Both Residents Of Virsi vs State Of Maharashtra
2010 Latest Caselaw 134 Bom

                                       1




                                                                           
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH




                                                   
                 CRIMINAL  APPEAL  NO.   712   OF  2004
                                 AND




                                                  
                 CRIMINAL  APPEAL   NO.   412   OF   2006




                                     
                     CRIMINAL  APPEAL NO.  712  OF  2004
                        
    1] Surjit Fulchand Khandke,
    aged about 23 yrs.  Occu. 
                       
    Labourer. 

    2] Rajesh Snyamrao Kapse,
    aged about 25 yrs. Occu. 
      

    Labourer.
   



    Both residents of Virsi, Tah.
    Mouda, Distt. Nagpur.                                      ...   APPELLANTS





                           VERSUS


    State of Maharashtra





    through P. S. O. Mouda, 
    Tah. Mouda, Distt. Nagpur.                                ...   RESPONDENT



    Shri R. M. Daga Advocate for appellant no. 1.
    Shri R. H. Rawlani Advocate for appellant no.2.
    Smt. B. P. Maldhure APP for State/respondent.

     




                                                   ::: Downloaded on - 09/06/2013 16:35:47 :::
                                            2


                      CRIMINAL APPEAL NO.  412  OF  2006




                                                                              
    1] Vinod Shamrao Kapse,




                                                      
    aged about 25 yrs.  Occu. 
    Labour, R/o Village Virsi,
    Tah. Mouda, Distt. Nagpur.




                                                     
    2] Shivchand @ Shiva Soma 
    Khandke, aged about 32 yrs. 
    Occu. Labour, R/o Datta Nagar,
    Behind Shastri Nagpur, Nagpur.                                APPELLANTS 




                                         
                          
                            VERSUS
                         
    State of Maharashtra, 
    P. S. Mouda, Nagpur.                                          RESPONDENT 
      
   



    Shri  R. H. Rawlani Advocate for the appellants.
    Smt  B. P. Maldhure APP for State/respondent.

                            .....

CORAM : A. H. JOSHI & A. R. JOSHI JJ.

DATED : 29 th OCTOBER , 2010.

ORAL JUDGMENT : (Per A. R. JOSHI J.)

Criminal appeal No. 712 of 2004 is arising out of judgment

and order dated 21st September 2004 passed by the 2nd Additional

Sessions Judge Nagpur, passed in Sessions Trial No. 18 of 2003 in which

present two appellants, one more accused were tried for the offence

punishable under Section 120(B) read with Section 34 Indian Penal Code

and also for the offence punishable under Section 4 and 25 of the Arms

Act.

2] Criminal Appeal No. 412 of 2006 is arising out of another

impugned judgment and order dated 9th May 2006 passed by same Court,

(2nd Additional Sessions Judge Nagpur). This judgment and order was

passed in Sessions Trial No. 112 of 2005 and Sessions Trial No. 306 of

2005 which were clubbed together in which appellants in Criminal Appeal

No. 412 of 2006 were facing trial.

3] These criminal appeals are arising out of the same incident of

assault and murder of deceased Damu. However, there were three

sessions trials in which respective accused as mentioned above, faced the

trial. In view of this situation both the present criminal appeals are being

disposed of by this common judgment and order.

4] Heard rival submissions at length. Perused the record and

proceedings.

5] Accused persons and complainant one Dnyaneshwar and also

the deceased Damu were residents of village Virsi Tahsil Mouda District

Nagpur. Admittedly, deceased Damu was a history sheeter and had

various cases including cases for murder against him. Admittedly he was

doing the business of making country liquor. On 10th August 2002 at

7.30 a.m. deceased Damu went to the field of one Kawdu Kinhekar for

easing. According to eye witnesses and specifically P. W. 3 Uttam

Marathe, P. W. 6 Suresh Wani and P. W. 8 Sitabai Wani, accused persons

who are the appellants in both the appeals came out of the house of one

Shamrao Kapse (acquitted accused). Said accused persons were having

weapons swords in their hands. They followed deceased Damu and

accosted him in the field of Kawdu Kinhekar and assaulted him with the

swords. The assault was of such a grave nature that there were almost 25

severe injuries sustained by Damu. Apparently he died on the spot due to

said injuries.

