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2012 DIGILAW 1642 (BOM)

Balasaheb Bhimsen Patil v. State of Maharashtra

2012-08-30

A.S.OKA, SADHANA S.JADHAV

body2012
JUDGMENT : SMT. SADHANA S. JADHAV, J. :- The appellants in Criminal Appeal No.217 of 1992 and the appellants in Criminal Appeal No.211 of 1992 stand convicted in Sessions Case No.164 of 1990 for the offences punishable under Sections 147, 148, 324 and 302 read with Section 149 of Indian penal Code. For offences punishable under Sections 148 and 149 of IPC, they are sentenced to undergo R.I. for a period of three years and for offences punishable under Section 302 read with Section 149, they are sentenced to undergo rigorous imprisonment for life. The original accused Nos. 1 to 3 are directed to pay compensation of Rs.5,000/- to the wife of the deceased Balasaheb and the original accused Nos. 4 to 8 are directed to pay compensation of Rs.500/- each to her by the Addl. Sessions Judge, Sangli vide judgment and order dated 20th February, 1992. 2. Being aggrieved by the said judgment, the appellants herein preferred the present Appeals. The appellants were enlarged on bail by an order dated 20th April, 1992. 3. The original accused No.9-Vishwas Bapu Shinde was acquitted by the Addl. Sessions Judge for all the offences for which he was tried. The State of Maharashtra filed Criminal Appeal No.276 of 1992 assailing therein the judgment and order of acquittal. The Appeal was admitted on 29th June, 1992 and an action under Section 390 of Cr.P,.C. Was taken against the respondent and it was directed that Criminal Appeal No.276 of 1992 be heard along with Criminal Appeal Nos. 211 of 1992 and 217 of 1992. Hence, all the Appeals are being decided by a common Judgment. 4. The case of prosecution in a nutshell is as follows :- The accused Nos. 1 to 3 were close relatives of Balasaheb Anandrao Patil (deceased). The relations between them were not cordial as there was dispute over partition of their property. Secondly, a discordant note had struck between them due to the Grampanchayat elections as they were political rivals. Balasaheb was a diploma holder in electricals. He was running an electrical shop at Sangli. Rajendra, brother of Balasaheb, was the Upa-Sarpanch. On 20th January, 1990, Balasaheb was at Sangli. He received a telephonic message that his brother Vijay was beaten up at Village Bamani by the accused persons. Upon receipt of the said information, Balasaheb went to Vita on a motor-cycle. He was running an electrical shop at Sangli. Rajendra, brother of Balasaheb, was the Upa-Sarpanch. On 20th January, 1990, Balasaheb was at Sangli. He received a telephonic message that his brother Vijay was beaten up at Village Bamani by the accused persons. Upon receipt of the said information, Balasaheb went to Vita on a motor-cycle. At Vita, Balasaheb met Vijay and his brother Rajendra and they noticed that Vijay had sustained injury and therefore they approached the Police Officer and lodged a complaint. Vijay was referred to the hospital. The police had registered a non-cognizable case on the basis of the report lodged by Vijay. Rajendra then borrowed a motor-cycle from Ashok Kadam and thereafter Balasaheb, Anandrao, Vijay, Rajendra and Subhash proceeded to Village Bamani on three different motor-cycles. On the way, they had taken two other persons as pillion rider. They left Village Vita at about 10.30 p.m. When they reached near the Grampanchayat office at Bamani, all the nine accused persons came from the Grampanchayat office and the adjacent road. They intercepted the motorcycles of deceased Balasaheb and Vijay. They were armed with different weapons. They encircled the motorcycles and mounted assault upon them. A blow of sword was given on the left fore-arm of PW-4 Anandrao and also on his leg. They started beating the prosecution witnesses indiscriminately. Rajendra who had brain behind also reached the spot. PW-4 Anandrao and Vijay started running from the spot to save themselves. While they were running PW-4 Anandrao collapsed near Mari-A1 temple. PW-8 Vijay also fell down nearby. Rajendra concealed himself behind Maruti temple. However, deceased Balasaheb could not escape from the clutches of the assailants. He made a mil attempt to escape and reached upto public latrine situated closeby. All the accused chased him. Balasaheb was accosted by accused Nos. 6 and 8 who assaulted him with motorcycle chain and axe. Then accused Nos. 1 to 3 battered him to death with the deadly weapons with which they were armed. Balasaheb succumbed to the said injuries instantaneously. The accused then fled away from the scene of offence. PW-4 Anandrao, PW-8 Vijay and PW-6 Rajendra saw the dead body of Balasaheb. They themselves were injured and reached there in an injured condition by plying an autorickshaw. Balasaheb succumbed to the said injuries instantaneously. The accused then fled away from the scene of offence. PW-4 Anandrao, PW-8 Vijay and PW-6 Rajendra saw the dead body of Balasaheb. They themselves