High Court
Facts
APEAL-235-20.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 235 OF 2020Mehatab Esmile FakirAge: 27 years, Occu.: Labour,R/o Dabka, Tq. Omerga,Dist. Osmanabad..APPELLANTVERSUSState of Maharashtra..RESPONDENT....Mr. S.J. Salunke, Advocate for appellantMr. A.R. Kale, Addl.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 29th JULY, 2024PRONOUNCED ON : 22nd AUGUST, 2024JUDGMENT ( PER : R.G. AVACHAT,J. ) :1.The challenge in this appeal is to a judgment and order ofconviction and consequential sentence imposed against the petitioner, dated30th November, 2019 passed by Additional Sessions Judge, Omerga (‘trialCourt’) in Sessions Case No. 16 of 2018. Details of the same are as below :-Section (I.P.C.)SentenceFineIn Default302Life ImprisonmentRs.5,000/-S.I. for 2 months447R.I. for 3 monthsRs.500/-S.I. for 2 weeks506R.I. for 2 yearsRs.2,000/-S.I. for one monthHe is, therefore, in this appeal before this Court challenging thesame.1 / 21 APEAL-235-20.odt2.Along with the appellant, two others were charged and prosecutedfor the same offences read with Section 34 of the I.P.C. They have, howeverbeen acquitted by the trial Court. Neither the State nor the victim preferredappeal against their acquittal.3.Case of the prosecution, in short, was as follows :-Abhijit (deceased) was the son of P.W.2 – Ram (informant). Hewas an agriculturist by profession, residing at village Dabka, Tq, Omerga,Dist. Osmanabad. The informant was a driver by profession. He wasemployed as such on the truck of one Shaukat Patel. Whenever theinformant was required to travel long distance, he would always take servicesof an additional driver. 8-10 days before the incident dated 21st April, 2018,he had been to town Kakinada in State of Andhra Pradesh. Mehatab(appellant) had accompanied him to Kakinada. They unloaded rope bundlesthere. The truck was then loaded with other goods and started for returnjourney to Khopoli. While the vehicle was at Omerga, the appellant told theinformant that he would not accompany him for further journey. They,therefore, halted a while at Omerga. The informant bought a bottle of winefrom the shop. Both, the appellant and the informant, consumed the wine.The informant paid the appellant Rs.1,000/- for having accompanied him toAndhra Pradesh. The informant then went to Khopoli. He received a phonecall of his wife – Kavita informing that there was a quarrel between theappellant and Abhijit (deceased) over he (appellant) consumed liquoralongwith his father (informant).2 / 21 APEAL-235-20.odt4.It was also the case of the prosecution that two days before theincident, he returned to village from Hyderabad. He was to travel further toPune. The appellant happened to crossed his path. The appellant told him(informant) that he would not allow him (informant) to travel beyond Indapur.It was an implied threat as to he would commit something amiss. Theinformant, however ignored the same. He (informant) started for Pune. Atabout 01:30 a.m. when he was at Indapur Toll Plaza, his villager TanajiGaikwad called him on his cell phone and informed Abhijit to have beenassaulted with a knife. He asked the informant to return immediately. Theinformant, therefore, came back to Dabka in a private vehicle. On havingreached the village, he realised Abhijit to have passed away. His mortalremains were shifted to Government Hospital at Omerga for postmortem. He,therefore, went there. His wife – Kavita informed him that Abhijit and hisfriend, P.W.5 – Fakir went to their field to sleep overnight after attending aKanduri/Gondhal function at the house of one Tukaram Jamdar. In themidnight, P.W.5 – Fakir came home and informed Abhijit to have been knifedby the appellant and two others viz. Mehboob and Maqsood. She, therefore,went to the field alongwith some of the villagers to find Abhijit was dead. Hehad suffered multiple injuries. They had seen the appellant and those two(acquitted) fleeing away.5.It was also the case of prosecution that the village Sarpanch hadinformed the concerned police station. P.W.7 – Jadhav, Police Officerreached the village. He drew inquest panchanama (Exh.53) and shifted the3 / 21
Legal Reasoning
