High Court
Legal Reasoning
Criminal Appeal No.288/2015with connected appeals:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.288 OF 20151.Gulab Rayappa Birajdar (Bhosale)Age 53 years, R/o Kothali, Tal. Omerga,District Osmanabad2.[Deepak Gulab Birajdar (Bhosale)Appellant Nos.2 & 4Age 25 years, have filed separateR/o Kothali, Tal. Omerga,Criminal Appeal District Osmanabad]No.719/20223.[Kannaya Basanna Mandale,Age 25 years, R/o Kothali, Tal. Omerga,District Osmanabad]4.[Hari Alias Hariprasad Amruta Mandale,Age 27 years,R/o Kothali, Tal. Omerga,District Osmanabad]5.[Dattatraya Tulshiram Firange,Appellant Nos.3, 5 & 7Age 25 years,have filed separate R/o Kothali, Tal. Omerga,Criminal Appeal District Osmanabad]No.841/20186.[Uma Alias Opmprakash Manik MandaleAge 30 years,R/o Kothali, Tal. Omerga,Appellant Nos.6, 9 & 10District Osmanabad]have filed separateCriminal Appeal 7.[Shrikrishan Bajirao Mandale,No.849/2022Age 22 years,R/o Kothali, Tal. Omerga,District Osmanabad]8.Avinash Mallinath Bhange,Age 27 years, R/o Kothali, Tal. Omerga,District Osmanabad Criminal Appeal No.288/2015with connected appeals:: 2 ::9.[Dayanand Manik Mandale,Age 33 years, R/o Kothali, Tal. Omerga,District Osmanabad]10.[Vitthal Hanmantraya Bora,Age 28 years,R/o Kothali, Tal. Omerga,District Osmanabad]… APPELLANTS(Orig. Accused Nos.1 to 10)VERSUS1.The State of MaharashtraThrough Investigating Officer,Pradip Bhanudas BabarS.D.P.O., Omerga Sub-Division(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2.Vijay s/o Vishwanath Kamble,Respondent No.2Deceased, through his L.Rs.added as per Court’s order 2-1)Kantabai w/o Vishwanath Kamble,dated 13/2/2023Age 70 years, Occu. Housewife,R/o Kothali, Tal. Omerga,District Osmananabad2-2)Amol s/o Kernath KambleAge 36 years, Occu. Labour,R/o as above.… RESPONDENTS.......Mr. V.D. Sapkal, Senior Counsel withMr. O.R. Waghule, Advocate for appellants No.1 & 8Mr. S.D. Ghayal, Addl. P.P. for respondent No.1. Mr. S.S. Birajdar, Advocate for respondent No.2-1 & 2-2....…WITHCRIMINAL APPEAL NO.719 OF 2022 WITHCRIMINAL APPLICATION NO.3769 OF 20221)Deepak s/o Gulab Birajdar (Bhosale)Age 25 years, Occu. Nil, Criminal Appeal No.288/2015with connected appeals:: 3 ::R/o Kothali, Tal. Omerga,District Osmanabad. 2)Hari @ Hariprasad s/o Amruta Mandale,Age 27 years, R/o Kothali, Tal. Omerga,District Osmanabad. …APPELLANTSVERSUS1.The State of Maharashtra(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2.Kantabai w/o Vishwanath Kamble,(Respondent Nos.2 &Age 60 years, Occu. Housewife,3 added as per orderR/o Kothali, Tal. Omerga,dated 13/2/2023)District Osmananabad3.Amol s/o Kernath KambleAge 36 years, Occu. Labour,R/o as above.… RESPONDENTS.......Mr. N.S. Ghankear, Advocate for appellants Mr. S.D. Ghayal, Addl. P.P. for respondent No.1. Mr. S.S. Birajdar, Advocate for respondent No.2-1 & 2-2....…WITHCRIMINAL APPEAL NO.849 OF 20221)Uma Alias Omprakash Manik Mandale,Age 37 years, R/o Kothali, Tal. Omerga,District Osmanabad2)Dayanand Manik Mandale,age 40 years, R/o Kothali, Tal. Omerga,District Osmanabad3)Vitthal Hanmantraya BoraAge 35 years, R/o Kothali, Tal. Omerga, Criminal Appeal No.288/2015with connected appeals:: 4 ::District Osmanabad…APPELLANTSVERSUS1.The State of MaharashtraThrough Investigating Officer,Pradip Bhanudas BabarS.D.P.O., Omerga Sub-Division(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2.Kantabai w/o Vishwanath Kamble,(Respondent Nos.2 &Age 60 years, Occu. Housewife,3 added as per orderR/o Kothali, Tal. Omerga,dated 13/2/2023)District Osmananabad3.Amol s/o Kernath KambleAge 36 years, Occu. Labour,R/o as above.… RESPONDENTS.......Mr. S.S. Thombre, Advocate for appellants Mr. S.D. Ghayal, Addl. P.P. for respondent No.1. Mr. S.S. Birajdar, Advocate for respondent No.2-1 & 2-2....