were injured and reached there in an injured condition by plying an autorickshaw. On the next day early in the morning, PW -4 Anandrao, his wife and PW-8 Vijay hired the same auto-rickshaw and reached the Police Station at Vita. They reported the incident to the Police Station Officer. The report was not reduced into writing immediately. The Police Constable referred them to Rural Hospital Vita as they were injured. PW-6 Rajendra informed about the incident to the Police party who redirected him to vita Police Station. PW-6 Rajendra narrated the incident to the Police Station. On the basis of his report, Crime No.8 of 1990 was registered against the accused for the offences punishable under Section 302 read with Sections 149 and 326 read with Section 149 of IPC. 5. The investigation was then transferred to cm Crime. PSI Pawar had taken charge. He arrested accused Nos. 1 to 4 on 4th June, 1990. Accused No.8 was arrested on 6th June 1990 and accused No.9 was arrested on 8th June, 1990. The weapons were allegedly recovered at the instance of the accused under Section 27 of the Indian Evidence Act. After completion of investigation, charge sheet was filed and the case was committed to the Court of Sessions and registered as Sessions Case No.164 of 1990. The charges were framed against the accused on 10th September 1991. The prosecution examined eleven witnesses to bring home the guilt to the accused. The defence examined Sudhakar Bhikaji Mane as a defence witness. The Additional Sessions Judge, Sangli acquitted original accused No.9 and recorded conviction against original accused Nos. 1 to 8. The evidence adduced by the prosecution can be summarised as follows :- 6. PW-4 Anandrao happens to be the father of the deceased Balasaheb. According to him, on 20th January, 1990 in the afternoon, they received a telephonic message from Village Bamani that Vijay was assaulted by the accused persons. PW-4 asked Vijay to wait till he and Rajendra had reached the village. They directed Vijay to report the incident which had occurred at 10.30 a.m. to the police. Then on three different motorcycles they went to the village via. Mangrul. PW-4 asked Vijay to wait till he and Rajendra had reached the village. They directed Vijay to report the incident which had occurred at 10.30 a.m. to the police. Then on three different motorcycles they went to the village via. Mangrul. When they were passing in front of Grampanchayat office, all of a sudden, the accused persons intercepted the motorcycles and mounted assault upon them. It is pertinent to note that according to him, the house of Police Patil is situated on the backside of the Grampanchayat office. He has deposed before the Court that they parked their motorcycles and questioned the assailants the reason for being assaulted, the assailants were not perturbed and continued the assault. In the meanwhile, the two other motor cycles also came on the spot. He has given a pictorial narration to the Court about the overt acts of all the accused persons. He has then deposed that he saw some of the accused lifting Balasaheb and took him away. He then started running towards the East. Balasaheb also escaped from the clutches of the assailants and was trying to follow his father. PW-4 then collapsed near Mari-Ai temple. By that time, Balasaheb had reached there. He was followed by accused Nos. 6 and 8. They assaulted him with axe and chain. After he fell down, the other accused persons mounted assault upon him. He has testified that Balasaheb had died instantaneously. The accused had fled from the spot immediately. He then proceeds to depose that he then reached the place where Balasaheb was lying in a pool of blood. They realised that he had died. Then they went home. He has further stated that Rajendra and Subhash took help of some neighbours and went to the place where the dead body was lying. In the morning they went to the police station to lodge report. Their report is not reduced into writing. However, the police in charge had referred them to hospital as he had seen injuries on their person. Material omissions and contradictions are elicited in the cross-examination of PW-4. In any case, the Sessions Judge has relied upon PW-4 partly and has rightly held that it cannot be inferred from his evidence that he is a witness to the second part of the incident. Material omissions and contradictions are elicited in the cross-examination of PW-4. In any case, the Sessions Judge has relied upon PW-4 partly and has rightly held that it cannot be inferred from his evidence that he is a witness to the second part of the incident. It is pertinent to note that PW-4 has admitted that they had seen the assailants waiting near the Grampanchayat office when they were at a distance of about 4 - 5 feet from the motorcycles. 