APEAL-235-20.odtprosecution came with a case that the appellant and two others killed Abhijit.Even the prosecution introduced an eye witness in the nature of P.W.3 –Madhav in that regard. According to prosecution, Kavita - mother of thedeceased, had also accompanied P.W.3 – Madhav and seen the trio fleeingaway from the field. However, she was not examined. According to P.W.3 –Madhav, P.W.5 – Irfan had accompanied him and Rohit to the field and evenIrfan found Abhijit’s cell phone. Irfan was, however not in agreement withthis prosecution witness. When the police had reached village within twohours of the incident, no F.I.R. was lodged by mother of the deceased or theso-called eye witness, Irfan or others as well, who had accompanied Kavitato the field and witnessed the trio fleeing away.36.It is true that in view of Section 134 of the Evidence Act, noparticular number of witnesses required to prove the fact. The conviction canbe based on testimony of sole eye witness. Such a witness has to be ofsterling quality. The Apex Court in case of Narendrasinh Keshubhai ZalaVs. State of Gujarat, [2023] 2 SCR 746 has observed thus :-“8. It is a settled principle of law that doubt cannot replace proof.Suspicion, howsoever great it may be, is no substitute of proof incriminal jurisprudence [Jagga Singh v. State of Punjab, 1994 Supp (3)SCC 463]. Only such evidence is admissible and acceptable as ispermissible in accordance with law. In the case of a sole eye witness,the witness has to be reliable, trustworthy, his testimony worthy ofcredence and the case proven beyond reasonable doubt. Unnaturalconduct and unexplained circumstances can be a ground fordisbelieving the witness. This Court in the case of Anil Phukan v. Stateof Assam, (1993) 3 SCC 282 has held that:“3.... So long as the single eyewitness is a wholly reliable witnessthe courts have no difficulty in basing conviction on his testimony19 / 21 APEAL-235-20.odtalone. However, where the single eyewitness is not found to be awholly reliable witness, in the sense that there are somecircumstances which may show that he could have an interest inthe prosecution, then the courts generally insist upon someindependent corroboration of his testimony, in material particulars,before recording conviction. It is only when the courts find that thesingle eyewitness is a wholly unreliable witness that his testimonyis discarded in toto and no amount of corroboration can cure thatdefect...”9. The same principle has been enunciated in: Amar Singh v. State(NCT of Delhi), (2020) 19 SCC 165.”37.It is true that it is the quality of the evidence that matters and notthe quantity. There can be no two views what has been observed in thejudgment in case of Lal Bahadur (supra) relied on by learned A.P.P. Wehave carefully perused paragraph no.22 of the said judgment. One hasultimately to decide the case on the basis of evidence appearing therein. Atthe cost of repetition it is stated that there are major inconsistencies in theevidence of prosecution witnesses. P.W.5 – Irfan could not be termed to bewholly reliable witness, for the reason he found to have been inimical with theappellant on account of a dispute over partition of the family property. Theprosecution case before the trial Court was altogether different. According toprosecution, the culprits were three in number. Two of them have beenacquitted. In the peculiar facts and circumstances of the case and for thereasons stated hereinabove, we find the trial Court to have erred in relying onthe sole testimony of P.W.5 – Irfan. We are not at one with the findingsrecorded by trial Court. Interference with the impugned judgment ofconviction and order of consequential sentence is, therefore, warranted.20 / 21 APEAL-235-20.odt38.In the result appeal succeeds. Hence, the following order :-ORDER(I)Criminal appeal is allowed.(II)Impugned judgment and order of conviction andconsequential sentence imposed against the petitionerfor the offences punishable under Sections 302, 447 and506 of the Indian Penal Code, dated 30th November,2019 passed by Additional Sessions Judge, Omerga(‘trial Court’) in Sessions Case No. 16 of 2018 is herebyset aside. The appellant is acquitted thereof.(III)The appellant be released forthwith, if not required in anyother case.(IV)Fine amount paid, if any, be refunded to him.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD21 / 21
Arguments
APEAL-235-20.odtdead body to Government Hospital, Omerga for postmortem. After thepostmortem was over, the dead body was handed over to the informant.After the funeral was over, the informant lodged F.I.R. (Exh.47) against theappellant and those two others.6.Crime, vide C.R. No. 105 of 2018 was registered. Statements ofthe persons acquainted with the facts and circumstances of the case wererecorded. The appellant and two others were arrested. The appellant madea disclosure statement pursuant to which a knife came to be seized. Clotheson the person of the deceased were taken charge of. From the crime scene,two pairs of footwear were seized besides earth and blood mixed earth. Allthe seized articles were sent to Regional Forensic Science