High Court

Legal Reasoning

1Criappeals Nos.672-20,167-23 and 685-20.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 672 OF 2020Mangesh @ Balu Mallikarjun BoradeAge: 44 years, Occu: Agril.,R/o: Sawargaon, Tq. Bhoom,District Osmanabad… AppellantVersusThe State of Maharashtra… Respondent...ANDCRIMINAL APPEAL NO.167 OF 2023Navnath Baliram BoradeAge: 35 years, Occu: Agril.,R/o: Sawargaon,Tq. Bhoom, Dist. Osmanabad… AppellantVersusThe State of Maharashtra… Respondent…ANDCRIMINAL APPEAL NO.685 OF 2020Samadhan Ambrushi BoradeAge: 29 years, Occu: Agril.,R/o: Savargaon, Tq. Bhoom,Dist. Osmanabad… AppellantVersusThe State of Maharashtra… Respondent…Mr. S. J. Salunke, Advocate for Appellant in Criminal AppealNo.672/2020Mr. V. D. Sapkal [Senior Advocate] i/b Mr. S. R. Sapkal,Advocate for Appellant in Criminal Appeal No.167/2023Mr. M. V. Salunke, Advocate for Appellant in Criminal AppealNo.685/2020Mrs. V. S. Choudhari, APP for Respondent – State in all Appeals… 2Criappeals Nos.672-20,167-23 and 685-20.odtCORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved on : 20th February, 2024Pronounced On : 04th April, 2024JUDGMENT : [ PER NEERAJ P. DHOTE, J.] 1.These Appeals are against the Judgment and Order dated29/09/2020, passed by the learned Additional Sessions Judge,Bhoom, District Osmanabad, in Sessions Case No.173/2014convicting the Appellant/s for the offences punishable underSection 302 read with Section 34 of the Indian Penal Code [forshort ‘IPC’] and sentencing them to suffer rigorousimprisonment for life and to pay fine of Rs.10,000/- each, indefault of payment of fine to suffer rigorous imprisonment forone (01) year each. Hence this common Judgment.2.Prosecution’s case as revealed from the Police Report is asunder : -2.1Deceased – Amol Bapurao Takale was the son of PW – 3[Bapurao Pandhari Takale], who is also the Informant.Deceased – Amol Takale was residing at Pune. PW – 5 [TanajiLimbraj Takale], who was the cousin of deceased – Amol Takale,was hospitalized due to injuries suffered in an assault. Deceased– Amol Takale came from Pune on 16/09/2014 to see PW – 5[Tanaji Limbraj Takale]. While he was traveling in a ScorpioJeep [four wheeler] for going to his village along with otherwitnesses, they saw Appellant – Navnath Baliram Borade andhe stopped the vehicle. Verbal wrangle took place betweenthem. When he boarded back the vehicle, the accused personspelted stones on the vehicle and assaulted deceased – AmolTakale with deadly weapons such as swords. The witnesses ran 3Criappeals Nos.672-20,167-23 and 685-20.odtaway. Due to the severe injuries, Amol Takale died.2.2When the Informant learnt about the incident, he reachedthe spot of incident where he saw his son – Amol Takale lying inpool of blood. The police prepared inquest and referred the deadbody for post-mortem. The crime was registered on the reportlodged by PW – 3 [Bapurao Pandhari Takale]. The spotpanchnama was prepared. The swords came to be seized. Thestatements of witnesses were recorded. The accused personscame to be arrested. Pursuant to the discovery under Section27 of the Indian Evidence Act, 1872 [for short ‘the EvidenceAct’], the clothes of accused came to be seized at the instance ofaccused No.1 – Navnath Borade. The articles seized during thecourse of investigation came to be referred to the ForensicLaboratory for examination. On completion of investigation,Charge-sheet came to be filed against ten (10) accused personsfor the offences punishable under Sections 120-B, 143, 147, 148,149, 201 and 302 of IPC, Section 25(4) of Arms Act, 1959 andSection 135 of Bombay Police Act, 1951.3.The learned Trial Court framed the Charge against theAppellants and acquitted accused at Exhibit – 40 for theoffences punishable under Sections 120-B, 143, 147, 148, 149,201 and 302 of IPC, Section 25(4) of Arms Act, 1959 andSection 135 of Bombay Police Act, 1951, to which, they pleadednot guilty and claimed to be tried.4.To prove the Charge, the Prosecution examined in allNineteen (19) witnesses and brought on record thedocumentary evidence. After the Prosecution closed it’sevidence, statements of the Appellants and acquitted accused 4Criappeals Nos.672-20,167-23 and 685-20.odtcame to be recorded under Section 313(1)(b) of the Code ofCriminal Procedure [for short ‘Cr.PC’]. They all denied theProsecution’s case and evidence. On appreciation of theevidence on record, the learned Trial Court passed theimpugned Judgment and Order convicting the Appellants andacquitting the co-accused.5.Heard the learned Advocate Mr. S. J. Salunke, learnedSenior