Bhagwan Baliram Bari And Anr. vs State Of Maharashtra
2004 Latest Caselaw 270 Bom

JUDGMENT

B.H. Marlapalle, J.

1. In Sessions Case No. 18/1999, in all four accused were put on trial before the learned IIIrd Additional Sessions Judge at Jalgaon. Accused No. 1 Baliram Mitharam Bari is the father of accused No. 2 Bhagwan and accused No. 3. Balu. Accused No. 4 is the wife of Baliram. The learned Additional Sessions Judge, by his Judgment and Order dated 09-12-1999, convicted accused Nos. 2 and 3 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code ('the Code', for short), for committing the murder of Madhukar Mitharam Bari, the younger brother of accused No. 1 Baliram, and each of them has been sentenced to imprisonment for life and to pay fine of Rs. 1000/- each, and in default, to suffer R.I. for six months each. Accused No. 1 Baliram and accused No. 4 Vatsalabai came to be acquitted from the offence punishable under Section 302 read with Section 34 of the Code. Hence, this appeal by accused Nos. 2 and 3.

2. The accused were in custody from 11-10-1998 and 23-10-1998, respectively, and while admitting this appeal, their plea for bail was turned down by this Court.

3. Mitharam Hanumant Bari had four sons, namely, Baliram (accused No. 1), Shantaram, Pundlik and deceased Madhukar. Pundlik had died before the date of incident, and Shantaram is in service. The joint family had eleven bighas of landed property, including a house at Yawal. A Civil Suit for partition of this property was pending between Baliram and deceased Madhukar, and in Misc. Civil Appeal, injunction order was granted against the deceased. Deceased Madhukar has two sons, namely, Bhaskar (PW-1) and Deepak (PW-8) and a daughter, namely, Jyoti, who is married. On 10-10-1998, Madhukar, as usual, went to his farm abutting Yawal-Satod road and he was followed by his sons -Bhaskar and Deepak - in about twenty minutes' time. He was having banana plantation in his land, and therefore, he advised his sons to water those plants so that, he could go to Parola to bring his daughter Jyoti. He, therefore, left his sons to water the banana plantation and started for his journey towards Parola, but within five minutes, both the sons heard shouts of their father from the neighbouring land, and therefore, they rushed in the direction from where they had heard the shouts, and they saw that the accused were assaulting Madhukar.

Accused No. 2 was armed with a stick and accused No. 3 was armed with Suri (knife), whereas accused No. 1 Baliram was sitting away at about 50 feet distance and was instigating accused No. 2 to 4 to finish Madhukar. Accused No. 4 Vatsalabai had caught hold of Madhukar. Accused No. 3 Balu gave stab on temporal region of Madhukar, while accused No. 2 started giving blows with a stick on the head of the deceased Madhukar, who collapsed in a pool of blood. The sons cried for help, but nobody came forward except Dagdu Bart (PW-11), who was passing by to somebody else's land for ploughing. The sons - Bhaskar and Deepak - went to him and told him about the incident. He came at the spot, tried to intervene, but was unsuccessful, and he left the place of incident, by stating that, the accused did wrong. After assaulting the deceased, the accused fled and the sons had seen the whole incident from a distance of about 50 feets and were hiding themselves behind the standing crops as they were initially followed by the accused when they had realized that, the sons were coming to the spot. In a manually pulled hand-cart, Madhukar was taken to the hospital, and while under treatment, he died in the said hospital at Yawal. Bhaskar (PW-1) lodged his complaint (Exh-18), which came to be registered as FIR and CR No. 129/1998 for and offence punishable under Section 302 read with Section 34 of the Code came to be registered on the same day at about 9.00 a.m. Rajaram Mandge, API (PW-13) took over the investigation. The dead-body of Madhukar was sent for post-mortem, after preparing Inquest Panchanama (Exh-38) and under the Memo (Exh-27). Blood stained clothes of the deceased were seized. The Investigating Officer arrested the accused Nos. 1 and 2 on 10-10-1998 and accused No. 3 was arrested on 22-10-1998. Blood stained clothes of accused No. 2 were seized under panchanama (Exh-41). Wooden stick used in the assault was discovered under panchanama (Exh-43) at the instance of accused No. 2. Blood stained clothes of accused No. 3 were seized under panchanama (Exh-44), and while in police custody, he made disclosure regarding the knife, which was discovered under panchanama (Exh-46). Blood samples of the accused persons were collected and sent for chemical analysis along with the blood stained clothes of the deceased, accused No. 2 and accused No. 3 as well as the weapons. Dr. Talyar Khan Tadvi (PW-9) conducted the post-mortem and signed the postmortem notes at Exh-28. C.A. report (Exh-48 to Exh-51) was received, and on completion of investigation, chargesheet was filed in the Court of the learned Judicial Magistrate (First Class), Yawal. The case being exclusively triable by the Sessions Court, the learned Judicial Magistrate (First Class) committed the case under Section 209 of the Criminal Procedure Code to the Sessions Court at Jalgaon. The learned IIIrd Additional Sessions Judge framed charge (Exh-9) against the accused persons for an offence punishable under Section 302 read with Section 34 of the Code, and the accused denied the said charge.