Laboratory,Aurangabad (‘R.F.S.L.’). Upon completion of investigation, charge-sheetwas filed.7.The trial Court framed charge (Exh.17). All the three pleaded notguilty. Their defence was of false implication. The prosecution, to bringhome the charge, examined seven witnesses and produced in evidencecertain documents. On appreciation of the same, the trial Court convictedthe appellant and acquitted two others, as stated above.8.Learned counsel for the appellant would submit that two morepersons were prosecuted alongwith the appellant. However, they have beenacquitted. The State did not prefer appeal against their acquittal. The casewas solely based on testimony of P.W.5 – Irfan. He did not lodge report of4 / 21 APEAL-235-20.odtthe incident. As such, there is a delay in lodging of the F.I.R. There is greatvariance inter se evidence of the prosecution witnesses. The trial Courtought not to have relied on the sole testimony of P.W.5 – Irfan becauseadmittedly, relationship between the appellant and Irfan was not good. Therewas a dispute between them over partition of the family property. He,therefore, could not be termed to be a witness of sterling quality. Althoughtwo pairs of footwear were found at the crime scene, Investigating Officer didnot take pains to hold identification of the other pair to be that of P.W.5 –Irfan. Kavita, mother of the deceased, to whom the incident was allegedlyreported by Irfan, has not been examined. He would further submit thataccording to Irfan, crime took place under a mango tree in the field, whereasthe crime scene panchanama indicates no mango tree in the near by.9.According to learned counsel, the prosecution did not prove actualtime of death of the deceased. He adverted our attention to the cross-examination of the medical officer to submit that the crime must have takenplace twelve hours before the postmortem examination was conducted andnot within six hours. According to learned counsel, the prosecution has failedon all fronts, and therefore, the appeal deserves to be allowed.10.Learned A.P.P. would, on the other hand, submit and evenconcede that the State has not preferred appeal against acquittal of the twoothers, who were prosecuted alongwith the appellant. According to him, thatwill be of little consequence. He took us through the reasons given by trialCourt for convicting the appellant. According to him, the trial Court relied on5 / 21 APEAL-235-20.odtthe evidence of P.W.5 – Irfan and discarded the evidence of other witnesses.P.W.5 – Irfan identified the pairs of footwear before the Court. The samewere seized from the crime scene. It indicates that Irfan was in the companyof the deceased while the incident took place. He relied on paragraph nos.19 and 22 of the judgment in case of Lal Bahadur & Ors. Vs. State (NCT ofDelhi), (2013) 4 SCC 557. According to him, inconsistency in the prosecutionevidence and contradictions and omissions in the evidence of the particularwitness which do not go to the root of the matter, are necessarily required tobe ignored.11.Learned A.P.P. took us through the reasons given by the trialCourt in support of the impugned order of conviction and consequentialsentence. He ultimately urged for dismissal of the appeal.12.Considered the submissions advanced. Perused the impugnedjudgment and the authorities relied on. Let us advert to the evidence in thecase and appreciate the same.13.Postmortem report (Exh.35) indicates Abhijit died of cardiorespiratory arrest hue to haemorrhagic shock due to multiple injuries. Theantemortem injuries noticed on his person were as under :-“2. On the person of dead body I found following injuries:1) Chop lacerated wound on left neck side:i. 2x1x0.5 c.m.ii. 3x1x0.5 c.m.both wound were near thyroid cartilage left side and horizontal.iii. 6x1x 3c.m. near cricoid cartilage left side horizontal.Underlying muscles are divided, left carotid artery and jugular vein6 / 21 APEAL-235-20.odtof neck were cut.iv. 1x1x0.5 c.m. near cricoid cartilage horizontal.2) Chop lacerated wound on left wrists joint:i. 2x0.5x0.5 c.m. oblique.3) Chop lacerated wound on left web of index finger and middlefinger 1x0.5x 0.5 c.m.4) Chop lacerated would below sternum 4x1x0.5 c.m. oblique towardsright directed from above downward.5) Chop lacerated would on left side of upper quadrent of abdomen.i. 1.2x1x 0.5 c.m. towards right directed from above downwards.ii. 3x1x 0.5.c.m. near neval towards right directed from abovedownwards.iii. 3x1x 0.5 c.m. towards left directed from above downwards.iv. 4x1x0.5 c.m. towards right directed from above downwards.6) Chop lacerated wound on left side of lower quadrdent of abdomen.8x1x1 c.m. towards right directed from above downwards.7) Chop lacerated wound on right side of upper quadruped ofabdomen near naval. 