantsto have used sharp weapons. The number of injuries suggestthat the assailants must be more than one. P.W.24 Dr.Upendra conducted autopsy on the mortal remains of Uddhav.In his opinion, Uddhav died of haemorrhagic shock due tobleeding due to multiple injuries in the neck organs and majorvessels. The post mortem report finds place at Exh.151. True,neither the post mortem report nor the oral evidence of P.W.24suggests the exact time of death. The fact, however, remainsthat, Uddhav was rushed to the Civil Hospital, Beed. The Cri.Appeal No.224/2017 withConnected Appeals :: 22 ::distance between the crime scene and Beed was about 25Kms. We have no reason to doubt the oral evidence of theinformant, victim and the witness that soon after the incidentboth of them were rushed to the Civil Hospital and admittedthereto. 18.Uddhav Surwase met with homicidal death is a factnot in dispute before us. The question is, whether the crime iscommitted by the appellants and respondents pursuant to aconspiracy hatched in that regard. According to theprosecution, the assailants were Rajendra Ghige andSudhakar Bhalerao (original accused Nos.5 and 10).19.P.W.13 Vinod is an injured eye witness. Hetestified that, deceased Uddahv was his cousin father-in-law.On the given day i.e. on 20/3/2012, he had been to Beed alongwith Uddhav. After having completed their works, they were ontheir way back to Neknoor on his (P.W.13) motorbike. Whilethey were near Gawari Pati on Manjarsumba to Neknoor Road,a white car came from behind and dashed his motorbike. As aresult of the dash, both of them fell off the motorbike. He got Cri.Appeal No.224/2017 withConnected Appeals :: 23 ::frightened. He witnessed two persons were assaulting Uddhavwith Kattis. Third one was standing with a Khanjar and theother was having a packet containing chilly powder. These lasttwo persons were facilitating the assault. Meaning thereby,they were guarding the assailants if anyone intervenes.P.W.13 further testified that the driver of the car took it aheadand then turned the car suggesting blocking of their way. Hefurther testified that, appellant Sudhakar Bhalerao said,“Chandrasen Surwase and Popat Kokate be informed thatas decided Uddhav is finished”. He further testified that thesaid persons then boarded the car. The car proceededtowards Manjarsumba. The evidence of P.W.13 Vinod furtherindicates that Karande Sir and Sandipan Ghallal (P.W.14) hadwitnessed the incident. Both of them were passing by on theirrespective motorbikes. Karande Sir informed him that he wasnot keeping well. He (P.W.13), therefore, made a phone call toNeknoor Police Station. 10-15 persons had gathered on thespot. In the meanwhile, jeep of Uddhav Surwase arrived.They took Uddhav to Civil Hospital, Beed. He too (P.W.13)had suffered injuries to his hand and blunt trauma as well. He Cri.Appeal No.224/2017 withConnected Appeals :: 24 ::too was admitted to the hospital. Uddhav breathed his last.P.W.13 went on to state that, he was indoor patient for 2-3days. The police had come to the hospital. The policerecorded his statement-cum-F.I.R. (Exh.129) in the hospital.He referred to the same.20.P.W.13 Vinod went on to state that, after hisdischarge from the hospital, he had been to the Central Prisonfor test identification parade. He identified the assailants,those two others and the driver of the car as well. In the firstround of the test identification parade, he identified theassailants, Rajendra Ghige and Sudhakar Bhalerao (originalaccused Nos.5 and 10). P.W.13 then referred to his statementrecorded under Section 164 of the Cr.P.C.21.He was subjected to a searching cross-examination by different Advocates representing theirrespective clients/ appellants/ respondents. It was suggestedto him that, he suffered injury to his hand on account of a fallfrom motorbike. He explained that he gave the history of‘assault’ since the car had knocked down them and thereafter Cri.Appeal No.224/2017 withConnected Appeals :: 25 ::the assault was mounted. According to him, the incident lastedfor 4-5 minutes. He admitted that his relations had come to thehospital to see him. He was then shifted to Ward No.5. Headmitted to have had not stated to the police that the assaultwas made with sword. His attention was, therefore, advertedto the F.I.R. and particularly the word ‘sword’. Then he wasfurther confronted with the F.I.R. which was silent