6] The incident was witnessed by Uttam Marathe, Suresh Wani

and Sitabai Wani (P. W. 3, P. W. 6 and P. W. 8 in Sessions Trial No. 18 of

2003). P. W. 8. P. W. 3 and P. W. 6 after witnessing the incident rushed

to the house of the mother of Damu and informed the said incident to P.

W. 9 Anjana, mother of the deceased.

7] According to prosecution case P. W. 1 Dnyeneshwar brother of

the deceased, came to know regarding the said incident when he was at

Basti in the village, as such he rushed to the spot and noticed his brother

Damu lying on the ground in severely injured condition. Damu was then

dead. Damu had sustained injuries on his head, thighs, throat and other

parts of the body. Thereafter P. W. Dnyaneshwar went to the Police

Station and lodged his complaint by taking the names of all the accused

persons. At this juncture it must be mentioned that according to case of

prosecution P. W. 1 is not an eye witness who lodged his F. I. R. taking

the names of all the accused persons, whereas though allegedly P. W.

Nos. 3, 6 and 8 were eye witnesses their statements were not treated as F.

I. R and their statements were recorded during the investigation as per

Section 161 of Criminal Procedure Code. [This aspect has been much

emphasized on behalf of the defence in order to argue that these alleged

eye witnesses are got up witnesses and that they had not witnessed the

incident. This argument shall be dealt in detail at the appropriate place

here under].

8] According to prosecution Inquest Panchanama and Spot

Panchanama were conducted on the spot. P. W. 5 Vyankatesh is one of

the Panchas for these panchanamas. During investigation accused/

appellants in Criminal Appeal No. 712 of 2004 were arrested on the same

day, however the blood stained clothes they were then wearing, were

seized under the panchanama on 12th August 2002 i.e. after two days.

Again it is significant to note that P. W. 6, alleged eye witness, is also the

witness for recovery of clothes of original accused Nos. 1 and 2.

9] It is also the case of prosecution that two swords i.e. Articles A

and B were recovered at the instance of respective accused no. 1 and 2 on

15th August 2002 under Section 27 of the Evidence Act. Significantly

enough again same P. W. 6 Suresh Kapse was taken as a pancha witness

for this discovery panchanama. Another panch P. W. 7 Bhimrao Patil

was also taken by the prosecution for this discovery panchanama of two

swords.

10] During investigation dead body of Damu was sent for

postmortem and P. M. Report Ex. 23 was obtained. During investigation

help of dog squad was taken. Initially when dog squad was brought on

the spot, there was no clue or trace given by the sniffer dog. However,

subsequently after the arrest of accused nos. 1 and 2 a sort of

demonstration was conducted in which said accused were asked to stand

amongst other persons and the sniffer dog was given the smell of pair of

chappals found on the spot during spot panchanama. After giving such

smell to the sniffer dog immediately said dog went near accused no.2

Rajesh and started barking, indicating some connection of accused no.2

with the slipper found on the spot. According to prosecution this is a

circumstance in aid to the investigation so far as implication of accused

no.2 in the incident. For this evidence of dog squad P. W. 11 Police Head

Constable Sanjay was examined. Spot panchanama and the weapons

were sent for Chemical Analysis as to detection of any blood.

11] From the report of Chemical Analyser it is seen that the blood

group of the deceased is 'A' where as the blood group of accused nos. 1

and 2 could not be determined as results were inconclusive. Blood found

on the sword allegedly recovered at the instance of accused no.1 was of

'A' group. The group of the blood found on another sword allegedly

recovered at the instance of accused no.2 could not be determined as

results were inconclusive.

