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2011 DIGILAW 786 (BOM)

Sanjay Udahhav Sonawane v. State of Maharashtra

2011-07-07

B.H.MARLAPALLE, U.D.SALVI

body2011
JUDGMENT 1. Both these appeals filed under Sections 374(2) of Cr.P.C. are directed against the order of conviction and sentence passed in Sessions Case No. 63/2000 by the learned 3rd Ad-hoc Additional Sessions Judge on 22nd July, 2003 and the three accused have been convicted and sentenced for the offence punishable under Section 302 read with 34 of IPC. Criminal Appeal No.958/2003 has been filed by accused nos.1 and 2 whereas Criminal Appeal No.1129/2003 has been filed by accused no.3. Accused Nos.1 and 2 came to be released on bail whereas similar prayer of accused no.3 was turned down by this Court and therefore, he continues to be in jail. 2. As per the prosecution case, accused no.1 Sanjay Sonawane is running “Classic Motor Driving School” and accused nos.2 and 3 were his employees at the relevant time. On 12th October, 1999, one Shrikant @ Baba Chandrakant Shirke, who was an absconding accused in a complaint filed by accused no.1, had come to his house at 489 Centre Street, Opposite Bhimpura Galli and few hundred metres away from his house, he was assaulted on the Centre Street by the accused at about 9.45 p.m. with hocky sticks and sharp weapon (knife) (Article 14). This incident was seen by PW 11 Mahadeo Mali, Police Constable and PW 9 D.Y. Temgire, Police Constable, who were specifically deputed by PW 8 Ganesh Katke, duty ammaldar, at the police chowky, so as to take the deceased in custody as he was reported to be absconding for more than six months and this intimation was given to the police chowky by PW 6 PC Shirke, the brother of the deceased. PW 11 Mahadeo Mali noticed that the victim was lying on the road with bleeding injuries and there was a mob surrounding. The victim was taken in the rickshaw to the police station and from there to the Sassoon Hospital where he was declared dead by the Doctor on duty around 10.30 p.m. PW 11 Mahadeo Mali claimed to have caught hold of accused no.1 and taken him to the Charbavadi police chowky where he was arrested. PW 18 Raghunath Pohekar reached the hospital and the complaint of PW 4 Vijay Shirke, another brother of the deceased, was recorded on the basis of which the FIR came to be registered (Exhibit 36). PW 18 Raghunath Pohekar reached the hospital and the complaint of PW 4 Vijay Shirke, another brother of the deceased, was recorded on the basis of which the FIR came to be registered (Exhibit 36). Inquest Panchnama (Exhibit 9), Spot Panchnama at Exhibit 14 and Seizure Panchnama (Exhibit 17) were made. The dead body was sent for post mortem and PW 10 Dr.Milind Wable conducted it and signed the post mortem notes at Exhibit 46. Accused Nos.2 and 3 came to be arrested on the next date i.e. on 13th October, 1999 and accused no.3 purportedly made some disclosure statements based on which the knife (Article 14) was recovered. Two hocky sticks (Article 6 and 7) (one broken) were also claimed to have been recovered from the spot on 13th October, 1999 under recovery panchnama (Exhibit 69). As per the post mortem report, Shrikant died due to traumatic and haemorrhage shock as a result of stab injury.Investigation was done by PW 18 and he submitted the charge-sheet. As the case was exclusively triable by the Sessions Court, it came to be committed and the charge was framed at Exhibit 3 on 30th November, 2000. 3. The prosecution examined in all 18 witnesses and PW 8 Ganesh Katke, PW 9 DY Temgire, PW 11 Mahadeo Mali and PW 18 Raghunath Pohekar were the police personnel. PW 1 Zubeart Bringanda s/o. Tingo Bringanda, PW 2 S.M. Pawse, PW 3 Pandurang Chorge, PW 12 Bharat Parmar, PW 13 Ashok Deshmukh, PW 14 Vinayak Ugral, PW 15 Paul James and PW 17 Bhagat Tour were the panch witnesses. However, PW 1, PW 3, PW 9 (Police Constable), PW 12, PW 13, PW 14 and PW 15 turned hostile. PW 16 Nishan Kamble was the witness examined to prove the purported extra judicial confession made to him by accused no.2 but he also turned hostile. The prosecution case was mainly based on the evidence of the eye witnesses viz. PW 5 Mrs.V.C. Shirke, mother of the deceased, PW 6 PC Shirke, brother of the deceased, PW 7 Sandhya Kale, sister of the deceased, in addition to the two police constables viz. PW 9 and PW 11. The prosecution case was mainly based on the evidence of the eye witnesses viz. PW 5 Mrs.V.C. Shirke, mother of the deceased, PW 6 PC Shirke, brother of the deceased, PW 7 Sandhya Kale, sister of the deceased, in addition to the two police constables viz. PW 9 and PW 11. But as noted earlier, PW 9 turned hostile and did not support the prosecution case and thus, the prosecution relied upon the testimony of the remaining four eye witnesses PW 5, PW 6, PW 7 and PW 11 Mahadeo Mali. Inquest Panchnama at Exhibit 9 was admitted. 