to recordthat, “Chandrasen Surwase and Popat Kokate be informedthat as decided Uddhav Surwase is finished”. He thentestified that he did not run away from the spot. His attentionwas, therefore, drawn to his supplementary statement, whereinsuch sentence has been recorded. He could not state whoadmitted him to the hospital. He denied that he left thehospital against medical advice, but it was suggested to himthat he left the hospital for attending funeral and then returnedto the hospital as an indoor patient. He was also confronted tobring on record that the F.I.R. is silent to record therein thatP.W.14 Sandipan and Karande Sir had witnessed the incident.The tenor of further cross-examination indicate that theappellants and the respondents were followers of late Vinayak Cri.Appeal No.224/2017 withConnected Appeals :: 26 ::Mete, the then Head of Shiv Sangram Party. He denied tohave had worked as a P.A. of late Vinayak Mete. A referenceto a murder case that dates back to 1994 was made in hiscross-examination so as to indicate a motive to eliminateUddhav. The said suggestion indicates that none of the partiesto these appeals were privy to the said incident of murder ofone Mahaveer Surwase. In short, according to the defence,the incident might have been a fall out of the murder that tookplace way back in 1994. Some other motives have also beensought to be brought on record through the evidence of thereal brother of the deceased. Without referring thereto, we areof the view that the appellants could not make out theirdefence of some other motive behind the incident forcommission of the crime by someone else. Needless tomention, in a case based on direct evidence, motive playsinsignificant role.22.The fact is that, a few months before the incident,Village Panchayat elections were held. A panel set up bydeceased Uddhav won all the seats. The appellants and therespondents belonged to other side. It is true that, Cri.Appeal No.224/2017 withConnected Appeals :: 27 ::investigating machinery did not place on record station diaryentry relating to the phone call made by P.W.13 regarding theincident. The appellants have, therefore, every reason tocontend that the informant and his colleagues haddeliberations and the F.I.R. was the outcome thereof.Needless to mention that the informant did not name thenames of the assailants in the F.I.R. As such, the F.I.R. waslodged as against unknown assailants. Those who have beennamed in the F.I.R. were said to have got Uddhav killed inpursuance of a larger conspiracy. We have, therefore, noreason not to rely on the testimony of P.W.13 who himself hadsuffered injury in the incident. The motorbike that wasknocked down by the white car belonged to P.W.13. It is,therefore, but natural for us to infer that it was he and noneelse who was riding the motorbike and the deceased wasriding pillion. The assailants had an intention to kill Uddhavand not the informant. The informant was therefore spared.True, the informant in his statement under Section 164 ofCr.P.C. stated that he ran away in the field, but it was afterhaving witnessed the incident. Cri.Appeal No.224/2017 withConnected Appeals :: 28 ::23.Then our attention was adverted to the documents(Exhs.184 and 185). Exh.184 is the injury certificate of P.W.13.The same indicates that he suffered C.L.W. over his leftforearm. The nature of injury was simple and the age waswithin 24 hours. There was a remark in the last column thatthe patient absconded on 22/3/2012 from the ward. It wasP.W.30 Dr. Minakshi who had attended to P.W.13 in thehospital. She was not confronted with the said remark.Instead, it was shown to the investigating officer. The author ofthe said document is P.W.30 Dr. Meenakshi to whom it shouldhave been confronted. It is true that, the certificate was issuedon 4/7/2013 i.e. long after the incident. The learned Advocaterepresenting the assailants Rajendra Ghige and SudhakarBhalerao (original accused Nos.5 and 10), however, suggestedP.W.13 Vinod that the injury certificate (Exh.184) was issuedon the basis of original medical record. The said suggestionhelps the prosecution a lot. P.W.30 Dr. Meenakshi being anindependent witness and there being nothing to indicate thatshe had any reason to fabricate false medical papers puttingher service at risk. It is reiterated that, the injury certificate was Cri.Appeal No.224/2017 withConnected Appeals :: 