Manohar Balaram Khanavkar And ... vs The State Of Maharashtra
2003 Latest Caselaw 882 Bom

JUDGMENT

D.B. Bhosale, J.

1. By this appeal, the appellants/accused have challenged the judgment and order of conviction dated 29th July, 1991, rendered by IInd Addl.Sessions Judge, Raigad, Alibag, in Sessions Case No. 201 of 1989. The appellants/accused (for short, "accused" only) along with one Ashok Khanavkar, original accused No. 6, were charged and tried for the offences punishable under Sections 147, 148, 302 read with Section 149, 302, 307 read with Section 149, 326 read with Section 149 of the Indian Penal Code, (for short, "I.P.C.") and under Section 25(1)(a) of the Indian Arms Act. The original accused No. 6 was acquitted of all the charges, whereas the appellants/accused were acquitted of the charge under Section 307 read with Section 149 and Section 326 read with Section 149 IPC. The accused persons, however, were convicted under Section 302 read with Section 149 IPC and sentenced to suffer imprisonment for life. They were also convicted under Section 324 read with Section 149 IPC and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/-. They were further convicted under Section 148 IPC and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/-. No separate sentence was awarded under Section 147 IPC. All the accused were charged on the allegation that they committed murder of Hiraman Ganpat Patil and Vishnu Kanha Patil in the intervening night of 6.9.1989 and 7.9.1989 at about 0.40 hour to 1.30 am. and voluntarily caused injuries to Vithal Narayan Patil (P.W.2) and Jagannath Shankar Patil (P.W.3).

2. The prosecution case, as unfolded from the evidence of the witnesses, is as follows. The accused persons and the complainant are the residents of village Kalamboli, Taluka Panvel, District-Raigad. Accused Nos. 1, 3, 4 and 6 are real brothers. Accused No. 1 Manohar, at the relevant time, was a Sarpanch of the village Kalamboli. The deceased Hiraman was working with accused No. 1 as his driver for 4-5 years prior to the incident. He left the job of accused No. 1 and started independent business of supply of the construction material. Accused No. 1 was also in the same business. They were having extremely good relations. However, their relations gradually became strain after Hiraman started independent business of supply of the construction material. It is alleged that they were in cross terms since 4-5 months prior to the occurrence of incident.

(i) On 6.9.1989 Laxman Tukaram Patil, brother of the deceased Hiraman, in the evening had gone to his maternal uncle on the eve of Ganesh festival and while returning home, accused No. 1 allegedly abused and slapped him. Laxman reported the incident to his brother Hiraman. Hiraman and one Ram Patil went to accused No. 1 to ask him why did he do so, when it is alleged that accused No. 1 threatened him by saying that he would see them. On the very day in the night, one Arun Patil, from village Roadpali, had come to the house of Hiraman Patil for Ganesh darshan when Vithal Patil (P.W.2), Hiraman Patil, Vishnu Patil, Jagannath Patil (P.W.3), Ram Patil, Laxman Patil were also there. They all had a dinner in the house of Hiraman. At about 11 pm Hiraman in his car had gone to the village Roadpali to reach Arun Patil along with Vishnu, Jagannath and Vithal. After leaving Arun Patil at village Roadpali, they returned Kalamboli after midnight. When they reached in front of the house of Vishnu Patil, all the accused persons, who were armed with swords and Guptis, assaulted the deceased Hiraman when he was alighting the care from driver's side. Complainant Vithal claims that he threw himself on the body of Hiraman to save him. Accused No. 3 then gave him a blow of sword on his left arm. At the same time, the deceased Vishnu and witness Jagannath Patil were also assaulted when they were about to get out of the car. Jagannath Patil (P.W. 3) received blow of sword given by accused No. 5 and Vishnu was assaulted with gupti by accused No. 4. It is alleged that all the accused, thereafter, gave blows of sword to the deceased Vishnu. There was a hue and cry and consequently the family members of the deceased and the injured persons reached the scene of offence and seeing them all, the accused persons fled from the place of occurrence. The injured Hiraman was immediately removed to the hospital initially in a car and since it broke down on the way, in a jeep of Fire Brigade Station. However, before admission, Hiraman succumbed to the injuries and was declared dead in the hospital. Vithal (P.W.2), thereafter, lodged first information report before Kalamboli police which was registered as C.R.No.I-105/89. The Assistant Commissioner of Police Vijaysingh Jadhav (P.W.8) carried out the investigation and on completion of the same filed chargesheet against the appellants-accused along with original accused No. 6 on 16.12.1989. The case was committed to the Sessions Court on 21.12.1989.

