Criminal Appeal No. 271 of 2019 · Bombaybench High Court
Case Details
2023:BHC-AUG:27078-DB appeal-271.191 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.271 OF 2019Vishnu S/o Jagganath Gund,Age-27 years, Occu:Nil,R/o-Gangewadi (Gundewadi),Taluka-Ashti, District-Beed,Presently at Central Prison,Harsul, Aurangabad. ...APPELLANT (Ori. Accused) VERSUS 1) The State of Maharashtra, Through Police Inspector, Ashti Police Station, Taluka-Ashti, District-Beed,2) Ashok S/o Vishwanath Dhawan, Age-40 years, Occu:Labour, R/o-Gangewadi, Taluka-Ashti, District-Beed. ...RESPONDENTS ... Mr. Vilas P. Savant Advocate for Appellant. Appellant - Vishnu S/o Jagganath Gund present through Video Conferencing. Mr. S.D. Ghayal, Additional P.P. for Respondent No.1. Mr. S.M. Sangale Advocate and Mr. P.B. Kadam Advocate for Respondent No.2. ... CORAM: SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATE : 18th DECEMBER, 2023
Legal Reasoning
appeal-271.192014.The prosecution was relying on the oral dying declarationgiven by Raosaheb to PW-2 Vijay and it was tried to be said thateven PW-4 Deepak was present at that time. PW-4 Deepak hasstated in his examination-in-chief that on a way to hospitalRaosaheb was talking to him and therefore, he made inquirywith Raosaheb and then Raosaheb disclosed that, “ I was sleepinghere. I received one stroke near my ear. Therefore, I woke up. At that time Isaw that Vishnu Gund was assaulting me by wooden log. I inquired withVishnu about assault to which he replied that as you have not paid money tome, hence you have to suffer for it.” As regards the oral dyingdeclaration is concerned, it is well settled principle of law that itis a weak piece of evidence. It can be relied only when theattending circumstances are proved beyond reasonable doubtand when the alleged oral dying declaration is heard by morethan one person, then all of them should be consistent enough insaying that they had heard the same. Of course, this would beapplicable when there is only one oral dying declaration. Hereinthis case, police have not come with the case nor PW-2 Vijay,PW-4 Deepak and PW-6 Ramesh have come with the case thateach one of them had made inquiry with Raosaheb separately atdifferent times and in absence of another. They were consistentenough in saying that whatever oral dying declaration was given, appeal-271.1921it was during journey from the spot to Hospital. However, PW-4Deepak and PW-6 Ramesh are silent on the point that Raosahebhad disclosed name of PW-5 Ashok as assailant, along with theappellant and other 2-3 unknown persons. Thus, there isabsolutely no consistency in the alleged oral dying declaration. 15.PW-6 Ramesh claims that on the day of incident around4.00 to 5.00 a.m. he was proceeding from Gangewadi road foranswering nature’s call, at that time he saw appellant proceedingon motorcycle along with one person, from a distance of 20 feetnear the hotel. Then he says that he heard noise of crying ofRaosaheb, he went there and saw that Raosaheb was lying in thepool of blood and thereafter he called PW-2 Vijay. He has notstated that when he went near Raosaheb, he asked him as towhat had happened. The alleged dying declaration by Raosahebwhich was heard by PW-6 Ramesh, was after the arrival of PW-2Vijay and PW-4 Deepak and during the journey to the hospital.The fact that his statement that he had seen Vishnu going onmotorcycle with one another person from a distance of 20 feetfrom the hotel, is an improvement, for which he could not assignany reason. appeal-271.192216.Thus the prosecution had utterly failed to connect theaccused with the crime and whatever evidence has beenadduced in the form of oral dying declaration as well as thetestimony of so-called eye witness will have to be discarded asuntrustworthy. 17.Taking into consideration the medical evidence i.e.testimony of PW-7 Dr. Balaji Gutte, it can be certainly said thatdeath of Raosaheb was homicidal in nature. Raosaheb hadreceived 11 external injuries and 3 fractures. However, it has notbeen connected to the appellant beyond reasonable doubt.18.So far as charge under Section 326 of the Indian PenalCode, for causing grievous heart to PW-5 Ashok with stick, isconcerned; since the testimony of PW-5 Ashok is required to bediscarded in toto, the said charge also does not survive. At thecost of repetition we would say that there is absolutely noexplanation by PW-5 Ashok and also by PW-9 Gawli and theprosecution, as to why the Police who was accompanying PW-5Ashok had not recorded his complaint / FIR or as to why there appeal-271.1923was no attempt to record statement of PW-5 Ashok prior to 64days.19.There is total perversity in appreciation of evidence by thelearned trial Judge. The learned trial Judge had failed to considerthe different versions of oral dying declaration. The learned trialJudge was not justified in considering only the role attributed tothe present appellant. The oral dying declaration would have tobe considered as a whole or would have to be discarded as awhole. Therefore, such Judgment cannot be allowed to stand andthe Appeal deserves to be allowed. Hence we proceed to passfollowing order:- O R D E R(I)Criminal Appeal stands allowed.