4. The defence did not examine any witness and while denying their involvement in the incident, they alleged that they were deliberately framed. Accused no.1 alleged that he was a complainant against the deceased and the deceased was absconding. Accused no. 2 claims that he was an eye witness in the criminal case filed by accused no.1 and against the deceased and therefore, he was deliberately implicated. 5. The trial court assessed the evidence of the prosecution and held that Shrikant died a homicidal death. The trial court agreed with the prosecution case that accused nos.1 to 3 in furtherance of their common intention had caused the death of Shrikant and thus, they were guilty of committing his murder. 6. Mr.Chitnis, the learned Senior Counsel for the accused submitted that even going by the account of the eye witness testimony, the prosecution failed to prove its case beyond reasonable doubts and except PW 11 Mahadeo Mali, none of the other eye witnesses could be relied upon as such. PW 7 Sandhya Kale was married and she has her own house near the hospital where she was working as a Nurse. It was further urged that PW 5 and PW 6 were not the eye witnesses to the incident and they had reached the spot after the victim was injured and was lying on the road with bleeding injuries. The victim was surrounded by a mob of more than 250 persons and it was not possible for anybody to identify as to who the assailants were. As per the defence, even the sole eye witness PW 11 Mahadeo Mali could not be said to be a reliable eye witness and he had also reached the spot after the victim had fallen on the road with bleeding injuries. As per the defence, even the sole eye witness PW 11 Mahadeo Mali could not be said to be a reliable eye witness and he had also reached the spot after the victim had fallen on the road with bleeding injuries. Accused no.1 was framed and picked up from his shop and taken to the police chowky but he was never arrested by drawing an arrest panchnama. It was also pointed out that after Mahadeo Mali had seen the incident and informed the same to PW 8 Ganesh Katke or after PW 18 had come to know about the incident after he visited the hospital, surprisingly, there is no entry made about the incident in the police station diary. It was also pointed out that some of the witnesses claimed that the knife was dropped at the spot after the victim was assaulted whereas the prosecution claims that the said knife (Article 14) was recovered at the behest of accused no.3 from his residence and under the discovery panchnama (Exhibit 71). A Copy of the FIR (Exhibit 36) was not forwarded to the nearest court of the learned Judicial Magistrate, First class. The hocky sticks did not have any blood stains though they were claimed to have been collected from the spot and immediately accused no.1 was accosted by PW 11. Exhibit 69 is the Seizure Panchnama of the clothes from the person of accused no.1 and purported to have been drawn at about 23.15 hours on 12.10.99, that is shortly after the incident. However, none of the two panch witnesses to the said panchnama were examined. No witness has described the clothes which were on the person of accused no.1 at the time of the incident and Exhibit 69 could not be relied upon solely on the basis of the evidence of the Investigating Officer PW 18. It was also submitted by Mr.Chitnis that PW 11 had claimed to have handed over accused no.1 to API Ghorpade at the Centre Street Police Chowky or Head Constable Takalkar but none of these two police personnel were examined. On all these grounds, it is the case of Mr.Chitnis that the accused were framed and there was no corroborating evidence to support the testimony of PW 11. 