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2011 DIGILAW 655 (BOM)

Tanaji Shamrao Nalavade v. State of Maharashtra

2011-06-14

MRIDULA R.BHATKAR, NARESH H.PATIL

body2011
JUDGMENT 1. This appeal is directed against the Judgment and Order convicting and sentencing the Appellants for life imprisonment and fine and for one year with fine for offences punishable under Section 302, 323 read with Section 34 of IPC. Briefly stated the prosecution case is as under: 2. The deceased Jaysing Nalawade was having his agricultural land in village Padawalwadi. He was staying along with his family in Kolhapur. His parents were residing near Vaghbil Ghat in a bungalow. P.W.12Babasaheb Gurav and the deceased Jaysing Nalawade were friends. P.W.12 was resident of Village Kerle. The deceased had a crusher machine. He was doing agricultural work. Padawalwadi is at a distance of 2 to 3 K.M. from Village Kerle. It is alleged that there was a dispute between Shamrao Nalawade of Padawalwadi and Malhari Nalawade in respect of agricultural land. The past history shows that murder of Shamrao Nalawade his sons Vasant Nalawade and Baban Nalawade, Malhari Nalawade and his sons Bajirao Nalawade was committed, at that time police had arrested the deceased Jaysing Nalawade, Vilas Pandurang Raut and others. Vilas Raut is Accused No.3 herein. In the said case the deceased was acquitted. The incident in question took place on 1-2-2003. It is alleged that on that day at about 9.00 a.m. the deceased Jaysing Nalawade came to the hotel of P. W. 12 Babasaheb Gurav. He requested P.W.12 to accompany him as he was engaged in sowing sugar cane. Both of them went by a private vehicle to the field of the deceased at Padawalwadi There were 5 women workers doing their agricultural work in the field of the deceased. Uttam Saravate was engaged in sowing sugar cane. The work got over at 5.30 p.m. It is alleged by the prosecution that thereafter the deceased Jaysing Nalawade, labour Uttam Saravate and P.W. 12 Babasaheb Gurav went to hotel Amar for taking tea. The deceased gave Rs.400 to Uttam Saravate for marketing purposes. Thereafter Uttam went towards the bungalow. It is alleged that thereafter the deceased and P. W.12 reached near the temple of Lord Ganesh which is in front of the house of Anandrao Patil. 3. The prosecution further alleged that at about 6.00 p.m. the deceased and P.W.12 were waiting for a private vehicle. At that point of time three accused came by a Motor cycle of Yamaha company from Vaghbil side. 3. The prosecution further alleged that at about 6.00 p.m. the deceased and P.W.12 were waiting for a private vehicle. At that point of time three accused came by a Motor cycle of Yamaha company from Vaghbil side. The said motor cycle was driven by the Accused Tanaji Nalawade and Ghanshyam Atigre and Vilas Raut were sitting behind Tanaji Nalawade. At that point of time, P. W.12 claims to have seen Pandurang Raut who emerged at the seen of offence from some direction. It is alleged by the prosecution that Vilas Raut took out a sickle used for cutting sugar cane and started abusing deceased Jaysing Nalawade in filthy language. Thereafter he gave a blow by sickle on the person of Jaysing Nalawade. The deceased obstructed said blow with the help of his hand. At that time P. W. 12 suggested the deceased Jaysingh Nalawade that he should run away from the spot. The deceased started running away towards the house of Anandrao Patil. Thereafter Tanaji Nalawade, Ghanshyam Atigre and Popat Raut followed Jaysing Nalawade. They all were armed with sickles. It is alleged that the Accused Vilas Raut gave blow of sickle by blunt side on the left knee of P. W. 12. During the course of running Jaysing Nalawade fell at the threshold of house of Anandrao Patil and at that point of time Accused Tanaji Nalawade, Ghanshyam Atigre, Popat Raut and Vilas Raut gave repeated blows of sickle on the head and back side of Jaysing Nalawade. P.W.12 Babasaheb Gurav requested the Accused not to Kill Appa (Jaysing Nalawade). The P.W.12 states that when the Accused persons were marching towards him he ran away from the site. He was waiting on the main road known as KolhapurRatnagiri road, for getting a vehicle. No sooner he saw one truck coming he stopped that truck entered in it from the driver side. P.W.12 told the driver to drive the truck in high speed. P. W.12 thereafter alighted from the said truck and went to the bungalow and informed the incident to the parents of the deceased Jaysing Nalawade. 4. It is the prosecution case that by private vehicle P. W. 12 went to village Kerle and visited hotel of Tanaji Mane. He disclosed the said incident to the son of Tanaji Mane and requested him to telephone the police. 