12] So far as Criminal Appeal No. 712 of 2004 is concerned there

are total 13 prosecution witnesses examined. P. W. 1 is Dnyeneshwar

Wani admittedly not an eye witness who after knowing the incident

lodged F. I. R. at Ex. 18. P. W. 2 is Dr. Prashant Barve who performed

postmortem on the dead body and noticed various injuries as detailed in

P. M. Report, such as 6 chop wounds, 12 incise wounds, 5 stab wounds

etc. P. W. 3 is alleged eye witness one Uttam Marathe, an employee of

deceased Damu. It must be mentioned that there are material omissions

brought on record from the evidence of said witness and such omissions

are to the effect that according to him another witness Suresh Wani (P.W.

6) had also witnessed the incidence and that after witnessing the assault

on Damu he went to the house of Damu to inform the mother of Damu

and then came to the spot of occurrence. What is more significant is the

omission regarding alleged presence of P.W.6 Suresh Wani on the spot. P.

W. 4 is alleged eye witness one Ramchandra, however, he did not

support the case of prosecution in any manner and as such declared

hostile and cross examined by learned APP. Nothing much was extracted

from such cross examination in order to support the case of prosecution.

P. W. 5 Venkateshwar Momnini is Pancha Witness on the spot

panchanama and inquest panchanama. Suffice it to say that admittedly

there was a spot panchanama and no any weapons, much less any

swords, were found on or around the spot. This circumstance is of much

importance when it is a specific case of the prosecution that at the

instance of accused no.1 and 2, two swords Article A & B were recovered

from around the spot itself and it happened five days after the incident.

P. W. 6 Suresh Wani is another important witness of the prosecution,

alleged eye witness and cousin brother of deceased Damu. He is also

taken as a pancha witness for the recovery of clothes of accused no.1 and

2 and discovery of two swords at the instance of accused no.1 and 2 vide

respective panchanamas dated 12th August 2002 and 15th August 2002.

As against this case of prosecution according to said P. W. 6 two swords

were found on the same day of the incident and they were found lying

near the dead body and on this aspect he has not supported the case of

prosecution as to recovery of sword at the instance of accused no.1 and 2

on 15th August 2002.

13] P. W. 7 Bhimrao Patil is another pancha so far as alleged

seizure of two swords from accused no.1 and 2. So also he acted as a

pancha for seizure of the clothes of accused no.1 and 2 on 12th August

2002. It is significant to note that said clothes were not sent for chemical

analysis in order to find out the presence of any blood on the said clothes.

So also said clothes were not produced before the Court during the trial.

It must be mentioned that this is definitely a mitigating circumstance to

the case of the prosecution and it has been over looked by the learned

Sessions Judge while convicting the appellants/accused. P. W. 8 Sitabai

is another alleged eye witness. Deceased Damu was her nephew. She

allegedly saw accused nos. 1 and 2 and one unknown person running

towards the place where deceased Damu went to answer the natur's call.

According to her said persons had nothing in their hands and they came

from the hut of one Ramrao (acquitted accused). According to P. W. 8

she immediately rushed to the house of Damu and informed his mother

that four persons were chasing Damu and there after she went to the

place along with mother of Damu and saw that Damu was lying in injured

condition and was dead.

14] During the cross examination P. W. 8 had stated that her

statement was not recorded by Police and her house is far away from the

house of Damu. She further stated that police did not enquire with her

even orally and she also personally did not go to the police station to

inform regarding the chase given by four persons to Damu. At this

juncture itself it must be mentioned that said evidence of P. W. 8 is not of

any help to the case of prosecution.

15] P. W. 9 is Anjanabai is the mother of deceased Damu.

