THE STATE OF MAHARASHTRA. vs KAILAS PRADHAN & ORS

S.S. SHINDE, J

Both, Criminal Appeal No.34 of 2003 and Criminal Revision Application No.366 of 2002 are directed against the Judgment and order dated 26th

September, 2002, passed by the III AdÂhoc Additional Sessions Judge, Aurangabad in Sessions Case No.215 of 2001, thereby acquitting all the

accused from the offences punishable under Sections 147, 148, 302, 307 read with 149 of the Indian Penal Code (for short ""I.P. Code""). Criminal

Appeal is filed by the State and Criminal Revision Application is filed by the original complainant challenging the acquittal of the accused, hence the

same are heard together and being disposed of by this common Judgment and order.

The prosecution case, in brief, is as under:Â​

A) On 28th April, 2001, at about 21.00 hours, complainant Nivrutti was standing along with his cousin Eknath Sale, when another cousin Kalyan Sale

also came there, and he was passing towards the shop of one Anil Choradiya, when the members of ""Rashtravadi Congress"", namely, Kailas

Jagannath Pradhan, Sominath Pradhan, Namdeo Pradhan, Dattu Pradhan, Arun Jadhav, Sunil Jadhav, Sanjay Chanden, assembled there and started

abusing Kalyan. An accused Kailas Pradhan with his knife gave one after another blows to Kalyan, rest of the accused made him to fell down and

then gave blows with sticks, fists and kicks. Kalyan started shouting loudly, the complainant and Eknath went at spot immediately, when Dattu

Pradhan held Eknath Sale and gave knife blows in the stomach of Eknath, as well gave kicks and fist blows to the complainant Nivrutti. They shouted

for help, when Parmeshwar Sale, Sanjay Vahul, Tripathi and other villagers came running, and seeing them assailants sat on motorcycle and ran

away. In the street light and the lights available nearby outside the houses, the incident was witnessed by the complainant. Initially Kalyan and Eknath

were taken to Neha Hospital, Pandharpur, and thereafter they were taken to Ghati Hospital, but while under medical treatment, Kalyan died and

Eknath was given medical treatment. It is further the case of the prosecution that Kalyan (deceased) in last three successive Grampanchayat

Elections was declared elected as a member. He was active member of the ""Shiv Sena"" party, whereas the accused belong to ""Rashtravadi

Congress"". Out of political rivalry as well as due to earlier quarrels, the accused murdered Kalyan and attempted to murder Eknath. On the basis of

said complaint, crime was registered being Crime No.66 of 2001, under Section 302, 307, 143, 147, 148, 149, 504, 323 of I.P. Code and 135 of the

Bombay Police Act.

B) One P.I. Abdulla Quadri, investigated the crime, through PSI Kute. The inquest panchnama of the dead body of Kalyan was drawn in the Ghati

Hospital. On 29th April, 2001, investigating officer drew spot panchnama from where he had collected blood stained soil from the spot, and a pair of

Chappal"". Some of the accused were arrested on 2nd May, 2001 from near Daulatabad Fort, and accused Namdeo was arrested in the evening on

the same day. On 3rd May, 2001, at the instance of accused Kailas, a knife was recovered. On 5th May, 2001, at the instance of accused Datta, one

more knife was recovered. On 6th and 7th May, 2001, the investigating officer had attached the clothes of accused  Kailas and Dattu respectively,

At the instance of accused  Sanjay a stick was attached, so also one another stick at the instance of accused Sominath was attached. Accused Sunil

was arrested on 9th May, 2001. On 10th May, 2001, the investigating officer had collected blood sample of injured Eknath, and on very day he sent

the Muddemal to Chemical Analyser. On 13th May, 2001, accused Prabhu Sale was arrested. At the instance of accused Sunil, cycleÂchain was

attached. Formal arrest of AccusedÂ​ Jagannath was shown on 27th May, 2001.

C) After completing the investigation, on 26th July, 2001, chargeÂsheet was submitted. By order dated 6th September, 2001 learned Judicial

Magistrate First Class, Aurangabad committed the case to the Court of Sessions, for trial.

