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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.67 OF 2000
1) Ramkrushna s/o Barkaji Gulhane, _ (Appeal is dismissed
Aged about 40 years, as abated vide order
16-7-2015)
2) Laxman s/o Barkaji Gulhane,
Aged about 42 years,
3) Ambu Alias Amrut Babansa Gulhane,
Aged about 22 years,
4) Devidas s/o Babansa Gulhane,
Aged about 32 years,
5) Dayaram s/o Barkaji Gulhane,
Aged about 38 years,
6) Babansa s/o Barkaji Gulhane, -(Appeal is dismissed
Aged about 60 years, as abated vide order
16-7-2015)
All Appellant Nos. 1 to 6 are
Agriculturists and all of them are
the residents of Pethpura, MorshiMorshi,
District - Amravati. .... APPELLANTS
VERSUS
The State of Maharashtra,
through Police Station Officer,
Police Station Morshi, District Amravati. .... RESPONDENT
______________________________________________________________
Shri P.D. Sharma, Advocate for the appellant,
Mrs. M.H. Deshmukh, Addl.P.P. for the respondent.
______________________________________________________________
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CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 07-08-2017
DATE OF PRONOUNCING THE JUDGMENT : 13-11-2017
JUDGMENT :
The appellants are aggrieved by the judgment and order dated 17-2-2000 passed by the learned Additional Sessions Judge, Amravati in Sessions Trial 266/1994, by and under which, while acquitting the appellants of offence punishable under Section 307 read with Section 149 of the Indian Penal Code, the learned Sessions Judge was pleased to convict the appellants for offence punishable under Section 148 of the Indian Penal Code and to sentence the appellants to suffer rigorous imprisonment for one year and to payment of fine of Rs.100/-, and to sentence the appellants to suffer rigorous imprisonment for two years and to payment of fine of Rs.200/- for offence punishable under Section 326 read with Section 149 of the Indian Penal Code for causing grievous hurt by dangerous weapon to Marotrao Dhole, and to sentence the appellants to suffer rigorous imprisonment for one year and to payment of fine of Rs.200/- for offence punishable under Section 452 read with Section 149 of the Indian Penal Code and to further sentence the appellants to suffer rigorous imprisonment for six months and to payment of fine of ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 3 apeal67.00 Rs.100/- for offence punishable under Section 324 read with Section 149 of the Indian Penal Code for causing hurt to Prakash Dhole, Sau. Chanda Ramesh Dhole, Sau. Sunanda Ganesh Dhole and Vijay Marotrao Dhole.
Appellant 1 Ramkrushna Barkaji Gulhane and appellant 6 Babansa Barkaji Gulhane died during pendency of the appeal, therefore, the appeal stands abated as against them.
2. Heard Shri P.D. Sharma, learned Counsel for the appellants (hereinafter referred to as the "accused") and Mrs. M.H. Deshmukh, learned Additional Public Prosecutor for the respondent.
3. The appellants alongwith six others namely Motiram Barkaji Gulhane, Sanjay Haribhau Gulhane, Vishwas Babansa Gulhane, Kishore Dayaram Gulhane, Ganesh Motiram Gulhane and Vijay Haribhau Gulhane faced trial for having formed an unlawful assembly with the object of assaulting Marotrao Dhole and his family members and in furtherance of common object, for having committed the offence of rioting, house trespass and attempting to commit the murder of Marotrao Dhole and voluntarily causing hurt to his family members. The charge was under Sections 147, 148, 452, 307 and 324 read with ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 4 apeal67.00 Section 149 of the Indian Penal Code.
4. The prosecution case as is unfolded during the course of trial is that the accused are residents of Pethpura locality of Morshi, District Amravati. The victim Marotrao Dhole, who expired during the pendency of trial was residing in the same locality with family. Prakash Dhole is the son of deceased Marotrao Dhole.