Advocate Mr. V. D. Sapkal, learned Advocate Mr. M. V.Salunke for the respective Appellant/s and learned APP forRespondent – State. Perused the evidence on record.6.It is submitted by the learned Senior Advocate andAdvocates for the Appellant/s that, in totality of the evidenceavailable on record, the Charge is not proved. The Appellantsare not the aggressors. When on the basis of same evidence,some accused are acquitted, the Appellants are also entitled foracquittal on parity. The learned Trial Court read the evidencedifferently for the Appellants and for acquitted accused. Theevidence of eye witnesses is not consistent. It is submitted thatthe ground of alteration after Charge is not pressed. They reliedon certain Judgments, which would be considered in the laterpart of this Judgment. They submitted that the Appeals beallowed and the conviction and sentence imposed upon theAppellants be quashed and set aside.7.It is submitted by the learned APP that, the evidence ofeye witnesses inspires confidence and corroborates each otherin respect of involvement of the Appellants. No capital can bemade as to why the deceased – Amol Takale and the witnesseschose another road for going to their village. It is submitted thatthough some of the witnesses have not supported the 5Criappeals Nos.672-20,167-23 and 685-20.odtProsecution, their evidence, which supports the Prosecution,can be accepted. The medical evidence corroborates thetestimony of eye witnesses. It is submitted that no interferenceis called for in the impugned Judgment. Learned APP relied onJudgment on the point of alteration of Charge. As the ground ofalteration of Charge is not pressed, there is no need to considerthe Judgment relied. ‘ HOMICIDAL DEATH ’ 8.The evidence of PW – 19 [Hanumant Bhiva Wakade] showthat he was the Police Inspector and In-charge of Paranda PoliceStation from 19/02/2014 till 31/05/2015. On 16/09/2014, whilehe was at Osmanabad for official work, he received a telephonicinformation from Police Sub-Inspector about the murder atSavargaon. He gave necessary instructions to PSI and he lefttowards the spot of incident. On the spot of incident, he foundone dead body on the road and on inquiry, he learnt that, thedead body was that of one Amol Bapurao Takale. He preparedthe Inquest [Exhibit – 136] in the presence of two panchas.There were injuries on the head, throat, hands and other partsof the dead body. He sent the dead body for post-mortem. Heprepared the spot panchnama [Exhibit – 233] in the presenceof two panchas. He found two swords and two sheaths at thespot of incident, which were seized. One Scorpio [four wheeler]was also seized from the spot of incident. His evidence showthat on the report at Exhibit – 142 lodged by PW – 3 [BapuraoPandhari Takale], he registered the crime and started theinvestigation. His cross-examination show that an entryregarding the incident of murder was taken in the station diary.Not mentioning the name of accused in the station diary will notaffect the testimony of this witness. 6Criappeals Nos.672-20,167-23 and 685-20.odt9.The evidence of PW – 2 [Pandrang Birmal Takale] showthat on 16/09/2014, Inquest [Exhibit – 137] of Amol Takale wasprepared in his presence. By which weapon the injury wascaused, is not expected by this panch witness. The inquest is notseriously disputed, as seen from the cross-examination.10.The evidence of PW – 3 [Bapurao Pandhari Takale] showthat he was the father of deceased – Amol Takale and residentof village Devangra. He learnt that his son was being assaultedin front of the school by sword and so, he went on the spot ofincident, which was near the water tank. He saw his son – AmolTakale in dead condition and there were several injuries on hisneck. The Police prepared inquest. Thereafter, he went toParanda Police Station and lodged the report [Exhibit – 142].He took the dead body at Bhoom. The evidence of PW – 3[Bapurao Pandhari Takale] is not seriously disputed.11.PW – 14 [Prashant Atmaram Chormale] is a panch witnessfor the spot panchnama. His evidence show that on 16/09/2014in between 07:30 to 08:00 pm, the Police called him atSavargaon. He reached on the spot of incident, which was nearthe Mahadev Temple at Savargaon. The dead boy of AmolTakale was lying on the spot. Two swords and two sheaths werealso lying there with one chappal. One four wheeler – Scorpiowas standing nearby with broken glasses. The spot panchnamaat Exhibit – 233 was drawn in his presence and the articleswere seized. Though in his cross-examination, it is brought onrecord that he was deposing as per the contents of panchnamaas he read it, his evidence that he acted as the panchas for thespot panchanama remained unshaken. 