According to her P. W. 3 Uttam Marathe and P. W. 6 Suresh Wani came to

her and informed regarding assault on Damu and thereafter she rushed to

the spot and found Damu in injured condition and dead. She also

deposed as to the earlier incident of assault on her son Damu by the

accused persons about 2 to 4 years prior to the present incident. It must

be said that her evidence is also not of much importance to substantiate

the case of prosecution. P. W. 10 is A. P. I. Roopchand. He monitored the

panchanama regarding seizure of clothes of accused nos. 1 and 2 on 12th

August 2002. P. W. 11 is Police Head Constable one Sanjay Nerkar who

handled the dog squad and give his evidence regarding indication given

by the sniffer dog by barking on accused Rajesh when accused nos. 1 and

2 after their arrest were placed amongst other persons for the purpose of

ascertaining the identity of the owner of the slippers which were earlier

found during spot panchanama.

16] So far as Criminal Appeal No. 412 of 2006 is concerned

following were the witnesses examined by the prosecution, during the

trial when the absconding accused Vinod Kapse and Shivchand @

ShivaKhandke were put to trial. Said witnesses are P. W. 1 Uttam

Marathe an employee of deceased Damu and alleged eye witness P.W. 2

Sitabai Wani alleged eye witness, P. W. 3 Ravi Chavhan is on the spot

panchanama and also on the inquest panchanama. However, he did not

support the case of prosecution inasmuch as he denied as to police

collecting mud samples from the spot and as to dead body of Damu lying

on the spot. P. W. 4 Vyankatesh Mumnani is another pancha for spot and

inquest. P. W. 5 one Bhimrao Patil is on alleged memorandum statement

of accused Vinod Kapse on 10th January 2005 for showing the place where

the sword was thrown. P. W. 6 Yogesh Ninave is a Pancha regarding

alleged memorandum statement of accused Shivchand @ Shiva on 23rd

April 2005. P. W. 7 is Dhanraj another panch regarding alleged

memorandum statement of accused Shivchand @ Shiva on 23rd April

2005. P. W. 8 is Anjanabai mother of deceased Damu. P. W. 9 is

Damodar Rathod the Investigating Officer. He recorded the complaint

given by Dnyaneshwar Wani and treated it as F. I. R. and registered the

crime at Cr. No. 191 of 2002. P. W. 10 is P.I. Purushottam Choudhari.

According to this witness accused Vinod was arrested on 7th January 2005

who was then absconding and accused Shivchand @ Shiva was arrested

on 18th April 2005. According to this witness though there were alleged

memorandum statements recorded as given by said respective accused

persons, there was no recovery of any weapons/swords from the spots

shown by the accused.

17] With the above preliminaries as to the examination of different

witnesses during the trials, certain admitted position is required to be

narrated as under:

i] Accused nos. 1 and 2 i.e. Surjeet Khandke and Rajesh Kapse

were arrested on 10th August 2002 but their clothes were seized on 12th

August 2002.

ii] Clothes of said accused nos. 1 and 2 were not sent for

chemical analysis so also they were not produced before the trial Court.

Iii] Accused Vinod Kapse and accused Shivchand @ Shiva

were absconding and hence case against them was separated. They were

respectively arrested on 7th January 2005 and 18th April 2005.

iv] There was alleged recovery of two swords, each from

accused nos. 1 and 2 and it happened on 15th August 2002 . Allegedly

said swords were found from the scene of offence on 15th August 2002 but

they could not be found during the spot panchanama conducted on 10th

August 2002.

v] Accused Vinod Kapse and Shivchand @ Shiva Khandke

made alleged memorandum statement for showing the place where the

swords were thrown. Such statements were made after their respective

arrest. However no such swords could be discovered.

vi] Blood group of accused nos. 1 and 2 i.e. Surjit Khandke and

Rajesh Kapse could not be determined as results were inconclusive,

whereas the blood group of deceased Damu was 'A' and the blood found

on the sword allegedly recovered at the instance of accused Surjit was 'A'.

vii] Death of deceased Damu Wani was homicidal and he had

sustained very serious injuries as detailed in P. M. Report Ex. 23 and died

on the spot.