7. Dr.Shaikh, the learned APP, on the other hand, has supported the order of conviction and sentence in its totality. On all these grounds, it is the case of Mr.Chitnis that the accused were framed and there was no corroborating evidence to support the testimony of PW 11. 7. Dr.Shaikh, the learned APP, on the other hand, has supported the order of conviction and sentence in its totality. It was urged that the evidence of the eye witnesses viz. PW 5, PW 6, PW 7 and PW 11 has proved the prosecution case beyond any reasonable doubts and there is no reason to discard the evidence of these eye witnesses as unreliable. It was further submitted that accused no.1 was picked up from the spot of the incident and he never denied his arrest at the Centre Street Police Chowky between 11 to 11.30 p.m. 8. We have examined the record meticulously including the police file. Though a number of police officers came to be examined including the Investigating Officer, an extract of the police station diary for 12.10.99 or 13.10.99 was not brought on record. There is no arrest panchnama in support of the arrest of any of the accused. Though accused nos.1 and 2 were produced for remand before the learned Judicial Magistrate, First Class, on 12.10.99, the record does not indicate that a copy of the FIR was forwarded to the said court by PW 18. CR No.209/99 based on the complaint by PW 4 Vijay Shirke recorded by PW 18 and subsequently forwarded to the Cantonment Police Station, has been registered at 11 p.m. as per Exhibit 68. But surprisingly, the inquest panchnama (Exhibit 9) has been drawn at 10.30 p.m. on the same day. The evidence of PW 5 and PW 6, who are claimed to be the eye witnesses, shows that the knife, which was purportedly used by accused no.3 to cause multiple blows on the neck of the deceased, was thrown on the spot when accused no.3 ran away from the scene of the offence, but the prosecution claims to have recovered the said knife after the arrest of accused no.3 in terms of the discovery panchnama at Exhibit 71 and the panch witness turned hostile (PW 12). PW 9 D.Y. Temgire, who was the police constable on duty, along with PW 11 Mahadeo Mali and claimed to be an eye witness, turned hostile and did not support the prosecution case. PW 9 D.Y. Temgire, who was the police constable on duty, along with PW 11 Mahadeo Mali and claimed to be an eye witness, turned hostile and did not support the prosecution case. These are all some special features of the case we thought it appropriate to note at the threshold, before we proceed to examine the case of the prosecution on the basis of the evidence of the claimed eye witnesses. 9. PW 4 Vijay Shirke, who submitted the complaint, admitted that he was not staying with PW 5 and the deceased at the family house in Lane No.10 Bhimpura and he was staying with his wife and children at some other place. He reached the Sassoon Hospital after he had come to know about the incident through his grandmother. The grandmother was not, admittedly, the person who had seen the incident and PW 4 claimed that she was given information about the incident by PW 5 – Vatsalabai. Similarly, PW 7 Sandhya Kale is the sister of the deceased and PW 4 and PW 6. She was married and PW 6 in his cross-examination admitted before the trial court that she had set up her own home near the hospital where she was working. PW 11 Mahadeo Mali in his evidence before the Court, has not spoken about the presence of PW 7 as an eye witness along with PW 5 Vatsalabai. The prosecution, therefore, did not prove beyond doubt that PW 7 was, in fact, at the house of PW 5 when PW 11 visited the said place, so as to take the deceased in custody. We are, therefore, left with PW 5 Vatsalabai Shirke, PW 6 Prashant Shirke and PW 11 Mahadeo Mali as the eye witnesses to examine the prosecution case, and PW 7 cannot be accepted as an eye witness. 