JUDGMENT Prakash D Naik, J. - The appellant has preferred this Appeal under Section 374(2) of Code of Criminal Procedure challenging judgment and order dated 20th July, 2011, passed by 1st Ad-hoc Additional Sessions Judge, Solapur in Sessions Case No.194 of 2009. the appellant (accused no.1) is convicted for the offence punishable under Section 302 of Indian Penal Code ("IPC", for short) and sentenced to suffer imprisonment for life and pay fine of Rs.1,000/-. He is also convicted for an offence punishable under Sections 3(1) and 181 of Motor Vehicles act, 1988 and sentenced to suffer imprisonment for one month and pay fine of Rs.200/-. He was acquitted of the offence punishable under Section 143, 147 and 506 read with 149 of IPC. 2. Prosecution case is that on 20th April, 2009 Hari Rama Tarate, Amol Anna Gund, Arjun Shinde and Dattatraya Kashinath Rathod had been to village Babulgaon, Taluka Mohol to attend marriage of niece of Amol Gund. On that day, in the night at about 10:00 to 10:30 p.m., as they all returned back to village after attending the mariage by Tumtum bearing No.MH-13/G-4327. On same night at about 00:45 hours, they proceeded by Tumtum to drop Dattatraya Rathod at his Vasti. They were proceeding by kachha road near Indian Oil Corporation compound. At that time a Mahindra Pickup Jeep came from opposite direction in high speed and stopped in front of the said Tumtum. Bapu Trimbak Adke, Datta Vishwanath Junjre, Govind Bapu Khalipe, Pramod Andhalkar, and Nagesh Ukhale, were in the Pickup. Shivanand Arvind Dhepe (appellant) was driving the Pickup. There was altercation between accused no.1 and Amol Gund. Accused no.1 and Amol Gund got down from the vehicle. Accused no.1 questioned Amol Gund. There was exchange of words between both of them. Other persons instigated accused no.1 to drive the vehicle on the person of Amol Gund. In pursuant to that accused no.1 (appellant) drove the vehicle on the person of Amol Gund. The head of Amol Gund was smashed under the vehicle driven by accused no.1 and he died on the spot. The accused ran away. Information was received by the police. Hence, police rushed to the spot. Hari Tarate was present at the spot. He narrated the incident. The complaint was recorded and sent to the police station for registration. The head of Amol Gund was smashed under the vehicle driven by accused no.1 and he died on the spot. The accused ran away. Information was received by the police. Hence, police rushed to the spot. Hari Tarate was present at the spot. He narrated the incident. The complaint was recorded and sent to the police station for registration. The offence was registered vide C.R.No.100 of 2009, under Sections 143, 147, 149, 302 and 506 of IPC. Dead body was sent for postmortem. Inquest panchanama was recorded. Blood smeared earth and plain earth were seized. Photographs were taken. Statements of witnesses were recorded. Accused were arrested. Pickup van was seized. On completing investigation, charge-sheet was filed. 3. The case was committed to the Court of Sessions. Charge was framed by order dated 3rd August, 2010, against six accused for offences punishable under Section 143, 147, 302 and 506 read with Section 149 of IPC and under Sections 3(1) and 181 of the Motor Vehicles Act, against accused. The accused pleaded not guilty and claimed tobe tried. The defence was of total denial. 4. The prosecution examined 11 witnesses. Documentary evidence was brought on record. Accused nos.2 to 6 were acquitted of all the charges. Whereas, accused no.1 was convicted for the aforesaid offences. He was acquitted for offences punishable under Sections 143, 147, 506 read with 149 of IPC. 5. In concluding paragraphs of the impugned judgment, it is observed that deceased Amol Gund was driving his Tumtum, whereas accused was driving Mahindra Pickup. Both vehicles came from opposite direction. Accused no.1 had verbal altercation with Amol Gund. He got down from vehicle. On instigation of accused nos.2 to 6, accused no.1 in angry state of mind caused death of Amol on the spot. Accused no.1 has no previous motive. There was no preplan. There was no enmity with him and incident took place at the spur of moment. However, he was well acquainted and had knowledge that if he drives his pickup on person of Amol, death of Amol is certain. There is no evidence on record to show that accused no.1 has driven his vehicle rashly or negligently but he purposely driven his vehicle on the person of deceased by threatening that whether he should drive his vehicle on his person and hence it can be safely said that accused no.1 is liable for murder of deceased. There is no evidence on record to show that accused no.1 has driven his vehicle rashly or negligently but he purposely driven his vehicle on the person of deceased by threatening that whether he should drive his vehicle on his person and hence it can be safely said that accused no.1 is liable for murder of deceased. Accused nos.2 to 6 according to prosecution have instigated accused no.1. There is no evidence on record to show that accused nos.2 to 6 have any overt-act or they have any common object to commit murder of deceased Amol at the behest of accused no.1. From