…WITHCRIMINAL APPEAL NO.841 OF 20181)Kannaya Basanna Mandale,Age 27 years, Occu. Tailor,R/o Village Kothali, Tal. Omerga,District Osmanabad2)Dattatraya Tulshiram Firange,Age 27 years, Occu. Service asDriver, R/o as above.3)Shrikrishan Bajirao Mandale,Age 25 years, Occu. Education,R/o as above. (At present the appellants are in Nashik Road Central Prison, Nashik, Criminal Appeal No.288/2015with connected appeals:: 5 ::Taluka and District Nashik)…APPELLANTSVERSUS1.The State of MaharashtraThrough Investigating Officer,Pradip Bhanudas Babar(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad)2.Kantabai w/o Vishwanath Kamble,(Respondent Nos.2 &Age 60 years, Occu. Housewife,3 added as per orderR/o Kothali, Tal. Omerga,dated 13/2/2023)District Osmananabad3.Amol s/o Kashinath KambleAge 36 years, Occu. Labour,R/o as above.… RESPONDENTS.......Mr. Rajendra Deshmukh, Senior Counsel withMr. V.A. Chavan & D.R. Deshmukh, Advocates for appellants Mr. S.D. Ghayal, Addl. P.P. for respondent No.1. Mr. S.S. Birajdar, Advocate for respondent No.2 and 3....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 17th January, 2024Date of pronouncing judgment : 25th January, 2024JUDGMENT (PER R.G. AVACHAT, J.) These appeals from conviction are being decided bythis common judgment since challenge therein is to one and thesame order of conviction and consequential sentence, passed bylearned Additional Sessions Judge, Omerga in Sessions CaseNo.20/2012, dated 4/3/2015. The details of conviction and Criminal Appeal No.288/2015with connected appeals:: 6 ::consequential sentence imposed against the appellants is given inthe tabular form below :Sr.No.Sections Sentence ofimprisonmentFine1.302 r/w 149 IPCImprisonment for lifeRs.10,000/- each, i.d. R.I. for 1 year2.307 r/w 149 IPCR.I. for 7 yearsRs.5000/- each, i.d.R.I. for 6 months3.143 IPCR.I. for six months---4.148 r/w 147 IPCR.I. for one year---All the substantive sentences have been directed to run concurrently. Initially Criminal Appeal No.288/2015 was filed by allthe 10 appellants. However, subsequently, appellant Nos.2 and 4filed separate Criminal Appeal, No.719/2022, appellant Nos.3, 5and 7 filed separate Criminal Appeal No.841/2018 and appellantNos.6, 9 and 10 filed Criminal Appeal No.849/2022. Therefore,Criminal Appeal No.288/2015 remains of appellant No.1 GulabRayappa Birajdar (Bhosale) and appellant No.8 Avinash MallinathBhange.FACTS :-2.Kothali is a small village in Taluka Omerga, DistrictOsmanabad. Most of the residents of this village belong to Criminal Appeal No.288/2015with connected appeals:: 7 ::Scheduled Castes (S.C.) community. Others belong to eitherLingayat or Berad community. Relations between members of theS.C. and Berad community in the village were not good. A disputebetween the members of these two groups had ensued over waterdidpuyr.3. It so happened that, on 14/10/2011, P.W.2 Amol(informant) along with his friend Vijay (deceased) was on his wayback to village from, “Vitthal-Sai Sugar Factory”, Murum. Whilethey were passing by Sharanbasappa Temple, 10 to 12 personsbelonging to Berad community were present on either side of theroad. They were armed with articles like sticks, iron rods andhunters. All of them started beating up both Amol and Vijay onaccount of a dispute that took place six months before. Theassailants were none other than the appellants before this Court.Four others (acquitted accused Nos.11 to 14) were instigating theappellants from the nearby field. Both Vijay and Amol were firstrushed to Rural Hospital, Murum. P.W.2 Amol lodged the F.I.R.