29 ::admitted to have been issued on the basis of the entries in theoriginal record/ case papers.24.Then our attention was adverted to Exhs.185 and186. Both these documents were in the nature of informationto the Police Station, Beed regarding admission of P.W.13Vinod and deceased Uddhav to the hospital. The documentwas referred by the defence itself. Perusal of thosedocuments indicates that the intimation was given on the veryday with a history of assault. The timing of admission of bothof them to the hospital was 6.45 p.m. Both these documentscame into being in the official course of business. It is true thatthe Medical Officer on duty appears to have not reported thematter to the Police Outpost located on the premises of theCivil Hospital itself as a Medico Legal Case. The appellantshad examined D.W.2 Shankar Rathod, Police Constableattached to the said Outpost. According to him, he was not onduty at the relevant time. The fact remains that, the MedicalOfficer reported admission of both P.W.13 Vinod and deceasedUddhav to the hospital, directly to the Beed Police Station. Cri.Appeal No.224/2017 withConnected Appeals :: 30 ::25.The test identification parade was held by theExecutive Magistrate (P.W.31) Abhay Maske on 12/4/2013 i.e.about 23 days after the incident. He was examined as awitness in the case. His evidence indicates that the same setof dummy persons were used for three rounds of testidentification parade. On this ground alone, the subsequenttwo rounds of test identification parade got vitiated. More so,when it was only P.W.13 Vinod who was to identify the culprits.The same suggests that he knew after the first round that thesame dummy to whom he did not identify the assailants werethere in the subsequent two test identification parade rounds.In the first round he identified both the assailants. RajendraGhige and Sudhakar Bhalerao (original accused Nos.5 and10).26.P.W.34 Abhay Dongare, the investigating officer inhis cross-examination admitted that on the next day of theincident, the Superintendent of Police had held PressConference. It was informed that 4 suspects were held. Hewent on to admit that, the photographs of the arrestees werepublished in the next day dailies with their names. There is Cri.Appeal No.224/2017 withConnected Appeals :: 31 ::also no evidence to indicate that the dummies were of thesame age group and somewhat similar in appearance, heightetc. to those to be identified in the test identification parade.We have perused the judgments of the Apex Court in case ofBudhsen, Ramana Reddy, Rajesh Jagesha, Ravi @Ravichandran etc., relied on in relation to discarding of testidentification parade evidence.27.In case of Munna Kumar Vs. State of AndhraPradesh (AIR 2012 SC 2470), it was held that, even testidentification parade was held long after photographs of theaccused were published, veracity of the test identificationparade did not stand impaired. In paragraph 46 of thejudgment, the Apex Court held :“46.However, we hasten to clarify that it is alwaysappropriate for the investigating agency to holdidentification parade at the earliest, in accordancewith law, so that the accused does not face prejudiceon that count. We may refer to the judgment of thisCourt in a more recent judgment in the case ofSidhartha Vashisht alias Manu Sharma Vs. State(NCT of Delhi) [(2010) 6 SCC 1] : (AIR 2010 SC2352 : 2010 AIR SCW 4302), where law in relationto purpose of holding an identification parade, theeffect of delay and its evidentiary value were Cri.Appeal No.224/2017 withConnected Appeals :: 32 ::discussed. The Court held as under (Paras 115 and117 of AIR, AIR SCW) :-“256. The law as it stands today is set out in thefollowing decisions of this Court which arereproduced as hereinunder: Munshi Singh Gautam v. State of M.P.: (AIR2005 SC 402 : 2004 AIR SCW 6537) : SCC pp.642-45, paras 16-17 & 19) “16. As was observed by this Court in Matru v.State of U.P. (AIR 1971 SC 1050) identificationtests do not constitute substantive evidence. Theyare primarily meant for the purpose of helpingthe investigating agency with an assurance thattheir progress with the investigation into theoffence is proceeding on the right lines. Theidentification can only be used as corroborativeof the statement in court. (See Santokh Singh v.Izhar Hussain. (AIR 1973 SC 2190). Thenecessity for holding an identification parade canarise only when