JUDGMENT M.T. Joshi, J. 1. Heard both sides. Aggrieved by the judgment and order passed by learned IIIrd Addl. Sessions Judge, Jalgaon dated 16th March, 1994 in Sessions Case No. 116 of 1993 recording acquittal of all the accused i.e. present respondents, for the offences punishable under Section 302 read with 34 of Indian Penal Code, the State has preferred present appeal. 2. During pendency of the present appeal, the appellant - State filed the Death Certificates as well as the police reports, which would show that respondent No. 1 - Arjun Narayan Shirsale and respondent No. 3 - Champu Moti Sapke have died. The appeal is, therefore, survived only to the extent of respondent No. 2 - Suresh Dhondu Shinde (Panchal). Besides these respondents, one more accused namely, Narayan Keshav Shirsale was arrayed as accused No. 1. The allegations against him were of abetting commission of the offence by giving certain direction at the time of the incident. Though he is acquitted, it appears that no appeal is filed against the said acquittal. Present deceased respondent No. 1 - Arjun was accused No. 2; the surviving respondent No. 2 - Suresh was accused No. 3; and deceased respondent No. 3 - Champu was accused No. 4 before the learned Sessions Court. For the sake of convenience, these respondents would be referred as accused, as termed in the Sessions Court. 3. The prosecution case, in short, is as under:- That, deceased Shalik Sitaram Sonwane along with complainant P.W. 2 Kailas Goba Koli and another eye witness P.W. 6 - Subhash Onkar Thakare were playing the card game of Rummy at about 3:30 p.m. on 26th December, 1992, on a footpath in front of one Vishal Tea Stall opposite Bhikamchand Jain Market, Jalgaon. For that purpose, they had obtained a small wooden table (stool) from Vishal Tea Stall. The complainant P.W. 2 - Kailas was facing towards west, P.W. 6 - Subhash was facing east and deceased - Shalik was facing northern side. Suddenly, accused No. 2 - Arjun, accused No. 3 - Suresh and accused No. 4 - Champu came running from the backside of the complainant. Accused No. 2 - Arjun was holding sword; he gave three blows of the sword on the right side of the neck of the deceased - Shalik. Suddenly, accused No. 2 - Arjun, accused No. 3 - Suresh and accused No. 4 - Champu came running from the backside of the complainant. Accused No. 2 - Arjun was holding sword; he gave three blows of the sword on the right side of the neck of the deceased - Shalik. While deceased - Shalik, in bleeding condition, attempted to rise, at that time, accused No. 4 - Champu started assaulting him with a long knife while, accused No. 3 started assaulting with a sword on the person of the deceased. Deceased - Shalik attempted to run away, however, at a short distance, he fell on the ground. Thereafter, all these three assailants continued their assault. At that time, accused No. 1 - Narayan was standing at the footpath near Kalika Mata temple, which was at the backside of the tea stall. He was giving signal to all he three assailants to attack on the deceased. As the deceased finally fell on the ground, accused No. 1 - Narayan gave a signal to all the three assailants, to run away and accordingly, all the three assailants, with their weapons, ran away. The complainant P.W. 2 - Kailas, shouted in order to collect the people. Thereafter, one Datta Sonawane, Gokul Baba (brother of the deceased), Patil, P.W. 6 - Subhash and P.W. 2 - Kailas, complainant took the deceased, in a rickshaw, to the Civil Hospital, however, by the time they reach the hospital, the deceased had already died. In the circumstances, the complaint came to be filed at 4:30 p.m. In the meantime, P.W. 10 - Khan Gulam Wahed, Police Inspector of Zilla Peth Police Station, Jalgaon, who was the Investigating Officer in the present case, was informed that deceased Shalik was assaulted by the said assailants and his dead body was being carried to the Civil Hospital and a mob has gathered there. Therefore, he went to the Civil Hospital, Jalgaon; recorded complaint of P.W. 2 - Kailas at Exhibit 38 and started further investigation. The inquest panchnama was carried out and the provisional certified cause of death was passed by the Medical Officer. The Investigating Officer along with the panch witnesses visited the spot and prepared panchnama of spot of occurrence (Exhibit 36). He found that blood was lying on the ground and the sample of the same was collected. The inquest panchnama was carried out and the provisional certified cause of death was passed by the Medical Officer. The Investigating Officer along with the panch witnesses visited the spot and prepared panchnama of spot of occurrence (Exhibit 36). He found that blood was lying on the ground and the sample of the same was collected. Certain shoes and footwear's were lying on the spot, which were also seized. Thereafter, statements of witnesses were recorded. Accused No. 1 - Narayan was arrested on the same day. Rest of the accused, however, absconded. On receipt of information, the Investigating Officer arrested the rest of the accused i.e. assailants on 29th December, 1992 and ultimately, after making investigation, the charge sheet came to be filed. 