4. The prosecution examined in all sixteen witnesses, and its case is mainly based on the testimony of Bhaskar (PW-1), Deepak (Exh-8) and Dagdu (PW-11). Bhanudas Bari (PW-2), Vithal Sonawane (PW-3), Vasant Koli (PW-4), Bhagwat Gajre (PW-5), Nathu Sarvade (PW-6), Dattu Savkhedkar (PW-7), and Madhukar Ramdas Bari (PW-12) were the panch witnesses, all of whom turned hostile, and therefore, they were allowed to be cross-examined by the learned A. P. P. Pramod Sali (PW-10), the Police Pati! also turned hostile. PW-13 Rajaram Bhanudas Mandge, PW-14 Parvat Poharkar, PW-15 Kishor Sonavane and PW-16 Hemraj Chaudhary are the police personnel, who were examined before the Sessions Court, along with Dr. Talyar Khan Tadvi (PW-9).

5. In his depositions, the Medical Officer (PW-9) admitted that, on 10-10-1998, he was on duty at the Rural Hospital at Yawal, and the PSI from Yawal Police Station had forwarded the dead-body of Madhukar Bari through Police Constable Narayan Deshmukh for post-mortem. Post-mortem was conducted between 11.45 a.m. and 12.45 noon, and Bhaskar Bari (PW-1) had identified the dead-body. The doctor noticed the following external injuries.

(i)      1"x 1" contused lacerated wound on left ear parietal area;
 

(ii)    4" x 4" fracture of occipital bone;
 

(iii)   On right side at parietal area 3" x 1" parietal bone fracture;
 

(iv)   2" x 1" long contused lacerated wound on right side of parietal region;
 

(v)     On right side of the fore-head, 1" x 1" on upper region of right eye brow;
 

(vi)    11/2" x 1" long centrally on forehead contused lacerated wound.
 

(vii)  2" x 1" long contused lacerated wound on upper lip. The age of the injuries was probably within twelve hours. On internal examination, he found the following injuries.
   

(i)     4" x 4" long occipital bone fracture of the scalp;
 

(ii)    Right parietal bone fracture 3" x 1" long;
 

(iii)   Left parietal bone fracture 1" x 1" long;
 

(iv)   Fracture forehead on right side.  
 

The brain was congested, Occipital area of the brain lacerated, other organs were congested. All the injuries were on the head, forehead and lips. The doctor opined that, the probable cause of death was "cardio resporatory arrest due to laceration of brain due to multiple fracture of skull bones", and he, accordingly, signed the post-mortem report (Exh-28), and the contents therein were correct. The witness further stated that, the injuries Nos. 1 and 4 to 7 in column No. 17 of the P.M. report were possible by sharp cutting weapon/object, and injuries No. 2 and 3 were possible by hard and blunt object. Injuries No. 1 and 4 to 7 were possible by a Suri (knife) - Article No. 14, and injuries Nos. 2 and 3 were possible by a stick (Article 11). This witness was grilled in the cross-examination wherein he admitted that, while writing the P.M. report, there were number of over-writings in columns No. 17, 18 and 19, and that, by over-writing, he had corrected the earlier mistakes. A few photographs of the dead-body are on record, and they show that, deceased Madhukar was smashed on his head with multiple injuries. It is clear from the testimony of the Medical Officer that, deceased Madhukar died homicidal death, and this is not very seriously disputed by the defence.

We are, therefore, required to decide whether the prosecution has proved its case beyond reasonable doubt that, the accused are the authors of Madhukar's death on 10-10-1998 between 7.30 a.m. and 8.30 a.m.