the accused are not previouslyknown to the witnesses. The whole idea of a testidentification parade is that witnesses who claimto have seen the culprits at the time ofoccurrence are to identify them from the midst ofother persons without any aid or any othersource. The test is done to check upon theirveracity. In other words, the main object ofholding an identification parade, during theinvestigation stage, is to test the memory of thewitnesses based upon first impression and also toenable the prosecution to decide whether all orany of them could be cited as eyewitnesses of thecrime. The identification proceedings are in thenature of tests and significantly, therefore, thereis no provision for it in the Code and theEvidence Act. It is desirable that a testidentification parade should be conducted as Cri.Appeal No.224/2017 withConnected Appeals :: 33 ::soon as after the arrest of the accused. Thisbecomes necessary to eliminate the possibility ofthe accused being shown to the witnesses prior tothe test identification parade. This is a verycommon plea of the accused and, therefore, theprosecution has to be cautious to ensure thatthere is no scope for making such an allegation.If, however, circumstances are beyond controland there is some delay, it cannot be said to befatal to the prosecution.17. It is trite to say that the substantiveevidence is the evidence of identification incourt. Apart from the clear provisions of Section9 of the Evidence Act, the position in law is wellsettled by a catena of decisions of this Court. Thefacts, which establish the identity of the accusedpersons, are relevant under Section 9 of theEvidence Act. As a general rule, the substantiveevidence of a witness is the statement made incourt. The evidence of mere identification of theaccused person at the trial for the first time isfrom its very nature inherently of a weakcharacter. The purpose of a prior testidentification, therefore, is to test and strengthenthe trustworthiness of that evidence. It is,accordingly, considered a safe rule of prudenceto generally look for corroboration of the sworntestimony of witnesses in court as to the identityof the accused who are strangers to them, in theform of earlier identification proceedings. Thisrule of prudence, however, is subject toexceptions, when, for example, the court isimpressed by a particular witness on whosetestimony it can safely rely, without such or othercorroboration. The identification parades belongto the stage of investigation, and there is noprovision in the Code which obliges theinvestigating agency to hold or confers a rightupon the accused to claim a test identification Cri.Appeal No.224/2017 withConnected Appeals :: 34 ::parade. They do not constitute substantiveevidence and these parades are essentiallygoverned by Section 162 of the Code. Failure tohold a test identification parade would not makeinadmissible the evidence of identification incourt. The weight to be attached to suchidentification should be a matter for the courts offact. In appropriate cases it may accept theevidence of identification even without insistingon corroboration. (See Kanta Prashad v. DelhiAdmn. (AIR 1958 SC 350), VaikuntamChandrappa v. State of A.P. (AIR 1960 SC1340), Budhsen v. State of U.P. (AIR 1970 SC1321) and Rameshwar Singh v. State of J&K.(AIR 1972 SC 102).19. In Harbajan Singh v. State of J & K, (AIR1975 SC 1814), though a test identificationparade was not held, this Court upheld theconviction on the basis of the identification incourt corroborated by other circumstantialevidence. In that case it was found that theappellant and one Gurmukh Singh were absent atthe time of roll call and when they were arrestedon the night of 16-12-1971 their rifles smelt offresh gunpowder and that the empty cartridgecase which was found at the scene of offencebore distinctive markings showing that the bulletwhich killed the deceased was fired from therifle of the appellant. Noticing thesecircumstances this Court held: (SCC p. 481, para4)‘4. In view of this corroborative evidence wefind no substance in the argument urged onbehalf of the appellant that the investigatingofficer ought to have held an identificationparade and that the failure of Munshi Ram tomention the names of the two accused to theneighbours who came to the scene Cri.Appeal No.224/2017 withConnected Appeals :: 35 ::immediately after the occurrence shows thathis story cannot be true. As observed by thisCourt in Jadunath Singh v. State of U.P. (air1971 sc 363)absence of test identification isnot necessarily fatal. The fact that MunshiRam did not disclose the names of the twoaccused to the villagers only shows that theaccused were not previously known to himand the story that the accused referred toeach other by their respective names duringthe course of the incident contains anelement of exaggeration. The case does notrest on the evidence of Munshi Ram aloneand the corroborative circumstances towhich we have referred to above lendenough assurance to the implication of theappellant.” 