4. Before learned Sessions Judge, in all, ten witnesses were examined. P.W. 2 - Kailas Goba Koli, complainant; P.W. 4 - Kishor Ramesh Baviskar, nephew of the deceased; P.W. 5 - Sunil Govinda Sonawane, Pan Stall operator in the vicinity; and P.W. 6 - Subhash Onkar Thakare, eye witness mentioned in the F.I.R., were examined besides other witnesses. Rest of the witnesses were P.W. 1 - Hiralal Jivram, panch, in whose presence the spot panchnama was prepared at Exhibit 36; P.W. 3 - Rajendra Patil, in whose presence, all the assailants made statements leading to the discovery of the respective weapons used in the offence by them, as detailed in the F.I.R. He, accordingly, proved the panchnamas in this regard except, the panchnama regarding discovery of the weapon by the present surviving accused No. 3 - Suresh, as the same, according to learned Sessions Judge, was not proved. P.W. 7 Dr. Kartarsing Pardeshi was examined to show that on the date of the incident, in the evening, the present surviving accused No. 3 had got himself admitted in the hospital voluntarily, impersonating himself as one Suresh Pawar in order to avoid his arrest. P.W. 8 - Dr. Shivraj Namdeo Gaikwad has performed autopsy on the dead body of the deceased and issued post mortem examination note at Exhibit 30. P.W. 9 - Police Constable - Pundlik Soma Khairnar was examined to show that on the day of the incident, he was on his duty in the Police Chowki in the vicinity of the spot of occurrence and therefore, upon hearing shouts, he immediately, went to the spot of occurrence. P.W. 9 - Police Constable - Pundlik Soma Khairnar was examined to show that on the day of the incident, he was on his duty in the Police Chowki in the vicinity of the spot of occurrence and therefore, upon hearing shouts, he immediately, went to the spot of occurrence. He was examined to show that he had seen the assailants running away from the place of occurrence. P.W. 10 - Khan Gulam Wahed has conducted the investigation in the crime. 5. All the eye witnesses gave identical versions regarding the assault. All of them stated that when all the three assailants came to the spot of occurrence, accused No. 2 - Arjun, initially, gave three blows of sword over the neck of the deceased and thereafter, two other assailants, as detailed supra, joined in the assault. 6. The post mortem note at Exhibit 30 shows that the deceased has suffered thirty external injuries over his body including, three incise wounds on his neck. The details of the external injuries are as under:- (1) Incised wound, oblique above downwards 3" x bone deep behind (rt.) ear. (2) Incised would horizontal to (Rt.) ear 3.5" in length bone deep along with (Rt.) ear cut pina. (3) Incised wound in front of neck at the level of tracheal cartilage 1" length. (4) Incised would land 1/2" oblique bone deep on lateral aspect of the middle of the (rt.) arm. (5) Incised wound 1" x bone deep in front of injury No. (4) (Rt.) arm. (6) Incised wound 1" x bone deep anterior and above the injury No. (5). (7) Incised wound 1" x bone deep lateral aspect of the (Rt.) forearm upper 1/3. (8) Incised wound 1" x bone deep x 2" mesial aspect of the (Rt.) elbow. (9) Incised wounds four in numbers 1" length each in (Rt.) axilla). (10) Penetrating incised wound 1" x chest deep transverse on 6th inter-costal region on (Rt.) side below breast. (11) Incised wound 1" x bone deep lateral to the 10th injury transverse. (12) Penetrating incised wound 1" in length medial to the injury No. (11). (13) Penetrating incised wound 1" x 1/2 in gastric region. (14) Penetrating incised wound 1" in length in 8th intercostal on (Rt.) lid axillary line. (15) Incised wound 1" x muscle deep oblique in 6th intercostal space on posterior axillary line (Rt). (12) Penetrating incised wound 1" in length medial to the injury No. (11). (13) Penetrating incised wound 1" x 1/2 in gastric region. (14) Penetrating incised wound 1" in length in 8th intercostal on (Rt.) lid axillary line. (15) Incised wound 1" x muscle deep oblique in 6th intercostal space on posterior axillary line (Rt). (16) Incised wound two in numbers 1" each x muscle deep above anterior iliac crest (Rt.). (17) Penetrating incised wound 1" length on 9th intercostal space 1" lateral to the (Lt.) side of the xiphisternum. (18) Penetrating incised wound 1" in length in 9th intercostal on