D) A charge was framed against all the accused persons and the same was read over, and explained to them. The accused persons pleaded not guilty

and claimed to be tried. The defence of the accused was of total denial. It was submitted by them that they have been implicated in a false case.

After recording the evidence and conducting full fledged trial, the trial Court acquitted all the accused persons from the offences with which they

were charged, as stated herein above in Para Â​1 of the Judgment. Hence this Appeal and Revision Application.

Learned A.P.P. appearing for the State invites our attention to the oral evidence of three eye witnesses, namely PWÂ1 Nivrutti, who is

complainant, PWÂ2 Eknath, who is injured eye witness and PWÂ3 Dnyaneshwar, and submits that if their evidence is read in its entirety, then it

unequivocally indicates that all the accused have formed unlawful assembly and committed murder of Kalyan and attempted to commit murder of

Eknath. Learned A.P.P. further argued that though there are some contradictions, omissions and improvements in the evidence of prosecution

 witnesses, those are in respect of the role attributed to accused Nos.3 to 8 only, but so far as accused Nos.1 and 2 are concerned, all the three eye

witnesses have specifically deposed that, accused No.1 Kailas took out knife and gave successive blows on the person of Kalyan, and accused No.2

Dattu gave a knife blow in the stomach of Eknath. He further submits that if there are minor discrepancies in the oral evidence on trivial matters,

however not touching to the core of the prosecution case, on that count it would not be appropriate to reject the entire evidence. In support of his

submission, learned A.P.P. placed reliance upon the exposition of law in the case of Mritunjoy Biswas vs. Pranab @ Kuti Biswas and another 2013

(12) SCC 796. In support of his submissions, learned A.P.P. also placed reliance upon the exposition of law in the case of Mani @ Udattu Man and

others vs. State Represented by Inspector of Police 2009(12) SCC 288 and also Vithal Pundalik Zendge vs. state of Maharashtra 2008(17) SCC 239.

He further invites our attention to the evidence of other witnesses and submits that the prosecution has brought on record sufficient evidence to

establish that the accused were responsible for the death of Kalyan and causing serious injuries to Eknath. He, therefore submits that the Appeal may

be allowed.

On the other hand, learned counsel appearing for RespondentsÂaccused, relying upon the findings recorded by the trial Court, submits that plausible

view has been taken by the trial Court. He points out various contradictions, omissions and improvements in the oral evidence of the prosecution

witnesses, by inviting our attention to chart of which copy is placed on the record in the tabular form, and submits that their evidence is not at all

reliable and trustworthy. He further submits that seizure of weapons at the instance of accused was from the places which were accessible to all and

therefore reliance cannot be placed on seizure panchnamas. He further submits that there was no proper sealing of the Muddemal articles and

weapons which were alleged to have been recovered at the instance of accused, when the same were sent to chemical analyzer. He therefore

submits that possibility of tampering with those articles cannot be ruled out. In support of his submissions, learned counsel placed reliance upon the

exposition of law in the case of Kailash Raghunath Ambekar and another vs. State of Maharashtra 2004 ALL MR (Cri) 3257. Learned counsel, in

support of his submissions, also placed reliance upon the expositions of law in the case of Tulshiram Bhanudas Kambale and others vs. the State of

Maharashtra 1999 ALL MR(Cri) 1593. Therefore, learned counsel submits that since the plausible view is taken by the trial Court, this Court may not

cause interference in the order of acquittal.

Learned counsel appearing for the Revision Applicant in addition to adopting the arguments advanced by the learned A.P.P., further submitted that

the findings recorded by the trial Court are not in consonance with the evidence brought on record. It is submitted that Revision Applicant, who is

complainant, himself has witnessed the incident, and he was also beaten by the accused persons by fist and kick blows and the evidence of all the

witnesses is not properly appreciated by the trial Court. He further submits that, presence of injured eye witness PWÂ2 Eknath, at the place of

incident is clearly established. He further submits that merely because there are some minor contradictions, the evidence of trustworthy eye witnesses

cannot be discarded. In support of his aforesaid submissions, learned counsel placed reliance upon the exposition of law in the case of Sanjay

Khanderao Wadane vs. State of Maharashtra 2017 ALL SCR (Cri) 1644. He, therefore, prays that the Revision Application may be allowed.