(ii) The accused entered the plea of not guilty and claimed to be tried. The defence propounded by them was of total denial. According to the accused, they were not on inimical terms with the deceased at any point of time and their relations with them were cordial. Further, according to the defence, Vithal Patil (P.W.2) and Jagannath Patil (P.W.3) were also dealing in the business of supply of building construction material and since accused No. 1 had same business on a very large scale they falsely implicated him, his brothers and associates. They have specifically denied to have committed the alleged offence. In defence, the accused have further stated that the deceased Hiraman was found injured in the colony road near village Kalamboli and he was brought near the Fire Brigade Office with the help of Ramesh and from there he was taken to the hospital in a jeep of the Fire Brigade Station. So far as Vishnu is concerned, according to the accused, he was not assaulted at the spot, as claimed by the prosecution, inasmuch as his body was found lying elsewhere.

3. The prosecution in its endeavour to bring home the guilt of the accused examined as many as eight witnesses, mainly consisting of Vithal (P.W.2), Jagannath (P.W.3) and Dr. Kendre (P.W.7). The prosecution has also examined the Circle Inspector who drew the map of the place of offence, two panchas who witnesses the spot and recovery panchnama. The brother of Hiraman and cousin of Vishnu, Laxman (P.W.4) was examined by the prosecution to place on record an immediate cause for the occurrence of the incident. On appreciation of the entire evidence placed on record, the learned IInd Addl.Sessions Judge, Raigad convicted the appellants-accused by the impugned judgment dated 29.7.1991.

4. We have hard Mr. Hudlikar, learned counsel for the accused and Mr. Mhaispurkar, learned A.P.P for the respondent-State at considerable length. We have meticulously gone through the depositions of the witnesses, who were extensively cross-examined by the defence, and examined the exhibits proved by the prosecution. We have carefully gone through the impugned judgment and re-appreciated the entire evidence with the assistance of the learned counsel for the parties. The prosecution case mainly rests upon the evidence of Vithal (P.W.2) and Jagannath (P.W.3), the injured eye-witnesses, Laxman (P.W.4)- brother of the deceased Hiraman, Dr. Kendre (P.W.7) and the panchanama of the spot of the incident and the recovery of the arms.

5. Mr. Hudlikar, learned counsel for the accused, criticised the evidence of P.W. 2 and P.W. 3 and contended that either they were not present at the scene of offence or the incident has not occurred as claimed by them. In other words, P.W. 2 and P.W. 3 are not genuine eye-witnesses and what they are stating is not the truth. In his submission, the spot of occurrence is not the one, as claimed by the prosecution and it has been shifted by the witnesses. He invited our attention to the inconsistencies, contradictions and omissions in the evidence of these witnesses and contended that their evidence cannot be accepted as they are definitely suppressing the truth from the Court. He took us through the evidence of P.Ws 2 and 3 and pointed out where they contradict each other and are inconsistent. He further submitted that the motive assigned has not been proved at all inasmuch as the relationship of accused No. 1 with the deceased Hiraman was cordial and they never had any differences or business rivalry on any count. In so far as the assault on Vishnu is concerned, he took us through the evidence of Babu Kadu (P.W.1), Circle Inspector, who drew the map, to show that the body of Vishnu was not found at the scene of offence and in view thereof claim of the eye-witnesses that they have witnesses the occurrence cannot be accepted and believed. The medical evidence also does not support the ocular version. He further submitted that the recovery of the weapons is also of no use to the prosecution inasmuch as the report of the Chemical Analyst in respect of the blood found on different articles was inconclusive and does not support the prosecution case. In so far as the injuries on the persons of P.Ws. 2 and 3 are concerned, he submitted that in view of the opinion expressed by the doctor, they could be self-inflicted. Both these witnesses had only one injury each and, that too, simple in nature. Moreover, he also submitted that the blood stained clothes of the injured witnesses, though recovered, were not sent to the Chemical Analyst which could have helped the prosecution to establish their presence at the scene of offence. According to Mr. Hudlikar, the conduct of the witnesses in the present case was not natural and probable. None of the witnesses or the family member of Hiraman and Vishnu approached the police station which was hardly 200 paces away from their house for hours together, which further supports the defence theory that the incident did not occur as claimed by the witnesses. No independent witness has been examined in the present case which is also a serious lacunae in the case of the prosecution. On the other hand, Mr. Mhaispurkar, learned A.P.P submitted that the evidence of P.Ws.2,3 and 4 stands corroborated by the evidence of other witnesses, the panchnamas and the medical certificates which is sufficient to prove the guilt of the accused persons beyond reasonable doubt. He also took us through the evidence of these witnesses, the exhibits and the observations made by the learned Addl.Sessions Judge in support of his contention.