6. Shri Sant, the learned Counsel for the appellants/accused, by referring to the total evidence and more particularly that of the eye witnesses, submitted that, there was no material evidence proving the complicity of the accused in causing the death of Madhukar. He pointed out by reading the testimony of PW-11 Dagdu that, he was not the eye witness to the main incident of assault resulting into the death of Madhukar and he was at the most witness for scuffle which he tried to intervene and separate the accused and the deceased, but failed, and therefore, left the spot within 2 to 3 minutes from his arrival. The prosecution case is, therefore, required to be examined on the basis of the evidence of the other two eye witnesses, namely, Bhaskar (PW-1) and Deepak (PW-8). Both of them are the sons of the deceased Madhukar, and therefore, their testimony is required to be examined with caution and care.

7. The weapon 'Suri' (knife), Article No. 14 purportedly discovered at the instance of accused No. 3, was placed before us, and Shri Sant pointed out that the same is virtually a small kitchen knife, which may be called as a pen knife and which can never be referred as 'Suri', which is a much bigger size knife like a weapon. The accused No. 3 was arrested on 22-10-1998 i.e. after twelve days from the date of incident, and therefore, the discovery of his clothes purportedly stained with the blood, can not be believed. While in police custody, there, blood samples were taken, and therefore, seizure of clothes of accused No. 2 and 3 is not safe to believe. The discovery of stick was made from an open space, and it, therefore, can not be relied upon. He also referred to the evidence of Bhaskar (PW-1) and Deepak (PW-8) and submitted that, both these witnesses have controverted the testimony of each other, and their evidence on the material circumstances is full of contradictions, improvements as well as omissions. The testimony read in toto would show that, they had framed the appellants by taking advantage of the pending Civil Suit filed by deceased Madhukar for partition of the agricultural land. He also submitted that, the actions of these witnesses, as purportedly disclosed during the investigation and while in the witness box on the material circumstances, appear to be most unnatural. When their father was lying in a pool of blood, the natural instinct would be to shift him to the hospital by the immediate means available. Bhaskar (PW-1) stated that, he went to the Police Station first and after his statement was recorded as per advice of the police, he came to the spot with hand cart and police party and thereafter, deceased Madhukar was shifted to the hospital. On the other hand, PW-8 Deepak, who was weak in hearing, informed the Court that, hand cart was made available from a kilometer distance within about half an hour, and deceased Madhukar was shifted to the Yawal Civil Hospital and was declared dead at about 9.00 a.m. by the doctor attending to him. Shri Sant, therefore, concluded his arguments, urging before us that, the prosecution had framed the appellants on utterly concocted and unsupported evidence and it had thus failed to prove beyond reasonable doubt that, the appellants had caused the death of Madhukar by assaulting him with a stick and 'suri'.

8. Shri N.N. Jadhav, the learned APP, on the other hand, supported the order of conviction and sentence, and submitted that, though PW-1 Bhaskar and PW-8 Deepak were the sons of the deceased, that cannot be a sole reason to discard their testimony, more so when it has been supported by independent eye witness PW-11 Dagdu. He referred to the medical evidence, and pointed out that, deceased was brutally hammered on his head and he died of the head injury. The pending Civil Suit was the main motive behind this murder, and the accused had pre-planned to eliminate Madhukar as he was the only brother of accused No. 1 who was insisting on partition of the ancestral agricultural land. The prosecution has, even though panch witnesses turned hostile, proved its case beyond reasonable doubt, and therefore, the order of conviction and sentence is required to be confirmed by dismissing the appeal, urged the learned A.P.P.