(Exh.48). Initially crime vide C.R. No.14/2011 was registered foroffence punishable under Sections 326, 325, 324, 341, 147, 148,149, 504 of the Indian Penal Code. Vijay succumbed to theinjuries. Sections 302 and 307 of the Indian Penal Code came tobe invoked. The appellants were arrested. Weapons allegedlyused in the commission of the crime were recovered pursuant to Criminal Appeal No.288/2015with connected appeals:: 8 ::disclosure statements made by them. Statements of personsacquainted with the facts and circumstances of the case wererecorded. Upon completion of the investigation, the appellants andothers were proceeded against by filing a charge sheet before theCourt of Judicial Magistrate, First Class. Learned Magistratecommitted the case to the Court of Additional Sessions Judge,Omerga for trial in accordance with law.4.Learned Additional Sessions Judge (Trial Court) framedthe Charge (Exh.21). The appellants and others pleaded not guilty.Their defence was of false implication on account of village politics.It was their case that, both Amol and Vijay met with a motorcycleaccident and thereby suffered multiple injuries.5.The prosecution examined 30 witnesses and producedin evidence various documents to establish the charge. The trialCourt, on appreciation of the evidence, convicted the appellantsand consequentially sentenced them as stated above. The originalaccused Nos.11 to 14 were acquitted. The State has not preferredappeal against acquittal.6.Heard. Learned counsel appearing on behalf of therespective appellants would submit that, no independent witnesshas been examined. There was a political rivalry between the two
Legal Reasoning
Criminal Appeal No.288/2015with connected appeals:: 9 ::groups in the village. The injured and the deceased met withmotorcycle accident. Our attention was adverted to their injurycertificates and the cross-examination of the Medical Officer tosubmit, such injuries could only be possible if one meets with anaccident involving two-wheeler vehicle. According to them, if theinjuries suffered by both of them are taken individually, almost all ofthem were simple in nature. According to learned counsel, if at allthe appellants are held to be guilty, they should only have beenconvicted for the offence punishable under Section 325 of theIndian Penal Code. The articles allegedly used in commission ofthe crime and recovered pursuant to the disclosure statementsmade by the appellants did not bear any blood stains. It, therefore,could not be said that, those articles were used in the commissionof the crime. P.W.3 Shishupal did not stand by the prosecution.P.W.4 Sunil who was in the company of P.W.3 Shishupal, was achance witness. Both of them belong to the community of theinjured and the deceased. One of them even happened to be theirrelative. Our attention then was adverted to the testimony of adefence witness – D.W.1 Khalil who carried the injured and thedeceased to the hospital in his jeep. According to him, oneKedarnath Kamble, at whose instance he took both the injured tothe hospital in his jeep, had informed that both had met withmotorcycle accident. According to the learned counsel, theprosecution failed to bring home the charge beyond reasonable Criminal Appeal No.288/2015with connected appeals:: 10 ::doubt. They, therefore, urged for allowing the appeals.7.The learned Addl. P.P. would, on the other hand, submitthat, the case is based on injured eye witness account. Names ofthe appellants figure in the F.I.R. The F.I.R. was lodgedimmediately. Medical evidence reinforces the prosecution casebesides the evidence of an independent eye witness. LearnedA.P.P., therefore, urged for dismissal of the appeals.8.Considered the submissions advanced. Perused theevidence relied on. Although 30 witness have been examined,evidence of a few witnesses was only rightly referred to since theevidence of other witnesses pertain to recovery of the articlesallegedly used in commission of the crime. The C.A. reportspertaining to these articles indicate none of them borne bloodstains. Let us advert to the evidence referred to and relied on inthese appeals.9.P.W.1 Dr. Prashant was a Medical Officer at RuralHospital, Murum on the given day. It is in his evidence that, Amoland Vijay Kamble were brought by their relatives to the hospital by5.20 p.m. He examined both of them. Since Amol had sufferedhead injury, he examined Amol first. According to P.W.1 Dr.Prashant, they were admitted with the history of assault by 4.00 Criminal Appeal No.288/2015with connected appeals:: 11 ::p.m. He noticed following injuries on the person of Amol and Vijay :Amol :-(1)Lacerated open wound 5 cm. x 0.2 mm, over left posteriorparietal occipital region.