6. Before discussing the evidence of the witnesses, we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All the witnesses, who claim that they saw the alleged occurrence, are either close friends or relatives of the deceased. The prosecution has not examined disinterested persons. It is not the case that no independent witnesses were available. We are conscious that norms of appreciation of evidence do not warrant that evidence of the witnesses, who are independent and have no reason to falsely implicate the accused, should be mechanically accepted as gospel truth. Even the testimonies of the witnesses, who fall in the aforesaid category, can only be accepted after it is established that they are truthful witnesses. Similarly, the evidence of interested witnesses cannot be discarded on that ground, if otherwise they stand to test of truthfulness or worthy of credence. In other words, non-examination of independent witnesses form nearby residential area is not material if testimony of interested witness is otherwise satisfactory in nature and can be ascribed to be trustworthy. In the light of the aforesaid well settled propositions of law, we would now like to consider the evidence of P.Ws 2,3 and 4 in particular, whether it could be ascribed to be trustworthy to maintain the conviction of the accused in the present case.

7. We, first, would like to deal with the submission that the scene of occurrence, as narrated by P.Ws 2,3 and 4, was not actual spot of occurrence and it had been shifted by these witnesses and, therefore, they cannot be said to have witnessed the occurrence. According to defence, the manner in which these three witnesses have deposed, which consist of several omissions, discrepancies and inconsistencies in so far as the scene of occurrence is concerned, it is sufficient to discredit the entire case. On the date of incident, it appears from the evidence of P.Ws 2,3 and 4 that they were in the house of Hiraman along with Hiraman, Vishnu, Ram Patil, Jagannath, Vithal and Laxman Patil. One Arun Patil from village Roadpali also had come to the house of Hiraman as his guest. They all had dinner at around 11 pm. After dinner, Hiraman along with Vishnu, Jagannath, Vithal went in his car to the village Roadpali to leave Arun Patil. After leaving him when they returned village Kalamboli and reached the house of Vishnu Patil the alleged incident occurred. All the three witnesses are very categoric as to the scene of occurrence. However, in the cross-examination of all the three witnesses the accused have suggested that the dead body of Hiraman was lying by the side of colony road and was picked up and brought near the house of Vishnu Patil and in so far as Vishnu is concerned, his body was, in fact, found lying near Kesari Patil's chawl. In short, defence has suggested that the scene of occurrence was not one as stated by these witnesses.

(i) According to P.Ws 2,3 and 4, Vishnu and Hiraman were assaulted in front of the house of Vishnu Patil. Hiraman Patil was removed to the hospital by Vithal with the help of one Ram Patil in his car. P.W.2 Vithal has stated that since the car broke down on the way they took help of one Ramesh Pandurang Shinde, a person working in the Fire Brigade Station, and took Hiraman in a jeep to the hospital. P.W. 2 is totally silent about Vishnu, as to who assaulted him and why he was not removed to the hospital though Vishnu was also assaulted at the same spot. P.W. 2 Vithal has made a vague and general statement in paragraph 4 of the examination-in-chief that in the alleged incident, Vishnu and Hiraman had died and Jagannath and he himself were injured. Over and above this, he has not attributed an overtact to any of the accused to have assaulted Vishnu. If, what P.W.2 has stated is true, it means he left Vishnu in an injured condition at the scene of occurrence and took Hiraman only to the hospital. We find it not only improbable but impossible to believe particularly when, according to the prosecution, the incident and occurred in front of Vishnu's house and his relatives had also reached the spot even before Hiraman was removed to the hospital. No plausible explanation has come forward as to why Vishnu was not removed to the hospital. This creates strong doubt about the claim of assault on Vishnu at same spot and in the same occurrence.