Some months prior to the incident, accused Devidas Gulhane purchased the bullock on credit from one Shamu Gond and Prakash Dhole acted as a mediator or broker. Prakash Dhole had guaranteed the payment of the costs of the bullock. Accused Devidas did not make the payment to Shamu Gond. Prakash Dhole, on 05-7-1994, asked Devidas Gulhane to make the payment of the bullock and the response of Devidas Gulhane was to assault Prakash Dhole in respect of which incident Prakash Dhole lodged a report in the police station Morshi.
The next day, on 06-7-1994 Marotrao saw Devidas Gulhane and confronted him about the assault on Prakash in the weekly market and berated him for having done so. Immediately thereafter, the accused swooped on the house of Marotrao Dhole armed with sticks. Marotrao Dhole was at the entrance of his house. ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 :::
5 apeal67.00 He attempted to restrain the accused. All the accused started assaulting Marotrao with sticks, as a result of which Marotrao Dhole suffered fracture of right leg. The accused, then entered into the house of Marotrao and assaulted Prakash Dhole and Vijay Dhole, sons of Marotrao and other family members Smt. Chanda Dhole, Sunanda Dhole, Gitabai Dhole and Godabai Dhole, by sticks.
Prakash Dhole rushed to police station Morshi, Police Sub- Inspector Sugandhi came to the spot with his staff. Police Sub- Inspector Sugandhi noticed Marotrao lying injured infront of his house with bleeding injury. Marotrao was taken to Primary Health Centre, Morshi and was examined by one Dr. Sawale. The victim Marotrao Dhole lodged a report with Police Sub-Inspector Sugandhi, on the basis of which offence punishable under Sections 147,148, 323, 452 and 307 read with Section 149 of the Indian Penal Code was registered. On the same day at 9.45 a.m. or thereabout, the accused excluding Vijay Haribhau Gulhane, were arrested. Police Sub-Inspector Sugandhi visited the spot of the incident, drew the spot panchanama, collected mud mixed with blood, the clothes of Marotrao which were stained with blood were produced by Prakash and were seized. During the course of investigation, sticks were seized pursuant to memorandum recorded under Section 27 of the Indian Evidence Act from accused ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 6 apeal67.00 Laxman, Sanjay, Ambu, Vishwas, Devidas, Kishore and Dayaram Gulhane. In the interregnum, Dr. Sawale examined Marotrao Dhole and his family members. Marotrao Dhole suffered compound fracture on the left leg with fracture of both bones to wit tibia and fibula. Prakash Dhole suffered abrasions on the backside of the left elbow joint and front side of the right forearm. Abrasions and contusions were noticed on the person of Godabai, Chanda, Sunanda, Vijay and Gitabai Dhole. Accused 12-Vijay Gulhane was arrested on 10-7-1994.
Investigation ensued and accused 1 to 12 were charge- sheeted in the Court of Judicial Magistrate First Class, Morshi who committed the case to the Sessions Court. The learned Sessions Judge framed charge for offence punishable under Sections 147, 148, 452, 207 and 324 read with Section 149 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
5. The prosecution examined twelve witnesses to bring home the charge including Prakash Dhole (P.W.5), Chanda Dhole (P.W.6), Ramesh Dhole (P.W.7), Sunanda Dhole (P.W.8) and Vijay Dhole (P.W.10) who are injured witnesses. Dr. Sawale is examined as P.W.12.
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6. The defence of the accused, as is discernible from the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication. The defence is that Godabai who is the mother of Prakash Dhole contested the election and was defeated. Marotrao Dhole and his family members believed that the accused voted against Godabai and due to grudge, the accused have been falsely implicated. Be it noted, that Marotrao Sakharam Dhole who expired during the trial due to causes entirely unrelated with the injury which suffered during the incident.
7. Shri P.D. Sharma, learned Counsel for the appellant, who has also placed on record written submissions to buttress the oral submissions, canvassed the following submissions :
(a) The participation of accused persons in the commission of alleged offence is not conclusively proved by any cogent evidence.
(b) The circumstances suggest the possibility of free fight.
(c) Injuries on the person of one of the accused (appellant 4) was not only suppressed but no action was taken on the report lodged by him and he was advised to approach the civil Court.