10. Before we sift the evidence of these three eye witnesses, we have noted from the police file that on 12.10.99, PW 5 as well as accused no.1 have lodged the complaints with the police station against each other. The police file also indicates that it was not for the first time the deceased had visited the house of PW 5 on 12.10.99 and in fact, he was visiting his house about 4-5 days prior to the date of the incident and that too on everyday. Accused no. The police file also indicates that it was not for the first time the deceased had visited the house of PW 5 on 12.10.99 and in fact, he was visiting his house about 4-5 days prior to the date of the incident and that too on everyday. Accused no. 1 had submitted a written complaint to the Police Inspector, Cantonment Police Station, apprehending danger to his life. We have referred to these documents solely to discard the prosecution case that the deceased Shrikant Shirke had returned home for the first time on 12.10.99 after he had absconded sometime from January 1999 onwards in view of the criminal cases pending against him. 11. Coming to the evidence of PW 5 Vatsalabai, she has stated before the trial court that she got three sons and two daughters and PW 4 was the eldest son and PW 6 Prashant was the youngest. PW 7 Sandhya was married and PW 4 Vijay was residing at Khan Road at Pune Cantonment and she was residing with her mother-in-law and two sons. Her statement that PW 7 Sandhya was staying with her has been proved to be false by the evidence of PW 6 Prashant who admitted before the trial court that PW 7 was staying separately near the hospital where she was working. Regarding the incident she stated that on 12.10.99 at about 9 p.m., deceased Shrikant came to the house and therefore, she questioned about his whereabouts and more so when he was absconding. The deceased replied that he was at Mumbai and she told him that in his absence, the family members were being harassed by the police for his arrest. She asked Shrikant to surrender and sent PW 5 Prashant to the police station so that Shrikant could be arrested. Hence, PW 6 Prashant went to the police station at about 9.30 p.m. and returned with two police constables but in the meanwhile, Shrikant had left home and gone to a shop on the Centre Street. The distance between her house and the Centre Street was about five minutes walk. The police constable on arrival at her home asked about the whereabouts of Shrikant and she accompanied the police in search of Shrikant. When they reached the Centre Street, she saw accused persons assaulting Shrikant and accused nos.1 and 2 were holding hocky sticks and accused no.3 was assaulting with knife. The police constable on arrival at her home asked about the whereabouts of Shrikant and she accompanied the police in search of Shrikant. When they reached the Centre Street, she saw accused persons assaulting Shrikant and accused nos.1 and 2 were holding hocky sticks and accused no.3 was assaulting with knife. Shrikant had collapsed on the road and the police officers accosted accused no.1 on the spot whereas accused nos.2 and 3 went after throwing away the weapons in the street of lane no. 11. One policeman tried to chase accused nos.2 and 3 but without any sticks. The police constable who had chased nos.2 and 3 returned and put Shrikant in a rickshaw and took him to the Charbavadi Police Chowky and from there he was taken to the Sassoon Hospital where he was declared dead. She identified Articles no.6, 7 and 14 i.e. the hocky sticks and the knife shown her in the court. She further stated that she had narrated the entire incident to PW 4 in the hospital and therefore, PW 4 lodged the complaint before the police. In her cross-examination she admitted, sometimes in November 1998, accused no.1 had lodged the complaint against Shrikant with the Cantonment Police Station and there was a fresh complaint arising from another incident dated 13.1.99. Shrikant was absconding from Pune even after the charge-sheet was filed in the complaint pertaining to the incident of 13.10.99. She also admitted that Shrikant was reluctant to surrender to the police and he ran away from the house when she had asked PW 6 Prashant to go and inform the police station. She also admitted that while proceedings towards the Centre Street, she was following the police which indicated that it was PW 9 and PW 11, who had seen the crowd first. She also stated that out of curiosity, they went to the Centre Street and noticed that Shrikant was surrounded by a crowd and he was lying on the road. She claimed that each of the assailants had given 5 to 6 blows of hocky sticks to Shrikant. She also admitted that most of the people gathered in the crowd were from the same locality. She denied the suggestion that neither she nor PW 6 and PW 7 had seen the incident. She claimed that each of the assailants had given 5 to 6 blows of hocky sticks to Shrikant. She also admitted that most of the people gathered in the crowd were from the same locality. She denied the suggestion that neither she nor PW 6 and PW 7 had seen the incident. She also admitted that her statement was not recorded by the Investigating Officer for two days and for the first time, her statement was recorded on 15.10.99 though she was available at all the times. She also admitted that the hocky sticks which were used in the attack were not shown to her. The testimony of this witness would be unsafe to reply upon unless corroborated by independent witness. 