the entire record, it cannot be gathered that all accused had formed an unlawful assembly with object mentioned in Section 141 of IPC and consequently in prosecution of common object of such assembly accused no.1 has driven his vehicle on the person of deceased. Accused nos.2 to 6 were not members of unlawful assembly and they have not formed any unlawful assembly. There is no evidence that accused have criminally intimidated deceased. Therefore, accused nos.2 to 6 cannot be held guilty for the offences alleged by prosecution. It is further observed that, having considered the evidence on record, the prosecution has beyond reasonable doubt has proved that at the relevant date and time accused no.1 was driving Mahindra Pickup and intentionally/knowingly that death of deceased would be certain, drove his Pickup on the person of deceased Amol and caused his instant death. 6. Learned advocate for the appellant pointed out the evidence of the witnesses adduced by the prosecution and the documents on record. It is submitted that the entire case of the prosecution is doubtful. The accused were falsely implicated in the crime. The evidence suffers from contradictions and omissions. Conduct of the eye witnesses is suspicious. Medical evidence do not corroborate the ocular evidence of eye witnesses. There is delay in forwarding the FIR in the Court. Identity of the vehicle involved in the crime has not been established. There was no source of light at the place of incident. 7. Learned APP, however, submitted that the evidence of P.W.3, P.W.6 and P.W.8 is sufficient to convict the appellant for the offences. Trial Court has given cogent reasons. Defence has not been able to discard the evidence of three eye witnesses. The medical evidence corroborates evidence of eye witness. There was no source of light at the place of incident. 7. Learned APP, however, submitted that the evidence of P.W.3, P.W.6 and P.W.8 is sufficient to convict the appellant for the offences. Trial Court has given cogent reasons. Defence has not been able to discard the evidence of three eye witnesses. The medical evidence corroborates evidence of eye witness. The vehicle was seized during the investigation. It is established that accused no.1 had driven the vehicle on the person of the deceased with intention to kill him. The accused fled away from the place of incident. The deceased died due to head injury as the vehicle was driven on the head of the deceased. Other witnesses have corroborated the evidence of eye witnesses. Thus, there is sufficient evidence to prove the charges against the appellant. 8. We have perused the evidence on record. P.W.1 Madhukar Shinde is the panch witness to the spot panchanama (Exhibit-65). He has stated that the blood stained earth and plain earth was recovered while recording the spot panchanama. The spot was pointed out by P.W.3. The incident had occurred on kachha road. There was no street light. The spot panchama indicate that the kachha road was about 10 feet width. On the one side there is a compound wall of Indian Oil Corporation and on the other side, there was agricultural land. The vehicle Tumtum was on the side of road facing towards North. There was indication that pick up van has passed away from the Eastern side of Tumtum. It was noticed that blood was spilled on the road as a result of smashing of skull of the deceased towards compound wall. P.W.2 Anil Shinde is the panch witness for inquest panchanama (Exhibit-67) P.W. 3 Hari Rama Tarate is the eye witness to the incident. He was one of the occupant in Tumtum. He has stated that on 20th April, 2009, the witness along with Amol, Arjun Shinde and Dattatraya Rathod had been to village Babulgaon to attend the marriage of niece of Amol Gund. On that night, at about 10:00 to 10:30 p.m, they returned back to village by Tumtum bearing No.MH-13/G-4327. On the same night at about 00:45 hours they were proceeding by Tumtum towards house of Dattatraya Rathod (P.W.8) to drop him at his house. On that night, at about 10:00 to 10:30 p.m, they returned back to village by Tumtum bearing No.MH-13/G-4327. On the same night at about 00:45 hours they were proceeding by Tumtum towards house of Dattatraya Rathod (P.W.8) to drop him at his house. They were proceeding by kachha road, which was proceeding adjacent to compound of Indian Oil Corporation. At that time, Mahindra Pickup Jeep, which was in a high speed was proceeding from opposite direction. The said vehicle stopped infront of Tumtum. Bapu Trimbak, Nagesh Ukale, Pramod Andalkar and Shivanand Dhepe were sitting in the said vehicle. The said Pick up van was driven by accused no.1 (appellant). Accused no.1 questioned Amol Gund saying, "Tula Gadi Bajula Gheta Eth Nahika? Ki Ghalu Tuzya Angawar?". Amol Gund got down from Tumtum and asked Shivanand by saying that "Tula Saral Bolta Yet Nahika?". The persons sitting in Mahindra Pickup Van instigated Shivanand to drove his vehicle on the person of Amol Gund. Consequently, accused no.1 drove the vehicle on the person of Amol Gund. The wheel of the pick up van was driven on the head of Amol Gund. The accused ran away from the place of incident. The victim died instantly. The witness lodged