(II)The conviction awarded to the appellant – VishnuJagganath Gund, by the learned Additional Sessions Judge, Beedin Sessions Case No.11 of 2017 for the offence punishable underSections 302 and 326 of the Indian Penal Code on 25-02-2019stands quashed and set aside. appeal-271.1924(III)We clarify that the award of granting compensation underSection 357(1) of the Code of Criminal Procedure to PW5 AshokVishwanath Dhawan also stands set aside.(IV)Appellant stands acquitted of the offence punishable underSections 302 and 326 of the Indian Penal Code.(V)The appellant be set at liberty, if not required in any othercase.(VI)Fine amount deposited, if any, be refunded to the appellantafter the statutory period.(VII)It is clarified that there is no change as regards the orderregarding disposal of Muddemal.[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/DEC23
Arguments
appeal-271.192 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Original accused – present appellant takes exception tochallenge his conviction for the offence punishable underSections 302 and 326 of the Indian Penal Code by the learnedAdditional Sessions Judge, Beed in Sessions Case No. 11 of 2017on 25th February 2019. Appellant has been charged forcommitting murder of one Raosaheb Bhau Dukare and causingvoluntary grievous hurt to witness Ashok Vishwanath Dhavan. 2.The law has been set into motion by PW-2 Vijay RaosahebDukare – son of the deceased Raosaheb, by filing FirstInformation Report (for short “the FIR”) on 9th October 2016 withAshti Police Station, District-Beed vide Crime No. 245 of 2016. Atthat time, it was for the offence punishable under Sections 302,323 read with Section 34 of the Indian Penal Code. In the FIR,as per the prosecution story, it was contended that deceased wasresiding with his wife and three sons. His daughter was marriedand was residing at her matrimonial home. The sons were alsomarried. Two to three months prior to the FIR, the family of thedeceased had decided to open a hotel and therefore, by giving appeal-271.193earnest amount of Rs.1,20,000/- to one Vishal Kaswa, took hisplace but they had not executed any document. The sale deedwas to be executed on the basis of said oral agreement to sell bygiving remaining amount of Rs.1,30,000/- at the time of Diwali.However, with the consent of the land owner, family of Raosahebhad started construction of the hotel. The construction materialwas placed at the site and therefore, Raosaheb used to go to thesaid place for guarding, at night time. Two days prior to theincident, accused – appellant had demanded amount fromRaosaheb on credit and in the Chowk he had abused andassaulted Raosaheb. The said quarrel was then separated by theinformant and his brothers. On the earlier night of the FIR,around 8.00 p.m. the accused had again met Raosaheb in theChowk and demanded amount for consuming liquor. Raosahebrefused and therefore, again the accused had assaulted andabused Raosaheb. That quarrel was separated by the cousinbrother of the informant. 3.It is the further prosecution story that informant hadreceived a phone call from one Ramesh Ramu Pachrud at 5.00a.m. on 9th October 2016 stating that when he was passing from appeal-271.194the road in front of the proposed hotel, he heard cries ofRaosaheb. Thereupon the informant went to the said place. Hehad called his cousin brother Deepak at the said place.Informant again went and brought vehicle of his friend. He putRaosaheb in the vehicle and asked him as to what hadhappened. At that time, Raosaheb told him that he wasassaulted by the present appellant, Ashok Dhawan and two tothree other persons. After Raosaheb was brought to GovernmentHospital, Ashti, first aid was given and he was asked to be takento Ahmednagar. However, when the vehicle was in front of Panditschool, Raosaheb expired and therefore, the vehicle was againtaken to Government Hospital, Ashti, where, upon examinationRaosaheb was declared dead. Thereafter the FIR was registered.4.After registration of the offence, investigation wasundertaken. The inquest panchnama was prepared and deadbody was sent for postmortem. With the help of two panchasand the