JUDGMENT : B.P. Dharmadhikari, J. 1. The Additional Sessions Judge, Wardha as on 28/05/2014 found the appellants guilty of offences punishable under Sections 342 and 302 read with Section 34 of the Indian Penal Code, they are sentenced to undergo life imprisonment. They have been also sentenced under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act' for short) read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for ten years. 2. The prosecution case in brief is, relative Sushila of deceased Ganesh filed complaint that appellant Nos. 1 and 2 along with juvenile offender tied Ganesh and severely assaulted him throughout the night thereby causing his death. He belonged to 'Gond' community, which is recognised as Scheduled Tribe. 3. We have heard Shri R.P. Thote, learned Counsel for the appellants and Shri R.S. Nayak, learned A.P.P. for the respondent-State. 4. Shri Thote submitted that there is absolutely no evidence against appellant No.2 Roshan, who is son of appellant No.1. He further contended that even evidence against appellant No.1 Subhash is inconsistent and, therefore, unacceptable. He has also invited our attention to the postmortem to urge that injuries therein are caused by several people. In support of his contention, he has taken us through the relevant evidence. The learned A.P.P. on the other hand has submitted that the evidence of PW-2 Sushilabai Uike as also PW-5 Indirabai Wankhede shows that they have seen accused persons tying and beating Ganesh. He has further submitted that there are other witnesses, who pointed out appellant No.1 as person responsible for the injuries sustained by deceased Ganesh. He has also placed reliance upon recovery under Section 27 of the Indian Evidence Act at the instance of appellant No.1. 5. Defence of the appellants that public had tied and beaten Ganesh is also read out by him in an attempt to explain how it is inconsistent with the material on record. The evidence of Doctor on injuries sustained by Ganesh is pressed into service to show the intention to kill. 6. Shri Thote, in reply, submits that the evidence of PW-2, PW-3 and PW-5 is unnatural. In alternate, he adds that Ganesh was insane and had misbehaved with wife of appellant No.1 and, therefore, appellant No.1 was enraged. 7. The evidence of Doctor on injuries sustained by Ganesh is pressed into service to show the intention to kill. 6. Shri Thote, in reply, submits that the evidence of PW-2, PW-3 and PW-5 is unnatural. In alternate, he adds that Ganesh was insane and had misbehaved with wife of appellant No.1 and, therefore, appellant No.1 was enraged. 7. After hearing respective Counsel for the parties, we find that there is no caste angle to this offence. Ganesh is claimed to be insane and he had entered the house of appellant No.1 Subhash, though there is effort to demonstrate that he misbehaved with wife of Subhash, it is not substantiated by evidence on record. Because of his conduct, he was tied to a pole and then beaten. There is nothing on record to show that he was assaulted on account of his caste. The conviction of the appellants under Section 3(2)(v) of the Atrocities Act read with Section 34 of the Indian Penal Code, therefore, cannot stand. 8. The evidence of PW-2 Sushilabai shows that deceased Ganesh Uike was her brother-in-law and he suffered the ailment of fits. Incident took place at about 08:30 p.m. on 28/04/2012. Ganesh had pelted one stone at the house of accused Subhash. Subhash then took Ganesh to one cement pole and tied him with the help of rope and cable wire. He then assaulted Ganesh with stick and iron rod again and again. Ganesh was pleading not to beat him, but Subhash did not pay any attention to him. Subhash gave threats to other persons not to intervene. He threatened to kill with knife those, who intervened. According to this witness, Rekha, wife of Ganesh had gone out of station. Witness Sushilabai gave her a call at about 04:00 a.m. on 29/04/2012 and Rekha returned at 08:00 a.m. Then, both of them went to police station. 9. Her cross-examination reveals an admission that Ganesh was not mentally fit and had entered the house of accused Subhash and broken some articles in his house. She also states that Subhash appellant No.1 himself had given call to police station and asked them to come to the spot immediately. She did not inform police about the incident. 9. Her cross-examination reveals an admission that Ganesh was not mentally fit and had entered the house of accused Subhash and broken some articles in his house. She also states that Subhash appellant No.1 himself had given call to police station and asked them to come to the spot immediately. She did not inform police about the incident. Fits problem of Ganesh, use of cable wire to tie Ganesh, repeated blows by Subhash, threats by Subhash to kill with knife and the fact that Subhash was with Ganesh for entire night are found to be omission in her police statement. She accepted that in the village, on 28/04/2012 in the night, there was dinner at the house of one Narayan Nikodi and several villagers/people attended that programme. She denied that some of the persons caught hold Ganesh, tied him with an intention to hand him over to police. 