(2)Lacerated open wound of same size, over left fronto temporalregion.(3)Laceration of 4 cm. x 0.2 mm, over left temporal region.(4)Blunt injury which was diffuse, over left upper eye-lid.(5)Lacerated open wound of 1 cm. x 0.3 mm., on left secondfinger-tip.(6)Blunt injury diffusely over right forearm, right arm, right leg,right thigh, left leg and over back region.(7)Abrasion of 0.5 mm. x 1 mm., over left middle finger tip.The age of all above injuries was within 24 hours.Injuries No.1 to 6 were caused by blunt weapons, whereas injuryNo.6 abrasion was caused by sharp weapon. The opinionregarding nature of injuries No.1, 2 and 4 was reserved, whereasother injuries were simple in nature. The opinion was reservedbecause patient was advised NCCT brain regarding head injury andother injuries were simple injuries. The patient was advised X-rayof left leg, left arm, left fore-arm, left thigh at GMCH Solapur and forthat purpose opinion was reserved. Criminal Appeal No.288/2015with connected appeals:: 12 ::Vijay Kamble :-1)Blunt injury, diffuse, over mid-left arm below left mid-arm.2)Blunt injury, diffuse, over right hand on dorsal surface.3)Lacerated open wound of 1 cm x 0.5 mm, 1 cm x 0.2 mm overright anterior upper side of leg.4)Blunt injury, diffuse, over both calf region.5)Blunt injury, diffuse, over right forearm and right arm.6)Blunt injury, diffuse, on both thighs and both legs.7)Minor abrasion of 0.4 mm in diameter and 0.6 mm in diameterover left mid-arm.8)Blunt injury, diffuse and extensive over whole back region.All injuries were of less than 24 hours of age, injuriesNo.3 and 7 were caused by sharp weapon, others were by bluntobject. Regarding nature – blunt injury over left mid-arm suggestedfracture of humerus i.e. why it was called grievous injury andremaining all injuries would provoke haemo-dynamic shock that’swhy opinion was reserved regarding the blunt injuries. The patientwas advised X-ray left arm and X-ray right hand and was referred toGMCH Solapur for further treatment. 10.P.W.23 Dr. Vijay Joshi testified that he was serving asNeuro Surgeon with Ashwini Hospital at Solapur. Amol Kamble wasbrought to the hospital on 15/10/2011 with a history of assault. He Criminal Appeal No.288/2015with connected appeals:: 13 ::examined Amol and noticed the following injuries :(1)CLW over left parietal region, left eye brow about 3 cmalready sutured in Civil Hospital.He had right upper limb and lower limb pain which wasfurther examined by Orthopedic Surgeon on C.T.S scan of brain.He had cerebral oedema with scalp haematoma in left parietal andfronto orbital region as well as surgical emphysema. 11.P.W.8 Dr. Naim Akatar conducted autopsy on thedeceased Amol. He noticed following injuries on the person of thedeceased :-(1)Abrasion over right arm at lateral aspect 6 in number 0.5 x 0.5cm. each over lower 1/3rd of arm. Brown in colour.(2)Multiple abrasion over right forearm dorsal aspect of varyingsize over upper 1/3rd of forearm, brown in colour.(3)Abrasion over right forearm over middle 1/3rd of forearm atdorsal aspect 1 x 0.5 cm. brown oblique in directeddownward.(4)Abrasion over index finger 1 x 0.5 cm. dorsal aspect. Brown.(5)Abrasion over right knee at anterior aspect 3 in number.Brown in colour.(6) Sutured wound over right leg anteriorly over upper 1/3rd of Criminal Appeal No.288/2015with connected appeals:: 14 ::leg 2 x 1 cm, black, caving deep after removal of suture.(7)Another sutured wound over right leg anterior 2 cm belowwound No.6, at upper 1/3rd of leg 2 x 1 cm, black, cavingdeep after removal of sutures.(8)Abrasion over tip of left shoulder 2 x 1 cm obliquelydownward and medially, brown in colour.(9)Abrasion over left shoulder 3 cm lateral below to wound No.81 x 1 cm, brown in colour.