28.Since P.W.13 Vinod did not give the description ofthe appellants/ assailants and two others in the F.I.R., besidesthe delay in test identification parade with manifest errors inholding the same, we propose to discard the evidence ofP.W.13 Vinod so far as regards the identification of theappellant by him before the Court for the first time. The matterhowever, does not rest at that. 29.As stated earlier, the case is based on eye witnessaccount. He is none other than P.W.14 Sandipan. True, he iscousin of the deceased (son of maternal uncle). His conduct Cri.Appeal No.224/2017 withConnected Appeals :: 36 ::post incident also appeared somewhat unnatural. The fact is,however, that, his presence at or around the crime scene hasbeen impliedly admitted by the appellants during his cross-examination. His police statement too was recorded before 24hours of the incident.30.P.W.14 Sandipan testified that he had been to Beedon 20/3/2013. He was on his way back towards Neknoor. Hewas riding the motorbike. He happened to meet both, P.W.13Vinod and deceased Uddhav, who were proceeding in thesame direction on another motorbike. According to him,Uddhav was riding pillion. P.W.14 Sandipan went on to testifythat, on the way, just before Gawari Pati was approached, awhite Indigo car gave dash to the motorbike from behind. As aresult thereof, both Vinod and Uddhav fell off. He thought thatit was a vehicular accident. He further testified that, Sudhakarand Tuljiram (appellant – original accused Nos.10 and 7respectively) alighted from the car. They were armed withKattis. Both of them assaulted Uddhav with Kattis. He went onto state further that the appellant Vinod was standing with adagger in his hand and appellant Rajendra was armed with a Cri.Appeal No.224/2017 withConnected Appeals :: 37 ::packet of chilly powder. He further testified that, when thevehicle took turn, he saw appellant Babu Kale was at thedriver’s seat of the car. He claimed to have seen even thenumber plate in broken condition. He gave the number of thecar MH-14-CH-172. He further testified that, Karande Sir alsoarrived there. All of them lifted Uddhav and took him to CivilHospital, Beed. On having seen the incident, he wasfrightened. He required medical attention to himself. He,therefore, went to a private hospital at Neknoor. Later on helearnt Uddhav to have passed away. He further testified that,on the following day, he on his own went to the Police andgave his statement. 31.During his cross-examination on behalf of originalaccused Nos.1 to 4, it was suggested to him, “It is correct tosay that, when the Car had given dash to the motorcycle ofVinod Kawade, I reached the spot on my motorcycle”. It is truethat, I was going towards eastern side of the road, therefore, Iparked my motorcycle on left side of the road near the spot.”According to him, Vinod did not run away in the field from thespot. He was therefore confronted with his police statement, Cri.Appeal No.224/2017 withConnected Appeals :: 38 ::wherein such matter finds place. It was further suggested tohim, “It would be correct that as soon as I reached the spot onmotorcycle, immediately Karade Sir came on his motorcycle.”There was no discussion amongst himself, Vinod and KarandeSir about the assailants. The witness volunteered that he wasfrightened. It was further suggested, “It will be correct to saythat, the assailants had whisked away from the spot within 3 to4 minutes after the incident.” He did not disclose the names ofthe appellants. He further testified that he had been to CivilHospital while in his examination-in-chief he testified that hedirectly went to a private clinic.32.The learned Advocate representing the appellants/assailants Rajendra Ghige and Sudhakar Bhalerao (originalaccused