10. Thus, this witness nowhere states that appellant No.2 Roshan was involved in the offence in any way. Only one witness viz. PW-5 Indirabai takes name of Roshan. She has stated that she saw Subhash, Roshan and juvenile accused dragging Ganesh. They brought him near electric pole, he was tied thereto with rope and then Subhash started assaulting Ganesh by sticks and iron rod. She also states that Subhash was giving threats to the villagers, if they intervened. She further states that she witnessed the incident up to 02:30 a.m. Her cross-examination does not bring on record any material which would help appellant No.1 Subhash. She accepted that she visited police station on next day. She also accepted that threats given by accused were narrated by her, but could not explain why it did not figure in her police statement. She accepted that her statement was recorded by police on 04/05/2012. She has also accepted that Ganesh pelted stone on the house of accused. 11. The evidence of PW-3 Bandu Aade shows that on 28/04/2012, he was serving dinner to different persons at the house of Narayan Nikode. There he learnt that Subhash had tied Ganesh with one pole. He and one Santosh Gurnule went there, found that Ganesh was tied to a pole with his hands and legs, Subhash was beating him with stick, villagers were passing by the spot at the time of incident and Subhash was giving threats of killing if anybody would intervene. There he learnt that Subhash had tied Ganesh with one pole. He and one Santosh Gurnule went there, found that Ganesh was tied to a pole with his hands and legs, Subhash was beating him with stick, villagers were passing by the spot at the time of incident and Subhash was giving threats of killing if anybody would intervene. He watched the incident for about five minutes. Next day in the afternoon, he learnt about death of Ganesh. 12. In his cross-examination, he has stated that Ganesh was suffering from disease of fits. He was denied that he was insane. He further states that he did not inform the police voluntarily anything. 13. PW-4 Yashwant Dhole is on same line. He noted that Ganesh Uike was tied with cement pole with rope. He did not notice who was beating him. He was declared hostile and on cross-examination by the learned A.P.P., he accepted that Subhash was standing near Ganesh with stick and giving threats to general public. There was bleeding from his hand and his clothes were blood stained. This statement was recorded by police four days after the incident. He identified the stick used by Subhash. In cross-examination by accused, at the end, he has stated that he had no knowledge about the incident and he did not witness any incident at all. His evidence in Marathi shows that he was not aware as to how the incident took place and he did not see anything. 14. Disclosure statement made at Exh.72 and seizure of weapon vide Exh.73 are not in dispute. Accordingly, at the instance of Subhash, an iron rod about 3.6 feet in length with circumference of 4 c.m. and a wooden stick having length of 2.5 feet with circumference of 4 inches, came to be seized by police. 15. This material on record shows that weapons were discovered at the instance of appellant No.1 Subhash and human blood is also found on them. Even human blood is detected on the clothes of Subhash. We, therefore, find nothing wrong with the application of mind by the trial Court insofar as appellant No.1 Subhash is concerned. There is no material on record to implicate appellant No.2 Roshan in an offence under Section 342 or Section 302 of the Indian Penal Code. We, therefore, proceed to pass the following order. (i). We, therefore, find nothing wrong with the application of mind by the trial Court insofar as appellant No.1 Subhash is concerned. There is no material on record to implicate appellant No.2 Roshan in an offence under Section 342 or Section 302 of the Indian Penal Code. We, therefore, proceed to pass the following order. (i). Conviction of appellant No.2 - Roshan s/o Subhash Moharle for the offences punishable under Sections 302 and 342 of the Indian Penal Code by learned Additional Sessions Judge, Wardha on 28/05/2014 in Special (Atrocity) Case No.17 of 2012 is set aside. He is acquitted of the charges. (ii). He be set free if his custody is not required in any other matter. (iii). Conviction of appellant No.1-Subhash s/o Chindhuji Moharle for the offences punishable under Sections 302 and 342 of the Indian Penal Code is upheld. (iv). Muddemal property be dealt with as directed by learned Additional Sessions Judge after appeal period is over. (v). Charges of learned Counsel Shri R.P. Thote appointed for the appellants are quantified at Rs. 7,500/- (Rupees Seven Thousand Five Hundred Only). Ordered accordingly.