(10)Abrasion of tip of left shoulder linear, obliquely directeddownward and 2 cm medial to wound No.8.(11)Sutured wound over middle of left arm anteriorly 1 x 1 cmcaving deep after removal of sutures.(12)Abrasion over mid of left arm anterior 0.5 cm medial to woundNo.11 0.5 x 0.5 cm brown in colour.(13)Another abrasion of 0.5 x 0.5 cm over middle of left arm atlateral aspect, brown in colour.(14)Abrasion over left index finger proximal to palm. 0.5 x 0.5 cm.Brown in colour.(15)Abrasion over left arm, laterally, 4 cm, above elbow 3 x 2 cm,brown in colour.(16)Abrasion over left forearm, dorsally over upper 1/3rd, 2 cmbelow elbow 4 x 2 cm brown.(17)Punctured wound over left forearm, dorsally 1.5 x 1 cm.Margin black, 8 cm, below elbow. Criminal Appeal No.288/2015with connected appeals:: 15 ::(18)Contused abrasion over left arm dorsally 10 cm below elbow6 cm medial to wound no.17, 4 x 1 cm margin black woundbrown.(19)Punctured wound over left elbow dorsally 2 x 2 cm, cavingdeep.(20)Abrasion over left pelvic region 1 x 1 cm, brown in colour.(21)Contusion over left leg medially over middle 1/3rd 12 x 5 cm,black in colour.(22)Abrasion over left back of shoulder 4 in number of varyingsize. Brown in colour.(23)Multiple contused abrasion over back, of varying size.Randomly directed over whole back. After external examination of palpation, he foundfollowing injuries :-(i)Fracture of left humerus.(ii)Fracture of left tibia.(iii)Fracture of 2nd metacarpal bone.(iv)Fracture of right index finger.All above injuries were antemortem. On examination of head, there was no injury on scalp.Skull bone were intact. After removing body of scalp, meninges Criminal Appeal No.288/2015with connected appeals:: 16 ::was congested. Brain was congested. On examination of thorax – walls, ribs and cartilageswere found intact. Pleura was congested. Larynx, trachea andbronchi were found intact, mucosa congested. Both lungscongested and consolidated. Pericardium was congested. Heartand weight was congested, blood and clots were present. Largevessels were intact, blood and clots were present. There was noany additional remark. On abdomen examination, walls were foundintact. On internal examination of abdomen, peritoneum was foundcongested. No any evidence of free fluid and no any evidence offoreign body. Oesophagus was congested. Stomach and itscontents were empty, mucosa congested. Small intestine, large intestine its contents – gases andfaeces present. Liver and gall bladder was congested. Pancreasand Suprarenals was congested. Spleen with weight wascongested. Both kidney was found congested, perinephrichaematoma over left kidney. Bladder was empty, mucosacongested. Organs of generations were pale.On external examination, there was evidence ofperinephric haematoma over left kidney. After dissection ofkidneys, they found congested. Organs of generations was Criminal Appeal No.288/2015with connected appeals:: 17 ::congested. Additional remark was nil.In the opinion of the doctor, the cause of death wasshock and haemorrhage. However, viscera was preserved.12.These doctors were subjected to a searching cross-examination. Our attention was drawn to the evidence of P.W.1 Dr.Prashant and P.W.23 Dr. Vijay Joshi to suggest that, P.W.23 Dr.Vijay Joshi noticed only one injury on the person of Amol whileP.W.1 Dr. Prashant noticed 7 injuries. Needless to mention that,Amol was rushed to Solapur for emergent treatment and for C.T.Scan. P.W.23 Dr. Vijay Joshi was a Neuro Surgeon. He examinedAmol as regards Amol’s head injury and, therefore, differencebetween the evidence of these two witnesses is appearing. It wasalso argued that, some of the injuries are found to have beencaused with sharp weapon while it is not the case of theprosecution that the injured and the deceased were assaulted withany sharp weapon. None of the articles seized borne blood stains.It was also pointed out that, most of the injuries are in the nature ofgraze abrasion which occur when a person meets