Nos.5 and 10) in the cross-examination of thiswitness, suggested to him that, “It will be correct to say that Iwas knowing Sudhakar Bhalerao as resident of villageKumbhari prior to the incident. Till today I have no enmity ordispute with Sudhakar Bjhalerao. I was on talking terms withSudhakar Bhalerao before the incident. Before 15 to 20 daysof the incident I had seen Sudhakar Bhalerao in a field. It is Cri.Appeal No.224/2017 withConnected Appeals :: 39 ::correct to say that at the time of incident Sudhakar Bhaleraodid not assault me, abused me or threatened me because Ihave no enmity with him. Immediately after the assault, theassailants left the place of incident. When the assailants leftthe place of incident, I, Vinod Kawade and Karande Sir werepresent there. The assailants did not do anything to VinodKawade and Karande Sir.” The further suggestion meritsreproduction. The suggestion was to the effect “It will becorrect to say that when Vinod Kawade and Uddhav Survasehad overtaken my motorcycle, it was our first meeting on thatday.” The aforesaid suggestion amounts to implied admissionof about P.W.13 Vinod and the deceased having beentogether. They met P.W.14 Sandipan. Karande Sir was alsoon his motorbike. He too met them. Appellant Sudhakar didnot assault him (P.W.14) as he had no enmity with him. Thisgoes a long way to infer that the assailants’ target was Uddhav(deceased) and none else.33.Although this witness had not disclosed theincident immediately to anyone, the incident was so ghastly,his evidence that he was frightened and was required to take Cri.Appeal No.224/2017 withConnected Appeals :: 40 ::medical treatment could not be doubted. More so, in view ofthe aforesaid implied admission in the form of suggestion. Heeven gave the name of the hospital/ clinic to which he hadbeen to take treatment soon after the incident. It was Dr.Shirsath’s hospital.34.In view of suggestions admitting this witness tohave witnessed the incident, his somewhat unnatural conductpost incident would be of little consequence. The case is,therefore, distinguishable with the authorities relied on namely,Shankarlal, Naseem Khan and Amar Singh (supra). Nothinghas been brought on record during the cross-examination ofthis witness to lead us to infer that he had an axe to grindagainst the appellants and save the actual culprits.35.On arrest of the appellant Sudhakar, he expresseddesire to make a disclosure statement. P.W.12 Parmeshwar isa witness to the disclosure statement. Most of the part of thestatement was inadmissible since the appellant Sudhakar tookthe police and the panchas to the places wherefrom nothingcould be recovered. P.W.12 Parmeshwar testified that, Cri.Appeal No.224/2017 withConnected Appeals :: 41 ::appellant Sudhakar made a statement that he would produceweapon which he had hidden under ground at Bhoom. He hadfurther disclosed that he would produce Katti like weapon. Thepolice officer recorded the said statement, he signed the sameas a witness. The appellant too signed the same. It is atExh.119. The appellant then took them to one place inagricultural field. It was known as “Bamanpatti”. Thecameraman had accompanied them. There were 6 rows ofheaps of mud. Sudhakar removed two Kattis, one each fromunder two different heaps. The police seized the same underpanchanama (Exh.120). He signed the same. On the samelines is the evidence of the investigating officer who recordedthe disclosure statement made by appellant Sudhakar. Thenthere is evidence of P.W.32 Vikas who had accompanied themto snap the photographs. The evidence of this witness isconsistent with the evidence of P.W.12 and the investigatingofficer. Although the photographs tendered in the evidence byhim were not supported by Certificate under Section 65-B ofthe Evidence Act, his oral testimony would reinforce theprosecution case. During the investigation, both the seized Cri.Appeal No.224/2017 withConnected Appeals :: 42 ::Kattis were shown to the Medical Officer Dr. Upendra Kulkarni(P.W.24), who opined that the injuries on the person of thedeceased were possible by such weapon. The C.A. report(Exh.282) indicates that there was human blood on one of theKattis. This fact further reinforce the prosecution case. Sincethe evidence of the witnesses was recorded about three yearsafter the incident, there was bound to be some inconsistencyinter-se the evidence of the