7Criappeals Nos.672-20,167-23 and 685-20.odt12.The evidence of PW – 1 [Vijaykumar Rohidas Sul] showthat on 16/09/2014, he was working in the Rural Hospital,Bhoom as Medical Officer. The dead body of Amol Takale wasbrought to his Hospital at 9:00 pm by the Police. The dead bodywas identified by PW – 3 [Bapurao Pandhari Takale]. The post-mortem was conducted, in which, following injuries were found:“1) Contused lacerated wound, over right temporal area, having size 4 cm. x 2cm.x 1 cm., the age of injury was more than 12 hours. It was caused by sharpweapon.2) Contused lacerated wound, behind right Ear, having size 3 cm. x 1 cm. x 0.5cm., the age of injury was more than 12 hours, it was caused by sharp weapon.3) Incised wound over Neck extending from left sternocleidomastoid, muscleto right sternocleidomastoid muscle, having size 6 cm. x 3 cm x 2 cm, the ageof injury was more than 12 hours, it was caused by sharp weapon.4) Contused lacerated wound, over right axillary area, having size 4 cm. x 2cm. x 1 cm, The age of injury was more than 12 hours. It was caused by sharpweapon.5) Contused lacerated wound, over right scapular area, having size 6 cm. x 4cm x 1.5 cm. The age of injury was more than 12 hours, it was caused bysharp weapon.6) Middle Finger, Ring finger and Little finger cut from midline.”13.His evidence show that the death was “due to severehypovolemic shock due to severe hemorrhage due topenetrating injury to neck leading to cutting injuries to carotidsand trachea”. The injury no.3 was the main cause of death. Allinjuries were possible by Article Nos. 1 and 2 i.e. swords. Thepost-mortem report at Exhibit – 135 is brought on record.14.Though the cross-examination is in respect of categoriesof weapons and rigor mortis, the evidence remained unshaken.The family background of this Doctor as brought in the cross-examination will be of no consequence. The post-mortem reportat Exhibit – 135 corroborates the evidence of this witness. 8Criappeals Nos.672-20,167-23 and 685-20.odt15. From the above discussed evidence, there cannot be aslightest doubt that the Prosecution established the homicidaldeath of Amol Takale.‘INFORMANT’16.PW – 3 [Bapurao Pandhari Takale] is the father ofdeceased – Amol Takale. On his report, the Crime came to beregistered. His report [Exhibit – 142] regarding the incident isbased on hearsay information. His evidence show that on16/09/2014, deceased – Amol Takale had come to their nativeplace i.e. Devangra and he went to Barshi to see PW – 5 [TanajiLimbraj Takale] since he was hospitalized. After he left thevillage, the Appellants came to the Informant’s house andinquired about his son – Amol Takale. He told them that AmolTakale went to Barshi. The Appellants threatened him that,they will chase his son and kill him. However, his furtherevidence show that neither he narrated the incident of saidthreat to any villager nor he informed his son on the phone.Neither he informed the concerned police station about the saidthreat. This conduct of PW – 3 [Bapurao Pandhari Takale] notgiving caution to his son – Amol Takale is strange. His evidencethat the Appellants told him that they would chase his son bygoing to Barshi is an omission, which is duly proved in theevidence of Investigating Officer i.e. PW – 19 [Hanumant BhivaWakade].17.Though, PW – 3 [Bapurao Pandhari Takale] lodged thereport against the Appellants for causing the homicidal death ofhis son, he deposed that due to the quarrel during Pola festivalof the year 2014, Sachin Patil of their village committed murderof his son. However, the said Sachin Patil is not the accused in 9Criappeals Nos.672-20,167-23 and 685-20.odtthis case. The crux of the evidence of PW – 3 [Bapurao PandhariTakale] is that he set the criminal law in motion.