informant, panchnama of the spot was got executed andthe clothes of the deceased as well as certain articles from thespot were seized. It was then revealed that Ashok Dhawan wasadmitted at Civil Hospital, Beed. Thereupon his statement appeal-271.195appears to have been taken. Present appellant came to bearrested. Statements of witnesses were recorded. Documentswere collected. The seized Muddemal was sent for chemicalanalysis and after the investigation was over, charge-sheet onlyagainst the appellant was filed before learned Judicial MagistrateFirst Class, Ashti.5.After committal of the case, charge came to be framedagainst the present appellant and upon denial to plead guilty,trial has been conducted. Prosecution has examined in all ninewitnesses to bring home the guilt of the accused. After hearingboth sides and perusing the evidence on record, the learned trialJudge has held that the offence has been proved beyondreasonable doubt. The accused came to be convicted andsentenced to suffer rigorous imprisonment for life and to pay fineof Rs.5000/-, in default to suffer rigorous imprisonment for sixmonths for the offence punishable under Section 302 of theIndian Penal Code. Further, he has been sentenced to sufferrigorous imprisonment for ten years and to pay fine ofRs.5000/-, in default to suffer rigorous imprisonment for sixmonths for the offence punishable under Section 326 of the appeal-271.196Indian Penal Code. An amount of Rs.5000/- has been directed tobe paid to PW-5 Ashok Dhawan, out of the fine amount, underSection 357(1) of the Code of Criminal Procedure. The set offhas been granted under Section 428 of the Code of CriminalProcedure to the accused. This is the order under challenge inthis Appeal. 6.In view of the order passed by this Court on 26th March2019, injured PW-5 Ashok came to be added as respondentNo.2. Respondent No.2 was represented by Advocate, however,it has been submitted by the learned Advocate that respondentNo.2 is not giving instructions to the Advocate. It is to be notedthat appellant is in jail since the date of his arrest and to bespecific, from 9th October 2016. It took long time to serverespondent No.2 and therefore, now we do not want to adjournthe matter. When an opportunity was given to respondent No.2to appear through Advocate, he ought to have given instructionsto his Advocate. Further the scope for the learned Advocate forrespondent No.2 would have been to protect the order ofcompensation only and not as regards other merits of the case.In view of this fact, we have heard learned Advocate Mr. V.P. appeal-271.197Savant for the appellant and learned Additional P.P. Mr. S.D.Ghayal for respondent No.1 – prosecution. Perused the record. 7.It has been vehemently submitted on behalf of theappellant that the learned trial Judge has not appreciated theevidence properly. In the FIR itself, PW-2 Vijay had come withthe case that when he had reached the spot where his fatherwas found in injured condition, then while shifting him tohospital, the father had given oral dying declaration stating thathe has been assaulted by present appellant, Ashok Dhawanand 2 to 3 other persons. That means the offence was registeredagainst Ashok Dhawan also. If we consider the examination-in-chief of PW-2 Vijay, then in Paragraph No.4 he has stated aboutthe said oral dying declaration exactly in the same way as in hisFIR Exhibit-28. However, in Paragraph No.8 he has taken asomersault and has stated that he met Ashok on 10th October2016 at Civil Hospital, Ashti and came to know from Ashok thatwhen Ashok as well as deceased Raosaheb were sleeping in thehotel, around 3.00 to 4.00 a.m. he received one stroke due towhich he woke up. He saw accused armed with bamboo stick. Heasked accused as to why he has beaten him. At that time appeal-271.198accused replied that it was by mistake and then accused startedassaulting Raosaheb with same bamboo stick on his leg andhead till it broke into pieces. Thereafter accused had assaultedRaosaheb with wood stick. According to PW-2 Vijay, hissupplementary statement has been recorded, wherein he hasstated that Raosaheb died due to assault by the presentappellant only. But if we consider the statement of PW-2 Vijayunder Section 164 of the Code of the Criminal Procedurerecorded by the learned Judicial Magistrate First Class, Ashti on19th October 2016, then it contains only the same recitals as perhis FIR Exhibit-28. Such person who changes his version, oughtnot to have been believed by the learned trial Judge. The learnedtrial Judge has given more importance to the information givenby PW-5 Ashok than to the oral dying declaration given bydeceased Raosaheb to the