4. It is the prosecution case that by private vehicle P. W. 12 went to village Kerle and visited hotel of Tanaji Mane. He disclosed the said incident to the son of Tanaji Mane and requested him to telephone the police. P. W.12 was afraid of the accused so he preferred to stay back in the hotel itself and after some time he came to know that Jaysing Nalawade was dead. Thereafter he proceeded to Kolhapur by a private vehicle. The Police reduced the complaint of P.W.12 Babasaheb Gurav into writing (Exhibit 31) Thereafter P. W.24 Jayant Deshmukh Police Inspector of Karveer Police Station proceeded to the spot of incident. He saw dead body of Jaysing Nalawade and also noticed the presence of Police Inspector Ishwar Sutar and Police SubInspector Waghmale at the spot. He directed Police Inspector Ishwar Sutar to go to the police station to look after the registration of the FIR and to prepare inquest panchanama of the dead body. P. W.24 Jayant Deshmukh started searching the Accused in Village Kerle and Padawalwadi. He took search of the house of the Accused but the accused were not found there. He returned to the police station. He verified the FIR. He noticed that the complainant the sole Eye witness Babasaheb Gurav P.W.12 had sustained injury. He was taken to hospital for surgery. A memo was also sent to the Doctor in this regard (Exhibit 76). 5. On 2-2-2003 the Investigating Officer prepared panchanama of Spot (Exhibit22) collected blood sample of the blood which was lying on the floor near the house of Anandrao Patil. He recorded statements of Indubai Anandrao Patil and 10 other persons. The police claims that on 2-2-2003 ASI Vibhute seized a shirt which was on the person of complainant. Panchanama to that effect was drawn. The clothes on the persons of deceased were seized and a panchanama was accordingly drawn. According to the police all the accused persons were found in the area known as Kaneri. They were brought to the police station and arrested in the police station and panchanama to that effect was drawn. Their clothes were also seized. The police found blood spots at various places on the clothes of the accused. On 4-2-2003, the Accused Tanaji Nalawade gave a statement that they had dropped sickles and Tshirt of Ghanshyam Atigre in a well situated at Village Kekhale. Their clothes were also seized. The police found blood spots at various places on the clothes of the accused. On 4-2-2003, the Accused Tanaji Nalawade gave a statement that they had dropped sickles and Tshirt of Ghanshyam Atigre in a well situated at Village Kekhale. A Memorandum was drawn. Panchas were called (Exhibit 80) The Investigating Officer reached village Kekhale. In the presence of the accused the articles were recovered from the well which was owned by Rangapa Patil who was present at the time of seizure. One diver Uday Nimbalkar was called, he jumped into the well and took out these articles. There was 12ft. Deep water in the well. The articles included 3 sickles and Tshirt (article No.19, 21, 22, and 20) Recovery panchanama was drawn. Statement of the Jeep driver was also recorded by the police. Motor cycle of the Accused Vilas Raut was seized by the police on 5-2-2003 and a seizure panchanama was drawn which is at Exhibit85. 6. After completion of investigation, police filed charge sheet against the Accused in the Court of J.M.F.C. Kolhapur. The case was tried as Sessions Case No.83 of 2003 before the Court of Additional Sessions Judge, Kolhapur on 12-9-2003. The Learned Judge framed charge against the Accused which they denied. 7. The prosecution examined 24 witnesses. CA report was placed on record along with the postmortem report. 8. The entire prosecution case hinges on the sole eye witness P.W.12 Balasaheb Gurav. The witnesses in respect of seizure of clothes of complainant, deceased, accused have turned hostile, as well as witnesses who were examined as panchas for discovery of sickles, Tshirt and motor cycle of Accused No.3 have turned hostile to the prosecution. Accordingly prosecution witnesses 1 to 11 who are basically examined as panchas have not supported the prosecution. P.W.12 is a solitary eye witness. P.W.13 is Doctor Kumar Nanawane who is Medical officer who conducted postmortem and issued a medical certificate in respect of the injury suffered by the deceased. P. W. 14 Suniladevi Nalawade is the wife of the deceased. P.W.15 Vishwas Salokhe from whom the accused had purchased sickles turned hostile. P. W.16 Abhay Nalawade is the nephew of the deceased. P. W.17 Indubai Patil wife of Anandrao Patil has not supported the prosecution, P. W.18 Tanaji Chopdar who too has turned hostile. P. W. 14 Suniladevi Nalawade is the wife of the deceased. P.W.15 Vishwas Salokhe from whom the accused had purchased sickles turned hostile. P. W.16 Abhay Nalawade is the nephew of the deceased. P. W.17 Indubai Patil wife of Anandrao Patil has not supported the prosecution, P. W.18 Tanaji Chopdar who too has turned hostile. P. W.19 Uday Nimablkar who was called to dive in the well has not supported the prosecution. P.W.20 driver has turned hostile. P.W.21 Jaywant Patil clerk in the hospital produced register in respect of the endorsement of the injury caused to the complainant. P.W.22 Ishwar Sutar is I. O. Karveer Police Station. P. W. 23 is Subhash Vibhute Asst. P.I. and P. W.24 Jaywant Deshmukh P. I. Karveer Police station. 