2x1xup to peritoneal cavity omentum wasprotruding out of walls.All those injuries are mentioned by me in a para 17 of the postmortemreport.All those injuries are cause due to sharp object and within 6 hours.”14.P.W.1 – Dr. Basavraj had conducted postmortem examination.According to him, the injuries noticed on the person of the deceased werecaused by sharp object within six hours next before he conducted thepostmortem examination between 05:30 a.m. to 07:00 a.m. on 23rd April,2018.15.During his cross-examination, it was brought on record that rigormortis was fully developed from top to bottom. Rigor mortis starts from 2-3hours after death. His attention was drawn to certain exceptions from thebook of Medical Jurisprudence and Toxicology of Mr. C.K. Parikh. He7 / 21 APEAL-235-20.odtagreed that those propositions, particularly that it takes about twelve hoursfor developing rigor mortis entirely. In his opinion, the same howeverdepends on the environment. After death, rigor mortis remains for twelvehours and thereafter starts phasing off. According to him, age, condition ofbody, manner of death and some other facts as well influence time of settingof rigor mortis. According to him, food taken by the deceased before hisdeath was unidentified.16.P.W.1 – Dr. Basavraj, being an uninterested witness and nothingcould be elicited from his cross-examination, either to disbelieve his version,we find the deceased to have died of CRA due to hemorrhagic shock due tomultiple injuries and within the time specified by him.17.The question is whether the appellant was the author of homicidaldeath of Abhijit. True, it is an unfortunate incident. A young son of P.W.2 –Ram (informant) met with a homicidal death. The F.I.R. (Exh.47) was lodgedby P.W.2 – Ram on 23rd April, 2018 at 02:46 p.m. i.e. about sixteen hoursafter the alleged incident. Admittedly, P.W.2 – Ram was not an eye witness.Based on his F.I.R. the criminal law was simply set in motion. Whatever hasbeen deposed to by him in relation to the names of the culprits and otheraspects as to the incident, was based on hearsay. Admittedly, he wasserving as a driver on a heavy transport vehicle (truck). About 8-10 daysbefore the incident, he had been to Andhra Pradesh to unload some goods.His evidence would indicate that for long distance drive, he used to take with8 / 21 APEAL-235-20.odthim an additional driver. It is further in his evidence that the appellant hadaccompanied him to Andhra Pradesh. On their return journey, they wereproceeding to Khopoli for unloading of Dalda (ghee). While the vehicle wasat Omerga, the appellant told him that he would not accompany him further.Both of them consumed liquor at Omerga. The informant then gave theappellant a sum of Rs.1,000/- as consideration for accompanying him toAndhra Pradesh. It is further in his evidence that the appellant then wentback to his village Dabka. While the informant was on his way to Khopoli, hiswife, Kavita informed him on cell phone that a quarrel to have taken placebetween the appellant and Abhijit on account of the appellant to haveconsumed liquor alongwith him (informant). This incident is stated to be amotive for the appellant to commit murder of Abhijit. In our considered view,the same appears to be scanty. True, in case of direct evidence, failure toprove motive is of no consequence.18.It is further in the evidence of P.W.2 – Ram (informant) that fromKhopoli he again went to Hyderabad. Two days before the incident, he cameto village Dabka. The appellant crossed his path. The appellant impliedlythreatened him. The appellant told him that before he left Indapur,something amiss would happen. He (informant) ignored the same andstarted his onward journey. It is further in his evidence that while he was atIndapur toll plaza, Tanaji Gaikwad made him a call on his cell phone andinformed Abhijit to have been assaulted. He asked him to return to thevillage immediately. The informant, therefore, came back to the village. He9 / 21 APEAL-235-20.odtlearnt Abhijit to have passed away. The dead body was shifted toGovernment Hospital, Omerga. He, therefore, went to the hospital. His wife,Kavita related him that on the previous night Abhijit and P.W.5 – Irfan hadbeen to the house of Tukaram Jamdar for attending Kanduri/Gondhalfunction, wherein a goat is sacrificed and non-vegetarian food is served tothe invitees. She further related him that Abhijit had informed her that aftertaking dinner at the house of Tukaram, he was going to sleep in the fieldovernight.19.It is further