anterior axillary (Lt.) side. (19) Penetrating incised wound 1" and 1/2" in length in (Lt.) iliac fossa. (20) Incised wound 1/2" on (Lt.) shoulder muscle deep. (21) Incised wound 2 and 1/2" length at the base of the (Lt.) thumb bone deep. (22) Incised wound 2" in length x bone deep above down words on dorsal aspect of the (Lt.) hand. (23) Incised would on thinner eminence of (Lt.) palm 1" in length. (24) Incised wound 1" x bone deep on (Lt.) inguinal region. (25) Incised wound oblique, medial aspect of the upper 1/3 thigh 1" in length x muscle deep. (26) Incised wound near the injury No. (25) oblique 1" in length muscle deep. (27) Incised wound 1/2" x muscle deep transverse lateral aspect of the thigh upper 1/3 (Lt). (28) Penetrating incised wound land 1/2" transverse on (Lt) lumber region. (29) Penetrating incised wound 1" in length oblique on (Rt.) lumber region. (30) Incised wound 1" x muscle deep oblique lateral aspect of the middle of the (Rt.) thigh. In the circumstances, the opinion as to, the probable cause of death was given as hemorrhagic shock due to all these injuries. 7. Learned Sessions Judge, however, did not believe the prosecution witnesses and more particularly, the versions of all the four eye witnesses, for the reasons forwarded by him. He further found that some of the material witnesses were not examined and therefore, all the accused came to be acquitted. 8. Learned A.P.P. Mr. S.R. Palnitkar, for appellant - State, submitted that learned Sessions Judge did not take into consideration that the incident had occurred in broad day light in the city and four eye witnesses had deposed by giving graphic details of the assault. 8. Learned A.P.P. Mr. S.R. Palnitkar, for appellant - State, submitted that learned Sessions Judge did not take into consideration that the incident had occurred in broad day light in the city and four eye witnesses had deposed by giving graphic details of the assault. He submitted that learned Sessions Judge did not appreciate the evidence in proper spirit and took a very technical view of the matter. He took us through the record and by commenting on each and every aspect of the matter, submitted that present surviving accused No. 3 - Suresh be convicted for the offence, by reversing the judgment and order of the learned Sessions Judge. 9. On the other hand, Mr. S.M. Godsay, learned counsel for respondent No. 2 i.e. surviving accused No. 3, submitted that the material on record would clearly show that none of the alleged eye witnesses was, in fact, eye witness to the incident. Therefore, he submitted that the appeal be dismissed. He further submitted that the present appeal, being an appeal against the acquittal recorded by learned Sessions Judge wherein, all the evidence on record is minutely considered and by giving reasons, a probable view has been taken by learned Sessions Judge, the same may not be allowed. 10. On the basis of the material on record, following point arises for our determination:- Whether, the prosecution has proved that on 26th December, 1992, all the accused, in furtherance of their common intention, at about 3:30 p.m., near Bhikamchand Jain Market, Jalgaon, have committed murder of the deceased? Our answer to the above point is in negative and the appeal is dismissed for the reasons to follow. REASONS 11. There is no dispute that the deceased has met with a homicidal death in view of the admitted post mortem note at Exhibit 30 coupled with the deposition of the Medical Officer, as detailed supra. The issue is whether, the accused, including the present surviving respondent No. 2, have committed the said offence or not. The panchnama of spot of occurrence at Exhibit 36 coupled with the map at Exhibit 34, would reveal following situation at the spot. 12. The complex of Bhikamchand Jain Market, Jalgaon, ends at the northern side. Immediately thereafter, in between shop Nos. 42 and 43, where the incident has occurred, a table was seen placed. Towards northern side of the table, said Vishal Tea Stall was there. 12. The complex of Bhikamchand Jain Market, Jalgaon, ends at the northern side. Immediately thereafter, in between shop Nos. 42 and 43, where the incident has occurred, a table was seen placed. Towards northern side of the table, said Vishal Tea Stall was there. Towards the eastern side, at some distance, temple of Kalimata was situated. At some distance away from the said temple, opposite to the spot, the police chowki, was situated. The Pan stall, from where, P.W. 5 Sunil claims to have seen the incident, was opposite to the tea stall and there was a road between the hotel and said Pan stall. 