(ii) At this stage, we would like to refer to the evidence of P.W.7 Dr. Kendre who performed the autopsy on the dead body of Vishnu. Having considered the injuries on the person of Vishnu Patil, in paragraph 6 of the cross-examination, he has opined thus:

"6. The death of Vishnu Patil should be instantaneous on the spot. The man would not be able to run after receiving injury No. 4 in col.No. 17 and injury i.e. precardium heart ruptured in col No. 20, in the report at Exhibit-44. He will fall on the spot itself after receiving the abovesaid injuries. Due to stab injury No. 4 in col No. 17 the blood will spurt out. I found heart empty and the blood was not accumulated in any cavity inside the body. In such case I expect a pool of blood on the spot."

According to doctor, Vishnu should have collapsed instantaneously at the same spot where the blow on his chest was inflicted.

(iii) P.W.3 in his evidence has categorically stated that accused No. 4 Ravindra gave blow of Gupti on the chest of Vishnu. Dr. Kendra (P.W.7) has described five injuries, noticed on the dead body of Vishnu, out of which injury No. 4 alone was on the chest which, in the opinion of the doctor, proved to be fatal. This also stands corroborated by the post mortem notes wherein the doctor has opined that the death of Vishnu was caused "due to shock secondary to rupture of heart due to stab injury". P.W.3 is the only prosecution witness who has stated about the assault on Vishnu. He has categorically attributed injury NO. 4 to accused No. 4 Ravindra which was inflicted at the same spot where Hiraman was assaulted. In view of the statement of Jagannath (P.W.3) coupled with the opinion expressed by the doctor P.W.7, Vishnu ought to have collapsed at the same place where Hiraman was assaulted. If that be so, what prevented the witnesses or family members of Vishnu to remove him to the hospital, has not been explained by the prosecution. Similarly, how dead body of Vishnu reached Kesari Patilwada, has also not been explained by the prosecution. This drives us to record irresistible condition that Vishnu was not assaulted by the accused as claimed by P.W.3.

(iv) P.W.2 is absolutely silent about the assault on Vishnu. In the cross-examination, he has, however, stated that "I came to known that the dead body of Vishnu was lying in front of Kesari Patil Chawl and, therefore, I took the police to the place of incident. At that time father, mother, sister and the wife of Vishnu Patil was present near the dead body of Vishnu Patil." This further supports the defence theory that Vishnu was assaulted elsewhere and not at the scene of occurrence as claimed by the prosecution. The prosecution has not examined any of the close relative of Vishnu or any other independent witness to explain how his dead body was found lying in front of Kesari Patil Chawl. P.W.1 Circle Officer, who had drawn the map, has shown in the map two different spots, not very far from each other, where the dead bodies of Vishnu and Hiraman were lying. The dead body of Hiraman was shown lying in front of the house of Vishnu Patil whereas the dead body of Vishnu was shown lying near Kesari Patil's chawl. A perusal of the map shows that the spot where the dead body of Vishnu was found lying was not visible from the place of occurrence. Mr. Mhaispurkar, learned A.P.P. could not dispute that the dead body of Vishnu was found lying in front of Kesari Patil Chawl which was quite away from the spot of occurrence. The prosecution has not explained how the dead body of Vishnu reached there. P.W.3 has categorically stated that accused No. 4 Ravindra inflicted blow of gupti on the chest of Vishnu at the spot where the alleged incident occurred. However, in the cross-examination, he has stated that when he ran away he saw Vishnu also running away in the same direction in which he ran away. He has further stated that Vishnu ran away upto a distance of 15-20 feet from the car. He has given totally different version than what he has stated in the examination-in-chief. This admission of P.W.3 in the cross-examination is not consistent with the medical evidence of P.W.7 Dr.Kendra. This, in our opinion, is most fundamental defect in the prosecution case and unless reasonably explained could be sufficient to discredit the testimony of P.W.3. He has also stated in the cross-examination that when he was running way, wife, sister and brother of Vishnu reached the scene of offence. We are at a loss to understand why the close relations of Vishnu did not take him to hospital if he was also assaulted at the same spot. This creates doubt, whether Vishnu was, in fact, assaulted in front of his house.