report with Solapur police station and complaint was registered, which was exhibited in evidence at Exhibit -70. In the cross-examination he has deposed that on the day of incident one case is pending against him in the Court at Solapur. He attended the Court on that day. The case was adjourned at about 4:30 p.m. He also stated that the width of the kachha road was about 8 to 10 feet. Towards the other side of the kachha road, there are fields and plants/shrubs and towards the other end, there is a compound wall of Indian Oil Corporation. Both the vehicles could not pass on the road at the same time. He did not inform the family members of Amol Gund. He also stated that prior to the incident, quarrel has taken place between him of one side and Shivanand, his father and uncle on account of money. The amount was to be paid to the witness by Shivanand (accused no.1). 9. P.W.4 Ramesh Gaikwad is the panch for seizure of jeep. He has not supported the prosecution case and hence declared hostile. He was cross-examined by the prosecution. The amount was to be paid to the witness by Shivanand (accused no.1). 9. P.W.4 Ramesh Gaikwad is the panch for seizure of jeep. He has not supported the prosecution case and hence declared hostile. He was cross-examined by the prosecution. In the said cross-examination, nothing was elicited in support of the prosecution. He has stated that the jeep was lying in the premises of Taluka police station. 10. P.W.5 Dr.Rizwan Kamale conducted postmortem on the deceased. He noted several external injuries on the deceased. He also noted internal injuries. He stated that injury no.1 of column no.17 corresponding injury no.2 of column no.19 of postmortem report was sufficient to cause death in ordinary course. If a person is crushed in vehicle, injuries mentioned in column no.17 corresponding injuries in column no.19 are possible. Viscera is preserved when there is suspicion about cause of death. Viscera was handed over to police for sending it to Chemical Analyser. Viscera is preserved even to know whether a person consumed alcohol. In cross-examination, he stated that the police had not inquired with him in writing about cause of injuries mentioned in column nos.17 and 19 of postmortem report. In column no.17 or anywhere in the report, age of injury, cause of injury is not mentioned. He had gone through the inquest panchanama. Normally medical officer would conduct postmortem peruses inquest panchanama. When there are discrepancies in the contents of inquest panchanama and the injuries found on the person of dead body, re-inquest is to be suggested to police. In this case, re-inquest was not directed. He further deposed that if a person lying on the ground and a big stone is thrown on his head, then, all the injuries mentioned in column nos.17, 18 and 19 could be possible. 11. P.W.6 Arjun Shinde is another eye witness to the incident. On the day of incident, he had attended the marriage at Babulgaon with Amol Gund, Datta Rathod and others. They returned on the same day. They were proceeding to drop Datta Rathod to his house. They were proceeding by Tumtum and when they reached the place of incident, Pickup van came from the opposite direction. Accused no.1 got down. Amol Gund was driving the Tumtum. There was altercation between accused no.1 and Amol Gund. In the altercation, Amol Gund asked accused no.1 as towhy he does not ply vehicle properly. They were proceeding by Tumtum and when they reached the place of incident, Pickup van came from the opposite direction. Accused no.1 got down. Amol Gund was driving the Tumtum. There was altercation between accused no.1 and Amol Gund. In the altercation, Amol Gund asked accused no.1 as towhy he does not ply vehicle properly. Accused no.1 said : "Ki Ghalu Tyzya Angawar Gadi?" Other accused persons instigated Shivanand to drive the vehicle on the person of Amol Gund. All the accused present in the Court were in Pickup van. Thereupon, accused no.1 had driven the Pickup Van on the person of Amol Gund. Wheel of Pickup van drove over the head of Amol Gund, he died on the spot. The incident had occurred at about 00:45 hours. Accused left the spot. The nature of conversation between Amol Gund and accused no.1 referred to by this witness is contrary to deposition of another eye witness P.W.Nos.3 and 8. In the cross-examination, he has stated that he was having cordial relations with Amol Gund and his family. He was acquainted with Datta Rathod. His statement was recorded on 21st April, 2009. While recording his statement, P.W.3 and other, family members of deceased were also present. He did not know that P.W.3 Hari had lodged complaint against the accused prior to recording of his statement. After recording his statement P.W.3 lodged the complaint at police station about the incident. He had told the police in his statement that accused no.1 had got down from his Pickup van at the spot but said fact is not appearing in his statement. 12. P.W.7 Arif Kazi is the second panch witness for recovery of jeep at the instance of accused no.1. The witness has stated that on 26th April, 2009, statement of the accused was recorded. Accused pointed out jeep of Mahindra make which was seized. 