18] With the above factual position now following are the points

which are required to be discussed in the present appeals in order to

ascertain the circumstances allegedly against the respective appellants.

i] There is allegedly eye witness evidence of P. W. 3 Uttam,

who is P. W. 1 in Sessions Case separately tried against accused Vinod and

Shivchand.

ii] There is also alleged eye witness evidence of P. W. 6 Suresh

Wani, so far as case against Surjit and Rajesh. He is not examined in the

Sessions Case in which subsequently Vinod Kapse and Shivchand

Khandke were tried.

iii] There is alleged recovery of two swords at the instance of

accused Surjit and Rajesh, allegedly recovered on 15th August 2002.

19]

In view of above circumstances mentioned in the foregoing

para it is a factual position that there is no recovery at the instance of

accused Vinod and Shivchand who were subsequently tried in other two

Sessions Cases. At the cost of repetition it may be mentioned that when

accused Suresh and Rajesh were tried in Sessions Case No. 18 of 2003,

accused Vinod and Shivchand were absconding and were subsequently

arrested on 7th January 2005 and 18th April 2005 and on supplementary

charge sheet separate Sessions Cases came to be lodged bearing No. 112

of 2005 and 306 of 2005. Both the Sessions Cases were clubbed together

and decided by impugned judgment and order dated 9th May 2006.

20] It is significant to note that in Sessions Case No. 18 of 2003

accused Surjit and Rajesh were convicted for the offence punishable under

Section 302 read with Section 34 Indian Penal Code whereas in two other

Sessions Cases No. 112 of 2005 and 306 of 2005, accused Vinod and

Shivchand were convicted for the offence punishable under Section 302

read with Section 120(B) of Indian Penal Code. It is still significant to

note that both the said impugned judgments and orders were passed by

the same 2nd Additional Sessions Judge Nagpur. We must mention that

there is no explanation offered by the learned Sessions Judge while taking

different view i.e. application of Section 34 of Indian Penal Code so far as

conviction of accused Surjit and Rajesh Kapse for the offence of murder

and Section 120(B) of Indian Penal Code for Vinod Kapse and Shivchand

Khandke for the same offence of murder. In our view the learned

Sessions Judge had fallen in error in taking such different views while

convicting the two sets of accused persons for the offence of murder

which arose out of the same incident took place on 10th August 2002.

21] Now the arguments advanced on behalf of respective

appellants can be summarized as under:

i] The alleged eye witness Uttam Marathe in both the matters

and alleged eye witness Suresh Wani in Sessions Case No. 18 of 2003 are

not at all trustworthy and cannot be taken as eye witnesses.

ii] Alleged recovery of swords at the instance of accused Surjit

and Rajesh does not inspire confidence much less such discovery is

incriminating against said accused, more so in view of findings of the C. A.

Reports as detailed above.

iii] Evidence of dog squad is not at all incriminating against

any of the accused and more particularly as against accused no. 1 Surjit.

iv] Recovery of clothes of accused nos. 1 and 2 is doubtful and

the factual position as to non production of such clothes before the Court

and even not sending them to Chemical Analyser is detrimental to the

case of prosecution.

22]