(v) P.W.4 in his examination-in-chief does not make any reference to Vishnu. According to him, he reached the scene of offence, when his brother Hiraman was being assaulted and Vithal was lying on the body of Hiraman to save him from assault. In cross-examination, he has stated that father, mother, wife and sister of Vishnu were present near Hiraman when he reached there. He does not state what happened to Vishnu. In reply to one question in the cross-examination he has stated that "I did not search Vishnu nearby the place of incident. I do not remember as to whether I did state to the police that we searched Vishnu in the darkness. I cannot say any reason as to why police did state that we searched Vishnu in the dark nearby the place of incident." This further supports defence theory that the dead body of Vishnu was not lying at the scene of occurrence, nor was he assaulted there.

(vi) P.W.8 Jadhav, Assistant commission of Police, an Investigating Officer, in his examination-in-chief has stated that he found the dead body of Vishnu Patil lying on the spot and he removed his dead body to the hospital. He was not specific while uttering the expression "spot" in his examination-in-chief. In the cross-examination, he has stated that there was no mention in entry No. 9 regarding the place where the dead body of Vishnu was found. Admittedly, he has not drawn the panchanama of the place where the dead body of Vishnu was lying. P.W.8 has stated that he ought to have drawn the panchnama of the place where the dead body was lying. The evidence of these witnesses, in our considered view, support the submission of Mr. Hudlikar that Vishnu was not assaulted in front of the house of Vishnu as claimed by the prosecution. The incident has not occurred in the manner in which it has been narrated by the aforestated witnesses and, in view thereof, the testimonies of these witnesses cannot be accepted to hold that the incident occurred in front of Vishnu Patil's house.

8. We would now like to consider the testimonies of P.Ws 2,3 and 4 and their conduct. P.W. 2 has narrated the actual assault in his examination-in-chief which reads thus:-

"..... When we reached in front of the house of Vishnu Patil the accused Manohar, Revindra Khanavkar and Raja Patil armed with swords came there by running when Hiraman Patil got down from the car, the accused Nos. 1 and 5 started giving the blows of swords to Hiraman Patil. The deceased Hiraman fell down. I fell on the body of Hiraman to save him. At the same time the accused No. 3. Anant Khanavkar gave blow of sword on me. The accused No. 3 gave blow of sword on my hand. I sustained injury on my left hand. I sustained injury above the below of my left hand. At the same time Jagan and Vishnu got down from the car, but they were also assaulted by the accused persons. After hearing the shouts I saw the person Ram. With the help of Ram I took Hiraman Ganpat Patil to the hospital in the car. But our car stopped working near Fire-brigade station. Therefore, myself and Ram and Waman took the injured Hiraman Patil in the jeep to the hospital."

According to P.W.2 he fell on the body of Hiraman to save him from the assault. He also received a blow on his left hand by accused No. 3. The manner in which this witness claim that he fell on the body of Hiraman to save him, who had already received several injuries on his person, his clothes must have extensively smeared with blood of deceased Hiraman. Admittedly, the police attached his clothes but did not send them to the Chemical Analyst. Finding of blood of Hiraman on the clothes of Vithal would have been the best piece of evidence of establish his presence at the scene of occurrence or to support his claim to have witnessed the incident. This is a very serious defect in the case of the prosecution. This would further creates doubt about the presence of P.W.2 at the scene of occurrence.

(i) Most disturbing feature of the evidence of P.W. 2 is that he had filed an affidavit dated 3.10.1989 in the Court when the bail application of the accused was being considered. In that affidavit he had stated that the accused had used revolver for committing murder of Hiraman and Vishnu. This affidavit was used for contradiction under Section 145 of the Indian Evidence Act. On being confronted with the statement in the affidavit, Vithal has stated that the contents of the affidavit are not correct. This further shows that he has regard for the truth.