13. P.W.8 Datta Kashinath Rathod is the eye witness to the incident. He has stated that accused no.1 got down from Mahindra Pickup van and asked Amol Gund that, "Kare Tula Saral Bolta Yet Nahi ka?". The other persons sitting in the Mahindra Pickup van instigated accused no.1 to drove his vehicle on the person of Amol Gund. Accused no.1 and others then entered in that Pickup van and the vehicle was being driven in a high speed. It was being driven by Shivanand Dhepe. Amol Gund fell down. The other persons sitting in the Mahindra Pickup van instigated accused no.1 to drove his vehicle on the person of Amol Gund. Accused no.1 and others then entered in that Pickup van and the vehicle was being driven in a high speed. It was being driven by Shivanand Dhepe. Amol Gund fell down. The Pickup van crossed his body and thereby he sustained head injury. Amol Gund died on the spot. All the accused persons left the spot. He has not referred to names of other accused. Thus, the version of P.W.3 and P.W.8 is at variance. In cross-examination he stated that his statement was recorded by police on the same day. PW.3 and family members of deceased were present when the statement was recorded. He was not knowing that Hari Tarate, P.W.3 has lodged complaint prior to the time his statement was recorded. In his statement, he has stated that accused no.1 had got down from the Pickup van and that thereafter all the accused boarded the Pickup van. However, the said facts are not appearing in his statement. 14. P.W.9 Balaji Tarate was the driver of Pickup van. According to him, he had given the Pickup van to accused. The vehicle was returned to him on 21st April, 2009. P.W.10 Shashikumar Sonwane is the police constable attached to Solapur Taluka Police Stsation. He is carrier of Muddemal articles to Chemical Analyser. The articles were handed over to him on 7th July, 2009. Same were deposited with Chemical Analyser on 10th July, 2009. In the cross-examination, he has stated that the Muddemal property was in his custody from 7th July, 2009 till it was deposited with CA on 10th July, 2009. P.W.11 Sandip Kolokar is the API attached to Solapur Taluka Police station. He was the investigating officer. He conducted investigation and collected evidence. He recorded statements of witnesses. In the cross-examination, he has stated that he had reached the spot at about 2:30 a.m. photographs of dead body were not taken. He did not record the statement of photographer. Bill and receipt of payment was not obtained. Copy of FIR was sent to Magistrate (Exhibit-104). at the top of Exhibit-104, there is endorsement that it was received in the Court on 27th April, 2009, under the signature of concerned Magistrate. He did not record the statement of photographer. Bill and receipt of payment was not obtained. Copy of FIR was sent to Magistrate (Exhibit-104). at the top of Exhibit-104, there is endorsement that it was received in the Court on 27th April, 2009, under the signature of concerned Magistrate. He did not take sample of tyre marks found on the spot and it was not sent for verification. It was possible to collect information about owner of Pickup van from RTO Solapur. He recorded statement of Balaji Tarate on 26th April, 2009. He did not make any investigation about the marriage attended by the deceased and witnesses at Babulgaon. The statement of two witnesses Maruti Dalvi and Sudhir Salvi were recorded on 20th June, 2009 and 22nd June, 2009, respectively, as they were not previously available. They are residents of Yavali. He did not prepare panchanama of Tumtum. He did not record statement of owner of Tumtum. If one proceeds from Pakni to Solapur by road shown in photograph no.1, the place, where blood stains appear is to the left side of the road. The prosecution also relied upon the documents, such as, panchanama of recovery of vehicle, spot pancanama etc. Prosecution had also relied upon the CA report in respect to the blood group of accused. 15. On analysing the evidence as stated above, we are of the considered opinion that the prosecution has not been able to prove the charges against the appellant beyond doubt. The evidence is full of infirmities and doubt. The eye-witnesses to the incident viz. P.W.3, P.W.6 and P.W.8 had contradicted each other as to manner in which the incident had occurred qua the version ensued between Amol Gund and accused no.1. The witnesses have stated that the accused nos.2 to 6 had participated in the crime by instigating accused no.1 who drove the vehicle on the person of Amol Gund. The incident had occurred at 00:45 hours on a kachha road. Two vehicles could not cross simultaneously at the spot of incident. On one side there is a compound wall and on the other side there were agricultural fields. Except the three witnesses who were inmates of Tumtum, there was no other person who witnessed the incident. There was no light on the street where the incident had occurred. 16. Two vehicles could not cross simultaneously at the spot of incident. On one side there is a compound wall and on the other side there were agricultural fields. Except the three witnesses who were inmates of Tumtum, there was no other person who witnessed the incident. There was no light on the street where the incident had occurred. 