9. The CA report is at Exhibits 34 to 38 and the postmortem notes are at Exhibit 43. The medical certificate issued in respect of the complainants injury is at Exhibit 44 and at Exhibit 45 is a provisional death certificate of Jaysing Nalawade. 10. The Learned Counsel appearing for the Appellant, Mr. Nitin Pradhan, submitted that the presence of eye witness is highly doubtful and his evidence is not wholly reliable. The evidence regarding injuries suffered by the deceased is not corroborated by medical evidence. Some of the injuries are disproportionate to the weapons used. There is no substantive evidence in respect of the entry (Exhibit 60) occurring in the register maintained in the hospital. The Learned Counsel further submitted that P.W12 is highly interested witness. No reliance could be placed on the evidence of this solitary eye witness to convict the Appellant. The learned Counsel submitted that workers in the field of the deceased were not examined, and deliberately suppressed evidence in respect of statement of other witnesses who were naturally available in the village and at the scene of offence. Adverse interference is required to be drawn against the prosecution according to the Counsel. Persons who had proximity to the deceased and to the scene of offence were also deliberately withheld. The incident took place at a busy locality and the prosecution could not have difficulty to record the statement of independent persons who were residing around the said area. The panchas and diver have turned hostile, which itself demonstrates that the majority of witnesses have preferred not to support the prosecution. The incident took place at a busy locality and the prosecution could not have difficulty to record the statement of independent persons who were residing around the said area. The panchas and diver have turned hostile, which itself demonstrates that the majority of witnesses have preferred not to support the prosecution. The Learned Counsel submitted that the owner of the well is not examined by the prosecution. In respect of the conduct of the eye witness, it was submitted that there was delay in filing FIR and considering the quality of evidence of P.W.12, independent corroboration to the testimony of P.W.12 was essential in this case. The evidence of P.W.12 is not wholly reliable evidence. The Learned Counsel submitted that the police failed to register offence even after receiving information in respect of commission of offence and deliberately allowed some time to lapse, so as to concoct a story for involving the accused persons. In respect of the actual assault the Counsel submitted that the prosecution case does not show so as to who gave deadly blow on the deceased. In the narration of the PW.12, it was stated that repeatedly Accused were assaulting the deceased, but considering injuries suffered by him the statement of P.W.12 becomes unworthy of reliance in respect of manner of assault. Considering the narration given by him before the Court as regards injuries suffered by the deceased, no intention to kill could be gathered from the injuries suffered by the deceased. The recoveries made by the prosecution allegedly, pursuant to the statement made by the Accused under Section 27 of Evidence Act are not worth reliable. 11. The Learned APP Ms S.V. Gajare submits that there is no delay in lodging report with the police. The police had promptly started investigation in this case. The station diary was maintained in the normal course and there was not interpolation in that regard. The Learned APP submits that there is no requirement in law that the prosecution shall examine more than one eye witness in a given case. Even if there is one eye witness whose evidence is cogent and reliable, an order of conviction could very well sustain and present is such a case, where an order of conviction could sustain relying upon the evidence of P.W.12. The P.w.12 is resident of that area. He was with the deceased throughout the day. Even if there is one eye witness whose evidence is cogent and reliable, an order of conviction could very well sustain and present is such a case, where an order of conviction could sustain relying upon the evidence of P.W.12. The P.w.12 is resident of that area. He was with the deceased throughout the day. They were