With the above detailed analysis what is required in the

present matter is to ascertain whether the alleged eye witnesses Uttam

and Suresh are worth placing reliance. Admittedly Uttam is a servant of

deceased Damu and had alleged to have witnessed the accused persons

running behind Damu with weapons in hand and witnessed the assault

and then rushed to the house of Damu and informed the same to mother

of Damu and then came back to the spot along with her. According to

him Suresh Wani was also present and witnessed the assault. However as

mentioned earlier this is an omission brought on record during his cross

examination and proved through the Investigating Officer. As such

reasonable doubt is created whether Suresh was in fact present to witness

the incident so also whether Uttam was present and witnessed the

incident. Apart from this, according to Uttam Marathe when he allegedly

came back to the spot along with mother of the deceased the only thing

he saw was Damu lying dead on the spot. As against this it is seen from

his substantive evidence in connected Sessions Cases in which accused

Vinod and Shivchand were tried that after seeing initial assault on Damu

at the hands of the accused persons he rushed to the house of Damu and

gave message to his mother. Thereafter he along with mother of Damu

and along with Suresh came to the spot of incident and at that time again

saw the accused persons i.e. Vinod, Surjiot, Shivchand and Rajesh

continuing their assault on Damu Wani and thereafter said persons ran

away from the spot. It is not the substantive evidence of this witness in

the Sessions Case in which accused No.1 and 2 were tried, so also it is not

in the substantive evidence of Anjanabai mother of Damu that after she

came to the spot on knowing the incident from Uttam, she did witness the

assault. It is also not the substantive evidence of another alleged eye

witness Suresh that after mother of Damu reached the spot he also

witnessed the assault. In fact witness Suresh did not mention anything

that after informing mother of the deceased he came back to the spot.

23] According to Suresh he initially witnessed the assault and then

immediately informed it to the mother of the deceased and also informed

one Dnyeneshwar Wani, brother of the deceased. This Dnyneshwar is the

first informant. Admittedly Dnyeneshwar is not eye witness. On this

aspect as to who informed Dnyeneshwar regarding the incident, said

witness did not mention that Suresh informed him. He only mentioned

that he came to know about the murder of Damu when he had been to

Basti in the village and while he was in the Basti, on receiving the

information he rushed to the spot of occurrence. The above substantive

evidence leads us to doubt the authenticity of alleged eye witnesses.

24] Apart from the above, again substantive evidence of Suresh

goes to show that two swords were found lying by the side of the dead

body on the day of the incident. Substantive evidence of said witness is

reproduced hereunder:

"My statement in respect of incidence seen by me was recorded by police on the spot. I did

not go in P. S. Mouda on the day of incident. I do not remember when the accused persons were

arrested by police. Report of Nanu Wani was accepted by police in my presence. I was aware

before my recording the statement by police that accused had already been arrested. Police did not tell me which accused (were) arrested and which were absconding. I was present in the field of Kawdu

Kinekar when inquest panchanama of dead body of Damu was prepared. Swords Art. A and B were found by police near Beshram trees. Both the swords were at a distance of 2-3 ft. from the dead body of Damu. I had been to P. S. Mouda once after murder of Damu."

Substantive evidence of said Suresh if taken cumulatively do not inspire

any confidence and it must be said that the learned Sessions Judge had

erred in relying on the said evidence holding the respective accused

persons guilty of the offence of murder.

25] So far as evidence of dog squad is concerned, considering the

substantive evidence of Police Head Constable Sanjay Nerkar the dog

squad personnel, no much importance can be attributed towards the

alleged identification of accused Surjit, as indicated by sniffer dog.

26] It is also argued on behalf of the appellants in both the appeals

that conduct of alleged eye witnesses Uttam and Suresh is not logical in

not proceeding further to assist the victim even though allegedly

witnessed the assault. On this aspect following authorities are cited on

behalf of defence:

2004 CRI. L. J. 22 Badam Singh Vs. State of Madhya Pradesh

1994 CRI. L. J. 274

Ahmad alias Ahmad Chakri and Others Vs. The State of Maharashtra

As against the above authorities the learned APP for State placed reliance

on the following authority:

(2007) 13 Supreme Court Cases 530 Paramjit Singh Alias Mithu Singh Vs. State of Punjab Through Secretary (Home).

27] After going through the ratio propounded by the above

authorities cited by both the sides, it can hardly be said that a particular

conduct of a witness is indicative of his authenticity. In other words in

what manner a particular witness may react to the incident depends on

various circumstances such as number of assailants, weapons used by

them, manner of assault on the victim, relation of the victim with the

witness, terror created by the assailants during the incident etc. In that

view of the matter in our opinion conduct of Uttam and Suresh, not

proceeding further to assist the victim when he was being assaulted, has

no much significance. Not on this count but on other facts detailed

earlier, these witnesses are untrustworthy.

