Hemraj Laxman Gondane vs The State Of Maharashtra
2017 Latest Caselaw 7267 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR

                        CRIMINAL APPEAL NO. 684 OF 2004


            Shriram @ Bablu s/o Gorelal Lilhare,
            aged 25 years, R/o. Binzli,
            Tah. Salekasa, Distt. Gondia
            (In Jail)                                             ...... APPELLANT

                                 ...VERSUS...

            The State of Maharashtra, through
            P.S.O. Salekasa, Distt. Gondia ............                    RESPONDENT

                                            AND

                        CRIMINAL APPEAL NO. 737 OF 2004


            Hemraj Laxman Gondane,
            aged 44 years, R/o. Occ. Utensils Vendor,
            R/o. Gondiqa, Tah. Gondia,
            (Original accused no.1)                    ...... APPELLANT

                                 ...VERSUS...

            The State of Maharashtra, through
            Police Station Officer, Police Station Salekasa, 
            Distt. Gondia                                    .........         RESPONDENT
 -------------------------------------------------------------------------------------------
 Shri Shriniwas Deshpande, Advocate for appellants
 Shri S.M.Ukey, Addl. P.P. for Respondent State
 -------------------------------------------------------------------------------------------
            CORAM: R. K. DESHPANDE, AND
                       MANISH PITALE, JJ.

th RESERVED ON : 18 SEPTEMBER, 2017 .

th PRONOUNCED ON : 19 SEPTEMBER, 2017 .

            1]             In both these  matters, accused No.1  - Hemraj


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and accused No. 2 - Shriram were charged for the offence

punishable under Section 302 read with 34 of the Indian

Penal Code for committing murder intentionally or knowingly

of one Sadaram Sobhelal Uprade on 03.02.2003 between

8.30 p.m. to 2 a.m. They were also charged for the offence

punishable under Sections 452 and 506 read with 34 of

I.P.C. On 30.08.2004, the learned Ad-hoc Additional

Sessions Judge, Gondia, convicted both the accused under

section 302 r/w 34 of I.P.C. in Sessions Trial No. 21 of 2003

and sentenced them to suffer rigorous imprisonment for life

and to pay fine of Rs.5,000/- each and in default to pay fine,

to suffer simple imprisonment for 3 months. Both the

accused are acquitted for the offence punishable under

Section 452 and 506 r/w 34 of I.P.C. This judgment of the

Sessions Court is the subject matter of challenge by the

accused in both these appeals.

2] The story of the prosecution is as under;

On 03.02.2003, between 8 p.m. to 8.30 p.m.,

both the accused and the deceased were in the house of

PW-1 Anitabai wd/o Rupchand Neware at Singletoli, Amgaon

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Khurd in the jurisdiction of Police Station Salekasa, Distt.

Gondia. The accused persons came earlier and then came

deceased Sadaram who was introduced to Anita by the

accused No.1 - Hemraj. Deceased Sadaram sat on the

chair and took out a bottle of country liquor (Nip) from his

pocket and poured it in a glass. Anita gave him water at his

request and the deceased consumed it. According to PW-1

Anita, deceased was heavily drunk and vomited some blood

also.

3] According to the prosecution, a quarrel between

the accused and the deceased started on the question of non

payment of Rs.4,000/- by the deceased to the accused No.1

- Hemraj for sale of his cow. The accused persons started

assaulting Sadaram. Accused No.1 - Hemraj entered the

kitchen room, took out bamboo stick from the roof and

started assaulting the deceased. At that time blood from the

mouth of Sadaram fell on the ground and on the chair. Anita

told them not to quarrel in her house and they were asked to

go away. Deceased Sadaram was wearing a full pant, shirt

and baniyan on his person, which were torn. The accused

persons while beating Sadaram dragged him out of the

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house and took him towards the Railway track.

4] On the next day i.e. on 04.02.2003, the Police

received the information that one dead body was lying near

the railway line and hence, they rushed to the spot. During

the enquiry, it was revealed that deceased had been to the

house of Anita Neware, PW-1 and therefore, they went to her

house. On the basis of the oral report of the incident at the

instance of Anita, offences under Sections 302, 452 read with

Section 34 of I.P.C. were registered at 10 a.m. on

04.02.2003, against the appellants-accused. PW-7, I.O.

Dhanraj, attached to the Police Station Salekasa conducted

spot and inquest panchnamas at Exh. 28 and 29 in presence

of panchas, collected sample of blood stained and plain

earth, the clothes of the deceased, the blood sample, bicycle

of the deceased, one handkerchief having blood stains,

sleeper and one another bicycle found behind the house of

complainant Anita. One plastic chair was also found in the

house of the complainant having blood stains, one bamboo

stick was also seized. Rough sketch of spot of occurrence

was prepared at Exh.30 and the dead body was forwarded

for post martem. The clothes of the deceased were seized

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under panchnama at Exh. 31.