informant.8.It has been further submitted on behalf of the appellantthat in the remand report given by PW-9 Gawali, then PoliceInspector of Ashti Police Station, it can be seen that he has notcome out with the case that after the alleged supplementarystatement of the informant PW-2 Vijay was recorded, he had appeal-271.199given report under Section 169 of the Code of CriminalProcedure to the learned Magistrate. Such communication hasnot been produced and proved though PW-5 Ashok was arrayedas accused in the said remand report. Learned trial Judgeappears to have more relied on the testimony of PW-5 Ashok ashe has been considered as eye witness. However, the learnedtrial Judge failed to consider that PW-5 Ashok was arrayed as anaccused and therefore, his interested words to exclude himselfcannot be taken as true version. Learned trial Judge failed toconsider that PW-9 Police Inspector Gawli had recorded thestatement of PW-5 Ashok after a gap of 64 days of the incident.He has tried to put a lame excuse by saying that he recordedstatement of Ashok under Section 164 of the Code of CriminalProcedure after so many days as Ashok was injured and he couldnot trace Ashok out. The injury certificate of PW-5 Ashok gotproved through PW-7 Dr. Balaji Gutte would show that Ashokhad received two simple injuries and third injury was contusionon right eyeball and then the opinion in respect of the injury wasreserved. There is nothing in examination-in-chief of the medicalofficer that the injuries were life threatening. Though accordingto the medical officer, injury No.3 was dangerous to life, but how appeal-271.1910it was dangerous when it was to the eyeball, is a question.Further the cross-examination of PW-7 Dr. Balaji would indicatethat when Raosaheb was brought to the hospital he was inunconscious state. Then question arises, as to whether Raosahebwas conscious and in a fit state to give the statement whenPW-2 Vijay had brought him from the spot. If we consider thetestimony of PW-4 Deepak Maruti Jadhav, who is the cousinbrother of the informant Vijay, then he says that when hehimself and Vijay were taking deceased to Ashti hospital, at thattime deceased told that accused had assaulted him. That means,Deepak has not disclosed that Ashok was present there and hewas also assaulting. That means his testimony is contrary to FIRExhibit-28. When these major lacunas were left by theprosecution, the learned trial Judge ought not to have held thatthe offence is proved beyond reasonable doubt.9.Per contra, the learned APP strongly supported the reasonsgiven by the learned trial Judge while convicting the appellant.The testimony of PW-2 Vijay is consistent with his FIR Exhibit-28in respect of role assigned to the present appellant. Further, itcorroborates to the testimony of PW-4 Deepak, who was also appeal-271.1911present at the time when deceased had given the oral dyingdeclaration. Prosecution has also examined PW-6 RameshPachrud, who had heard the cries of deceased and seen him firstin point of time. The star witness was PW-5 Ashok, who is theeye witness. Though initially the offence appears to have beenlodged against him, yet after his statement was recorded it wasrevealed that he was rather eye witness to the incident. Itappears that statement of Ashok under Section 161 as well as164 of the Code of Criminal Procedure has been recorded. Nofault can be found in the same. This witness had receivedinjuries in the incident and those have been proved throughPW-7 Dr. Balaji. In clear terms the opinion has been given by themedical officer that injury No.3 - contusion to right eyeball waslife threatening. It was a grievous injury, that too caused withthe help of stick. The offence under Section 326 of the IndianPenal Code was made out. PW-9 PI Gawli had given the accountof the investigation he had carried out. The spot panchnamashows that the weapon i.e. stick used in the commission ofoffence and other articles were seized. Those were blood stainedand then the C.A. Report supports the said panchnama. Death ofRaosaheb was homicidal in nature, as column No.17 of the appeal-271.1912postmortem report would show that there were in all 11 externalinjuries and column No.18 shows that there were 3 fractureinjuries, first to the left parietal bone, second to left tibia andfibula upper 1/3 and third fracture to right tibia and fibula upper1/3. It has come in the evidence of PW-2 Vijay as well as PW-4Deepak that on the earlier night the accused had demanded theamount from deceased Raosaheb to consume liquor and when itwas not given, Raosaheb was abused and assaulted. This wasthe motive for the accused to commit murder of Raosaheb and itappears that in the said process, accused has caused grievousinjury to PW-5 Ashok. There is no merit in the Appeal and itdeserves to be dismissed. 