in his evidence that Kavita further related him thatP.W.5 – Irfan had come home by 01:00 a.m. and informed her, Abhijit tohave been assaulted by the appellant and two others, Maqsood andMehboob (since acquitted) with knife. He, therefore, alongwith somevillagers viz. Haridas Pawar, Shesherao Pawar, Mahadeo Patil and someothers went to the field. She saw dead body of Abhijit lying in a pool of bloodin the adjoining field belonging to Vitthal Pawar. Kavita had further informedhim that they had seen the appellant and those two others fleeing afterdropping Abhijit behind. According to him, there was an old dispute betweenAbhijit on one hand and Maqsood and Mehboob on the other. According tohim, Abhijit was, therefore, murdered by the trio.20.We do not propose even to refer to his cross-examinationbecause whatever has been deposed by him is admittedly hearsay. It has tobe noted here itself that Kavita has not been examined. He was confronted10 / 21 APEAL-235-20.odtwith his F.I.R., which is silent to record therein that his wife had related him tohave seen the trio fled leaving Abhijit behind. (The omission was only to theextent of the word ‘dropping’ (Vkdwu)). He admitted that Haridas Pawar,Shesherao Pawar and Shivaji Pawar were his relatives.21.P.W.3 – Madhav Patil was an eye witness on the point ofallegedly last seen the deceased and P.W.5 – Irfan together. It is in hisevidence that Abhijit and Irfan had attended Kanduri/Gondhal function at thehouse of Tukaram Jamadar. He did attend the same. It is further in hisevidence that after his dinner was over, he was sitting on the bridge in thevillage. He saw Abhijit and Irfan proceeding together towards the field. Aftera while, Irfan and Rohit Deshmukh came to him. They told him MehatabFakir (appellant) to have knifed Abhijit in the field. They requested him tocome alongwith them to see what the matter was. It is further in his evidencethat he, therefore, alongwith Rohit and Irfan went to the field. They did notfind Abhijit there. Irfan, therefore, made a call on cell phone of Abhijit.Abhijit’s cell phone was found under a mango tree. They then returned to thevillage taking the cell phone with them. Then they went to the house ofAbhijit. Irfan woke up Kavita, mother of the deceased, and related her aboutthe incident. It is further in his evidence that at the request of Kavita, heaccompanied her to the field. Shesherao Pawar and Hari Pawar were alsowith them. They could not locate Abhijit. They had torch with them. It isfurther in his evidence that they saw the appellant and two others fleeingaway after dropping Abhijit behind. Then he went close to Abhijit. Abhjjit11 / 21 APEAL-235-20.odtwas lying in the pool of blood in the field of Vitthal Pawar. Then he returnedto the village. He related the same to Balbhim Mane, village Sarpanch, whoin turn, made a phone call to Omerga Police Station. It was about 12:30midnight.22.During his cross-examination it was revealed that since he relatedthe incident to village Sarpanch, he did not find it necessary to relate to thepolice. He was confronted with his police statement. His statement wasfound to be silent to record therein that he was sitting on the bridge, he sawdeceased and the appellant proceeding towards the field and saw Abhijit wasdropped by the culprits. His evidence indicates that police had reached thevillage at 02:00 in the midnight in response to a call made by the villageSarpanch. He was present while the police arrived. He did not relate thepolice anything about the incident. According to him, the police had recordedhis statement six days after the incident.23.Conduct of this witness in not reporting to the police what he hadseen on the fateful night and the fact that his statement was recorded by theInvestigating Officer six days after the incident lead us to disbelieve hisevidence. The trial Court also not relied on the evidence of this witness.24.P.W.4 – Haridas was a witness to the various panchanamas. Thefirst panchanama is of the crime scene (Exh.52). It was drawn in hispresence. According to him, police seized two pairs of footwear (sandles)besides plain and blood stained earth. Then he was a witness to inquest12 / 21 APEAL-235-20.odtpanchanama (Exh.53). Another panchanama to which he was a witness is inrelation to seizure of the clothes of the deceased (Exh.54). According to him,the police did not record his statement. He admitted that the deceased washis relative.25.Appreciation of evidence of this witness indicates that thepanchanamas referred to hereinabove were drawn in his presence. Whenwe referred to the evidence of P.W.3 – Madhav, who had claimed to haveaccompanied