(d) The investigating officer referred appellant 4 for medical examination at 7.45 a.m., his presence, therefore, was not possible by ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 8 apeal67.00 any stretch of imagination on the spot of occurrence at 8-00 a.m.
(e) The seizure of the sticks is not proved.
(f) The medical evidence suggests that the injuries were possible by fall on the ground.
(g) No independent witness was examined.
(h) The person who lodged the first information report could
not be examined before the Hon'ble Court which has deprived the appellants of their valuable right under Section 145 of the Evidence Act to cross-examine with respect to its contents.
(i) The circumstances in which the first information report was lodged, are blurred.
(j) There are two other persons namely P.W.5 Prakash and P.W.7 Ramesh who claimed to have went to the police station and lodged the report and such a report lodged by them is suppressed by the prosecution.
(k) Omnibus procedure was adopted to record the statements of all the accused on common questionnaire indicating that the prosecution could not successfully demonstrate before the Trial Court individual acts and involvement of the appellants.
(l) It was absolutely improper and unsafe to convict the appellants only on the basis of first information report referring to their ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 9 apeal67.00 involvement.
8. P.W.1 Sharadkumar Abrol is examined to prove the site map of the place of incident Exhibit 96.
P.W.2 Ramesh Bargat is examined to prove the spot panchanama and the seizure of the clothes of Marotrao and the sticks produced by accused Laxman, Sanjay, Ambu, Vishwas, Devidas, Kishore and Dayaram. P.W.2 did not support the prosecution and is cross-examined by the learned Additional Public Prosecutor. He admits, in the cross-examination, the signatures on the spot panchanama and the seizure panchanama.
P.W.3 Raju Kaple who is examined to prove the spot panchanama, did not support the prosecution and is cross-examined by the learned Additional Public Prosecutor. Nothing is elicited in the cross-examination of P.W.3 Raju to assist the prosecution.
P.W.4 Bhimrao Pradhan who is examined as eye-witness did not support the prosecution and was cross-examined by the learned Additional Public Prosecutor. Except a statement that Marotrao sustained injury on leg, nothing material is brought out in the cross- examination by the learned Additional Public Prosecutor to support the prosecution.
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10 apeal67.00 P.W.5 Prakash Dhole has narrated the incident which took place a day prior to the assault. P.W.5 has proved report Exhibit 104 which he lodged at police station Morshi alleging that he was slapped by accused 7 Devidas. Prakash has further deposed that on the day of the incident at 8-00 a.m. accused 7 Devidas was confronted by Marotrao. Accused 7 Devidas left the house of Marotrao and within ten minutes all the accused, armed with sticks, came to the house of Marotrao, Prakash was inside the house and Marotrao was outside, is the deposition. Prakash states that all the accused persons assaulted Marotrao who became unconscious. The accused entered the house, broke open the inside door of the house, all the accused assaulted Prakash and when the other family members came to the rescue of Prakash, the accused assaulted Godabai, sisters Gitabai and Durgabai, brothers and sisters-in-law Chandabai and Sunandabai. In the cross- examination, on behalf of accused Ramkrishna, Motiram, Laxman, Sanjay, Ambu and Vishwas, certain omissions are brought on record, which according to me are not significant since the omissions touch only the peripheral or incidental aspects and not the core of the incident. A suggestion is given to Prakash that in view of the grudge nurtured against the accused, they have been falsely implicated. In the cross-examination on behalf of accused Devidas, Kishore, Dayaram, ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 11 apeal67.00 Babansa and Ganesh, obviously in the response to suggestions, P.W.5 Prakash states thus :
"It is true that my father said to Devidas that he had not paid the amount to his son i.e. myself and on the contrary he assaulted him i.e. me and as such his act was not proper. It is true that Devidas accused No.7 said to my father that he means my father may take action against him as he likes and thereupon I gave two blows by a dried stem of Tur crop. It is not true to say that I had given blows to accused No.7 by stick. I do not know whether the accused No.7 reported to police about the blows given by me to him. It is true that scuffle had ensued between me and my father on one hand and the accused No.7 on the other hand. On hearing, our cry the members of my family came out of the house. It is not true to say that my brother, mother, sister and sister-in- law tried to separate us. It is not true to say that during this incident, I picked up a stick and gave a blow by it, but it unfortunately struck on the leg of my father. It is not true to say that the members of my family sustained abrasions while rescuing and separating me and my father. It is not true to say that the accused No.7 Devidas tried to rescue himself from our hands and we tried to bring him inside the house. It is not true to say that during scuffle my father fell on the cemented poles known as Gawana and sustained injury. It is not true to say that first the accused No.7 had gone to police station for lodging the report and then I went to police station for lodging the report."What is discernible from the trend of the cross-
examination, is that accused Devidas, Kishore, Dayaram, Babansa and Ganesh have suggested that there was a physical altercation between ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 12 apeal67.00 accused 7 Devidas on one hand and Prakash and Marotrao on the other hand. The suggestion is that Marotrao suffered injury due to blow inflicted by Prakash who was intending to assault Devidas. The suggestion is that the other family members of P.W.5 Prakash suffered abrasions in the process of rescuing and separating P.W.5 Prakash and Marotrao. It is suggested to Prakash that in the scuffle Marotrao fell on cemented pole and sustained injury.