‘EYE WITNESSES TO THE INCIDENT’18. Prosecution examined five [05] witnesses as the eyewitnesses to the incident. They are PW – 4 [Shivaji UttreshwarKharat], PW – 6 [Tukaram Shriram Barkade], PW – 7 [Sandip @Lakhan Sugrive Bhosale], PW – 8 [Ram Bibhishan Barkade] andPW – 12 [Dilip Rambhau Kamble].19.PW – 4 [Shivaji Uttreshwar Kharat] is the relative ofdeceased – Amol Takale. He claims to have witnessed theincident of assault by the Appellants with sword on AmolTakale at village Savargaon, while he was returning aftervisiting PW – 5 [Tanaji Limbraj Takale] in the Hospital atBarshi. He left the Hospital one and half hour after deceased –Amol Takale and other witnesses left the Hospital. At that time,he was travelling by a motorcycle via Savargaon. However, inhis cross-examination, the topography of the villagesSavargaon, Devangra, Arsoli, Wanjarwadi and roads leading tothe said villages is brought on record. He is the resident ofWanjarwadi. The said topography show that the village wherethe incident had taken place i.e. Savargaon, was not in his wayfrom Barshi to Wanjarwadi. This aspect is also fortified from thecross-examination of PW – 1 [Vijaykumar Rohidas Sul] whoconducted the post- mortem as he was the resident of villageArsoli, Taluka Bhoom. His evidence show that he was familiarwith the topography of the aforesaid villages and roads leadingthereto. It is clear from his evidence that village Savargaon i.e.the place of incident, do not fall on the way between Barshi and 10Criappeals Nos.672-20,167-23 and 685-20.odtWanjarwadi, or vice-versa. Nothing is brought by theProsecution that this witness, who was going to his native, hadany reason to go at Savargaon. There is nothing in his evidenceto show that he had the reason to take the longer route to goSavargaon, when he was returning to his native village which ison different route. Admittedly, he is the chance witness. As persettled legal position, the evidence of chance witness is requiredto be evaluated with caution. His conduct, post-incident, is alsorequired to be considered. 20.Though PW – 4 [Shivaji Uttreshwar Kharat] claims tohave witnessed the incident of assault by the Appellants onAmol Takale, he kept mum. Though the Police had reached thespot of incident and he along with PW – 3 [Bapurao PandhariTakale] / Informant was present there, he did not disclose thePolice that he witnessed the incident. Strangely, his evidenceshow that after the body of deceased - Amol Takale was taken toBhoom and many persons, who were known to him hadgathered, he did not told them about the incident.21.Thus, in the backdrop of the above discussion, theevidence of PW – 4 [Shivaji Uttreshwar Kharat] is required tobe seen with doubt.22.The evidence of PW – 6 [Tukaram Shriram Barkade] showthat he is the relative of deceased – Amol Takale and was theresident of Devangra. He accompanied deceased – Amol Takaleand others to the Hospital at Barshi to inquire about well beingof PW – 5 [Tanaji Limbraj Takale] and while they werereturning to their village, the father and uncle of PW – 5 [TanajiLimbraj Takale] got down from the vehicle at Devangra andtheir vehicle proceeded further. When they reached village 11Criappeals Nos.672-20,167-23 and 685-20.odtSavargaon, they saw Appellant – Navnath Borade. Deceased –Amol Takale stopped the vehicle. There was verbal wranglebetween deceased - Amol Takale and Appellant – NavnathBorade. By that time, he and other witnesses got down from thevehicle. They were asked to board the vehicle. The vehicleproceeded further and was being driven by deceased - AmolTakale. In the meanwhile, the Appellant – Balasaheb @ MangeshBorade reached there on a motorcycle and he pelted stones,which hit the glass of the vehicle. The Appellant - Balasaheb @Mangesh Borade caught hold the collar of Amol Takale andasked the other Appellants to bring the swords. Deceased –Amol Takale was pulled outside the vehicle by Appellant -Balasaheb @ Mangesh Borade. All the Appellants were armedwith swords and others were having stones in their hands.Deceased – Amol Takale was assaulted by swords by all theAppellants on vital parts of the body and others were peltingstones. Amol Takale succumbed to the injuries. His furtherevidence show that he ran away. He identified all the accused asthe assailants.23.His further evidence show that after the incident, he rantowards Barkade Wasti, which was the part of village Devangra,which was the native place of deceased – Amol Takale and thatof his father PW – 3 [Bapurao Pandhari Takale]. He was also theresident of said Barkade Wasti where he was residing with hisfamily. Strangely, he neither informed about the incident toAmol’s father PW – 3 [Bapurao Pandhari Takale] nor his familymembers. He did not meet anybody in the said village. He didnot disclose about the incident to anyone. Though he felt that itwas a serious incident, he did not inform the Police though hewas having the phone. 