12. The evidence of PW 6 Prashant is on the lines of the evidence of PW 5. He identified Article no.14 (knife) which was thrown on the spot by accused no.2, who had assaulted Shrikant by the said weapon. In his cross-examination, he admitted that he as well as Shrikant were unemployed and PW 7 Sandhya was working as Aaya in Cantonment Hospital and was required to work in shifts. He further admitted that 8 to 10 years prior to the incident, Sandhya started residing separately at defence colony as she was required to attend her duties in shifts. But he denied the suggestion that Sandhya was not present in his house at the time of the incident. He admitted that in the evening times, people would be sitting on the pavements on the Centre Street and there was ongoing festival of Navratri around the time of the incident, as a result, there was crowd on the road. When he came to the Centre Street, he saw a huge crowd which had surrounded Shrikant and he also admitted that the police constables went ahead of them after noticing the crowd. He also admitted that the crowd started disbursing as soon as the police reached the spot and the police had used lathi charge. As per him, the assailants had given 8 to 10 blows of sticks to Shrikant. He admitted that though he was in the hospital till midnight, his statement was not recorded. He also admitted that in Bhimpura, there were number of boys playing hocky and therefore, hocky sticks would be available. 13. As per him, the assailants had given 8 to 10 blows of sticks to Shrikant. He admitted that though he was in the hospital till midnight, his statement was not recorded. He also admitted that in Bhimpura, there were number of boys playing hocky and therefore, hocky sticks would be available. 13. Now coming to the evidence of PW 11 Mahadeo Mali, who is the star witness of the prosecution, it has come in his evidence that on 12.10.99, he was on duty between 9 p.m. to 9 a.m. at Bhopale chowk under the Cantonment Police Station. After he had attended the roll call at the said police station, he reached the Charbavadi Police Chowky where Head Constable Katke and Police Constable Temgire - PW 7 were also on duty. At about 9.30 p.m. on 12.10.99, PW 6 Prashant Shirke reached the police chowky and reported that his absconding brother Shrikant was present at the house. The police, therefore, accompanied him to apprehend Shrikant. Shrikant was not in the house and PW 5 Vatsalabai informed the police constable that he had gone to the shop on the Centre Street. PW 11 and PW 9, therefore, asked PW 5 to accompany them and she followed them to the Centre Street. At the Centre Street, there was a crowd which had surrounded the deceased. He saw accused nos.1 and 2 assaulting the deceased by hocky sticks and accused no.3 was assaulting the deceased by knife. He accosted accused no.1 with hocky stick and he identified him before the court as well. He also stated that PW 9 started chasing accused nos.2 and 3 but in vein and on his return PW 11 asked PW 9 to take the injured to the hospital by rickshaw. He stated that accused no.1 was known to him as the proprietor of Classic Motor Training School in Camp Area and accused nos.2 and 3 were the employees of accused no.1. He also stated that while running away from the spot, accused no.2 had thrown hocky stick on the spot of the incident and he had collected the hocky sticks from accused nos.2 and 3. He engaged an auto-rickshaw from Bhopale Chowk so as to take accused no.1 from Centre Street Police Chowky where Head Constable Takalkar and Constable Makhare were present. He handed over the custody of accused no.1 to Takalkar along with two hocky sticks. He engaged an auto-rickshaw from Bhopale Chowk so as to take accused no.1 from Centre Street Police Chowky where Head