very close friends. Therefore, there was no necessity to lead additional independent evidence to establish these facts before the Court in respect of actual assault. The Counsel submitted that P.W.12 was very much present at the scene of offence. He tried to save life of the deceased. In the process he too suffered injuries which establish presence of P.W.12 at the spot. He saved his life. P.W.12 ran away from the spot and informed the parents of Jaysing Nalawade. The Learned Counsel does not see any unnatural exaggeration on the part of P.W.12. After coming to know that Jaysing Nalawade was dead, P.W.12 proceeded to Kolhapur for informing the police, even this act of P.W.12 cannot be said to be blame worthy or concocted. The Counsel placed reliance on evidence of P.W.23 to show that P.W12 was in village and had witnessed the incident. In respect of the motive, the Counsel submitted that there was serious enmity between the Nalawade brotherhood and the issue of illicit relation between Vilas Raut and wife of Vasant Nalawade Accused No.3 was a cause. The Counsel submitted that criticism regarding entry, Exhibit 44 and 60 is unwarranted. The entries are taken in natural course of maintenance of register and certain degree of reliance can be placed on these entries. There was no need for prosecution to manipulate these entries. To further substantiate the prosecution case, police seized weapons used in the commission offence. The Counsel submitted that the blood group-O is mentioned in the CA report. The blood group of the deceased was found to be inconclusive. It was urged by the counsel that in the light of the fact that the common intention on the part of the accused was established, it was not necessary to describe individual role played by the Accused in this case. In respect of the medical evidence of the deceased suffering a stab injury, the Counsel submitted that the said injury could be caused by the weapons used in the commission of crime. In respect of the medical evidence of the deceased suffering a stab injury, the Counsel submitted that the said injury could be caused by the weapons used in the commission of crime. The Learned Counsel further submitted that the evidence of P.W.12 is reliable evidence. The prosecution has not withheld any evidence from the Court. There is no manipulation and concoction to falsely implicate these four accused persons. The Counsel placed reliance on reasoning adopted by the Trial Court in convicting the Accused persons. 12. The P.W.12 Balasaheb Gurav sole eye witness deposed before the Court prosecution case in respect of the happening of the incident as narrated above. He stated that prior to 6 to 7 months of the incident in question, accused were acquitted in a murder case lodged against them. In respect of motive. P. W. 12 deposed that the deceased Jaysing Nalawade informed the witness that Vilas Raut Accused No.3 had illicit relations with wife of Vasant Nalawade and due to the said reason their relations were strained. In respect of the incident in question, the witness deposes that throughout the day he was with the deceased in his field on the request made by him. After completing the days work both returned back at 5.30 p.m. They had tea at hotel Amar along with labour Uttam Saravate who was engaged by the deceased Jaysing Nalawade. The deceased paid Rs.400 to Uttam for marketing purposes and thereafter Uttam Saravate left the place. The witness deposes that at that point of time three accused persons excluding Popat Raut came on motor cycle from Vaghbil side. Popat Raut was seen on the spot as he too had come to the spot from some direction. It is stated that Vilas Raut was armed with sickle. He started abusing Jaysing Nalawade and inflicted a blow on him. Jaysing Nalawade obstructed him with the help of his left hand. P.W.12 tried to save the deceased and calling him as Appa asked him to run away from the spot. The deceased thereafter started running from the spot. The accused were behind him and while running the deceased fell at the threshold of the house of Anandrao Patil. All the accused persons started giving blows on head and back of the deceased repeatedly. P.W.12 requested them not to assault him. The deceased thereafter started running from the spot. The accused were behind him and while running the deceased fell at the threshold of the house of Anandrao Patil. All the accused persons started giving blows on head and back of the deceased repeatedly. P.W.12 requested them not to assault him. Thereafter according to the witness the accused persons started marching towards the witness and apprehending danger to his life, P.W.12 ran towards the road. He saw a truck coming, he stopped that truck and got into the truck and saved his life by leaving the place. Thereafter the witness