12Criappeals Nos.672-20,167-23 and 685-20.odt24.Though this witness deposed that his statement wasrecorded on third day from the date of incident, the evidence ofPW – 19 [Hanumant Bhiva Wakade] show that his statementwas recorded on 23/09/2014 i.e. after seven (07) days from thedate of incident. The cross-examination show that after theincident, he was present in the village for a period of one (01)month and there was police bandobast at the village Devangrafor a period of one (01) month. He did not personally gave theinformation to the Police about the incident. There is noexplanation for the delay in recording the statement of thiswitness. His evidence that the Appellant – Samadhan Boradewas armed with sword, co-accused Sandip Borade and VilasBorade were having stones in their hands and they peltedstones towards them, was an omission which is duly proved.The cross-examination in respect of the actual incident cannotbe called as admission in legal sense. Though this witnessclaims to have gone to the Hospital to see PW – 5 [TanajiLimbraj Takale], the evidence of PW – 5 [Tanaji Limbraj Takale]do not show the presence of PW – 6 [Tukaram ShriramBarkade] along with deceased – Amol Takale and others. Thus,in the light of above discussion, the evidence of PW – 6[Tukaram Shriram Barkade] is required to be seen with doubt.25.The evidence of PW – 7 [Sandip @ Lakhan SugriveBhosale] show that he was also the resident of village Devangra.He accompanied deceased – Amol Takale and other witnesses tothe Hospital to see PW – 5 [Tanaji Limbraj Takale] on the day ofincident. While returning to their village, when they reachednear Doke Wasti, deceased - Amol Takale stopped the vehicleand told that they would go to Bhoom and therefore, the vehicleproceeded towards Bhoom. When they reached Savargaon, 13Criappeals Nos.672-20,167-23 and 685-20.odtdeceased - Amol Takale wanted to have betel leaf. TheAppellants were near the pan stall. Verbal wrangle took placebetween deceased - Amol Takale and the Appellants on accountof beating PW – 5 [Tanaji Limbraj Takale]. After the wrangle,deceased - Amol Takale boarded the vehicle on the driver’s seatand started proceedings towards Bhoom. Suddenly, someonepelted stones from the backside. He got down from the vehicleand noticed Balasaheb Doke coming on a two wheeler.Thereafter, he went to Bhoom along with Balasaheb Doke. Hedeposed that he knew nothing about the incident. His evidenceshow that he was cross-examined by the Prosecution. However,nothing has come in his evidence, which would help theProsecution in proving the Charge. On the contrary, hisevidence show that he subsequently learnt that Amol Takaledied. Though his statement under Section 164 of CrPC wasrecorded and it is brought on record at Exhibit – 203, the samecannot be the substantive evidence.26.The evidence of PW – 8 [Ram Bibhishan Barkade] showthat he was also the resident of Devangra and the friend ofdeceased – Amol Takale. He visited Hospital to see PW – 5[Tanaji Limbraj Takale] along with deceased - Amol Takale andothers on 16/09/2014. He accompanied deceased - Amol Takaleand other witnesses in the vehicle back to the village. Hedeposed that when they reached near Devangra Phata,deceased – Amol Takale told that they should go to Bhoom andthe vehicle was stopped at the instance of deceased – AmolTakale. Deceased - Amol Takale went to the pan stall where theAppellants and acquitted accused were present. A verbalwrangle took place between Amol Takale and the Appellant -Navnath Borade on account of beating PW – 5 [Tanaji Limbraj 14Criappeals Nos.672-20,167-23 and 685-20.odtTakale]. Deceased - Amol Takale slapped the Appellant –Navnath Borade. Thereafter, he returned back to the vehicleand sat on the driver’s seat and started the vehicle. Appellant –Mangesh came there on motorcycle and pelted stones on thevehicle, which hit on the door of vehicle. Appellant – Mangeshcaught hold the collar of deceased - Amol Takale and asked tobring the swords from the stall. The other Appellants and theacquitted accused brought the swords. They pulled Amol Takaleoutside the vehicle and gave blows by the swords on the personof Amol Takale. He witnessed the incident by sitting in the car.As he was scared, he ran away. He learnt that Amol Takalesuccumbed to the injuries. He identified the Appellants andacquitted accused as the assaulter.27.Though this witness claims to have witnessed the incident,he kept quiet on reaching village Devangra. He did not disclosethe incident to anybody in the village. Though he felt that heshould go to Amol’s family and disclose them about the incident,he did not do so. Though he and PW – 6 [Tukaram ShriramBarkade] were the resident of same village i.e. Devangra, hemet PW – 6 [Tukaram Shriram Barkade] after fifteen to twenty[15 to 