7. PW-5 Keshav Laxman Shinde has been examined as an independent witness by the prosecution. He was aware that there were differences between the accused on one hand and deceased Balasaheb on the other hand due to Grampanchayat elections and about some other trifling matters. According to him, on 20th January, 1990 at about 10.30 to 10.45 p.m. he was preparing to retire for sleep. He heard sound of motorcycles being abruptly stopped and a commotion had started near the Grampanchayat office. Out of curiosity, he and his brother Shivaji came out of their house. He saw Balasaheb, Anandrao, Sub hash and Vijay and Maruti Sathe were standing there with their motorcycles and that they were being beaten by the accused persons. He had seen the prosecution witnesses and deceased Balasaheb running away from the Grampanchayat office and were being chased by the accused. However, he got scared and therefore returned to his house, closed the door and retired for sleep. On the next day in the morning, he had seen a crowd which had gathered near public latrine and the dad body of Balasaheb was lying in a pool of blood. In the cross-examination, he has stated that the incident had lasted for about 2 - 4 minutes that police had enquired with him on the same day. However, his statement was not recorded to the effect that he had seen the incident. According to him, when he opened the door of his house, he saw the victim being assaulted. He was confronted with his previous statement and he has admitted that he had not seen whether some persons had come running from the adjacent land. However, his statement was not recorded to the effect that he had seen the incident. According to him, when he opened the door of his house, he saw the victim being assaulted. He was confronted with his previous statement and he has admitted that he had not seen whether some persons had come running from the adjacent land. The said portion of his statement is marked as portion "A", it is further elicited in the cross-examination that upon seeing the incident, he had not raised any cry to call for the people residing in the adjoining house and after the incident also he had not approached anybody. It cannot be believed that a person who was acquainted to the family of the deceased would remain so passive throughout the night. In the morning also he had not disclosed the incident to anybody and saw the dead body near the public toilet. At that time, he has also seen the brothers of the deceased near the dead body. The statement of this witness was recorded on the next day. It is doubtful as to whether he had seen the actual assault. According to him, he had only seen the accused persons chasing Balasaheb and others, but had not seen the actual assault upon Balasaheb and, therefore, he could have been a witness only to the incident which occurred in front of Grampanchayat office. 8. PW-6 Rajendra Patil is the complainant and brother of the deceased. He has reiterated the contentions of PW-4 and PW-8 in respect of motive. PW-6 has stated in his examination-in-chief that he had seen his father and brothers running in the eastern direction. He was running behind them. He saw that Balasaheb had escaped from the clutches of the assailants, he was being followed by them. According to him, he himself was injured and, therefore, took shelter near Maruti temple which is at a close distance from the public latrine. He had seen the accused Nos.6 and 8 accosting Balasaheb and assaulting him with chain and axe respectively and thereafter Balasaheb was beaten by the rest of the assailants. The witness was aware that Balasaheb had died on the spot and thereafter the assailants returned to the village locality. He had seen the accused Nos.6 and 8 accosting Balasaheb and assaulting him with chain and axe respectively and thereafter Balasaheb was beaten by the rest of the assailants. The witness was aware that Balasaheb had died on the spot and thereafter the assailants returned to the village locality. After the assailants had left the spot, PW-6 accompanied by Vijay and Subhash went near the dead body of Balasaheb and noticed that he had taken his last breath. Thereafter, PW-6 returned home, only to return to the spot on the next day in the morning at about 9.30 a.m. to approach the police station. 9. In the cross-examination, material omissions are elicited. The specific overt act attributed to the original accused Nos. 6 and 8 is a material omission in the FIR itself. Similarly, the overt acts attributed to the other accused are also material omissions. The fact that PW-6 along with his father and brother had gone near the dead body soon after he had succumbed to the injuries is also a material omission. It is pertinent to note that it was PW6 who had shown the place where his father and brother were lying in an injured condition. PW-6 has described the topography of the place where the dead body of Balasaheb was lying. It is admitted by him in the cross-examination that Balasaheb was initially assaulted near the Grampanchayat office and thereafter he was chased and assaulted. It is also admitted that the assailants had no particular reason to select the deceased Balasaheb to be the victim of their rage. 10. The prosecution mainly