10.Herein this case, as aforesaid, the law was set into motionby PW-2 Vijay by filing FIR Exhibit-28. In his FIR, he has clearlystated that his father Raosaheb had given oral dying declarationto him when he was shifting Raosaheb to hospital and it appearsthat informant intended to say that even PW-4 Deepak wasalong with him when the oral dying declaration was given. Wereiterate that the oral dying declaration was that he has beenassaulted by the accused, PW-5 Ashok Dhawan and other 2 to 3 appeal-271.1913persons ( ^^ fo’.kw xqaM o v”kksd <ou o brj nksu rhu tukauh ekjgku dsyh ^^)Thereupon the offence came to be registered against presentappellant as well as Ashok Dhawan. The remand report which ison record, forming part of the documents with JudicialMagistrate First Class, dated 10th October 2016, whereupon afterthe arrest of the present appellant on 9th October 2016, he wasproduced before the learned Judicial Magistrate First Class, alongwith which case diary was produced, arrays Ashok VishwanathDhawan and other 2 to 3 unidentified persons as accused and itis specifically stated that Ashok Dhawan is injured and admittedin Civil Hospital, Ashti. Thereafter Exhibit-66 and 67 are theletters dated 24th October 2016, given to Assistant Director,Forensic Science Laboratory, Aurangabad, one is for forwardingthe seized articles and another is for forwarding viscera, alsoshows that along with appellant, Ashok and other 2 to 3unknown persons have been shown as accused. Interestingly,PW-9 Gawli, investigating officer in his examination-in-chief saysthat he recorded the supplementary statement of the informanton 13th October 2016 wherein it was stated that Ashok Dhawanhas not assaulted Raosaheb. Then the question arises, as to howstill Ashok Dhawan has been arrayed as accused on 24th October appeal-271.19142016 in Exhibit-66 and 67. Testimony of PW-9 Gawli is silent onthe point that he has forwarded report under Section 169 of theCode of Criminal Procedure as against Ashok Dhawan. When theFIR was against two known persons and 2 to 3 unknownpersons, then unless a proper recourse has been adopted, theinvestigating officer could not have, on his own whims, droppedPW-5 Ashok from the array of the accused and therefore, thereis a fatal blow to the prosecution story. 11.Before turning towards the facts further, we would assessthe testimony of PW-2 Vijay in its entirety. Perusal of thetestimony of PW-2 Vijay would show that he has supported hisFIR in true letter and spirit till Paragraph No.5, wherein the FIRcame to be exhibited. In Paragraph No.4 he was firm enough insaying that his father had given oral dying declaration to himthat the present appellant, Ashok Dhawan and 2 to 3 otherpersons have assaulted him. Later on, it appears that he hastaken a somersault as regards the then accused Ashok Dhawanis concerned. He says that 2 to 3 days after the incident he cameto know that Ashok Dhawan was accompanied with his father inthe hotel in the night of the incident. Then he met Ashok on 11th appeal-271.1915October 2016 at Ashti Civil Hospital. He made inquiry with Ashokand then Ashok told him the things which we have alreadynarrated while considering the submissions by learned Advocatefor the appellant. For the sake of brevity, the same are notreproduced here. Thus, taking conjoint reading of theexamination-in-chief of PW-2 Vijay and PW-9 Gawli, what wecould get is that PW-2 Vijay claims that he met Ashok on 11thOctober 2016 and thereafter his supplementary statement wasrecorded and according to PW-9 Gawli, the investigating officer,it was recorded on 13th October 2016. In spite of recording of thesaid supplementary statement, PW-9 Gawli in his cross-examination, at the first place when it was admitted by him thathe has recorded statement of Ashok after a gap of 64 days ofthe incident, told that he cannot assign any reason as to why herecorded statement of Ashok so belatedly, but then he hasstated that he recorded statement of Ashok belatedly becauseAshok was injured and he could not trace out Ashok. Thisappears to be a blatant wrong statement. When in thesupplementary statement it appears that PW-2 Vijay haddisclosed that he had met Ashok in Government Hospital, Ashtion 11th October 2016, then PW-9 Gawli could have taken appeal-271.1916informant Vijay along with him to show where Ashok was. Aspecific question was asked regarding belated statement whichthe investigating officer was not able to explain and therefore,the role as well as statement of PW-5 Ashok has been rendereddoubtful. It appears that PW-2 Vijay as well as PW-9 Gawli, bothhave given more importance to the statement of Ashok than theoral dying declaration that was allegedly given by Raosaheb toPW-2 Vijay. At the cost of repetition it can be stated that sincePW-5 Ashok was arrayed as accused and there was no properlegal steps taken by PW-9 PI Gawli to discharge him, the entiretestimony of the alleged eye witness will have to be discardedafter branding it as interested testimony. 