Heard learned A.P.P. appearing for the State, learned counsel appearing for the Respondents accused and learned counsel appearing for

Revision Applicant at length. With their able assistance, we have carefully perused the entire notes of evidence so as to find out whether the findings

recorded by the trial Court are in consonance with the evidence brought on record or otherwise.

It is pertinent to note that Appeal against accused No.5 Â Sanjay Rukhmanbai Chandan is already abated. Thus we have to consider the case, so

far as it relates to accused Nos.1 to 4 and 6 to 8. First we will consider the evidence of eye witnesses i.e. PWÂ1, PWÂ2 and PWÂ3. PWÂ1 Nivrutti

s/o Laxman Sale, who is complainant in this case, has deposed that Kalyan Sale was his cousin, so also Eknath Sale is his cousin. Kalyan was doing

agriculture work and was worker of Shiv Sena. At the relevant time Kalyan was member of Gram Panchayat. He knows all the accused who are

workers of ""Rashtrawadi Congress"". Since Gram Panchayat election, the relations between accused and Kalyan, Eknath were strained. Regarding the

incident, PWÂ1 Nivrutti deposed that on 28th April, 2001 the incident had occurred at Wadgaon Kolhati, near Suyog Plotting Center Board and time

was 9.00 p.m. He was standing on the road in front of Suyog Board. Kalyan and Eknath were coming on motorcycle, he called them, they stopped the

motorcycle and witness started talking with Eknath. He further deposed that 7 accused  Kailas, Dattu, Namdeo, Sominath, Sanjay Chandan, Arun

Jadhav, Sunil Jadhav came there and started abusing Kalyan. Kailas took out a knife available with him and started giving blows on the person of

Kalyan, one after another in succession. Kalyan started shouting. He further deposed that rest of the accused made him to fell down on face. He

further deposed that, then Dattu came running and gave knife blow in the stomach of Eknath. Rest of the accused started giving fist and kick blows.

Then there was shouting. The villagers came running and the accused left the place on 2Â3 motorcycles. He further deposed that injured were

carried to the Ghati hospital where doctor told that Kalyan had expired and Eknath was admitted and treated in the hospital for 4Â5 days and

thereafter he was shifted to Dhoot Hospital.

. During the course of crossÂexamination, PWÂ1 Nivrutti was asked about his various relatives and their relations with witness and Kalyan.

Thereafter he was asked about the details regarding the houses of Kalyan and Eknath. PWÂ1 Nivrutti further stated that he had come on foot at the

spot of incident. There is only one road to approach the said road from village to Shivaji Chowk. He further stated that one has to come to Suyog

Board only through Shivaji Chowk road from  the village. The witness then asked about the minute details regarding the road where incident took

place. He further stated that, he was going to his land at the relevant time. His land is to the North of the Board. He again said that, he was not

standing but passing through the said place since his land is abutting the land of Kalyan. This witness was further crossÂexamined regarding the

details of the spot of incident. He further stated that, Kalyan and Eknath had come from the South side of Shivaji Chowk. He had not stated precisely

in the complaint that while he was standing, Kalyan and Eknath had come on motorcycle. PWÂ​1 was further extensively crossÂ​ examined.