prosecution witnesses. It was asregards the number of police vehicles which had been to thespot for recovery of Kattis pursuant to the disclosure statementetc. The disclosure statement made by the appellant wouldfurther be relevant as conduct under Section 8 of the EvidenceAct.36.We, therefore, find that the evidence of P.W.14Sandipan as regards appellant Sudhakar to have assaulted thedeceased with Katti gets reinforced.37.During the investigation, the car was foundabandoned in a Ghat Section. It was seized under thepanchanama (Exh.85). P.W.6 Shrikrishna testified that the car Cri.Appeal No.224/2017 withConnected Appeals :: 43 ::was found abandoned within the limits of Bhoom village. Hedescribed the car as – it was white colour Indigo Car. Theradiator thereof was crumbled. Front side number plate wasmissing. Rear side number plate was intact. It was yellowcolour plate with figures thereon written in black colour. Thesame indicates that it was a public transport vehicle. He gavethe car number. The front side parking lamp was damaged.Some documents were seized from the car, particularly diarywherein name of appellant Balu Limbaji Kale was written. APAN Card of Babu Kale was also found in the car besides hiselection/ voter’s card. Two blank stamp papers were alsoseized under the panchanama.38.Nothing fruitful can be brought on record throughhis cross-examination.39.P.W.23 Odin testified that, the said car hadbelonged to him. His wife was proprietor of a firm, “PeaceTours and Travels”. She had purchased the said car. It wasregistered in the name of the very firm. He further testifiedthat, the appellant Babu Limbaji Kale was a driver on a car in a Cri.Appeal No.224/2017 withConnected Appeals :: 44 ::year 2012 for one year period. He used to drop him at hiswork place. On appellant Babu’s request, he delivered thesaid car to him. It was in fact the sale transaction. Forpurchase of the car a loan was raised from Finance Company.The loan was outstanding. The car, therefore, could not betransferred in the name of the appellant Babu with R.T.O.record. The appellant Babu paid him Rs.84,500/- as againstdelivery of the car in his favour. 40.During cross-examination, the witness testified thatthe transaction was oral one. No writing was effected. Itneeds no mention that the sale of a motor vehicle is governedby the Sale of Goods Act. Delivery of possession and receiptof consideration amount completes the sale transaction.Property in the goods sold is transferred when intended to betransferred. It may, therefore, be a case of out and out sale oragreement for sale since the entire consideration amount wasnot paid and the loan of Finance Company was stilloutstanding. The fact remains that the car changed handsfrom P.W.23’s wife to appellant Babu. There is evidence ofP.W.20 Bhausaheb to the effect that Babu and some of the Cri.Appeal No.224/2017 withConnected Appeals :: 45 ::respondents would roam in the same car in the village. Babuin his examination under Section 313 of the Cr.P.C. did notoffer any explanation except the denial. He also did not offerany explanation about he having been seen at the driver’s seatwhile the car knocked down the motorcycle. As such, his rolein the crime has been duly proved. Although it may appearthat he had no intention to kill the motorbike rider since hegave push to the motorbike with the car from behind, so as tofacilitate appellant (original accused Nos.5 and 10) to commitmurder of Uddhav, the said act is an offence of abetment tocommit murder in view of Section 107 of the Indian PenalCode. Moreover, there were break marks trail up to 75 ft.noticed at the crime scene. When the abettor is present at thecrime scene, his criminal liability is equal to that of the actualculprit. (Section 114 I.P.C.). He would, therefore, be equallyliable for the punishment provided for the offence of murderunder Section 302 of the Indian Penal Code.41.Although very many witnesses were examined, theevidence of most of them is not of much relevance. A passingreference would, however, be made to the same. P.W.1 Cri.Appeal No.224/2017 withConnected Appeals :: 46 ::Babaso is a witness to the crime scene panchanama (Exh.72).it was drawn on the following early morning. The investigatingofficer had on the given day to Aurangabad in connection withsome other matter. His evidence indicates that, after havingbeen informed about the