9. Now let's examine the evidence of the three alleged eye witnesses i.e. PW-1 Bhaskar, PW-8 Deepak and PW-11 Dagdu. Bhaskar (PW-1) stated before the Trial Court that, at about 7.30 a.m., his father reached the agricultural land where 1000 banana plants were standing and he, along with Deepak (PW-8), reached the same place at about 7.45 a.m. He was with them for about five minutes and after advising them to continue with the watering of the banana plants, he left for Parola within five minutes to bring Jyoti to the paternal home. Within five minutes, he heard the shouts of his father and he told his brother to stop the electric motor and both of them went in the direction from where they had heard the shouts. The father was in the first field abutting the Yawal-Satod road, and all the accused persons were giving blows to him. Accused No. 2 Bhagwan was armed with walking stick admeasuring about 6 feet in length, accused No. 3 Balu was armed with a Suri and accused No. 4 Vatsalabai had caught hold of the hands of his father, and accused No. 1 Baliram was sitting at a distance and shouting 'hya Madhyala sodu naka' (do not leave this Madhya), to accused No. 2 to 4. His father sustained, stab injuries on his temporal region and head. On seeing both these brothers, the accused left Madhukar at the spot and absconded. After seeing the father's condition, he went to the Police Station at Yawal and gave his complaint, which was reduced in writing by the Police Officer and read over to him (Exh-18). He pushed hand cart that was near the Police Station, and reached the spot of occurrence along with the police, who prepared spot panchanama and at that time, his father was alive. Thereafter, his father was admitted in the Civil Hospital at Yawal and while he was under treatment, within few minutes, the doctor declared him dead. The accused had assaulted Madhukar because he had filed Civil Suit. In his cross-examination, he admitted that, the distance between the spot of incident and where they were watering the banana plants was between 500 to 700 feet and there were no trees in between. He came to know that the accused were assaulting his father when he was at a distance of 50 feet away from the spot and he shouted to free his father. He saw his father lying on the ground and he heard his father uttering "E Raju". He had seen the accused persons assaulting his father with stick and suri and in his presence, two stab blows with suri were given by accused No. 3 Balu, each wound on left and right parietal frontal regions. He had seen accused No. 3 Balu taking out the knife from his waist before his father fell on the ground. Accused No. 4 Vatsalabai had taken out her chappies and accused No. 2 Bhagwan assaulted his father with a stick, which accused No. 4 Vatsalabai picked up and again started hitting his father. According to him, accused No. 2 Bhagwan had given three blows with the stick on the head of his father and accused No. 4 Vatsalabai had given one blow by the same stick. On seeing them, accused No. 2 and 3, armed with stick and suri, rushed towards them and in the mean time, accused No. 4 Vatsalabai ran away along-with accused No. 1 Baliram. He admitted that, as they were under fear, they had hidden themselves, when they saw their father being assaulted, and the incident had lasted for about 7 to 8 minutes. Both of them had gone to the Police Station by running and required about twenty five minutes to reach there. His complaint was recorded after twenty minutes after he reached to the Police Station and for recording the complaint, it took another one hour. Thereafter, his brother's complaint was recorded and it took another forty minutes. Thus, he spent two hours in the Police Station. As per him, the incident had taken place at around 7.45 a.m. and lasted for about 7 to 8 minutes. He took twenty five minutes to reach the Police Station and to return back to the spot, it took another twenty five minutes. Thus total time spent of three hours indicates that, he came back to the spot at about 10.45 a.m. to 11.00 a.m., whereas the FIR at Exh-18 has been registered at 9.05 a.m. after the Medical Officer had declared Madhukar dead. This evidence again has to be examined by keeping in mind that, deceased Madhukar as well as PW-1 Bhaskar were home-guards.

10. Now coming to the testimony of PW-11 Dagdu, he stated before the Trial Court that, the incident, had taken place on 10-10-1998 between 7.45 to 8.00 a.m. He was going to the field of Gul Mohammad Sk. Ibrahim for doing labour work and he had reached the field of accused No. 1 and saw the accused No. 2, accused No. 3 and accused No. 4 standing beyond the boundaries of their field, whereas the accused No. 1 Baliram was standing on the rough road. A scuffle (bhangad) was going on between deceased Madhukar on one hand and the accused No. 2 to 4 on the other. Accused No. 2 Bhagwan was having stick and accused No. 3 Balu was having suri. He heard that accused No, 2 and 3 were asking Madhukar, how he came in the field. Baliram was shouting 'Ha jara jada bolto, tar hyala sodu naka'. Accused No. 2 and 3 started beating Madhukar, and therefore, he ran away towards his field as he was frightened. Bhaskar and Deepak, sons of Madhukar were doing work in their field. He informed them that, 'Maramari' was going on between their father and cousins. He went to his field, and Bhaskar and Deepak went towards their father. In his cross-examination, he stated that, the spot of incident was at a distance of 70 to 75 feet from the Yawal-Satod road, and he was going to the field of Gul Mohammad Sk. Ibrahim from the rough road. He was present at the spot for 1 to 2 minutes and was at a distance of 3 to 5 feet from accused and deceased Madhukar. He ran away from the spot of occurrence and he was not chased by any of the accused. None was near the spot of incident except the accused when he left the same spot. Accused No. 2 Bhagwan was assaulting with stick on the head of Madhukar and he had given only one blow in his presence. Suri was in the hand of accused No. 3 Balu from the beginning and accused No. 3 did not inflict any blow with suri in his presence. He took about three minutes to go to Bhaskar and Deepak to tell them about the incident while standing at a distance of 20 to 25 feet. After he informed them, they went in the direction of the spot. It was brought in the cross-examination that, when his statement was recorded before the police, he had purportedly stated that, after informing about the incident to Bhaskar and Deepak, he had accompanied them to the spot. He also denied that, he was not with Bhaskar and Deepak when they had taken deceased to the hospital from the spot. He admitted that, deceased Madhukar was related to him. His brother's wife was the sister of Madhukar's wife. He did not remember if he had filed affidavit in Regular Civil Suit No. 61/1996 which was filed by Madhukar for partition and injunction.