Thus from the perusal of oral evidence of PWÂ1 Nivrutti, he has specifically stated that accused Kailas started abusing Kalyan, then he took out a

knife which was with him, and started giving successive blows on the person of Kalyan. He further deposed that, thereafter accused Dattu came on

the spot and gave a knife blow in the stomach of Eknath. It is true that about the role attributed to accused Nos.3 to 8, this witness has made general

statements and no specific role is attributed to any one of the accused from amongst accused Nos.3 to 8. About accused Nos.3 to 8, PWÂ1 Nivrutti

deposed that, rest of the accused made deceased Kalyan to fell down on the ground. PWÂ1 Nivrutti further deposed that during the incident rest of

the accused started giving him fist and kick blows. Thus except accused No.1 Kailas and accused No.2 Dattu, PWÂ1 Nivrutti has neither attributed

any specific role to the rest of the accused nor stated that they were possessing any weapons. It is pertinent to note that, regarding the role attributed

to accused No.1 Kailas and accused No.2 Dattu, the evidence of PWÂ​1 Nivrutti is not at all shattered in the crossÂ​examination.

PWÂ2  Eknath  s/o  Tukaram  Sale  is  an injured eyeÂwitness. He deposed that on 28th April, 2001 at about 9.00 p.m.

near Suyog Plotting Center Board at Wadgaon Kolhati, the incident had occurred. He himself and Kalyan were going to the field on the motorcycle

and came from Shivaji Chowk. Near Suyog Plotting Center Board, initially seven persons came and then two more. Those seven were Kailas, Dattu,

Namdeo, Sominath, Sanjay, Arun Jadhav and thereafter Prabhu Sale and Jagannath arrived at the spot of offence. All the above said persons started

abusing the witnesses and deceased Kalyan. Immediately accused Kailas took out knife and gave blows after blows to Kalyan. Immediately, accused

Dattu also took out a knife and gave blow on his stomach (PWÂ2 Eknath). Then rest of the accused with fist and kick blows, assaulted them. Nivrutti

(PWÂ1) had come to rescue, and he was given fist and kick blows. Hearing their shouts, persons from the village started coming there, seeing them

all the accused ran away. He further deposed that, he was admitted in Ghati

Hospital for five days, and from Ghati Hospital he was shifted to Dhoot Hospital, where he was operated.

.During the course of crossÂexamination by the Advocate for accused No.1, PWÂ2 Eknath stated that Kalyan had come to his house at 8.30 p.m. to

take him towards the land. They had not stopped anywhere since they started to go to the land till the time of incident. The road from Shivaji Chowk

to the land of Kalyan passes NorthÂSouth. They were going towards North on the said road. His house is near the house of Kalyan. Their houses are

to the East of the village near the temple. He further stated that the distance between Shivaji Chowk and Suyog Board is 5 to 6 Kasara. One Kasara

measures 7 to 8 hands. While passing by the said road, Suyog Board falls to the left side. The incident occurred in front of the Board and not to its

North and South. He was unable to state whether it was 11.00 p.m. when they reached Ghati

Hospital. Police had recorded his statement when he was in Dhoot Hospital. He was unable to tell, how many days after admitting in Dhoot Hospital,

police had recorded his statement. He was unable to give description of the clothes on the persons of the assailants.

. During the course of crossÂexamination by the Advocate for accused Nos.4 to 7, PWÂ2 Eknath stated that, they both had got down from the

motorcycle, when accused were abusing the prosecution witnesses. He further stated that, he does not know, whether he had stated before the police

that after running away of Prabhu and Jagannath, Nivrutti and Vishnu came. He was unable to state why it has come so in the statement recorded by

police. He had stated before the police that all the accused had given fist and kick blows to them. He was unable to give the reason why it is missing

in the police statement. He had not stated to the doctor that at 7.00 p.m. he was attacked with knife.

. During the course of crossÂexamination by the Advocate for accused Nos.2, 3 and 8, he admitted that he had stated before the police that on that

day via Shivaji Chowk he himself and Kalyan, on motorcycle were going to land to stay at night there itself. He is unable to give the reason, why it is

missing in the statement given by him to the police. He was unable to tell, whether the shop of Anil Chordiya was open or closed. He was further

extensively crossÂ​examined, however nothing useful to the accused Nos.1 and 2 was elicited from the said crossÂ​examination.