28] On behalf of appellants following authority is cited while

arguing that recovery of sword is doubtful. Said authority is,

2004 CRIMINAL 337 Anter Singh Vs. State of Rajasthan

By taking shelter of the ratio of the above authority it is submitted that the

recovery of the two swords allegedly done on 15th August 2002 at the

instance of accused nos. 1 and 2 Surjit and Rajesh cannot be accepted

when said swords were allegedly found at the spot of the incident itself

and when according to prosecution the spot panchanama was thoroughly

conducted and no such weapons were found on 10th August 2002. This

alleged circumstance of finding of the swords on 15th August 2002 is

definitely not convincing and does not inspire confidence.

29] It is also submitted on behalf of the appellants that the alleged

eye witnesses Uttam Marathe and Suresh Wani could only be chance

witnesses. As such their testimony is required to be discarded. Ratio of

following authority taken shelter of on this count,

2004 CRIMINAL 529.

Shankarlal Vs. State of Rajasthan.

30] Procedure adopted by the Investigating Officer in choosing one

of the alleged eye witnesses i.e. Suresh Wani to act as a Pancha for

recovery of clothes of the accused and for discovery of swords at the

instance of accused is deprecated by the defence. On this count

following authority is cited before us,

1977 CRI. L. J. 642 Narpal Singh and Others Vs. State of Haryana.

In the cited authority the Hon'ble Apex Court had raised an alarm and

caution not approving the practice of investigating machinery for using

eye witness also as a Pancha. The observations of the Hon'ble Apex Court

appearing in para 24 of the said authority are reproduced hereunder:

"We would, however, like to point out that in future the Investigating Officer should not

associate any eye witness with the recovery memos

because that partakes of an attempt to make the witness omnibus."

In our view definitely the action of the Investigating Officer in taking

Suresh Wani as a Pancha for recovery of clothes and weapons from

accused Surjit and Rajesh raises a reasonable doubt as to whether the case

of the prosecution is trustworthy.

31]

When above mentioned deficiencies in the investigation were

brought to our notice on behalf of the defence, learned APP for State

submitted that defective investigation would not lead to total rejection of

prosecution case and that delay in lodging the F. I. R. may not be fatal to

the prosecution if properly explained. On this aspect respective

authorities as under are cited before us:

(2006) 12 Supreme Court Cases 64 Rotash Vs. State of Rajasthan and

(2007) 10 Supreme Court Cases 493 Tama Alias Tamal Mal Vs. State of West Bengal

32] After going through the above referred authorities it must be

said that if delay in recording F. I. R. is properly explained it is not fatal

to prosecution so also if the prosecution case gain strength from the

testimony of witnesses then defect in the investigation would not lead to

total rejection of the prosecution case. Still it must be accepted that in the

present case alleged eye witnesses Uttam Marathe and Suresh Wani had

not rendered themselves trustworthy for the reasons detailed earlier and

in that even the attempt on the part of the learned APP to substantiate the

case of the prosecution has become futile.

33] In view of the above it must be said that the learned trial

Sessions Judge had erred in appreciating the evidence of said alleged eye

witnesses and in that event the situation warrants interference in the said

impugned judgments and orders and same are required to be set aside.

In the result, both the appeals are allowed and accordingly

disposed of.

The impugned judgments and orders dated 21st February 2004

in Sessions Case No. 18 of 2003 and 9th May 2006 in Sessions Case No.

112 of 2005 and 306 of 2005 are quashed and set aside.

Appellants in both the appeals shall be released from jail

custody, if not required in any other matter.

Fine amount if already paid by them shall be refunded back to

them.

                             JUDGE                                      JUDGE     

    svk