13. Although, it is a case of the prosecution that P.W. 4 - Kishor, a fourteen years old boy, is, admittedly, nephew of the deceased; and P.W. 2 - Kailas and P.W. 6 - Subhash claimed that they were merely having acquaintance with the deceased, their cross-examination, however, would show that they were more than interested witnesses in the case. It has become an admitted fact during the trial that deceased - Shalik was elected as Municipal Councilor soon preceding the incident. P.W. 2 - Kailas, complainant, was working as Contractor with the Municipal Council. He, however, denied that he had any monetary relationship or partnership with the deceased. He denied that the deceased was facing many criminal cases and some of them are for murder also. He admitted that his own name was recorded in the police station as a history-sheerer. He was one of the accused in the alleged murder of one Raju Wadkar and was released on bail in the said crime as the prosecution/police did not object for his enlargement on bail. The other accused were not released on bail in that case, even at the time of entry of this person as witness in the present case, after two years. Therefore, there is a suggestion that due to allurement from the police, he was made eye witness/complainant in the present case. As already pointed out, this witness denied about any intimacy with deceased. 14. P.W. 4-Kishor, nephew of the deceased, however, was very specific in stating that P.W. 2 - Kailas as well as another eye witness P.W. 6 - Subhash were so intimate with the deceased that the witness used to call them as uncle (Kailasmama and Subhashmama), like his deceased uncle Shalik. 15. 14. P.W. 4-Kishor, nephew of the deceased, however, was very specific in stating that P.W. 2 - Kailas as well as another eye witness P.W. 6 - Subhash were so intimate with the deceased that the witness used to call them as uncle (Kailasmama and Subhashmama), like his deceased uncle Shalik. 15. P.W. 10-Khan Gulam Waned, Investigating Officer, in cross-examination, has given details regarding the criminal cases pending against the deceased and P.W. 2 - Kailas. When the question was put to him regarding not claiming police custody of P.W. 2 - Kailas, even for a day, in a murder case against P.W. - Kailas, he was cautious in saying that he did not know about the same. 16. P.W. 2-Kailas, P.W. 4-Kishor and P.W. 6 - Subhash have specifically deposed that all the assailants came from the side of Kalimata temple, which lies towards the eastern side of the spot of occurrence. P.W. 5 - Sunil, who was running a Pan stall opposite Vishal Tea Stall and the spot of occurrence, has deposed that all the assailants came by an auto rickshaw which, first, passed from the spot of occurrence while deceased Shalik was facing towards the road. This witness was also specific in stating that said auto rickshaw was open from both sides and it went ahead for certain distance and therefrom, after stopping it, the assailants returned back to the spot of occurrence. 17. While we have already noted about the interest in the present case of the two eye witnesses i.e. P.W. 2 - Kailas and P.W. 4 - Kishor, the another eye witness P.W. 5 - Sunil, though cited as an independent watcher of the incident from the Pan Stall, in cross-examination, stated that the said Pan Stall was actually owned by the brother of the deceased - Shalik and since this witness was of eight years of age, it was given to him by said brother, on rent. 18. P.W. 4 - Kishor, the nephew of the deceased, deposed that he watched the incident from the pan stall opposite the road. Before police, however, he, admittedly, stated that he was sitting on a bench in the hotel i.e. just adjacent to the spot of incident. 19. 18. P.W. 4 - Kishor, the nephew of the deceased, deposed that he watched the incident from the pan stall opposite the road. Before police, however, he, admittedly, stated that he was sitting on a bench in the hotel i.e. just adjacent to the spot of incident. 19. The last eye witness i.e. P.W. 6 - Subhash Thakre, during cross-examination, deposed that he was one of the witnesses in Sessions Case No. 9 of 1987 regarding murder of one Pradip Dhotre. He deposed that he did not know that deceased - Shalik was one of the accused in said sessions case. He was specific in stating that deceased Shalik was not his friend and he knew him only casually. He further deposed that the deceased was introduced to him and nothing more. However, we have already noted the cross-examination of P.W. 4 - Kishor, nephew of the deceased who, categorically, in examination-in-chief, has deposed that both P.W. 2 - Kailas as well as P.W. 6 - Subhash were so intimate with his deceased uncle that he used to call them as uncle (Kailasmama and Subhashmama). 