Thus after careful perusal of the evidence of PWÂ2 Eknath, he has stated that on 28th April, 2001 at 9.00 p.m. near Suyog Plotting Center Board

at Wadgaon Kolhati, the incident took place. He specifically stated that, during the incident, accused No.1 Kailas pulled out a knife and gave blows

after blows to Kalyan. He further specifically stated that, immediately accused No.2 Dattu also took out knife and gave one blow on stomach of

Eknath.

PWÂ3 Dnyaneshwar s/o Dagdu Sale in his examinationÂinÂchief, deposed that Kalyan was his brother. He knows all the accused. On 28th

April, 2001 at 9.00 p.m. the incident had occurred. It was near the Board of Suyog Plotting Center. He was standing in Shivaji Square. He heard

chaos from Suyog Board and went there. Kalyan, Eknath, Nivrutti, Dattu Pradhan, Kailas Pradhan, Sominath, Namdeo, Sanjay, Sunil, Arun Jadhav,

Prabhu, Jagannath, were there. Eknath and Kalyan were given fist and kick blows by all the accused. Then Kailas pulled out the knife and gave blows

to Kalyan. Dattu gave knife blow on the stomach of Eknath. Then accused also gave kick and fist blows to Kalyan though he was lying down.

. During the course of crossÂexamination of PWÂ3 Dnyaneshwar he was asked, whether a rape case was filed against him. He was further asked,

what happened in the hospital as well as police station after the incident. He was further asked about the details regarding the Gram Panchayat

election. He denied the suggestion that, he knows nothing about the incident and in his presence no incident had occurred. He has denied the

suggestion that, at the say of Eknath and police, he is deposing falsely. He further stated that, he does not recollect, whether he had stated before

police that Nivrutti was there, when he reached on the spot. He was unable to assign any reason, why the same is missing in his police statement. He

further stated that, it did not occur when he reached there, beating with sticks, Lathi, chain, fighter was going on. He did not recollect whether he had

stated so before the police. He was unable to give reason why police recorded so. For about five minutes Kalyan was in standing position after he

reached on the spot. During this period he tried to rescue Kalyan. He had scuffle with the accused. He made no attempt to snatch anything from the

hands of any of the accused. This witness was further extensively crossÂexamined. We have carefully perused the entire crossÂexamination of this

witness. In respect of attack by accused No.1 Kailas and accused No.2 Dattu by using knives, the evidence of PWÂ3 Dnyaneshwar is trustworthy,

cogent and consistent with the prosecution case , and the same is not at all shattered in the crossÂ​ examination.

Thus, we have carefully perused oral evidence of all the above three eye witnesses, i.e. PWÂ1 Nivrutti, injured eye witness PWÂ2 Eknath and

PWÂ3 Dnyaneshwar. The evidence of all these three eye witnesses unequivocally, unambiguously consistent with the prosecution case that, during

the scuffle, accused No.1 Kailas took out a knife and gave successive blows on the person of Kalyan, and accused No.2 Dattu took out a knife and

given a blow in the stomach of PWÂ2 Eknath. Though the prosecution has brought on record some contradictions and omissions regarding the spot of

incident, surrounding area, the nearby roads, the persons residing in the vicinity, the said contradictions and omissions are of a minor nature and do not

affect core/substratum of the prosecution case and therefore the same can be ignored. The Supreme Court in the case of Sanjay Khanderao Wadane

vs. State of Maharashtra, cited supra, in Para 14 of the Judgment held thus:

In this view of the matter, the evidence of PWs 5, 8 and 12 are found to be trustworthy and fully corroborated with each other on the point of

alleged incident with regard to the involvement of the appellants herein. Further, the evidence fully corroborates with the medical evidence given by

the Doctor who conducted the post mortem of the deceased. Even the injuries sustained by PWÂ8 while rescuing the deceased from the clutches of

the accused persons have been examined and proved by Dr. Kundalick (PWÂ11) who found them to be of grievous nature. We are of the view that

the evidence of the witnesses cannot be brushed aside merely because of some minor contradictions, if any, particularly for the reason that the

evidence and testimonies of the witnesses are trustworthy. However, the prosecution failed to examine Devidas Magar and Shridhar Salve who said

to have rescued the deceased.