11. The evidence of Dagdu (PW-11) has been totally demolished by the testimony of Deepak (PW-8), who clearly denied before the Trial Court that, Dagdu had come to them and gave the information regarding the assault on their father. Deepak stated before the Court that, it was his brother who heard the shouts of his father, water pump was switched off and they rushed towards the spot. He admitted that, the accused had seen them from a distance and they were chased. They had to hide behind the standing crops, but further went on to describe the assault by accused No. 2, 3 and 4 on Madhukar. He also stated that, they were seeing the assault from a distance of 40 to 50 feet. When they saw the accused assaulting his father, there was nobody to help them and Dagdu was passing by, and therefore, they went to him and requested him to intervene. He came to the spot, tried to intervene, but was unsuccessful, and therefore, left the spot within 1 to 2 minutes and never came back till Madhukar was shifted to the hospital. He stated before the Trial Court that, after the accused had left the spot, both brothers went near their father and saw him in a pool of blood, they rushed to Yawal, and took hand cart in which their father was brought and admitted to the Civil Hospital at Yawal. It took twenty five minutes to come to Yawal and to reach the spot with hand cart, it took another twenty five minutes, and thereafter it took another twenty five minutes to reach the hospital. This makes about 75 to 90 minutes' gap after the victim was assaulted. Time of assault is stated to be between 7.45 a.m. to 8.00 a.m., and the prosecution claims that, the deceased was declared dead while under treatment at about 9.00 a.m., and the complaint (Exh-18) has been recorded and registered at about 9.05 a.m. with the Yawal Police Station. Deepak has thus disproved the story put forth by PW-11 Dagdu before the Trial Court, though his presence at the spot for a minute or so when there was scuffle going between the deceased and the accused, is admitted.

12. All these three witnesses stated unequivocally that, Madhukar was assaulted between 7.45 a.m. to 8.00 a.m. on 10-10-1998 and he was declared dead at 9.00 a.m. while under treatment. There are- no medical papers on record to show that, deceased Madhukar was admitted in the Yawal Hospital between 8.30 a.m. to 9.00 a.m. and that he died while under treatment at about 9.00 a.m. For the reasons best known to the prosecution, this evidence was not brought before the Trial Court, PW-9 Dr. Talyar Khan Tadvi, on the other hand, in his cross-examination, admitted that, the death of Madhukar must be in between 8 to 12 hours from the time of post-mortem examination. The post-mortem examination had commenced at 11.45 a.m. The doctor further went on to say that, the death might be between 11.45 p.m. of 09-10-1998 (i.e. in the night of 09-10-1998 leading to 10-10-1998) to 4 a.m. of 10-10-1998. The dead-body was received by him at 11.00 a.m. He also admitted that, Regor Mortis was present on upper and lower extrimities. We may usefully re-produce the following paragraph from Dr. Parikh' s Textbook of Medical Jurisprudence and Toxicology.

"Rigor mortis commences in 1-2 hours after death, takes about 12 hours to develop from head to foot, persists for another 12 hours, and takes 12 hours to pass off. Thus, the presence and extent, or absence of rigor mortis helps to provide a rough estimate of the time since death. As for example, if rigor mortis has not set in, the time since death would be within 2 hours, and if it has affected the whole body, the time since death would be within about 12-24 hours."