went to the house of parents of deceased to inform about the incident. Then witness claims that by a private vehicle he went to Village Kerle and then to the hotel of Tanaji Mane. There he disclosed the said incident to son of Tanaji Mane and requested him to telephone the police. There he came to know about the death of Jaysing Nalawade and thereafter he proceeded to Kolhapur to lodge a complaint. The crossexamination of the witness is very crucial for appreciating the case. 13. We have seen Exhibit 72 map of scene of offence, but for appreciating the actual location, surroundings, the scene of offence, evidence of witness including witness of P.W.12 had to be minutely scanned. The situation surrounding the scene of offence assumes significance. P.W.12 Balasaheb Gurav deposes that private vehicle used to stop near hotel Amar. This spot is very close to state High way popularly known as KolhapurRatnagiri Road. The house of Anandrao Patil is towards west side of the road. The temple of Lord Ganesh is at a distance of 10ft from the middle of the road. At a distance of 7 ft from the said distance there is house of Anandrao Patil. From the house of Anandrao Patil hotel Amar is situated at a distance of 600 ft. towards the southern side of the house of Anandrao Patil. There are houses of Dinkar Gavali, Lanu Patil, Balaso Padwal, Baban Padwal, Shrikant Padwal, Jaywant Padwal and Baurao Padwal. The witness states that house of Dinkar Gavali is at a distance of 200 to 250 from the house of Anandrao Patil. Opposite to house of Padwal there is Padwalwadi Phata. This demonstrates that the scene of offence is not located in a isolated place. The witness states that house of Dinkar Gavali is at a distance of 200 to 250 from the house of Anandrao Patil. Opposite to house of Padwal there is Padwalwadi Phata. This demonstrates that the scene of offence is not located in a isolated place. It was surrounded by residential houses, hotel, temple, busy road known as KolhapurRatnagiri road. 14. The incident in question took place in the evening hours of the day at about 6.00 p.m. 15. Considering the fact that the case is based on evidence of solitary eye witness i.e. P. W,12, his evidence is subject to certain tests which are to be applied for considering as to whether his evidence is reliable, convincing and reasonable. In the facts of the present case and the back drop of the evidence collected and brought before the Court, we find it reasonable and proper to expect corroboration to the evidence of the P. W.12 on material aspects of the case. 16. The prosecution has failed to lead cogent and reliable evidence in respect of the presence of the P.W.12 Balasaheb Gurav along with the deceased Jaysing Nalawade in the field of Jaysing Nalawade on 1-2-2003. None of the workers in the field were examined by the prosecution to corroborate the version of the P.W.12 on this aspect. The last person to be with the deceased and the P.W.12 is labour Uttam Saravate, who had tea with them at 5.30p.m. on the said date in Amar Hotel. He, too, has not been examined by the prosecution, neither his statement is recorded by the police to establish that P.W.12 reached hotel Amar along with the deceased and had tea at hotel Amar. In respect of the incident in question, wherein the prosecution alleges that the Accused persons assaulted the deceased with the help of sickle. Except P.w.12 there is no witness in the case who deposed against the Accused persons in respect of the actual assault. P.W.16 Abhay Nalawade the nephew of the deceased claims to have heard P.W.12 informing his grand parents that the accused assaulted the deceased and P.W.12. Except P.w.12 there is no witness in the case who deposed against the Accused persons in respect of the actual assault. P.W.16 Abhay Nalawade the nephew of the deceased claims to have heard P.W.12 informing his grand parents that the accused assaulted the deceased and P.W.12. Inspite of the fact that there were several residential houses around the spot, temple, hotel and the busy road Kolhapur-Ratnagiri was passing through very close to this spot, the prosecution did not find any person who would depose in respect of the presence of the eye witness along with the deceased and the incident in question. After having close scrutiny of the evidence and after considering the issues raised by the Learned Counsel appearing for the respective parties, we find that the evidence of the solitary eye witness is lacking in respect of placing complete and safe reliance on his testimony. 