Underlines are added.

Regarding all other accused persons, these witnesses have made general statement that, rest of the accused gave fist and kick blows, and no

specific role is attributed to any one from the rest of the accused. Thus, except accused No.1 Kailas and accused No.2 Dattu, all the three eye

witnesses have neither attributed any specific role to accused Nos.3 to 8 nor stated that, they were possessing any weapons.

15.PWÂ4 Vijaykumar s/o Mannulal Jaiswal is a panch to the spot panchnama. PWÂ5 Vithal s/o Jairam Mhaske is the panch to the seizure

panchnama of clothes of accused No.1 Kailas. PWÂ6 Sanjay s/o Laxman Wahule is a panch to the recovery panchnama of knife at the instance of

accused No.2. PWÂ6 Sanjay deposed that accused No.2 Dattu told that from his house he would produce a knife. Accordingly, at the instance of

accused No.2 Dattu, along with the police party, PWÂ6 Vijaykumar went to the house of Dattu and Dattu took out a knife kept over the showÂcase

in the sitting room. PWÂ7 Gajanan s/o Mahruba Khatkar is the panch to recovery panchnama of a knife at the instance of accused No.1 Kailas.

PWÂ7 Gajanan deposed that at the instance of accused No.1 Kailas a knife was recovered which was kept on the tinÂsheets of the house of

accused Kailas. PWÂ8 Vikas s/o Ratanlal Jain is a panch to inquest panchnama of dead body of Kalyan Sale. PWÂ9 Sanjay s/o Ramnath Rane is

also a panch witness to the seizure panchnama of clothes of deceased Kalyan.

PWÂ9 Sanjay deposed that in his presence the clothes which were on the person of deceased Kalyan were packed in paper vide Panchnama Exhibit

62.

PWÂ​10 Vijay Dattarao Borgaonkar is a medical officer. He deposed that he is attached to Seth Nandlal Dhoot Hospital in the capacity of surgeon

and medical director. He further deposed that on 3rd May, 2001 at about 7.00 p.m. patient Eknath Tukaram Sale (injured eye witness PWÂ2) was

examined by him and he prepared the caseÂpapers. The patient had given history of stab on stomach on Saturday. The patient had also given history

that he was admitted in Government Medical Hospital, Aurangabad and was operated there. The general condition of patient was very poor, the

patient was toxic. The patient was sent to Dhoot Hospital as he was needed second operation immediately. He further deposed that after completing

the examination the patient was taken for operation at 10.30 p.m. The patient was operated by the witness himself. Operation details have been

provided in the case papers. Operation was reÂexploration, peritoreal toilet, mound debridement. There was pus formation in the abdomen and so

second operation was immediately needed to be carried out. After treatment the patient was discharged on on 15th May, 2001. During the course of

crossÂexamination, PWÂ10 Vijay stated that the operation was successful. By next day of operation the patient was in a position to talk, after

anesthesia effect was over. The recovery was steady and progressive.

PWÂ11 Dr. Sureshchandra s/o Gambhirrao Chavan deposed that, he was serving as Medical Officer in Government Medical College,

Aurangabad. On 28th April, 2001 he was working as Casualty Medical Officer from 8.00 p.m. to 8.00 a.m. He had examined Eknath Tukaram Sale,

brought by one Nivrutti. The history was given of assault on 28th April, 2001 at 8.00 p.m. He further deposed that he found

following injuries on the           person of patient Eknath:

Incised wound on right side of abdomen 1.5 c.m., depth unknown, the age was within six hours, caused by hard and cutting object, the nature was

grievous.

. PWÂ​11 Dr. Sureshchandra further deposed that the said injury caused to patient Eknath, was sufficient in ordinary course to cause death.