Constable Takalkar and Constable Makhare were present. He handed over the custody of accused no.1 to Takalkar along with two hocky sticks. Meanwhile API Ghorpade reached the Centre Street Police Chowky. He thereafter went to the house of accused nos.2 and 3 but could not find them. A telephone message was received from Sassoon Hospital that Shrikant was declared dead. 14. In his cross-examination, PW 11 admitted that he did not know the deceased prior to the date of the incident and if that be so, he could not be attributed with the knowledge so as to identify the absconding accused, who was to be arrested. He also admitted that the office of accused no.1 was at the distance of about 200-300 feet away from the place of the incident and accused no.1 was a social worker. He also admitted that on 13.10.99, PW 11 recorded his statements on two different occasions. He also admitted that though he handed over the custody of accused no.1 to API Ghorpade, there was no written report made by him to that effect. He also admitted that the mob surrounding the victim was of about 250 persons and it took few minutes for him to disperse the mob. He also admitted that there were disputes pending between accused no.1 and the deceased. He denied the suggestion that there were no blood stains on the hocky sticks (Articles 6 and 7) but subsequently, admitted that there were no blood stains. He also admitted that he could not state whether the incident, he had witnessed, made out an offence of cognizable or non-cognizable case and this admission on his part made his evidence more doubtful. If he had seen the accused giving blows to the deceased with the weapons like hocky sticks and knife, he would not give such a reply and when he had seen allegedly that the victim was lying on the road with bleeding injuries. He denied the suggestion that accused no.1 was picked up from his office on suspicion because of the pending complaints against the deceased and the hocky sticks were procured on the next date of the incident. 15. Exhibit 69 is the panchnama drawn regarding the seizure of clothes from the person of accused no. 1. He denied the suggestion that accused no.1 was picked up from his office on suspicion because of the pending complaints against the deceased and the hocky sticks were procured on the next date of the incident. 15. Exhibit 69 is the panchnama drawn regarding the seizure of clothes from the person of accused no. 1. The same could not be proved because none of the panch witnesses were examined. As per the CA report at Exhibit 84, it is shown that the shirt allegedly recovered from the person of accused no.1 was stained with blood group “O” but the same has no consequence because recovery of the clothes from his person could not be proved. In addition, there was no arrest panchnama drawn at any time showing arrest of accused no.1. There is no other witness who identify that Article A4 or A6, A11 was recovered from the person of accused no.1. Thus, there is no independent evidence to corroborate the testimony of PW 11. Surprisingly, if there was a crowd of 250 persons, the prosecution did not examine any independent witness i.e. apart from the police constables and the relations of the deceased. It is also admitted by PW 11 that he as well as PW 9 were in police uniform and if the crowd had seen them and it took few minutes to disburse the crowd, it is unbelievable that the assailants would be still available at the spot waiting for being picked up or accosted by the police constables. 16. The evidence of PW 10 Dr.Milind Wable proved that Shrikant died a homicidal death. The cause of death as recorded in the post mortem notes (Exhibit 46) was traumatic and haemorraging shock as a result of stab injuries. PW 10 Dr.Wable stated before the trial court that on the person of Shrikant, he had noticed the following incised/stab wounds :- 1. Horizontalincised wound, right side of neck, 1 1/2” above the level of thyroid starting from midline, extending to the right 2 x 1/2” muscle deep. Margins Cleancut, 2.Horizontal incised wound right side of neck 2 1/2” above midclavicular point, size 3/4th x 1/4th muscle deep. Horizontalincised wound, right side of neck, 1 1/2” above the level of thyroid starting from midline, extending to the right 2 x 1/2” muscle deep. Margins Cleancut, 2.Horizontal incised wound right