16. The inquest panchcanama indicate that the skull of the deceased was broken and the face was smashed. P.W.5 has stated that he noticed the following external injuries on the person of the deceased: (1) Severely crushed skull with open cranial cavity with many pieces of cranial bones and no brain matter present in the cranial cavity. (2) Severely distorted face with disfigurement of nose, eyes and mouth. (3) Multiple abrasion over the chest. (4) Multiple abrasion over the back upper and lower. On internal examination, he found the following injuries on the person of the deceased: (1) On internal examination, I found - severally crush cranial vault and base of skull with open crainal cavity with no brain matter and many pieces of cranial bones, no brain matter was found remaining. All internal organs were congested. Stomach was filled with 50 grams of semisolid undigested food particles with yellow colour with no peculiar small present Viscera was preserved and on this finding, probable cause of death was crushed head injury. 17. P.W.5, however, deposed that the police had not inquired from him in writing about the cause of injuries mentioned in column nos.17 and 19 of Postmortem report. In column no.17 or anywhere in the report, the age of injury, cause of injury is not mentioned. There was no re-inquest in the present case. The injuries mentioned in Column nos.17, 18 and 19 is also possible if a big stone is thrown on the head of the victim. Trial Court has disbelieved prosecution case qua involvement of accused nos. 2 to 6 and they have been acquitted. The CA report in respect to blood group of accused no.1 in blood sample and clothes is inconclusive. The conduct of the witness is abnormal/suspicious. The incident had occurred in the night at the place which is about 30 to 35 kilometer away from Taluka police station. None of the witnesses tried to intervene in the quarrel. The family members of the deceased were not informed by them. The conduct of the witness is abnormal/suspicious. The incident had occurred in the night at the place which is about 30 to 35 kilometer away from Taluka police station. None of the witnesses tried to intervene in the quarrel. The family members of the deceased were not informed by them. Apparently, none of them got down from Tumtum. The witness did not give the registration number of the vehicle driven by the accused. Their version is therefore creates doubt and their presence at the place of incident itself is under clouds of suspicion. It also appears that there is delay in sending FIR to the Court. If topography of the incident is taken into consideration, the Mahindra jeep came from the opposite direction from Tumtum and it stopped infront of Tumtum. According to the prosecution, Amol Gund got down from Tumtum. Accused no.1 also got down from Mahindra Jeep. There were verbal altercation between them. Accused no.1 then drove the vehicle in speed on the person of the deceased. The blood stains of deceased is to left side of road, which creates doubt about the version of the witnesses. The incident had occurred all of sudden. There is no premeditation. Investigating officer has not collected the sample of wheel marks, and, thus, it was not forwarded for expert''s opinion. The evidence of eye witnesses is at variance. P.W.3 resides in the same village where deceased used to reside. However, he did not inform the family of the deceased or the police about the incident. Accused were not owner of the Pickup jeep. Statement of the owner was not recorded. Injury in the postmortem report do not tally with the inquest panchanamma. Prosecution has not explained as to how the injuries mentioned in column nos.17(3)(4) were accused to the deceased. There were abrasion on both the sides of the deceased. Column no.20 in the postmortem report shows that ribs were intact. Taking into consideration all circumstances, a doubt is created about genuineness of the prosecution case and the benefit of doubt first go to the accused. In view of notes of evidence, we are of the opinion that the prosecution against the accused must fail and the appellant-accused deserves to be acquitted. 18. Taking into consideration all circumstances, a doubt is created about genuineness of the prosecution case and the benefit of doubt first go to the accused. In view of notes of evidence, we are of the opinion that the prosecution against the accused must fail and the appellant-accused deserves to be acquitted. 18. Hence, we pass the following order: :: O R D E R :: (1) The judgment and order dated 20th July, 2011, delivered by 1st Ad-hoc Additional Sessions Judge, Solapur, in Sessions Case No.194 of 2009, convicting appellant for offence punishable under Section 302 of Indian Penal Code ("IPC", for short) and under Sections 3(1) and 181 of Motor Vehicle Act, 1988, is quashed and set aside; (2) He is acquitted of those charges; (3) He be set free immediately, if his custody is not required by State Government in any other matter; (4) Seized property be dealt with, as directed by trial Court after Appeal period is over; (5) Criminal Appeal is allowed accordingly.