20] days from the incident. His further evidence showthat he met the parents and brother of Amol Takale on the nextday to express condolences. He also met the villagers on the dayof incident as well as next day. His evidence show that he didnot personally inform the Police about the incident. Thisconduct of PW – 8 [Ram Bibhishan Barkade] is strange. Thoughhis further evidence show that he met the Police after lapse ofeight to nine [8 to 9] days from the incident and his statementwas recorded, the evidence of PW – 19 [Hanumant BhivaWakade], who investigated the crime, show that his statement 15Criappeals Nos.672-20,167-23 and 685-20.odtwas recorded on 29/10/2014 i.e. after the period of more thanone and half [1 ] month from the incident. This delay in½recording the statement would be certainly fatal for theProsecution. The cross-examination show that after theincident, he was in the village for one and half [1 ] month.½During that period, he was visiting Bhoom in relation to hiswork. During that period, he did not go to Bhoom Police inrelation to the incident. There is no explanation at all in respectof inordinate delay in recording the statement of this witness.28.His evidence show that he was confronted with certainparts of statement recorded by the Police under Section 161 ofCr.PC and his evidence show that he did not agree with the saidportion marks in his statement. In totality of the testimony ofPW – 8 [Ram Bibhishan Barkade], his evidence is required to beseen with doubt.29.The evidence of PW – 12 [Dilip Rambhau Kamble] showthat he was the resident of Pune and his four wheeler was hiredby deceased – Amol Takale for coming to the village. He alongwith deceased – Amol Takale and his two friends came todeceased – Amol Takale’s village from Pune. They visited theHospital at Barshi to see PW – 5 [Tanaji Limbraj Takale]. On theday of incident, while they were returning to the village in thedirection of Bhoom, the residents of Devangra got down. Thevehicle stopped at Savargaon as deceased – Amol Takale wantedto purchase cigarette. When they again boarded the vehicle, twopersons came there and pelted stones on the vehicle and somepersons assaulted deceased - Amol Takale with swords. Hewitnessed the incident while he was on the driver’s seat. Onwitnessing the assault on deceased - Amol Takale, he opened 16Criappeals Nos.672-20,167-23 and 685-20.odtthe door of vehicle and ran away. The other witnesses who weresitting in the vehicle also ran away. Though in his evidence, hedeposed that he can identify the persons who assaulteddeceased - Amol Takale, he did not identify any of the accusedpersons or the Appellants. Admittedly, there is no cross-examination by the Prosecution of this witness, whereas, in thecross-examination done by the defence, it has come that, therewere fifteen to twenty [15 to 20] persons armed with weaponswho assaulted deceased - Amol Takale. 30.Mr. S. J. Salunke, learned Advocate for the Appellant citedthe Judgment in the case of Kanju Muhammed Alias KhumaniVs. State of Kerala, AIR Online 2003 SC 530, wherein, thewitness was not treated hostile by the Prosecution, and eventhen he was not declared hostile and it was observed that thebenefit of such evidence should go to the accused and not theProsecution. There cannot be any dispute on the legal positionthat the evidence of the witness is to be considered as a whole.For want of identification of the assailants, the evidence of thiswitness is of no assistance to the Prosecution to prove theCharge against the Appellants. ‘DISCOVERY OF CLOTHES’31.Prosecution examined PW – 15 [Balaji Jalindar Chawhan],who was the panch for discovery under Section 27 of theEvidence Act at the instance of Appellant – Mangesh Borade.According to him, on 26/09/2014, he was called at ParandaPolice Station where the Appellant – Mangesh was in Policelockup. Appellant – Mangesh stated that he would show theclothes of himself, and that of Appellants – Samadhan Boradeand Navnath Borade. Memorandum to that effect was prepared.Thereafter, Appellant – Mangesh led them in the police vehicle 17Criappeals Nos.672-20,167-23 and 685-20.odtto wasti of Shivaji Borade through Waradwadi, Mankeshwar,Arsoli Phata and Devangra. The vehicle was stopped. Appellant– Mangesh led them to one agricultural land of Navnath Boradewhere there was a cattle shed. One cot was lying in the cattleshed. Clothes were kept below an empty bag. Appellant –Mangesh took the said clothes and handed it over to the Police,which were seized under the panchnama.32.His cross-examination show that anybody could go to thesaid agricultural land and cattle shed and he could identify theAppellant – Mangesh because he was shown to him by the Policeon the day of evidence. Even if the said cross-examination isignored, the evidence of this panch witness nowhere show as towhat were the said clothes and they were sealed after they werehanded over to the Police. In other words, there is nosubstantive evidence in respect of sealing of the said clothes. 