relies upon the evidence of eye-witnesses i.e. PW-4 Anandrao Bhausaheb Patil, who is father of the deceased. PW-5 Keshav Laxman Shinde. PW6 Rajendra Anandrao Patil, who is complainant and brother of deceased. PW-8 Vijay Anandrao Patil is also brother of the deceased. The prosecution also relies upon the other circumstantial evidence in the form of recovery panchnama under Section 27 of the Indian Evidence Act, spot panchnama which is at Ex.22 and is proved by PW-1, inquest panchnama which is at Ex.20 and is also proved by PW-1 Mustaq Ahmed Mulla. The injury certificates of PW-8 at Exhibit 51 dated 20th January 1990. The injury certificate of PW-8 at Exhibit 52 dated 21st January 1990 and the injury certificate of PW-4 at Exhibit 53. The injury certificates of PW-8 at Exhibit 51 dated 20th January 1990. The injury certificate of PW-8 at Exhibit 52 dated 21st January 1990 and the injury certificate of PW-4 at Exhibit 53. The prosecution claims that there was a strong motive that the accused caused homicidal death of Balasaheb. This is a case of direct evidence. In any case, motive is a double-edged weapon and cannot be considered as direct evidence unless it is transformed into an action. Hence, we are not considering the evidence of eyewitnesses as alleged by the prosecution at the threshold. 11. PW-8 is the first person who has allegedly interacted with the accused and had called upon the other witnesses to Village Bamani. PW-8 Vijay has deposed before the Court that on 20th January, 1990, he was proceeding towards Vita at about 10.30 a.m. While he was passing from the Grampanchayat office, he was intercepted by accused No.1 and others. They assaulted him with stone on his fore-head and he received bleeding injury on right side of the forehead. He took the help of Baban Ghatage and went to Vita on his motorcycle. He telephonically informed the elder brother at Sangli. He directed to wait til1 their arrival to Vita. He went to the dispensary of Dr. Karande and took treatment. His father and brothers reached Vita at 4.30 p.m. His brother Subhash thereafter came by S.T. Bus. He disclosed the incident to his brothers and then he went to the police station. He was directed by the P.S.O. to go to the hospital. After taking treatment, he returned to the police station at about 9 p.m. His report was reduced into writing. The report is at EX.58. According to him, PSO had directed them to lodge a private complaint in the Court. Upon their request, the P.S.O. issued a private letter to the police Patil and directed him to give warning to the assailants. Thereafter, Vijay accompanied by others went to Village Bamani on three different motor-cycles. Near Grampanchayat office they were intercepted by the accused persons. All the accused persons mounted assault upon them with deadly weapons and fled away. PW-8 has given testimony of arms possessed by the accused and the manner of their assault. He has further testified that in order to escape from the clutches of the assailants, they started running in different directions. Balasaheb followed them. All the accused persons mounted assault upon them with deadly weapons and fled away. PW-8 has given testimony of arms possessed by the accused and the manner of their assault. He has further testified that in order to escape from the clutches of the assailants, they started running in different directions. Balasaheb followed them. He was being chased by the assailants. According to him, he concealed himself near the manure-pit which was adjacent to the house of one Bhagwan Yadav. He saw that accused No.8 Vasant initially gave a blow of axe on the leg of Balasaheb from behind and caused him to fall down. Thereafter, accused Nos. I to 3 reached on the spot and assaulted Balasaheb on his neck with sword, Sattur and sword-stick respectively. The other accused also assaulted Balasaheb and then they left the place. PW-8, his father of PW-4 Anandrao, his brother PW-6 Rajendra and Maruti Sathe went near the dead body and saw that Balasaheb had succumbed to the injuries and was lying in a pool of blood. Maruti Sathe returned to his home. Others also went home by autorickshaw which was standing nearby. Early in the morning, he came to Vita and informed about the incident to the police. Police had not reduced into writing immediately and instead referred them to the hospital as they were injured. 12. In the cross-examination, PW-8 has admitted that he had informed Dr. Karande that he had sustained the injuries by stone as he had fallen in the well. In fact, there was no need for PW-8 to mislead Dr. Karande. 