17. The conduct of P.W.12 eye witness is also to be looked at very closely. He deposes that after he saw the accused marching towards him, he ran away from there and boarded a truck and went to Vaghbil Ghat, visited the parents of the deceased and informed them about the incident. Throughout his evidence, there is no whisper in respect of as to whether persons residing in the vicinity were there or not and if anybody intervened during assault. P.W.12 thereafter says that he reached village Kerle in the hotel of Tanaji Mane. He claims to have disclosed the incident to Son of Tanaji Mane and requested him to contact the police on telephone. As the witness was afraid of accused, he preferred to sit in the said hotel. In the said hotel the witness came to know that Jaysing Nalawade died and after coming to know about the death he decided to go to Kolhapur and accordingly he went to Kolhapur and lodged a complaint to the police station. Station Diary entries of Karveer Police Station, Kolhapur, are also brought on record. They are at Exhibit 24 and 25. The entry recorded at 19.05 on 1-2-2003 reads that there was a call from Village Kerle informing the police that a huge quarrel is going on between the brotherhood of Nalawades. Saying so, caller disconnected the phone. The second call was received at 19.10 by the police. The informer was Tanaji Mane. They are at Exhibit 24 and 25. The entry recorded at 19.05 on 1-2-2003 reads that there was a call from Village Kerle informing the police that a huge quarrel is going on between the brotherhood of Nalawades. Saying so, caller disconnected the phone. The second call was received at 19.10 by the police. The informer was Tanaji Mane. He informed that Jaysing Nalawade was seriously injured in a big quarrel between the Nalawade brotherhood. The caller asked police to send the staff. The police accordingly deputed API Sutar and PSI Waghmale. By 20.25 complaint was filed by P.W.12 was recorded in writing by the police and a crime was registered for the offence punishable under Section 302, 323 at Crime No.29 of 2003. It is surprising to note that inspite of the fact that police received information at 7.00 p.m. in respect of the assault going on between the Nalawade Brotherhood and the injury suffered by Jaysing Nalawade, there is no investigation on the line as to who was the caller. Neither any statement was recorded nor Tanaji Mane who had telephoned from Kerle was interrogated and examined by the police. The prosecution failed to provide any convincing reason for this lapse. This was the best opportunity for the prosecution to collect initial evidence to corroborate the version of P.W.12 the sole eye witness. 18. We have noticed another deficiency in the prosecution case in respect of the injury suffered by P.W.12 Balasaheb Gurav. It is the case of P.W.12 that he suffered two injuries while he was assaulted by the accused while he was trying to save the deceased. The medical officer P.W.13Doctor was examined to prove the entries. The Medical Officer deposed that on 1-2-2003 in the night the police had referred P.W.12 Balasaheb Gurav resident of Karle for medical examination. He had given the history of assault. He deposed that the patient was eye witness of assault on Jaysing Nalawade. He had brought original medical register. The doctor noticed following injury on P.W.12 Two verticle abrasion of size 1 cm. X 0.3 cm. Over left knee. No other external injury seen. The nature of injury was simple. Object – cutting object Age – within 24 hours The Medical officer issued certificate to this effect which is at Exhibit 44. He had brought original medical register. The doctor noticed following injury on P.W.12 Two verticle abrasion of size 1 cm. X 0.3 cm. Over left knee. No other external injury seen. The nature of injury was simple. Object – cutting object Age – within 24 hours The Medical officer issued certificate to this effect which is at Exhibit 44. During the course of hearing, we had called for muddemal articles and we had seen the weapons of assault. During the examination in chief, the Medical Officer expressed his opinion that the aforesaid injury noted on the person of the complainant was possible if weapon article was used from its blunt side. If the weapon was used from the sharp side without force, abrasions could be caused and if it is used with force incised wound will be the result. The Complainant was in the hospital for 10 minutes, according to the doctor. 