20. The most blatant material on record is the version of P.W. 9 - Pundlik Soma Khairnar, Police Constable. According to him, he was on fixed duty at the concerned police outpost, which is about two buildings away from the spot of occurrence on the same road. At that time, he was in his Khaki uniform. At about 3:30 pm., while he was in the police out post, he heard some hues and cries and that people were seen running from the spot of occurrence. Therefore, he along with his companion Police Constable Manoj, proceeded to the spot. On reaching near Kalimata temple, they found that the assailants were running away in a rickshaw bearing registration No. MH-19-3305 and they were armed with weapons. This witness is specific in saying that at the spot of occurrence, he found that the deceased was lying on the ground and P.W. 2 - Kailas, complainant along with 5-6 persons were there. He made inquiry with all these persons and came to know from P.W. 2 - Kailas about the details of the incident. Thereafter, in presence of this witness, the dead body of the deceased was taken to the Civil Hospital by P.W. 2 - Kailas and others. He made inquiry with all these persons and came to know from P.W. 2 - Kailas about the details of the incident. Thereafter, in presence of this witness, the dead body of the deceased was taken to the Civil Hospital by P.W. 2 - Kailas and others. As against this, P.W. 2 - Kailas was specific regarding the version, which is reproduced as under:- ".... I do not agree with you that, in the said outpost police chowki, there is always one Head Constable and one Constable for duties. I had not seen any police Constable or Head Constable till we took the deceased Shalik upto the doors of Civil Hospital. Jalgaon." 21. While P.W. 9 - Pundlik was specific in stating that the playing cards were seen thrown helter-skelter with blood stains on them at the place of occurrence, the prosecution case is that no such cards were found, either blood stained or otherwise. According to the prosecution, only the ground was found having pool of blood, without any blood stains at any other place including, the table (stool) on which the deceased was sitting. 22. While P.W. 5 - Sunil, Pan Stall Operator, deposed that there were many other customers at Vishal Tea Stall waiting for tea and at his stall for having betel nuts, however, none of them is examined as eye witnesses to the incident than the present eye witnesses. P.W. 5 - Sunil further deposed during the cross-examination that, two companions of the deceased i.e. P.W. 2 - Kailas and P.W. 6 - Subhash, ran away as soon as the assault started on the deceased. One the other hand, these witnesses claimed that after the assault, the assailants ran away and thereafter, they took the deceased to the hospital. 23. It is, thus, seen that while P.W. 2 - Kailas rules out the presence of P.W. 9 - Pundlik, Police Constable, immediately after the incident. P.W. 9 - Pundlik, categorically, states that he had come at the spot of occurrence immediately after the incident and even P.W. 2 - Kailas had told him about the incident. Thus, these witnesses caste a serious doubt about presence of each other on the spot of occurrence. 24. P.W. 9 - Pundlik, categorically, states that he had come at the spot of occurrence immediately after the incident and even P.W. 2 - Kailas had told him about the incident. Thus, these witnesses caste a serious doubt about presence of each other on the spot of occurrence. 24. While P.W. 5 - Sunil, Pan Stall Operator, as already pointed, deposed that the companions of the deceased immediately ran away from the spot as soon as the assault started, the statements of these persons i.e. P.W. 2 - Kailas and P.W. 6 - Subhash, are to the effect that the assailants ran away and thereafter, they took the deceased in an auto rickshaw to the hospital. Conspicuously enough, though there were several bleeding injuries to the deceased, no blood stained cloth of any of these witnesses was seized by the Investigating Officer. 25. In the light of these glaring defects, learned Sessions Judge has, further, minutely, appreciated the evidence on record. While appreciating the statements of all the four eye witnesses, learned Sessions Judge was very well aware that he was rejecting the evidence of these four eye witnesses and he has, specifically, observed that he was very cautious while marshaling the evidence of these four eye witnesses. 26. In the circumstances, when a reasonable and probable view has been taken by learned Sessions Judge, in the present appeal against the acquittal, no interference in the conclusion, is warranted. Mr. Godsay repeated this proposition by relying on the case of Umedbhai Jadavbhai Vs. The State of Gujarat, 1978 Cri.L.J. 489 (1) S.C. In this view of the matter, the following order:- (i) Criminal Appeal is, hereby, dismissed. (ii) Bail bond of respondent No. 2 herein, stands canceled. Appeal dismissed