Kavita and others to the field and seen the assailants fleeingaway, this witness (P.W.4) was with them. He (P.W.4), however was silentto speak anything in that regard. Although his statement was not recordedby the Investigating Officer, it ought to have been natural on his part to relateto the police what he had seen while he accompanied Kavita and others tothe field on having learnt about the incident. Be that as it may.26.P.W.5 – Irfan is a witness, on the basis of whose evidence theappellant has been convicted. It is in his evidence that on the night of 22ndApril, 2018 he had attended Kanduri function at the house of TukaramJamadar. Abhijit (deceased) was in his company. After taking dinner, bothof them went to the field of Abhijit to sleep overnight. It was about 11:30 p.m.Within 10-15 minutes his uncle, Mehtab (appellant) came there. Theappellant rake up the past quarrel with the deceased. Abhijit enquired withthe appellant as to whether he was going to assault him. The appellantthereupon fished out a knife (suri) and stabbed on the stomach of Abhijit. He(Irfan) took to his heels and came to the village leaving behind his footwear.13 / 21 APEAL-235-20.odtAccording to him, he met Rajesh Deshmukh on the way. He told Rajesh theappellant to have assaulted Abhijit with a knife. He then met with MahadeoPatil and Rohan Bhosale. They too were informed. He then went to thehouse of Abhijit. He woke up his mother, Kavita and related her theappellant to have assaulted Abhijit with a knife.27.He was shown two pairs of chapples (sandles). He identified oneof the pairs as that of his and the other to be of the deceased.28.He was subjected to a searching cross-examination. It is in hisevidence that he did not accompany Mahadeo Patil or Rohit to the field ofAbhijit nor did he ask Mahadeo to go to the house of Abhijit and tell hismother about the incident. According to him, he did not find Abhijit’s cellphone. According to him, the incident took place under a mango tree. Onthe fateful night he did not go back his home. According to him, the housesof his uncles and that of his parents are adjoining to each other. He gave avital admission to the effect that there were disputes between him and hisfamily on one hand and the appellant on the other. He was suggested thathe was fast asleep. This suggestion could not be taken to be an impliedadmission suggesting him to have been in the company of Abhijit and wasfast asleep in the filed, since the suggestion is not to that effect. At the costof repetition it is stated that it was simply suggested that he was fast asleep.He even testified to have not even related Kavita (Abhijit’s mother) that theassailants were the appellant and two others viz. Maqsood and Mehboob.14 / 21 APEAL-235-20.odt29.P.W.6 – Deepak is a witness to the two panchanamas relating totwo disclosure statements made by the appellant. The first one, dated 29thApril, 2018, pertains to the disclosure statement (Exh.66) made by theappellant in relation to have dropped the knife (suri) in a well and he wouldtake the police and panchas to that place to take it out. The appellantaccordingly took the police and panchas to a well at Lamjana area. Entirewater was removed out of the well with the electric motor pump. OneRajendra Kamble entered into the well. He found the knife. A panchanamaof seizure of the knife was drawn vide Exhibit 67.30.It is further in his evidence that again on 03rd May, 2018 he wassummoned to the police station. The appellant again made a disclosurestatement that he would take the police and panchas to a place whereat hehad thrown the clothes which were on his person at the material time. Thestatement was recorded at Exhibit 68. The appellant again took all of themto Lamjana and particularly at a place nearby one hotel. Nothing was foundthere. Panchanama (Exh.69) to that effect was, therefore, drawn.31.Appreciation of the evidence of this witness would lead us to inferthe same to have been of no assistance to the prosecution. Pursuant to theso called disclosure statement (Exh.68), no clothes of the appellant werefound at the particular place. So far as seizure of knife (suri) pursuant todisclosure statement (Exh.66) is concerned, it is to be stated that C.A.15 / 21 APEAL-235-20.odtreports relating thereto indicate that no blood stain was found thereon. Assuch, nothing could be said to have been discovered pursuant to thestatement made by the appellant and the seizure of knife. Same is,therefore, not relevant under Section 27 of the Evidence Act.32.Then there is evidence of P.W.7 – Jadhav, Investigating Officer.After having been informed by the Police Station Officer about