P.W.6 Chanda Dhole has deposed that the family members attempted to save Prakash from the assault, however, P.W.6 Chanda and other family members also bore the brunt of the assault. In the cross-examination, a few minor omissions are elicited. The witness is suggested that on the day of the incident the family members of the witness assaulted accused 7 Devidas, which suggestion is denied. The cross-examination also brings on record the inter se relationship between the accused and the family of the witness and the fact that Marotrao knew all the twelve accused.
P.W.7 Ramesh Dhole is the son of Marotrao and brother of Prakash. He states that he was standing beyond the main road which passes infront of his resident. The witness has deposed that all the accused came to his house with sticks. They assaulted his father Marotrao who collapsed on the spot having received stick blows. All ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 13 apeal67.00 the accused entered the house. The witness, who till then was standing near the small bridge which is beyond the main road, rushed to the house. The accused persons assaulted Prakash and when other family members attempted to rescue Prakash, they were also assaulted. Ramesh went to police station Morshi and reported the incident. In the cross-examination, the said witness states that each of the accused assaulted each of the seven members of the family who were inside the house. The witness denies that there was an altercation between Marotrao and Prakash on one hand and accused 7 Devidas on the other, prior to the incident. However, in the cross-examination on behalf of accused Devidas, Kishore, Dayaram, Babansa, Ganesh and Vijay, the witness has admitted an altercation between Marotrao and Prakash on one hand and accused 7 Devidas, on the other.
P.W.8 Sunanda Dhole has deposed that on the day of the incident at 8-00 a.m. all the accused entered her house armed with sticks, damaged the doors of the house, dragged her brother-in-law Prakash by holding his hair and assaulted him with sticks. When P.W.8 intervened, she was hit with stick on right hand, is the deposition. The other members of the family also received stick blows. The witness states that when the family members came out of the house, Marotrao was seen lying in the courtyard by the side of the tar road with ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 14 apeal67.00 bleeding injury.
P.W.9 Savitribai Kumbhare has deposed as regards the altercation between Prakash and accused 7 Devidas on the issue of payment of the price of bullock.
P.W.10 Vijay Dhole states that on 06-7-1994 at 8-00 a.m. when he was resting on the cot inside the house, he heard commotion. He peeped through the window and saw Marotrao lying on the road. All the accused persons had assaulted Marotrao with sticks, is the deposition. Accused entered the house, damaged the doors and assaulted Prakash and when other members of the family tried to save Prakash, they were also assaulted with stick blows, is the deposition. In the cross-examination on behalf of accused 7 to 12, it is brought on record that on both sides of the road infront of the house, there used to be traffic since morning and that during the incident since Marotrao and other family members raised alarm, about 50 persons had gathered near the place of incident including the neighbours of the witness. Although the witness admits that the accused did not work or canvas for her mother during election campaign, he denies the suggestion that his family was not on good terms with the accused since the election.