19. After seeing the article of assault, sickle and the injury suffered by P.W.12, we are convinced to say that the injuries suffered by P.W.12 as noted by the Medical Officer in the certificate, are not possible by these weapons. It is required to be appreciated that the assailant caused serious injuries with dangerous weapons to the deceased Jaysing Nalawade and according to the prosecution, they were marching towards P.W.12 as he was trying to obstruct their assault. Considering the tense moments of the said situation, it would be a matter of imagination alone that the complainant suffered abrasions due to assault made by the Accused from the blunt side of the sickle. P.W.12 and the prosecution are probably relying and referred to injuries to firmly establish his presence at the scene of assault. There is substance in the submission of the defence that a copy of entry in the register maintained by the hospital relating to the history of assault was placed on record which is at Exhibit60. The entry was to the effect that P.W.12 was brought by police who was eye witness to assault on Jaysing Nalawade. The defence version is that the contents of this entry have not been proved by the prosecution. We find substance in the submissions of the defence in this regard. 20. P.W.14 Sunila Devi Nalawade is the wife of the deceased. The defence version is that the contents of this entry have not been proved by the prosecution. We find substance in the submissions of the defence in this regard. 20. P.W.14 Sunila Devi Nalawade is the wife of the deceased. She deposed that she was residing along with the deceased at Kolhapur, whereas her inlaws were residing at Padawalwadi. She stated that in past cases were filed against the members of Nalawade family interse and a compromise was arrived at and consequent to the same her husband was acquitted. She also referred to murder cases filed in the year 1984, 1985, 1995 and 1996. According to her the cases were settled and after settling the dispute, the members of the family started going to each others house. On 30-1-2003, her husband had gone to Padawalwadi and halted on that night, at Padawalwadi. 21. P.W.16 Abhay Nalawade is the nephew of the deceased. He deposed that on the date of the incident at about 6.30 p.m., P.W.12 Balasaheb Gurav came to his house and he heard P.W.12 telling his grandparents that the Accused persons committed murder by giving blow of sickle on the head of the deceased. He did not state before the police the time when he heard P.W.12 narrating his grand parents. P.W.17 Indubai Patil deposes that she had seen the Accused armed with sickles. After that she saw one person lying inured. The witness was declared hostile. 22. The other set of evidence relates to the investigating officers i.e P.W22, 23 and 24. In the evidence of P.W.22 Ishwar Sutar of Karveer Police station, he deposes that he did not make any inquiry with Tanaji Mane in respect of the call at the police station at 7.00 p.m. Inspite of the fact that the officer had wireless set with him he did not collect the said information. According to the officer the spot of the incident is near the state highway. P.W.23 Subhasg Vibhute was working as Assistant PSI at Karveer Police Station on 1-2-2003. He stated that the complainant was in the police station for about 45 minutes from 8.00p.m. Onwards. The officer supported the panchanama drawn. P.W.24 Jayesh Deshmukh was working as PI in Karveer Police Station on the said date. He supported the prosecution case, the seizure of the articles and recovery panchanama drawn. 23. He stated that the complainant was in the police station for about 45 minutes from 8.00p.m. Onwards. The officer supported the panchanama drawn. P.W.24 Jayesh Deshmukh was working as PI in Karveer Police Station on the said date. He supported the prosecution case, the seizure of the articles and recovery panchanama drawn. 23. The prosecution evidence which has been discussed by us as above demonstrates that all the panchas examined by the prosecution turned hostile. The prosecution case rests mainly on the acceptance or otherwise of the evidence of solitary eye witness P.W.12. 24. The Learned Counsel Mr. Nitin Pradhan has placed reliance on reported Judgments in respect of principles of appreciation of evidence in case of evidence of solitary eye witness : i) Lallu Manjhi Vs. State of Jharkhand reported in (2003) 2 Supreme Court Cases 401. The Apex Court observed in paragraph 10 as under: 10. The Law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (ii) Joseph Vs. State of Kerala reported in (2003) 1 Supreme Court Cases 465. The Apex Court in paragraph 12 has observed thus: 12. In case of this nature when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. What is urged before the Court is that FIR Exhibit P1 contained signature of a doubtful character which P.W.1 himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. What is urged before the Court is that FIR Exhibit P1 contained signature of a doubtful character which P.W.1 himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. How far reliance can be placed upon his evidence when P.W.1 stated that he had rushed to the junction to inform Pws 2 to 4 and thereafter rushed back to the place of the incident, while the deceased also ran to the western side of the place of incident though he was profusely bleeding and he got hold of his wound