the receipt ofinformation from the village Sarpanch, he first talked with village Sarpanch oncell phone and verified about the incident and then went to village Dabka.The villagers had already gathered in the village. The villagers took him tothe field of Vitthal Pawar wherein the dead body of Abhijit was located. Hedrew the spot panchanama (Exh.52), seized two pairs of footwear besidesblood stained earth, etc. His evidence further indicates that he conductedinquest and then sent the mortal remains to Government Hospital, Omergafor postmortem examination. According to him, he arrested the appellant inNavi Mumbai, while the others two were arrested in the village.33.Arrest panchanama of the appellant (Exh.75) indicates that hewas arrested at Omerga. There is, therefore, nothing to indicate that theappellant to have been absconding post incident. This witness did not testifyto have made any search for the appellant. According to him, the appellantwas found in Navi Mumbai. He was overpowered by other police officialsand brought to the village. The police officials, who allegedly arrested theappellant in Navi Mumbai, were not examined as witness. It is reiterated that16 / 21 APEAL-235-20.odtthe arrest panchanama (Exh.75) indicates the appellant to have beenarrested at Omerga on 26th April, 2018 i.e. within two days of the incident.34.Aforesaid is the evidence adduced by the prosecution. At the costof repetition it is to be stated that two others viz. Maqsood and Mehboob,charged and prosecuted alongwith the appellant, have been acquitted. TheState did not prefer appeal against their acquittal. For better appreciation,the charge for offence punishable under Section 302 read with Section 34 ofthe I.P.C. framed against the trio reads thus :-“That, on 24.04.2018 in the midnight at about 12.30 to 1.00 a.m. in thefield of Abhijeet Pawar you accused infurtherance of your commonintention, committed murder intentionally or knowingly causing thedeath of Abhijeet Ram Pawar, R/o Dabka, Tq. Omerga and therebycommitted an offence punishable u/sec. 302 r/w. 34 of the Indian PenalCode and within my cognizance.”35.On the acquittal of other two, conviction of the appellant with theaid of Section 34 of the I.P.C. goes. The crime was registered against thethree post F.I.R. lodged by father of the deceased. The informant (P.W.2 –Ram) had testified that his wife – Kavita had related him that P.W.5 – Irfanhad related her Abhijit was assaulted by the trio. Kavita was not examinedas a witness, for the reasons best known to the prosecution. There aremajor inconsistencies in the evidence of prosecution witnesses. P.W.3 –Madhav had claimed to have seen Abhijit and Irfan proceeding towards thefield. He claimed that Irfan and Rohit had informed him about the incident.P.W.5 – Irfan, on the other hand, deposed the same. P.W.3 – Madhav17 / 21 APEAL-235-20.odttestified that he alongwith Irfan and Rohit had been to the field again. Irfanfound cell phone of the deceased. This fact too has been denied by Irfan.He specifically denied accompanying Madhav to the field again and foundthe cell phone. According to Irfan, the incident took place under a mangotree, while the crime scene panchanama (Exh.52) indicates it was a field ofVitthal Pawar. There was jawar crop in the said field. No mango tree was inthe nearby. Admittedly, police had reached the village within hours of theincident. Irfan, the so-called eye witness, did not explain where was he afterthe incident and why did he not inform the police immediately, when herelates the incident to Kavita, mother of the deceased. The appellant is theuncle of Irfan. Admittedly, relationship between the appellant’s family andthe family of Irfan, on the basis of whose evidence the trial Court imposed lifeimprisonment, were not good. There was dispute between them overpartition of family property. This could be said to be a ground for him to grindan axe against the appellant. So far as his evidence relating to identificationof the footwear before the Court is concerned, the same is of little relevance,since the Investigating Officer took no efforts to find the said footwear, reallybelonged to this witness. No test identification has been done. There wasalso nothing to indicate the footwear were of the size of his feet. P.W.4 –Haridas, who was a witness to various panchanamas, had also been said tohave accompanied P.W.3 – Madhav and Kavita to the field and witnessedthe trio fleeing away, dropping injured – Abhijit behind. He simply becamewitness to the panchanamas. He did not state anything to police. As such,there is a big question as to whose evidence was to be believed. The18 / 21