P.W.11 Mohan Sugandhi is the investigating officer. It is brought out in the cross-examination of the investigating officer that ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 15 apeal67.00 the station diary dated 06-7-1994 reveals that at about 6-30 a.m. accused 7 Devidas had lodged report in the police station to the effect that he was assaulted by Marotrao Dhole, Prakash Dhole and Ganesh Dhole. It is further elicited that accused 7 Devidas was sent to hospital at 7.45 a.m. and that he was arrested on 06-7-1995 and the arrest panchanama was prepared at 9-45 a.m. The investigating officer admits that the doctor issued certificate as regards the injuries suffered by accused 7 Devidas which is not produced alongwith the charge- sheet. The investigating officer further states in the cross-examination that he registered the offence at 9-30 a.m. and arrested 11 accused at 9-45 a.m. Except the statement of Marotrao and the medical certificate, the investigating officer did not have any papers when he arrested the accused persons.
Be it noted, that in the examination-in-chief, the investigating officer refers to the statement of Marotrao as first information report which is proved as Exhibit 114. The investigating officer states that he arrested accused 1 to 11 and then prepared the spot panchanama. He deposes as to the seizure of sticks from accused 7 Devidas and proves memorandum Exhibit 119. The investigating officer proves seizure memorandum recorded in view of statement given by accused 5 Ambu (Exhibit 122). Similarly he states that ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 16 apeal67.00 accused 8 Kishore made a statement that he kept a stick at his house, accordingly memorandum was recorded and the admissible portion is marked Exhibit 124. The seizure panchanama is proved and marked Exhibit 125. Memorandum of accused 6 Vishwas is proved and marked Exhibit 126 and the seizure panchanama is proved and marked Exhibit
127. Memorandum of accused 9 Dayaram is proved and marked Exhibit 128 and the seizure panchanama is proved and marked Exhibit
129. Memorandum of accused 4 Sanjay is proved and marked Exhibit 130 and the seizure panchanama is marked Exhibit 131. The memorandum of accused 3 Laxman is proved and marked Exhibit 132 and the seizure panchanama is marked Exhibit 133. The investigating officer states that all the sticks were seized on 10-7-1994.
P.W.12 Dr. Baban Sawale who is examined to prove the injury certificate Exhibit 136 issued pursuant to the medical examination of injured Marotrao. P.W.12 has deposed that Marotrao suffered compound fracture on left leg, both bones tibia and fibula were found fractured and there was lacerated wound 4" below left knee joint horizontal of size 2" x ½ " bone deep. A contusion swelling on backside of left chest was also noticed. P.W.12 has deposed that Marotrao Dhole was referred to General Hospital, Amravati for further treatment.
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17 apeal67.00 P.W.12 on examining Prakash Dhole issued medical certificate dated 06-7-1994 Exhibit 137 and he has deposed that Prakash Dhole suffered two abrasions, one on the backside of left elbow and the other on the front side of right forearm. P.W.12 examined Godabai Dhole who suffered two abrasions and two contusions. The medical certificate is Exhibit 138. Chanda Dhole suffered a contusion on dorsal side of ring and little finger of left hand which is Exhibit 139. Sunanda Dhole suffered a contusion on dorsal side of right hand of size 2" x 1" and the medical certificate is Exhibit
140. Vijay Dhole suffered one contusion on backside of chest on right side middle to scapula region, on the right side/middle to scapula region of 3" x 1" dimension and one abrasion on dorsal side of ring finger of left hand and the medical certificate is Exhibit 141. While Gitabai Dhole suffered contusion on backside of chest on the left side of size 3" x 2". In the cross-examination, P.W.12 has admitted that injuries suffered by Chanda, Godabai, Vijay, Sunanda, Gitabai and Prakash are simple in nature and could be caused for fall on hard and rough surface.