13. In respect of topography of the scene of offence, PW-8 has deposed before the Court that there is a shop and residential house of Dattatraya Sankpal on the northern side of the spot of incident and adjacent to it there is a lane. He had not entered the land. In his previous statement, PW-8 had disclosed to the police that accused Nos. 2 and 3 are managing the business of Vinayak Transport at Sangli. However, he has denied to have stated so and hence the contradiction is marked as portion marked "A". PW-8 has denied that Rajendra had reached in front of Grampanchayat office on his motor cycle soon after Balasaheb. He was confronted with his previous statement in which he had stated that his motorcycle was going side by side to that of Rajendra. PW-8 has denied that Rajendra had reached in front of Grampanchayat office on his motor cycle soon after Balasaheb. He was confronted with his previous statement in which he had stated that his motorcycle was going side by side to that of Rajendra. He has denied to have stated so and hence the said portion is marked as portion marked "B". PW-8 was confronted with his previous statement in which he had disclosed that he had entered into the lane adjacent to the house of Sankpal. The said portion is marked as "C". Similarly, in his previous statement, there is no mention of the manure-pit behind which he had concealed himself. There is an omission about the weapon with which accused no.2 was armed. The portion marked "D" in the evidence of PW-8 is to the effect that he went home and there he met Rajendra and his father. He has categorically deposed before the Court that the entire episode lasted for about 2 to 3 minutes from the time of first assault till they gathered around the dead body and thereafter they had been to their house from the front side of the Grampanchayat. He admits that they had not raided any hue or cry. Early in he morning they had taken the same road to go to the police station and had crossed the Grampanchayat. According to him, they had seen his brothers were standing near the dead body and there were 2/3 villagers. He straightaway went to the police station and lodged a report. His mother halted at the police station. The police had referred PW-8 and his father PW -4 Anandraso to the hospital. 14. PW-8 has admitted before the Court that when the incident took place near the Grampanchayat office, in the morning, he knew that Rajendra was in the agricultural land. According to him, the police officer who had scribed his report at Ex.58 had not informed him that a complaint was lodged against them about the same incident. According to PW-8 assault took place after the motor-cycles were intercepted. He has further narrated that when he escaped from the clutches of the assailants, he started running towards the east. However, he used to turn behind in order to ascertain whether he was bing chased and at that time he had seen that his brothers, including deceased Balasaheb was being assaulted by the assailants. He has further narrated that when he escaped from the clutches of the assailants, he started running towards the east. However, he used to turn behind in order to ascertain whether he was bing chased and at that time he had seen that his brothers, including deceased Balasaheb was being assaulted by the assailants. It is pertinent to note that PW-8 has stated in cross-examination that in the night although they knew that Balasaheb had died instantaneously, he and his father did not feel like going to the same place because Balasaheb had died. This is not only an unnatural conduct but it does not appeal to reason nor prudence. That previously when they knew Balasaheb is dead, his father and brother did not visit the spot nor informed about the same to anybody in the vicinity. Strangely enough, PW-8 and his father PW-4 Anandrao did not go to the hospital also to see the dead body. The mother of PW-8 also had not been to the spot to see the dead body of her son. Hence, the evidence of PW-8 Vijay does not inspire the confidence of the Court. The Sessions Judge has also held that Vijay is not witness to the second part of the incident and he has only proved the first part of the incident. 15. At this juncture, it is necessary to discuss the spot panchnama which is at Exhibit 22. The prosecution witness No.1 Mustak Mulla was a panch to the spot panchnama and has proved the same. He has deposed before the Court that PW-6 Rajendra Patil had showed the place of incident which was in front of the Grampanchayat office and also the place which is inside the office. He has deposed before the Court that the Grampanchayat office consists of two rooms. It was noticed that in the front room, 2/3 stones were lying, in the rear room, there was a cot and an empty bottle of liquor was lying on the spot. A pair of abandoned chappels was also found in the rear room. In the courtyard abutting the front room of Grampanchayat office; two motor-cycles were lying in a damaged condition. The seats were torn, the head-lights were broke and the lid of petrol tank was removed. There were blood stains on the platform of the verandah. Chocolate colour regzin bag and one cap was found in the verandah. In the courtyard abutting the front room of Grampanchayat office; two motor-cycles were lying in a damaged condition. The seats were torn, the head-lights were broke and the lid of petrol tank was removed. There were blood stains on the platform of the