with a motorcycleaccident and body of a victim is brushed with hard surface. Herethe appellants have come with a defence that it was a motorcycleaccident and the injured and deceased had a multiple fall frommotorbike. The defence itself is unimaginable. True, the MedicalOfficers at one stage admitted that the injuries noticed on the Criminal Appeal No.288/2015with connected appeals:: 18 ::person of the injured and the deceased may also occur due toaccident. In view of the same, the evidence of the Medical Officersreferred to above do not lead us to find whether it is a case ofhomicide and a bid on the life of Amol.13.Let us now turn to the other evidence referred to andrelied on. P.W.2 Amol’s evidence suggests that he belongs to S.C.He was serving with Vitthal-Sai Sugar Factory as a Wireman. Onthe fateful day, he had been to his work place along with Vijay(deceased). While they were on their way back to village, theappellants assaulted them with articles like iron rods, hunter andwooden stick near Sharanbasappa Temple. It is also in hisevidence that, one Mallinath Bhange and Pandit Mandale wereinstigating them from the nearby field. It is further in his evidencethat, both of them were rushed to Civil Hospital, Murum. Hisstatement-cum-F.I.R. (Exh.48) was recorded there.P.W.2 Amol categorically denied the appellants to havebeen falsely implicated in view of local politics. Although headmitted to have had no personal enmity with the appellants, hewas categorical to state that about six months before the incident inquestion, there was quarrel with members of Berad community onaccount of water issue. He categorically denied to have met with amotorcycle accident. While he was confronted with his F.I.R. Criminal Appeal No.288/2015with connected appeals:: 19 ::(Exh.48), some omissions amounting to contradictions have beenbrought on record. Those pertain to the acquitted accusedMallinath Bhange and Pandit Mandale. The F.I.R. is silent to statethat both these acquitted accused were instigating the otheraccused to assault both of them. It has also been brought onrecord that, P.W.2 Amol did not state the names of appellant HariMandale and Dattatraya Firange in the F.I.R., as assailants. Assuch, attributing these two persons with overt acts, by P.W.2 Amolbefore the Trial Court for the first time would lead us to infer that itwas a material omission amounting to contradiction. Had these tworeally been the assailants, their names would have been figured inthe F.I.R. 14.P.W.3 Shishupal is said to be another eye witness. It isin his evidence that, he would ply an autorickshaw to earn his living.On the given day, he parked his rickshaw at the bus stand andstarted to proceed to his village on a Scooty. He met P.W.4 Sunil.P.W.4 Sunil too wanted to visit the village. He, therefore, joinedP.W.3 Shishupal.P.W.3 Shishupal, however, did not stand by theprosecution. In one breath he stated to have had seen theappellant assaulted P.W.2 Amol and deceased Vijay, whereas in thesecond breath he stated that he could not identify the assailant Criminal Appeal No.288/2015with connected appeals:: 20 ::since he was about 200 metres away from the spot of the incident.It was suggested during his cross-examination that, since he hadseen the incident from long distance, he could not tell who were theassailants. This suggestion goes a long way to indicate thedefence to have admitted it to be an incident of assault and not anaccident. True, the motorcycle on which P.W.2 Amol and thedeceased were returning too was damaged. The damage mighthave been as a result of indiscriminate assault on both the victims.P.W.3 Shishupal was declared to have not been supporting theprosecution and learned A.P.P. was, therefore, permitted to cross-examine him.15.P.W.4 Sunil claimed to have been in the company ofP.W.3 Shishupal. It is in the evidence of P.W.4 Sunil that, he metP.W.3 Shishupal at the bus stand. Since he too wanted to visit hisvillage, P.W.3 