side of neck 2 1/2” above midclavicular point, size 3/4th x 1/4th muscle deep. Margins cleancut, 3.Obligue incised wound, right subclavicular retion in the middle, just below clavicle, size 3/4th x 1/4th, bone deep, margins cleancut, 4.Horizontalstab wound left side of chest 1 1/2” lateral to midline, & 2” below level of nipple size 1 x 1/2”. opening in thoracid cavity, tailing medially for 1/2”. Angles and margins cleancut, 5.Obliquestab wound right side of abdomen in 10th intercostal space, 2” lateral to midline, size 1 x 1/2” opening in abdominal cavity. Angles and margins cleancut. Tailing medially upwoards for 2, 6.Vertical incised wound anterior aspect of left thigh and 4” below level of inquinal ligament, size 2 x 3/4th muscle deep Margins cleancut, 7. Oblique incised wound anterior aspect of left arm in middle, size 1 x 1/4th” margins cleancut, muscle deep.” On the internal examination of the dead body, he noticed the following corresponding internal injuries :- 1.Corresponding to external injury No.5:- -Stab wound, 5th intercostal space 1 x 1/4”. -Stab wound pericardium over left-ventricle ½ x 1/4”. Stab wound left ventricle.1” above apex ½ x 1/4th” opening in cavity, 2.Corresponding to external injury No.6: Stab wound 10th intercostal space ¾ x 1/4th”. Stab wound peritonium ½ x 1/4”. Stab wound at the junction of right and left lobe of over ½ x ¼ x 3/4”. As per the Doctor that the injuries were antemortem and caused recently. External injury nos.5 and 6 along with the corresponding internal injury were not sufficient to cause death in the ordinary course of nature, collectively and individually. 17. Thus, Shrikant died because of stab injuries and Articles 6 and 7 had no blood stains which implied that these injuries were not caused by such sticks. That leaves behind only the sharp weapon i.e. Knife (Article 14). Its discovery has not been proved and as per PW 5 and PW 6, accused no.3 after giving blows with the same weapon to the deceased had dropped it on the spot and ran away. Thus, the prosecution case itself is contradictory. That leaves behind only the sharp weapon i.e. Knife (Article 14). Its discovery has not been proved and as per PW 5 and PW 6, accused no.3 after giving blows with the same weapon to the deceased had dropped it on the spot and ran away. Thus, the prosecution case itself is contradictory. Even the doctor clarified in his cross-examination that external injuries no.1, 7 and 9 were minor and simple and they were on main bony prominence. They could have been caused by a fall on the rough surface like the road. He also admitted that Article 14 – knife was sent to him in a sealed cover though he had admitted that Exhibit 47 did not say so. This also raises doubts about the CA report (Exhibit 84) indicating blood stains of Group “O” on Article 14. 18. PW 18 Raghunath Pohekar was the Investigating Officer. He stated before the trial court that accused no.1 was in the custody of Police Constable Mali - PW 11 at Centre Street Police Chowky and he scribed the complaint of PW 4 Vijay in the hospital (Exhibit 28) and on that, CR No.209/99 was registered by forwarding the report at Exhibit 68. He admitted that till 15th October, 1999, he had never visited the spot of the incident and had not recorded the statement of any of the claimed eye witnesses PW 5, PW 6 and PW 7. He stated that on 12.10.99 at about 11.15 p.m., a blood stained shirt on the person of accused was seized under panchnama (Exhibit 59) and it was signed by two witnesses. As noted earlier, none of these witnesses were examined. He further stated that accused no.1 was thereafter arrested. He also stated that accused no.2 was arrested by him on 13.10.99 early in the morning and accused no.3 was arrested later in the night on the same day. As per him, the the blood samples were sent to the CA along with report on 14th October, 1999 whereas the remaining seized articles including blood stained-clothes of the accused and the deceased were sent on 25.10.99. As per him, the the blood samples were sent to the CA along with report on 14th October, 1999 whereas the remaining seized articles including blood stained-clothes of the accused and the deceased were sent on 25.10.99. He admitted that CR No.248/98 was registered against the deceased for the offences punishable under Sections 324, 504 of IPC and one more