verandah. Chocolate colour regzin bag and one cap was found in the verandah. PW-6 Rajendra Patil had informed the police and the panchas that the said articles belonged to his father. None of the eyewitnesses have deposed before the Court in their substantive evidence that anyone of them, including PW-4 Anandrao had actually entered into the Grampanchayat office or any untoward incident had occurred inside the office. Therefore, finding of blood stain and the articles belonging to PW-4 inside the Grampanchayat office would lead to an inference that the prosecution witnesses have suppressed the genesis of the incident. PW-6 Rajendra Patil has neither stated in the FIR nor in his substantive evidence that his father had entered into the Grampanchayat office or that anyone was assaulted there. At the time of spot panchnama the police had also found three shirt buttons lying on the motorcycle. It was pointed out by PW-6 that the dead body was lying at a distance of 250 to 300 feet from the Grampanchayat office. Therefore, the narration that the victim had escaped from the clutches of the assailants and had gone a long distance is falsified. The spot panchnama also reveals as follows :- "The place of the offence is in the grampanchayat office in Bamani v village and 270 feet, distance on the eastern side." Finding of an empty liquor bottle of Aristocrat brand a pair of chappel near spot also indicates that PW-4 was in the office room of the Grampanchayat. The bag, cap and chappels of PW-4 were found inside the Grampanchayat office. The blood stains on wooden cot were also found in the room abutting the office of the Grampanchayat. The place where the dead body was found is near the public latrine. At a distance of 92 feet, there are residential houses. Mari-A1 temple is close-by. The prosecution has not examined any witness residing in close proximity of the place where the dead body was found lying. The mother of deceased Balasaheb had accompanied Rajendra to Vita. They had crossed the same road. At a distance of 92 feet, there are residential houses. Mari-A1 temple is close-by. The prosecution has not examined any witness residing in close proximity of the place where the dead body was found lying. The mother of deceased Balasaheb had accompanied Rajendra to Vita. They had crossed the same road. However, she had also not noticed that her son was lying dead near the public toilet. In fact PW-6 has deposed before the Court that he had informed his family members that Balasaheb had died and they all had started crying but no one intended to go and see the deceased. It is not their case that they were afraid of assailants. 16. The map of scene of offence is at EX.62 which shows that the dead body was lying on the opposite side of the Grampanchayat. On the intervening road, there is a primary school, a gymnasium, a hotel, a Montessary school, Sidheshwar Temple. The road leading to Vita runs north-south between the buildings and the Maria-A1 temple. The dead body was lying on the old road. 17. It is the contention of the prosecution witnesses that they had to cross the old road to reach to the police station. Hence, it can be inferred that they would have to cross the place where the dead body was lying in order to reach to the police station. The very fact that PW-8 has admitted that he had knowledge that Rajendra was in the agricultural land when the incident took place near the Gram Panchayat office in the morning, the most natural conduct would be to call upon Rajendra and inform him, instead PW-8 called upon his father and brother from Sangli. 18. The impugned judgment can be summed up as under :- (a) PW-8 Vijay was assaulted by the present appellants on 20th January, 1990 at about 10.30 a.m. He telephonically informed and called upon his father and brother who came to Village Bamani. (b) On the same day, at night at about 9 p.m., Vijay returned to the police station and lodged a report of the incident to the police which is at Exhibit 58. He was directed by the PSO to file private complaint or inform the Police Patil. Vijay met Rajendra, Maruti Sathe, Balasaheb, his father and one Bachu were passing from front of the Gram Panchayat office. He was directed by the PSO to file private complaint or inform the Police Patil. Vijay met Rajendra, Maruti Sathe, Balasaheb, his father and one Bachu were passing from front of the Gram Panchayat office. The accused/appellants intercepted their motor-cycles and assaulted them on the road. The prosecution witnesses abandoned their motor-cycles and escaped from the clutches of assailants. They were chased by the assailants and in the said course, the prosecution witnesses, more particularly the eye-witnesses, had witnessed the assault on the deceased Balasaheb by accused Nos. 6, 8 and others. (c) The eye-witnesses are the blood relations of the deceased Balasaheb. They saw that Balasaheb had succumbed to the injuries instantaneously and was lying in a pool of blood. (d) They went to their house by an autorickshaw which