(ii) According to P.W.2, after the alleged incident, the deceased Hiraman was taken to the hospital by him with the help of Ram Patil. Hiraman was taken in a car which broke down on the way and therefore he was required to take him in a jeep of Fire Brigade Station with the help of one Ramesh Pandurang Shinde. One policeman was also in the jeep when the injured Hiraman was taken to the hospital at Panvel in the jeep. The prosecution ought to have examined either Ramesh Shinde or the policeman who accompanied in the jeep to the hospital as independent witnesses to support his version which could have proved his presence at the relevant time. The testimony of this witness has further become doubtful since no blood stains were found either in the car on in the jeep in which Hiraman was taken to the hospital. The omission proved in the evidence of P.W.5 is very intrinsic. P.W.5 Parshuram Mohite, a panch witness, in the cross-examination has stated that "I cannot say any reason as to why it is not mentioned in the panchnama at Exhibit-37 that the blood stains on the floor, rear seat were found in the car". He has also denied to have recovered the blood stained pillow from the car. All this throws a cloud of doubt on the claim of P.W. 2 that he saw the incident.

9. Similarly, P.W. 3 has narrated the incident in his examination-in-chief which reads thus:

"When we parked our car in front of the house of Vishnu Patil at the same time the accused Nos. 1 and 5 came there with swords in their hands. I saw the accused Nos. 1 to 5 in the light of electric bulk on the street pole. When Hiraman got down from his car the accused No. 1 gave blows of sword to him. Hiraman then fell down. Vithal got down from left side of the car and fell on the body of Hiraman. At that time accused No. 3 Anant gave a blow of sword to Vithal. While I was getting down from the car on right side the accused No. 5 Raja Patil gave a blow of sword on my head. I fell down. At the same time my brother Vishnu got down from the car on right side at the same time accused No. 1 gave a blow of sword to him. At the same time accused No. 4 Ravindra gave a blow of Gupti on the chest of Vishnu. At that time, there was shouting and therefore my brother Waman, wife and sister of Vishnu came there. I was frightened because of the incident. Therefore, I ran away and went in the lane of Popeta to save myself. Thereafter about 2.30 a.m. I came to my house."

The conduct of this witness is not above suspicion. P.W. 3 in cross, has categorically stated that he ran away from the place of occurrence when all the accused went away. He claims that he had seen the accused persons assaulting his brother Hiraman and cousin Vishnu. We see no reason for P.W. 3 to leave the place of occurrence after the accused left and his all relatives had reached the scene of occurrence. He ran way and went in the lane of Popeta and stayed there all alone for more than two hours. We see no justifiable reason for such unnatural and improbable reaction of P.W.3. He admits in his deposition that the family members of Vishnu had reached the scene of offence before he left the place. According to him, he returned home around 2.30 and he went to police around 3.30 at Panvel and from there he was sent to the hospital for treatment. However, it is very interesting to note that the doctor P.W.7 has stated in the cross-examination that two injured, viz. P.Ws 2 and 3, had come to the hospital at 2 am and he examined them after two hours. If the doctor is to be believed, then the statement of Jagannath cannot be believed who has stated that he was hiding himself in lane for more than two hours and he returned home after 2.30 a.m. and went to the police station after 3.30 a.m. If Jagannath (P.W.3) is to be believed, the doctor cannot be believed who has stated that he saw two injured witnesses, viz. P.s 2 and 3, in the hospital at 2 a.m. on 7.9.1989. Moreover, there is discrepancy in the timing mentioned of the examination of P.W. 2 and P.W.3, on the medical certificate Exhibits 46 and 47 as 4.30 pm and 4.35 pm. The doctor has explained it as his error stating that instead 4.30 pm in the certificates. However, fact remains that the certificates indicate that P.Ws.2 and 3 were examined at 4.30 p.m. and 4.35 pm respectively, obviously on 7.9.1989.