Shishupal agreed to take him along. This witness(P.W.4 Sunil) gave eye witness account as to how the appellantshad assaulted both the victims. His cross-examination, however, indicates that it wasby chance he met with P.W.3 Shishupal at the Murum Bus Stand.His evidence further indicates that, wife of P.W.3 Shishupal wasserving as a Teacher with a school at Naiknagar. It was she whowould use the Scooty. His cross-examination further suggests that, Criminal Appeal No.288/2015with connected appeals:: 21 ::neither P.W.3 Shishupal nor P.W.4 Sunil informed the incident to thepolice on the very day. P.W.4 Sunil was present at the hospital andeven at funeral of Vijay. Police personnel were there at both theplaces. He still did not relate them the incident. He was thencategorical to admit that Amol and Vijay (victims) were his relations.The evidence of both P.W.3 Shishupal and P.W.4 Sunil, therefore,appears to be unreliable. P.W.3 Shishupal has already notsupported the prosecution.16.Although the MLC and other medical papers were nottendered in evidence, the Medical Officers have categorically statedthat the history recorded in the medical papers was of “assault”.The injury certificate placed on record records history of assault.The defence version that number of injuries suffered by the victimswould be possible by multiple fall from motorbike does not appeal toconscience. Vijay died of shock and haemorrhage while P.W.2Amol suffered a serious head injury. It was an assault made by notless than 8 persons (appellants). Injuries on the person of thevictims and indiscriminate assault mounted by them goes a longway to lead us to infer that it was a bid on the life of both of them.One fortunately survived.17.We are, however, inclined to give benefit of doubt toappellant Hari @ Hariprasad s/o Amruta Mandale (appellant No.2 in Criminal Appeal No.288/2015with connected appeals:: 22 ::Criminal Appeal No.719/2022) and appellant Dattatraya TulshiramFirange (appellant No.2 in Criminal Appeal No.841/2018) since theirnames do not figure in the F.I.R. The other offences for which theappellants have also been convicted are the lesser offencescommitted in the course of the same transaction. The substantivesentences have already been directed to run concurrently. We,therefore, do not propose to interfere with the conviction andconsequential sentences imposed in respect of those offences aswell.18.For the reasons given hereinabove, we pass thefollowing order : O R D E R(i)Criminal Appeal Nos.719/2022 and 841/2018 areallowed to the extent of the appellants - Hari @ Hariprasad s/oAmruta Mandale and Dattatraya Tulshiram Firange.(ii)The order of conviction and sentence passed againstappellant No.2 in Criminal Appeal No.719/2022 - Hari @Hariprasad s/o Amruta Mandale and appellant No.2 in CriminalAppeal No.841/2018 - Dattatraya Tulshiram Firange for theoffences punishable under Sections 302, 307, 143, 148, 147 r/w.149 of Indian Penal Code, by learned Additional Sessions Judge,Omerga in Sessions Case No.20/2012, dated 4/3/2015 is hereby Criminal Appeal No.288/2015with connected appeals:: 23 ::set aside.They are acquitted of the offences punishable underSections 302, 307, 143, 148, 147 r/w. 149 of Indian Penal Code. They be set at liberty forthwith, if not required in anyother case. Fine amount, if paid, be refunded to them. (iii)Criminal Appeal No.719/2022 filed by appellant No.1 -Deepak s/o Gulab Birajdar (Bhosale) and 841/2018 filed byappellant No.1 - Kannaya Basanna Mandale and appellant No.3 -Shrikrishan Bajirao Mandale stand dismissed.(iv)Criminal Appeal No.288/2015 filed by appellant No.1 -Gulab Rayappa Birajdar (Bhosale) and appellant No.8 - AvinashMallinath Bhange is dismissed.(v)Criminal Appeal No.849/2022 is dismissed.(vi)All the Criminal Appeals are disposed of.(vii)Criminal Application No.3769/2022 in Criminal AppealNo.719/2022 stands disposed of. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)fmp/-