12.Another aspect that is required to be noted is that PW-2Vijay says that he had met Ashok on 11th October 2016 in thehospital and thereafter came to know the alleged real incidentand then his supplementary statement came to be recorded on13th October, 2016. Still we find that the statement of theinformant under Section 164 of the Code of Criminal Procedurerecorded by the learned Judicial Magistrate First Class, Ashti on19th October 2016 i.e. six days after his alleged supplementary appeal-271.1917statement, the same is supporting the FIR in which it was statedthat oral dying declaration was given by Raosaheb while beingshifted to Asti Civil Hospital that he was assaulted by VishnuGund and Ashok Dhawan. PW-2 Vijay has absolutely not statedanything in his statement under Section 164 of the Code ofCriminal Procedure, whatever he has stated in thesupplementary statement on 13th October 2016. Therefore, theinvestigation carried out by PW-9 PI Gawli is under the shadowof doubts. He appears to be not fair in carrying out theinvestigation. He has intentionally caused delay in recording thestatement of PW-5 Ashok. In fact PW-9 Gawli has made a falsestatement that he could not trace out PW-5 Ashok. Exhibit-62 isthe Medico Legal Certificate issued by Rural Hospital, Ashti toPolice Inspector, Ashti Police Station informing that AshokDhawan has been admitted in the said hospital around 6.30 a.m.on 10th October 2016. The Police Station In-charge has taken astation diary entry vide Entry No. 20 of 2016 at 20.00 hours onthe same day i.e. 10th October 2016 and gave it for furtherinquiry to Police Naik Bhise, B. No. 894, under the orders ofPW-9 PI Gawli. Further in his evidence when certain Courtquestions were asked, PW-9 Gawli has given answers to the appeal-271.1918same in Paragraph No.24, wherein he admitted that his PoliceStation had received Exhibit-62. He has then also admitted thatthey had received letter on 12th October 2016 regarding shiftingof Ashok Dhawan to Ambejogai or Aurangabad, when referralcard issued by the medical officer, District Hospital, Beed wasshown to him. Therefore, it was not impossible for PW-9 Gawli totrace out PW-5 Ashok when he was having the letters showingwhere exactly Ashok was. Still there is delay of 64 days inrecording the statement of PW-5 Ashok. This delay speaks foritself. Though he has denied that in collusion with informant andunder the pretext to discharge Ashok from the crime he hasrecorded false statement of Ashok, it appears to be a fact. Theinvestigation was absolutely not fair. Therefore, though PW-5Ashok has given his own version of the story, it will have to bediscarded. How the Police had helped PW-5 Ashok since the timeof his admission in Ashti Hospital has come on record in hiscross-examination. He has admitted that Police was with him inAshti Hospital till his treatment. Police had brought him to CivilHospital, Beed. One Sachin Pawal from Police Department wasaccompanying him and after he was discharged from CivilHospital, Beed, the same Police took Ashok to Ashti. appeal-271.191913.It is interesting to note that PW-5 Ashok has stated in hisexamination-in-chief that when he asked appellant – accused asto why he has been assaulted, accused told him that it was bymistake. Then he saw the accused assaulting the deceased andthen the appellant himself had taken this witness i.e. PW-5Ashok on his motorcycle to Ashti, threatened to kill him if hediscloses the incident to anybody. Thereafter PW-5 Ashokcorrected himself and said that when they came to Ashti, hejumped down from the motorcycle of accused. Police came thereand took him to Hospital. He was then taken to Civil Hospital,Beed where he had taken treatment for four days. There isabsolutely no explanation from him as to why he had notinformed the incident to the Police immediately, why he had nottried to lodge the report with the Police when he was in the safecustody of Police. In the answer to the Court question, PW-5Ashok discloses that deceased Raosaheb was his relative, whichis totally absent in the testimony of PW-2 Vijay. Thus, it can beseen from the entire episode that every act done by the Police aswell as this witness PW-5 Ashok was of suspicious nature.