(i) Admittedly, the police station from the scene of offence was hardly 200-300 paces away. None of the witnesses nor the family members of the deceased went to the police station to report the alleged incident till P.W.2 lodged the first information report. There is no consistency in the statements of P.Ws 2 and 3 in respect of the occurrence though both claim that they were present all throughout.

(ii) P.W.4 claims that he reached the scene of offence when his brother was being assaulted and P.W.1 Vithal was lying on his brother's body to save him from the assault. He states that after the alleged incident he went home and slept. His conduct was not only unnatural but was also strange. He did not help others to remove Hiraman and Vishnu to the hospital, nor did he got to police. Looking to his unnatural conduct, we have no hesitation in discarding his testimony outright. The evidence of P.Ws 2, 3 and 4, thus, suffers from several infirmities, which, in our opinion, is not safe to based conviction for the offence punishable for life imprisonment. The cloud of doubt became all the more ominous by the conduct of P.W. 2, 3, 4 all family members of the deceased.

10. We would now deal with the submission that the prosecution has not assigned any motive or has not proved the alleged motive. It is now well settled that the prosecution is not bound to prove motive in cases of direct evidence, but this rule applies only to those cases where the direct evidence is reliable, cogent and unimpeachable. Where direct evidence is not of that quality, absence of motive would have significance. If motive is proved by the prosecution, the court has to consider it and see whether it is adequate. Similarly, if the witnesses try to introduce motive, to make the case full proof against the accused, that could be treated a circumstance, adverse to the prosecution. In other words, it is not open to the prosecution to assign imaginary motive.

(i) The prosecution, in the present case, has alleged that since 4-5 months prior to the incident the dispute arose between accused No. 1 and the deceased Hiraman, when he started independent business of supply of construction material, which ultimately developed animosity between the two. Vithal (P.W.2) has testified the alleged motive in paragraph 2 of his examination-in-chief. He has categorically stated that the deceased Hiraman and accused No. 1 were having good relations till 4-5 months prior to the incident. P.W. 3 has also made a reference to the alleged motive in his examination-in-chief. He has stated that 4-5 months prior to the incident the deceased Hiraman, who was working with accused No. 1 as a driver, left the job and started independent business of supply of construction material and since then they stopped talking to each other. P.W.4 Laxman has also reiterated, in his testimony, the alleged motive.

(ii) When we tried to test the veracity of the statement of these witnesses, we were not convinced about the alleged motive, as true and worthy of credence. Vithal (P.W.2) in cross-examination, has stated that "It is true that the deceased Hiraman had very close relation with accused No. 1 and he used to go along with accused NO. 1 day and night as his bodyguard. It is further true to say that accused No. 1 never would go anywhere alone except with the deceased Hiraman Patil". This shows that the relations of accused No. 1 and the deceased Hiraman were extremely good, as claimed by the accused in their defence. Moreover, P.W. 2 in paragraph 7 of the cross has categorically stated that the deceased Hiraman had not done anything wrong so as to instigate accused No. 1 to commit his murder. Except the statement in the examination-in-chief made in paragraph 2 which had been supported by P.Ws 3 and 4 in their testimonies that there was a quarrel between accused No. 1 and the deceased 4-5 months prior to the incident, the prosecution has not placed anything on record to support its case of an enmity between the two. As far as Vishnu is concerned, the prosecution has not assigned any motive for killing him.

(iii) To our surprise, P.W.2 had not stated in his statement before police that there was a quarrel between accused No. 1 and Hiraman, 4-5 months prior to the alleged incident, since Hiraman started an independent business of supply of construction material. Having confronted with this omission in his statement under Section 161 of Criminal Procedure Code, he replied "I cannot give any reason why I did not say so in my complaint at Exhibit-27". The omission proved cannot be ignored. In our view, the statement of P.W.2 in paragraph 2 of the examination-in-chief referring to the dispute between accused No. 1 and the deceased Hiraman, 4-5 months prior to the incident, was a calculate improvement, which cannot be accepted and will have to be rejected as untrue. For these reasons, we place no reliance on this corroborative evidence.