incident, he reached Civil Hospital by8.30 p.m. Then he recorded the F.I.R. and registered thecrime late in the night. His evidence further indicates that thecrime scene was guarded by the Police Constable on hisdirection. We, therefore, find no fault with him in drawing thespot panchanama after a few hours. At the crime scene apiece of cut human finger was found besides other articles.42.P.W.2 Raosaheb Tipale is a witness to the inquestpanchanama (Exh.74). P.W.3 Raichand, P.W.4 Ashok andP.W.5 Laxman are witnesses to the seizure of clothes. P.W.7Keshav was a witness to a demo panchanama suggesting thatboth the vehicles namely the motorbike and the car involved inthe incident were brought together. How much relevance isthere to such kind of exercise is doubtful. The fact, however,remains that, his evidence indicates that, both the vehicles hadreceived dent and damage at the relevant part thereof. Cri.Appeal No.224/2017 withConnected Appeals :: 47 ::43.P.W.9 Raosaheb Sapkal is a witness to thedisclosure statement by Sudhakar Bhalerao (appellant inCriminal Appeal No.770/2018). The same is not relevant sincethe appellant took them to various place where he had beenpost incident and the place whereat the conspiracy washatched. The evidence of P.W.10 Ajay, P.W.16 Hanumant andP.W.17 Rajesh was skipped by the learned Advocatesrepresenting the appellants. P.W.18 Vasant has testified tohave had seen P.W.13 Vinod and Uddhav proceeding on amotorbike. We do not propose to record his evidence inextenso since the said fact has been admitted during cross-examination of P.W.14. P.W.19 Vitthal is a witness who hadcarried 5 persons (appellants) in his car to Pune soon after theincident. He could only identify the appellant Babu Kale asone of those 5. P.W.11 Ramdas is a witness relating to seizureof cell phone from appellant Sunil Surwase (panchanamaExh.111).44.From the appreciation of the evidence so farreferred to above, we come to the conclusion that, on the givenday, that both P.W.13 Vinod and deceased were proceeding on Cri.Appeal No.224/2017 withConnected Appeals :: 48 ::motorbike from Beed to Neknoor. At Gawari Pati, a whiteIndigo Car knocked down the motorbike. The incident waswitnessed by P.W.14 Sandipan. He saw appellant Babu Kale atthe driver seat. He also saw the appellants (original accusedNos.5 and 10) assaulting the deceased with sharp weapons.The presence of P.W.14 Sandipan has been admitted.Admittedly, one witness by name Karande Sir was also there.His statement under Section 161 of the Cr.P.C. was recorded.He has not been examined as a prosecution witness. Theinvestigating officer Sayed Asef (P.W.33) who recorded hisstatement has admitted that, Karande Sir has stated in hisstatement that two persons had alighted from the car. Hemeant to say that those two persons had assaulted thedeceased. While Karande Sir was not examined asprosecution witness in this case, the Trial Court ought not tohave allowed to refer to his police statement. Since the samehas already been brought on record and the evidenceindicates that there is inconsistency inter-se the prosecutionwitnesses namely informant, testified that, three personsalighted from the car. According to P.W.14 Sandipan, they Cri.Appeal No.224/2017 withConnected Appeals :: 49 ::were 4 in number while the investigating officer testified thatKarande Sir told him that those were 2 in number. At the costof repetition, it is observed that, the learned Advocate for theappellants (original accused Nos.5 and 10) has impliedlyadmitted the presence of P.W.14 Sandipan and furthersuggested that the appellant Sudhakar did not assault the saidwitness since he had no enmity with him. Meaning thereby,the presence of appellant Sudhakar has also been impliedlyadmitted.45. As already observed above, the evidence indicatesthat, the car originally belonged to a firm owned by wife ofP.W.23 Odin. He knew appellant Babu Kale. The car involvedin the incident was sold to appellant Babu Kale. The appellantwas seen with the car for many a days preceding theincidence. P.W.14 identified him as the person who was in thedriver seat of the car which knocked down the motorcycle. Assuch, he facilitated the commission of the crime. In view of theinconsistency as to the number of persons alighting from thecar, two appellants namely Rajendra alias Raju MurlidharGhige and Vinod Madhukar Ghige, deserve to be extended the