9. A minute scrutiny of the evidence on record would reveal that not a single witness attributes any specific role to the twelve ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 18 apeal67.00 accused implicated in the incident of assault on Marotrao and the other members of the family. The only independent witness who is examined did not support the prosecution. Marotrao expired before the commencement of the trial. The other witnesses who are members of the family have in unison deposed that all the twelve accused were members of unlawful assembly, assaulted Marotrao and then barged in the house and assaulted Prakash and other family members who attempted to rescue Prakash.
10. The learned Sessions Judge was pleased to acquit accused 2 Motiram, accused 4 Sanjay, accused 6 Vishwas, accused 8 Kishore, accused 11 Ganesh and accused 12 Vijay holding that since they were not named in the first information report, there was no material available with the investigating officer to arrest the said accused. The learned Sessions Judge has relied on the seizure of the sticks proved through the investigating officer, but then, the seizure of sticks is also from the accused who are acquitted. The investigation is clearly unfair. It is brought on record in the cross-examination of the investigating officer, that accused 7 Devidas lodged a report at police station Morshi to the effect that he was assaulted by Marotrao, Prakash and Ganesh and that he was sent for medical examination at 7-45 a.m. It is ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 19 apeal67.00 axiomatic that accused 7 Devidas could not have been involved in the incident which according to the prosecution occurred at 8-00 a.m. or thereabout. The injury certificate as regards Devidas is suppressed. The fact that Devidas was implicated in the incident, is suggestive of either false or over implication and unfair investigation.
11. The finding recorded by the learned Sessions Judge that the prosecution has proved that Marotrao suffered grievous hurt is, in my opinion, unsustainable. Concededly, it is not established by adducing evidence of x-ray or other radiological evidence that Marotrao suffered fracture. Ordinarily, it would be unsafe to assume as a fact that a person has suffered fracture unless the x-ray reports are proved by examining the radiologist. It is not even the case of the prosecution, that the fracture was diagnosed with the assistance of the radiology report. It would be apposite to refer to the following observations in the case of Faizan Ahmed Abdul Wahab Shah vs. The State of Maharashtra reported in 2014 ALL MR (Cri.) 4841.
"20. It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 20 apeal67.00 bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/discharge summary"
12. In my opinion, the seizure of sticks to which only the investigating officer has testified, is of little significance. The distinction made by the learned Sessions Judge between the accused acquitted and the accused convicted, is, in my opinion, not warranted in the factual matrix. The only reason given by the learned Sessions Judge is that the accused acquitted are not named in Exhibit 114, but then, in view of the death of Marotrao, although Exhibit 114 may be admissible in evidence, the veracity thereof could not be tested through cross-examination. Accused 7 Devidas whose presence on the spot is suspect is also named in the first information report. The witnesses who have supported the prosecution are related witnesses and the only independent witness was declared hostile. It is true that related witnesses are not necessarily interested witnesses. It is also true, as is contended by the learned Additional Public Prosecutor, that ordinarily the injured witnesses stand on a higher pedestal than other witnesses. But then, the witnesses have assigned identical role to or each of the twelve accused. Six of them are acquitted and State has not challenged ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 ::: 21 apeal67.00 the acquittal. The over implication and indeed false implication is apparent from the fact that accused 7 Devidas who could not have been on the spot is implicated as one of the assailants. The incident is blurred. Some of the witnesses have admitted that there was a physical altercation between accused 7 Devidas on one hand and Marotrao and Prakash on the other prior to the incident.
13. In the totality of the circumstances, although the evidence on record may at the most raise strong suspicion, unimpeachable proof is lacking.
14. I deem it extremely hazardous to let the conviction rest on the evidence on record. I would extend the benefit of doubt to the accused and acquit them of the offences with which they have charged.
The judgment and order dated 17-2-2000 delivered by the learned Additional Sessions Judge, Amravati in Sessions Trial 266/1994 is set aside.
The accused are acquitted of the offences punishable under Sections 148, 326 read with Section 149, 452 read with Section 149 and 324 read with Section 149 of the Indian Penal Code.
The bail bonds of the accused shall stand discharged. ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 :::
22 apeal67.00 The fine paid by the accused, if any, be refunded to them. The appeal is allowed and disposed of accordingly.
JUDGE adgokar ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 02:10:35 :::