was standing in close proximity. (e) Early in the morning, PW-8, accompanied by his mother, came to Vita in the said autorickshaw. (f) They informed the incident to the police, but the police referred them to the hospital as they were injured. (g) PW-6 Rajendra Anandrao Patil lodged a report at Vita Police Station on 21st January, 1990 at 9.30 a.m. and narrated the entire incident. (h) The spot panchnama was conducted on 21st January, 1990 between 1 p.m. to 3 p.m. The spot of incident was shown by PW-6 Rajendra Patil. He had shown to the police and the panchas the rear room of the Gram Panchayat office. They had seized one liquor bottle, one pair of Sandel, a white cap, three nylon blood stained buttons and an empty rexin bag. PW-6 Rajendra identified the said articles as they were belonging to his father. The investigation was set in motion. (i) The accused were arrested on 4th June 1990, 6th June, 1990 and 8th June, 1990. (j) There was a recovery of incriminating articles at the instance of the accused which were seized from their houses (k) Police Head Constable Madane had searched the house of the accused immediately after the post mortem and panchnama was prepared. It is admitted by the Investigating Officer that no incriminating article was reported to have been found during the search taken by the Police Head Constable Madane. 19. The Investigating agency has not filed any document/case diary on record to demonstrate that the accused were searched for. Hence, the investigating agency was unable to establish that the accused were absconding. It is admitted by the Investigating Officer that no incriminating article was reported to have been found during the search taken by the Police Head Constable Madane. 19. The Investigating agency has not filed any document/case diary on record to demonstrate that the accused were searched for. Hence, the investigating agency was unable to establish that the accused were absconding. The very fact that the houses of the accused were searched in their absence would go to show that the recovery at the instance of the accused from their respective houses would lose the significance. 20. The conduct of the eyewitnesses would not inspire confidence that they had really witnessed the incident. 21. The learned APP has submitted that the very fact that the accused could not be arrested for six months is sufficient to hold that they were guilty and therefore could not be traced by the police. Unless and until the prosecution is able to establish by cogent material that the accused were searched for and yet could not be found, it cannot be held that they were absconding. 22. The learned Counsel appearing for the appellants have rightly submitted that the testimony of the eye-witnesses is not a sterling testimony. The evidence of eyewitnesses has to be weighed and not counted. The conduct of the eye-witnesses is such that it leads to the conclusion that they have suppressed the genesis of the incident. 23. On appreciation of the evidence of the eye-witnesses, we agree with the submissions of the learned Counsel appearing for the appellants that the prosecution witnesses have not only suppressed the genesis of the incident but have misled the investigating agency in order to substantiate their allegations their evidence would further show that they were seeking satisfaction of their personal vendetta. The prosecution case is suffering from the vice of suppressio veri on material point. Hence, we are of the opinion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. 24. There is no doubt that Balasaheb had died a homicidal death. What needs to be appreciated is as to whether the prosecution has adduced sufficient, cogent, convincing and reliable evidence to prove to the hilt that the present appellants are the authors of the injuries sustained by deceased Balasaheb and that they are the perpetrators of the crime. 24. There is no doubt that Balasaheb had died a homicidal death. What needs to be appreciated is as to whether the prosecution has adduced sufficient, cogent, convincing and reliable evidence to prove to the hilt that the present appellants are the authors of the injuries sustained by deceased Balasaheb and that they are the perpetrators of the crime. The prosecution has failed to bring home the guilt to the accused. 25. Hence, we pass the following order :- (a) Criminal Appeal Nos. 211 of 1992 and 217 of 1992 are hereby allowed. The conviction and sentence of accused Nos.1 to 8 under the impugned judgment and order dated 20th February, 1992 is hereby quashed and set aside and the said accused are acquitted of the offences alleged against them. (b) The fine amount, if recovered, shall be refunded to the accused persons. (c) The Bail bonds of accused Nos. 1 to 8 are hereby cancelled. (d) Criminal Appeal No.276 of 1992 is hereby dismissed. The order of acquittal of accused No.9 under the impugned judgment and order dated 20th February, 1992 is upheld. (e) The Bail bond of accused No.9 stands cancelled. Appeal allowed.