. PWÂ11 Dr. Sureshchandra further deposed that one Kalyan Dagdu Sale was also examined by him on that day. There was history of assault. The

patient was unconscious and serious. The medical officer noticed following injuries on the person of patient Kalyan:

Incised wound, over left side of chest 1.5 cm. to unknown deep,

Incised wound over left side of chest below injury No.1, 1 cm. X unknown deep,

Incised wound over the right side of abdomen, 2 X 1 cm. X unknown deep.

. PWÂ11 Dr. Sureshchandra further deposed that the age of injuries was within six hours, caused by hard and cutting object, nature was grievous.

The patient i.e. Kalyan, expired in Casualty and sent for postmortem examination. We have also perused the crossÂexamination of PWÂ11 Dr.

Sureshchandra.

Thus on conjoint reading of the evidence of PWÂ10 Dr. Vijay and PWÂ11 Dr. Sureshchandra, it is clear that, PWÂ2 Eknath has received

grievous injury to his abdomen. Due to said injury caused to Eknath, two operations were carried out, one in Government Hospital and another in

Dhoot Hospital. The injury caused to Eknath, In ordinary course, was sufficient to cause death. Regarding Kalyan Dagdu Sale, PWÂ11 Dr.

Sureshchandra deposed that, injuries caused to Kalyan were by hard and cutting object. The injuries were of grievous nature and due to the said

injuries Kalyan expired in Casualty Ward.

PWÂ12 Dr. Shrikrishnarao s/o Ramchandra Bhalchandra is the medical officer who conducted autopsy on the dead body of Kalyan Dagdu Sale.

He deposed that cause of death is, ""shock due to multiple stab injuries"". Total external injuries were 8 in number and were anteÂmortem. The

description of the injuries has been given in detail in Postmortem notes. All the injuries were possible by stab with knife, because those were caused

by sharp edged weapon. He further deposed that in Column No.20 of the Postmortem notes, the internal injuries have been shown. He further

deposed that the injuries shown in Column No.17 are possible by knives except injury No.8, which is possible by hard and blunt object. He further

deposed that injury Nos.1 to 7 in ordinary course, are sufficient to cause death. We have also perused the crossÂ​examination of this witness.

Upon careful perusal of the evidence of PWÂ12 Dr. Shrikrishnarao, he unequivocally stated that cause of death of Kalyan was shock due to

multiple stab injuries. He specifically stated that except injury No.8, all the injuries shown in column No.17 of the postmortem notes were possible by

knife. He further contended that injury Nos.1 to 7 caused to Kalyan, in ordinary course, were sufficient to cause death.

PWÂ13 Dr. Manish s/o Rameshwar Malani deposed that he was serving as Lecturer in Surgery Department in Government Medical College,

Aurangabad. He further deposed that on 28th April, 2001 at 9.45 p.m. Eknath Tukaram Sale was admitted in Surgery Ward. It was found that there

was stab injury in right area fossa i.e. in right side of abdomen. They took decision of operation and patient was shifted to Operation Theater. The

patient was operated. It was found during the operation that there was injury to ceacum. He further deposed that the said injury was sufficient in

ordinary course of nature to cause death. We have also perused the crossÂexamination of PWÂ13 Dr. Manish, however nothing contrary to

prosecution case was brought on record. Thus, prosecution has brought on recrod sufficient medical evidence, which clearly corroborates to the oral

evidence of the eye witnesses and other witnesses.

PWÂ14 Syed Abdulla s/o Abdul Rahman Quadri is the investigating officer. He deposed about the manner in which he has carried out the

investigation.

We have carefully perused the entire evidence brought on record by the prosecution. We are of the opinion that the evidence regarding unlawful

assembly is very weak and not sufficient for holding the accused persons guilty of the offences punishable under Sections 143, 147, 148, 149 of the

I.P. Code.