complaint i.e. CR No.24/99 was registered against the deceased and his mother at the instance of accused no.1 and for the offences punishable under Section 326 read with 34 of IPC (Exhibit 86). He admitted that for the first time, he received the information of incident by 10 p.m. on 12.10.99 and the information was in respect of cognizable offence, he had directed API Ghorpade to record inquest panchnama. He also admitted that he had investigated many cognizable offences and had invariably followed the procedure laid down in Police Manual. He also admitted that as per the Police Manual, any incriminating article is required to be sealed with the signature of panchas. He was shown Exhibit 69 which was the panchnama in respect of the bloodstained shirt of accused no.1 and it was admitted that there was no reference of sealing of clothes under the said panchnama and same was the case with Panchnama (Exhibit 65) and (Exhibit 71), he admitted that the clothes seized from the person of accused nos.1 and 3 and the knife were lying at the police station itself till 25.10.99. He also admitted that after 14.10.99, nothing was seized from any of the present accused. He also admitted that the Chemical Analysis office is located at Pune itself and it would have been possible for him to depute a Police Constable to send the Articles to the Forensic Laboratory. He also admitted that prior to 14.10.99, he had not visited the house from where the knife (Article 14) was claimed to have been recovered. He also admitted that he had not forwarded the hocky sticks to the Forensic Laboratory. He also admitted that there was no entry made by PW 11 Mali that hocky sticks were produced by him in the Police Chowky on 12.10.99 during the night time. He also admitted that he had not forwarded the hocky sticks to the Forensic Laboratory. He also admitted that there was no entry made by PW 11 Mali that hocky sticks were produced by him in the Police Chowky on 12.10.99 during the night time. In the cross-examination of this witness, the defence conclusively brought the contradictions in the evidence of PW 7 Sandhya Kale that accused no.1 and his driver had demanded golden chain and Rs.3000/- from her for celebrating party. 19. Thus, on assessment of the evidence as adduced by the prosecution and on the examination of 18 witnesses, it could not prove its case beyond reasonable doubts, regarding the complicity of any of the accused in the homicidal death of Shrikant on 12th October, 1999 between 9.30 p.m. to 10 p.m. The prosecution could have examined some independent witnesses, so as to corroborate the evidence of Police Constable PW 11 and the family members of the deceased i.e. PW 5 to PW 7. The deposition of PW 18 came to highlight the procedural failures so as to weaken the case of the prosecution. In our considered opinion, the trial court failed to analyse the evidence of PW 11 and PW 5 to PW 7 in proper perspective and on the backdrop of the circumstances that accused no.1 had already filed a criminal case for the offence punishable under Section 326 read with 34 of IPC against the deceased and PW 5 and on the same day of the incident i.e. on 12th October, 1999, there was some incident during the day time between accused no.2 and PW 5. We have, therefore, no doubt in our mind that the reasoning given by the trial court in support of the order of conviction is unsustainable and the evidence of the eye witnesses relied upon failed to inspire confidence. Hence, the impugned order of conviction and sentence is required to be set aside by allowing the appeals. 2011 ALL MR (Cri) 2411. In the premises, the appeals succeed and they are hereby allowed. Hence, the impugned order of conviction and sentence is required to be set aside by allowing the appeals. 2011 ALL MR (Cri) 2411. In the premises, the appeals succeed and they are hereby allowed. We hold that the prosecution could not prove its charge against any of the accused regarding their complicity in causing the homicidal death of Shrikant, the son of PW 5 on 12th October, 1999 between 9.30 p.m to 10 p.m. All the accused are acquitted from the offence punishable under Section 302 read with Section 34 of IPC. Accused no.3 is ordered to be released and set free forthwith, unless required in any other criminal case. The bail bonds of accused nos.1 and 2 stand cancelled.