33.On the point of discovery of clothes at the instance ofAppellant – Mangesh, even the evidence of PW – 19 [HanumantBhiva Wakade] do not show as to what were the said clothes,which were seized from the cattle shed at the instance ofAppellant – Mangesh. Even his evidence nowhere show that thesaid clothes were sealed after its seizure. Thus, evidence ofProsecution in respect of discovery of clothes at the instance ofAppellant – Mangesh is of no gain for the Prosecution.‘SEIZURE OF CLOTHES OF THE ACCUSED’ 34.The Prosecution has examined PW – 13 [Amit NavnathKamble] who was the panch witness for the seizure of clothes.His evidence show that on 02/10/2014, he was called atParanda Police Station where the Police showed him the clothes 18Criappeals Nos.672-20,167-23 and 685-20.odtof six (06) persons. His evidence show that the said clotheswere seized under six different panchnamas at Exhibits – 226to 231. His evidence show that the articles ‘B’ to ‘M’ were thesaid clothes, which were seized in his presence. In his evidence,he deposed that, he do not remember who produced the saidclothes. His cross-examination show that the clothes were kepton the floor. Except this, there is nothing in his evidence. Theevidence of this panch witness do not establish that the saidclothes were that of accused persons. Thus, this piece ofevidence do not take the Prosecution’s case any further toprove the Charge.‘REPORTS OF THE CHEMICAL ANALYZER’35.The evidence of PW – 19 [Hanumant Bhiva Wakade], whois the Investigating Officer, show that during the course ofinvestigation, he obtained the blood samples of the Appellants.His evidence show that seized muddemal articles were sent forchemical examination and the reports received from theChemical Analyzer (C.A) were at Exhibits – 276 to 286.Admittedly, the Prosecution has not examined the carrier of thearticles to the C.A. Thus, there is no substantive evidence onrecord as to from where the seized muddemal articles weretaken to C.A.36.The CA reports show that the result of anaylsis of theblood sample of deceased – Amol Takale was inconclusive. TheCA report at Exhibit – 276 which is in respect of result ofanaylsis of all the articles show the human blood. Thus, the CAreports do not take the Prosecution’s case any further to provethe Charge. 19Criappeals Nos.672-20,167-23 and 685-20.odt‘INJURY ON THE APPELLANT – MANGESH BORADE’37.The evidence of PW – 16 [Dr. Sunil Krishna Lawate] showthat he was the Private Medical Practitioner at Sangola, DistrictSolapur since 2010. On 19/09/2014, the Appellant – MangeshBorade came to his Hospital at 9:30 am and on examination, henoted the injury on his person as “Fracture to right proximalphalanx of thumb”. His evidence show that generally, in motoraccident, multiple injuries may be caused and the injurymentioned in the OPD papers at Exhibit – 240 may be possiblein case of fight. He was unable to identify Mangesh Borade asthe person, who suffered injury and came to him for treatment.38.His cross-examination show that the fracture was possibledue to fall. The medical paper brought in evidence of thiswitness show the history of fall. The incident is dated16/09/2014 and the said medical examination was done on19/09/2014. This medical evidence on record do not establishthe link between the incident and the injury suffered byAppellant – Mangesh.‘CALL RECORDS’39.Through the evidence of PW – 17 [Dattaram ShantaramAngre] and PW – 18 [Suryakant Mallikarjun Bhinge], who werethe Nodel Officers with the Vodafone - Idea Limited and BSNLrespectively, the Prosecution has brought on record the calldetails of the mobile phone numbers i.e. 9881181840 and9422069729 for the period from 10/09/2014 to 20/09/2014.40.The evidence of the said Nodel Officers show that theMobile No.9881181840 was in the name of Ramraje Borade andMobile No.9422069729 was in the name of Appellant – 20Criappeals Nos.672-20,167-23 and 685-20.odtMangesh Borade. The certificates under Section 65(B) of theAct and the call details are brought on record in the evidence ofthese witnesses. From the evidence of these witnesses, theProsecution has established that there were phone callsbetween these two numbers during the said period. Admittedly,the said person by name Ramraje Borade was not the accusedin the case. The evidence of PW – 11 [Ramraje @ BapuVishwanath Borade] show that he purchased the said MobileNo. 