As observed earlier, Appeal as against accused No.5 is already abated. After perusal of entire notes of evidence we find that regarding the

involvement and role attributed to accused Nos.3, 4 and 6 to 8, the prosecution witnesses have made general allegations against them. As observed

earlier, no specific role is attributed to any one from accused Nos.3, 4 and 6 to 8. Thus, except accused No.1 Kailas and accused No.2 Dattu, three

eye witnesses have also neither attributed any specific role to accused Nos.3 to 8 nor stated that they were possessing any weapons. There is

variance in the oral testimony of the prosecution witnesses, and the prosecution has not proved beyond reasonable doubt about actual involvement of

accused Nos.3 to 8 in the actual incident. We have carefully perused the findings recorded by the trial Court. So far as it relates to acquittal of

accused Nos.3 to 8 are concerned, we are in agreement with the findings recorded by the trial Court.

After considering the entire notes of evidence, in particular, oral evidence of three eye witnesses including injured eye witness PWÂ2 Eknath and

the medical evidence brought on record by the prosecution, we are of the considered opinion that, prosecution has proved, beyond reasonable doubt,

that accused No.1 Kailas committed murder of Kalyan and accused No.2 Dattu attempted to murder PWÂ2 Eknath. Though accused No.2 Dattu

gave only one blow of the knife, the same was on vital part of the body i.e. stomach of PWÂ2 Ekanth with an intention to commit murder. Hence so

far as accused No.1 Kailas and accused No.2 Dattu are concerned, we are not at all in agreement with the findings recorded by the trial Court.Â

In respect of them only possible view was their conviction and another view was not possible at all, keeping in view the evidence

of three eye witnesses and medical evidence.

For the reasons recorded, herein above, we pass the following order:

O R D E R

(I) Criminal Appeal No.34 of 2003 is partly allowed.

(II) The impugned Judgment and order dated 26th September, 2002, passed by the III AdÂhoc Additional Sessions Judge, Aurangabad in Sessions

Case No.215 of 2001, so far as acquitting accused No.3 Sominath s/o Bhanudas Pradhan, accused No.4 Â Namdeo s/o Kashinath Pradhan, accused

No.6 Â Sunil s/o Uttamrao Jadhav, accused No.7 Prabhu s/o Rangnath Sale and accused No.8 Â Jagannath s/o Janardhan Pradhan, from the

offences punishable under Sections 147, 148, 302, 307 read with 149 of the Indian Penal Code is hereby confirmed. So also, acquittal of Accused No.1

 Kailas s/o Jagannath Pradhan and accused No.2  Dattu s/o Jagannath Pradhan of the offences punishable under Sections 147, 148 of the Indian

Penal Code is confirmed.

(III) The impugned Judgment and order dated 26th September, 2002, passed by the III AdÂhoc Additional Sessions Judge, Aurangabad in Sessions

Case No.215 of 2001, thereby acquitting accused No.1 Kailas s/o Jagannath Pradhan from the offence punishable under Sections 302 of the Indian

Penal Code is quashed and set aside. Accused No.1 Â Kailas s/o Jagannath Pradhan is convicted for the offence punishable under Section 302 of the

Indian Penal Code and he is sentenced to suffer imprisonment for life and to pay fine of Rs.5000/Â, and in default to suffer rigorous imprisonment for

three months.

(IV) The impugned Judgment and order dated 26th September, 2002, passed by the III AdÂhoc Additional Sessions Judge, Aurangabad in Sessions

Case No.215 of 2001, thereby acquitting accused No.2 Â Dattu s/o Jagannath Pradhan from the offence punishable under Sections 307 of the Indian

Penal Code is set aside. Accused No.2 Â Dattu s/o Jagannath Pradhan is convicted for the offence punishable under Section 307 of the Indian Penal

Code and he is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.3000/Â, and in default to suffer rigorous imprisonment

for two months.

(V) Accused No.1 Â Kailas s/o Jagannath Pradhan and accused No.2 Â Dattu s/o Jagannath Pradhan shall forthwith surrender before the trial Court

to undergo the remaining sentence.

(VI) Accused No.1 Â Kailas s/o Jagannath Pradhan and accused No.2 Â Dattu s/o Jagannath Pradhan shall be given setÂoff vide Section 428 of the

Criminal Procedure Code.

(VII) In view of order passed in Criminal Appeal, Criminal Revision Application No.366 of 2002 also stands disposed of.