13. If we go by this medical evidence, it is clear that, Madhukar died between 11.45 p.m. on 09-10-1998 and 4.00 a.m. on 10-10-1998. The entire case of the prosecution is that, Madhukar left his house at Yawal at 7.30 a.m. on 10-10-1998 to go to his agricultural land and he was followed in another 15 to 20 minutes by his two sons. At about 7.45 a.m., he left the agricultural land to go to Parola to bring his daughter Jyoti and within five minutes, the sons heard his shouts and on hearing the same, they proceeded in the same direction and noticed that, he was being assaulted, which they had seen from about 40 to 50 feet. PW-8 Deepak admitted that, they were hiding behind Jawar crop to save themselves from the attack of accused No. 2 and 3, who had admittedly chased them. The medical evidence thus contradicts the prosecution evidence as brought through the testimony of PW-1 Bhaskar, PW-8 Deepak and PW-11 Dagdu. The evidence of both these sons has not been corroborated and more so, because all the panch witnesses turned hostile. The panch witnesses went to the extent of stating before the Trial Court that, the contents of panchanama were already written by the police and they were just called and asked to sign thereon. The testimony of Dagdu (PW-11) is full of suspicion and his presence at the spot is doubtful. The description of the circumstances that has come through the testimony of PW-1 Bhaskar and PW-8 Deepak is highly improbable, contradictory and does not relate to the medical evidence. The knife which was muddemal article before us is virtually a pen knife and by no stretch of imagination, it could be termed as 'suri'. The injuries noticed on the skull, forehead and the lips of the deceased could have been caused by hard and blunt object as well, as has been admitted by the Medical Officer. The knife which was before us is incapable of causing the skull fracture in normal course, even though its bled is of the length of 10 cms. Shri Sant, therefore, rightly relied upon the following decisions.

(i)      State of Rajasthan v. Mani Ram, 2001 AIR SCW Page 2409.  
 

 (ii)    Thangavelu v. State of Tamil Nadu, 2002 AIR SCW Page 3118.  
 

 (iii)   Mohan Singh v. Prem Singh and Anr., 2002 AIR SCW Page 4204. 
 

14; Now coming to the issue of motive, we have noticed that, the prosecution evidence, to relate the same with the pending Civil Suit, is most unrealistic. Even if deceased Madhukar had filed a Civil Suit for partition of agricultural land standing in the name of his father, his elimination purportedly by the accused would not be of any consequence to them, because the deceased had two major sons i.e. PW-1 Bhaskar and PW-8 Deepak. When he had successors to share the property, it can not be accepted that, the accused wanted to get rid of him to defeat the suit for partition. His application for injunction was allowed by the Trial Court, but in appeal it was rejected. These circumstances by themselves would not be sufficient to accept the prosecution story that, the accused had decided to get rid of the deceased so as to retain the ancestral agricultural land only with them. It is also on record that, the third brother of accused No. 1, namely, Shantaram is also alive and stays at some other place. The theory of motive thus put up by the prosecution fails, and the same is hereby discarded. The Trial Court, it appears to us, was overwhelmed by the testimony of so called eye witnesses i.e. PW-1 Bhaskar, PW-8 Deepak and PW-11 Dagdu. On the analysis of their evidence, as we have referred to hereinabove, it is clear that, each one of them has contradicted the other on the material circumstances., Accused No. 3 was arrested on 22-10-1998 and it is impossible to accept that, after a gap of ten days, he was still wearing the blood stained clothes, which he had on his person when he purportedly attacked on the deceased on 10-10-1998. The stick purportedly used by accused No. 2 in inflicting blows on the head of the deceased was recovered from an open space adjacent to a Nala. All these panchanamas were said to be proved by the evidence of the Investigating Officer. The Trial Court, accepted the Investigating Officer's evidence and believed that, the seizure of blood stained clothes and discovery of weapons was duly proved. We do not agree with the same view. It would be unsafe to accept the evidence of the Investigating Officer, more so when the panch witnesses denied that the seizure/discoveries were made in their presence and stated before the Trial Court that, panchanamas were already written and they were called by the police and were made to sign.

15. In the premises, we hold that, the evidence on record does not lead to a conclusion that, the prosecution has proved its case beyond reasonable doubt regarding the complicity of the appellants in causing the death of Madhukar, the father of PW-1 Bhaskar and PW-8 Deepak, on 10-10-1998. The appeal, therefore, succeeds, and the same is hereby allowed. The order of conviction and sentence passed by the learned IIIrd Additional Sessions Judge at Jalgaon, on 9-12-1999 in Sessions Case No. 18/1999, for the offence punishable, under Section 302 read with Section 34 of Indian Penal Code, is hereby quashed and set aside, and the accused/appellants are acquitted of the said offences. We direct the accused to be released forthwith, if they are not required to be continued in jail in connection with any other case.