9881181840. However, he do not support the case ofProsecution and even though he was cross-examined on behalfof the Prosecution, nothing incriminating has come in hisevidence.41.The evidence of PW – 9 [Kiran Ramhari Jadhav] showthat he was the resident of Bhoom and he was having MobileNo.9422069729, which according to PW – 18 [SuryakantMallikarjun Bhinge] was in the name of Appellant – MangeshBorade. The evidence of this witness show that he hadpurchased the said sim in the year 2002. His evidence showthat he did not support the Prosecution and therefore, he wascross-examined by the Prosecution. However, nothingincriminating has come in his evidence against the Appellants.Thus, this evidence of call details is of no assistance for theProsecution sans evidence to connect it with the incident.‘OTHER EVIDENCE’42.The evidence of PW – 5 [Tanaji Limbraj Takale] as regardsthe incident is concerned is hearsay in nature. What hisevidence show is that he was hospitalized at Barshi due toassault by Balasaheb Borade, Navnath Borade, Sandip Borade, 21Criappeals Nos.672-20,167-23 and 685-20.odtVilas Borade and Samadhan Borade and so deceased – AmolTakale and other witnesses had come to meet him.43.The evidence of PW – 10 [Susen @ Anna SahebraoJadhavar] show that he did not support the case of Prosecution,therefore, he was cross-examined on behalf of Prosecution.However, nothing incriminating has come in his evidence toprove the Charge.‘JUDGMENTS CITED’44.The learned Senior Advocate relied upon the Judgment inthe cases of Javed Shaukat Ali Qureshi Vs. State of Gujarat,(2023) 9 SCC 164 and Suresh Purushottam Ashtankar Vs.State of Maharashtra and Another, 2015 (3) Mh.L.J (Cri.) 424,in support of his contention that on similar or identicalevidence against two accused, the Court cannot convict oneaccused and acquit the other and on scaling down of the offence.The legal position set out in the said Judgments is not indispute.45.Mr. S. J. Salunke, learned Advocate for the Appellantrelied on the Judgment in the case of Mallappa Vs. State ofKarnataka, AIR Online 2024 SC 80, wherein, it is observed that,the witness to the incident chose not to inform his nearbyrelatives about the incident and no medical treatment wasprovided to the injured and such conduct of witness was held tobe unnatural. ‘CONCLUSION’46.The re-appreciation of the evidence on record, asdiscussed above, leads us to the only conclusion that it is notpossible to rely on the testimonies of the eye witnesses. Their 22Criappeals Nos.672-20,167-23 and 685-20.odtevidence do not give the required assurance to rely on theirversion. For the reasons discussed while dealing with theevidence of the eye witnesses, the testimonies of eye witnessescannot form the basis to convict the Appellants. The conduct ofthe eye witnesses, post incident, as is established in theirrespective evidence, leads us to draw an adverse inference. Theevidence in the nature of corroboration is also of no help to theProsecution as it leads the Prosecution’s case nowhere. Theoverall evidence as discussed above do not establish the Chargeagainst the Appellants, though the Homicidal Death of AmolTakale is proved. Admittedly, the other accused are acquittedby the learned Trial Court. In the backdrop of above discussion,the only order which can be passed is that of acquittal of theAppellants. Resultantly, Appeals succeed. Hence, the followingorder:ORDER(I) The Criminal Appeals are allowed.(II)The Judgment and Order dated 29/09/2020, passed by the learned Additional Sessions Judge, Bhoom, District Osmanabad, in Sessions Case No.173/2014 convicting and sentencing the Appellants for the offences punishable under Section 302 read with Section 34 of IPC, is quashed and set aside.(III)The Appellants stand acquitted of the offences punishable under Sections 302 read with Section 34 of IPC.(IV)The Appellants be released forthwith, if not required in any other offence. 23Criappeals Nos.672-20,167-23 and 685-20.odt(V)The fine amounts, if any, deposited by the Appellants be refunded to them. (VI)The Record and Proceedings be sent back to the learned Trial Court.(VII)The muddemal articles be dealt with as directed by the learned Trial Court.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)Sameer