11. The prosecution has introduced an immediate cause for the alleged attack on the deceased by examining P.W.4. P.W. 4 Laxman, real brother of Hiraman and cousin of Vishnu, has stated that on 7.9.1989 in the evening while he was returning home, he was slapped and abused by accused No. 1 and this was disclosed to Hiraman in the presence of his another brother Ram, Laxman, Vishnu, Vithal (P.W.2) and Jagannath (P.W.3). According to him, thereafter Hiraman with Ram Patil went to the house of accused No. 1 to ask him why did he do so. Nothing more has been stated by P.W.4 in his evidence about the alleged "slapping and abusing". Jagannath (P.W.3) has also named Vithal (P.W.2), a person present when Laxman narrated the incident of "slapping and abusing"" to his brother. No independent witness has been examined to corroborate the incident of "slapping and abusing" by accused No. 1. Vithal (P.W.2) who, according to Laxman, was present when he told about the incident of "slapping and abusing" has not made any reference to the alleged incident in his deposition. Vithal P.W. 2 does not support P.W. 4 on this point. The introduction of an immediate cause for the alleged attack in our opinion cannot be said to have been proved by the prosecution.

12. In so far as the injuries found on the persons of P.Ws. 2 and 3 are concerned, it is very significant to note that two injuries, one each, on the person of these witnesses were of simple in nature.The injury on the person of P.W.2, according to the doctor it could be self-inflicted injury. The injury on the left elbow of P.W.2 was of 1/4" x 1/4" x 1/4" cm. Moreover, according to the prosecution, all five accused were armed with swords and they inflicted several blows on the deceased. If the testimonies of P.Ws 2 and 3 are to be believed, the question arises why did accused persons spared these witnesses by inflicting single blow each causing simple injury. We are at a loss to understand how could they receive only single injury each in an incident, in which two persons were mercilessly killed with multiple injuries caused with swords, particularly when one of them made a clear attempt to save the deceased from assault by lying on his body. It seems to us highly improbable. The evidence of P.Ws 2 and 3, therefore, does not inspire confidence.

13. Overall facts and circumstances of the case thus show that the prosecution has miserably failed to establish the motive assigned for committing the alleged offence. The prosecution has further failed to prove that the incident occurred opposite to the house of Vishnu Patil as claimed by all the eye-witnesses. The conduct of eyewitnesses and the family members of Vishnu and Hiraman throws a cloud of doubt on their claim to have seen the alleged incident. Moreover, several questions, in our opinion, have remained unanswered by the prosecution. Such as, how the dead body of Vishnu was found near Kesari Patilwada and not at the scene of offence?, Why none of the witnesses or the family members of the deceased reported the incident immediately after the occurrence to the police station which was hardly at a distance of about 200-300 paces?, Why Vishnu was not removed to the hospital either along with Hiraman or independently immediately after the occurrence?, Why blood stained clothes of P.Ws 2 and 3 were not sent to the Chemical Analyst?, How the live cartridge and knife, smeared with blood, was found at the scene of offence when it was not the case of the prosecution that the accused used those weapons in the alleged offence?, Why an independent witnesses, though available, were not examined by the prosecution?, Why there is no mention of finding of blood stains on the rear seat of the car in which the deceased Hiraman was being removed to the hospital?, Why Ramesh Shinde, a person working in the Fire Brigade Station, was not examined to establish the presence of P.W.2 at the relevant time?, Why P.Ws. 2 and 4 have not even whispered in their testimonies as to how Vishnu was assaulted and killed by the accused persons in the alleged offence?, Why the constable who was in the jeep of the Fire Brigade Station, in which the deceased Hiraman was removed to the hospital, after braking down of the car, was not examined by the prosecution? All these question have not been addressed by the prosecution and have remained unanswered. This all undoubtedly throws a cloud of doubt on the case of the prosecution.

14. Since we have disbelieved the evidence of P.Ws 2, 3 and 4, then it follows that the other evidence, such as panchnama of the recovery of weapons at the instance of accused, which is only of corroborative type would not in any way improve the prosecution case.

15. In the circumstances, the Appeal is allowed. The impugned judgment and order dated 29th July, 1991 is quashed and set aside, and the appellants-accused are acquitted of all the charges levelled against them. Their bail bonds shall stand cancelled. Fine, if paid by the appellants, be refunded to them.