by his hand and ran. If that is so, there would have been blood all over the place and not at one particular point. The abrasion on the neck of PW1 could have been caused by a nail scratch and not by a weapon and was not a bleeding injury will clearly belie the statement made by him that he was profusely bleeding. If really the witness (PW1) was wearing bloodstained clothes the same would have been certainly seized by the police for appropriate investigation of the same. Particularly, when the trial court had given cogent reasons to acquit the accused, the High Court ought not to have interfered with the same merely because another opinion is possible and not that the finding concluded by the trial court was impossible . (iii) State of U.P. Vs. JAGGO reported in (1971) 2 SCC 42 The Apex Court has observed in paragraphs 14 and 15 thus: 14. Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad V. The State of Hyderabad for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case. 15. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad V. The State of Hyderabad for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case. 15. This Court in Habeeb Mohammad’s case (supra) referred to the observations of Jenkins, C.J. In Ram Ranjan Roy V. Emperor that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eyewitnesses should be before the Court. Lord Roche in Stephen Senivaratne Vs. The Kind referred to the observations of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammed’s case (supra) said that the absence of an eyewitness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eyewitness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of occurrence. (iv) Kottaya Vs. Emperor reported in AIR (34) 1947 PC 67. The Apex Court has observed in Paragraph 10 thus : 10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. (iv) Kottaya Vs. Emperor reported in AIR (34) 1947 PC 67. The Apex Court has observed in Paragraph 10 thus : 10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as related distinctly to the fact there by discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments said to be connected with the crime of which the informant is accused. 25. Considering facts and the evidence on record and after perusal of the Judgment cited by the Learned Counsel for the Appellant, we find that the evidence of the solitary eyewitness P.W.12 is not wholly reliable. We find it unsafe to confirm the order of conviction and sentenced passed by the trial Court. We find serious infirmities in the prosecution case. The prosecution has failed to give explanation and whatever explanation the prosecution has tried to put forth in respect of the deficiencies, does not sound to be reasonable, proper and convincing. There is serious doubt created in respect of the involvement of the Accused persons in the commission of crime. No doubt a serious offence has been committed. 26. The prosecution has proved that deceased died of homicidal death, but on the question as to whether the Appellants were responsible for his death, cogent and reliable evidence ought to have been led by the prosecution, as it is already discussed that the case is based on evidence of solitary eye witness. 26. The prosecution has proved that deceased died of homicidal death, but on the question as to whether the Appellants were responsible for his death, cogent and reliable evidence ought to have been led by the prosecution, as it is already discussed that the case is based on evidence of solitary eye witness. Considering the facts and the evidence brought on record and the case laws cited before us, we are convinced to hold that it would be highly unsafe to place implicit reliance on the testimony of solitary eye witness i.e. P.W.12 Balasaheb Gurav. There are serious infirmities in the prosecution case and the evidence led before the Court. The prosecution has failed to discharged its burden to establish case against the Appellants beyond reasonable doubt. A serious doubt is created in the prosecution case. The defence has pointed out several infirmities in the evidence which clouds efficacy of evidence of P.W.12, the sole eye witness. We do not find that corroborative circumstances brought before the Court by the prosecution lend any credence to the evidence of P.W.12. The prosecution evidence does not sound to be reasonable and convincing to confirm order of life sentence on the Appellants. The benefit, therefore, of these deficiencies and lapses goes to the Appellants. 27. The Appeal is allowed. The Judgment and order of conviction and sentence passed by 2nd Adhoc Additional Session Judge, Kolhapur in Sessions Case No.83 of 2003, is quashed and set aside. The Appellants are acquitted of all the charges. Appellants be set at liberty forthwith if not required in any other case.