5] Both the accused, according to the prosecution,

absconded after the incident. Accused No.1 - Hemraj

surrendered on 14.02.2003, when he was arrested under

panchnama at Exh. 32. His clothes were seized under the

seizure memo at Exh. 33 containing stains of blood. Blood

sample was taken on 14.02.2003 at Exh.34. Accused No. 2

was arrested on 15.02.2003 under panchnama at Exh. 35,

his blood sample was taken on 17.02.2003 at Exh.36. His

clothes bearing stains of blood were seized on 17.02.2003

under panchnama at Exh. 37. All the articles were sent to

Chemical Analyzer on 20.02.2003 under requisition at

Exh.38. Report of Chemical Analyzer was received at Exh.

39. The statements of some of the witnesses were recorded

at Exh.43 and 44 by the Special Judicial Magistrate under

Section 164 of Cr.P.C. and the photographs of the spot

marked as Article A-1 to Article A-9 were taken.

6] Before the Sessions Court, the prosecution

examined 10 witnesses. PW-1 was Anita Neware to prove

her report at Exh.14, PW-2 Anil Rupchand Neware, aged

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about 13 years is the son of Anita and from his oral evidence,

it is apparent that he was not knowing anything about the

incident, as he was not in the house from 4.30 p.m. upto 9

p.m. PW-3 Imlabai was a resident of the house near the

house of Anita and she also expressed total ignorance about

the incident. She was declared hostile and permission to

cross-examine her was granted. Similarly, PW-4

Omprakash, the resident at the distance of 20-25 feet from

the house of Anita also did not support the case of the

prosecution. He was also declared hostile and permission to

cross-examine him was granted. PW-6 Deonath, panch

witness on spot panchnama, inquest panchnama and seizure

memo turned hostile and was cross examined. PW-8

Khelanbai is the wife of the deceased Sadaram and she has

deposed about the motive. PW-9 Shivshankar Tiwari,

provided bicycle on rent to the accused No.2 Shriram, which

was found behind the house of Anita. PW-10 Bhojram is the

brother of the deceased and his oral evidence is purely hear-

say on the question of motive.

7] The oral evidence of PW-2 Anil, PW-3 Imlabai,

PW-4 Omprakash, PW-6 Deonath and PW-10 Bhojraj does

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not help the case of the prosecution in any manner. The

Sessions Court has ignored their evidence. The Sessions

Court considers the oral evidence of PW-5 Dr. Anil and of

PW-7 I.O Dhanraj, PW-1 Anita, F.I.R at Exh.27, spot

panchnama at Exh.28, inquest panchnama at Exh.29, rough

sketch at Exh.30, seizure panchnama at Exh.31 to 37, report

of Chemical Analyzer at Exh.39, photographs and records

the finding about the homicidal death of the deceased and

further holds that both the accused in furtherance of their

common intention committed murder of Sadaram.

8] The Sessions Court holds that the complainant

PW-1 Anita corroborates the theory contained in the F.I.R at

Exh. 27. It holds that the contents of it were read over and

she has admitted that accused No.1 - Hemraj assaulted the

deceased by bamboo and both the accused dragged away

him from her house. It further holds that Exh.28 spot

panchnama does not show presence of vomit on the spot

and although PW-1 was partly won over by the accused,

nothing is brought on record in the cross examination of PW-

1 Anita. It is held by the Sessions Court that the following

primary facts have been proved.

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"1. Deceased was found in the company of both the accused at Amgaon Khurd on 3/2/2003 from 7 p.m. to 8.30 p.m.

2. Deceased Sadaram met with homicidal death.

3. Death was occurred in between 8-30 to 10-30 p.m. on 3/2/2003.

4. Dead body of deceased Sadaram was lying at short distance of 80 ft. from the house of Anita, where they were seen last.

5. Both the accused absconded after the incident.

6. Bicycle of accused No.2 Shriram was seized from the house of Anita. This shows the conduct of leaving the spot hurriedly.

7. Seizure of blood stained Bamboo, Chair and earth from the house of Anita.

8. Presence of blood stains of deceased on the Bamboo.

9. Prompt lodging of report by Anita (P.W.1) against both the accused.

10. Enmity between deceased and accused No.2 Shriram."

9] One of the circumstances is the theory of last

seen together and before proceeding to deal with it, the

decision of the Apex Court in the case of Madho Singh vrs.

State of Rajasthan, reported in (2010) 15 SCC 588 needs to

be seen. The Court was dealing with the case of an offence

punishable under Section 302 of I.P.C, wherein the

conviction was recorded by the Apex Court by accepting the

theory of last seen together. Paragraph Nos. 5 and 8 of the

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said decision being relevant are reproduced below.

"5. The primary, if not the solitary basis of the conviction of the appellants is on the theory of last seen as the deceased left his house with the appellants at about 11.00p.m. on the 1-5-1999. In order to convict the appellants for an offence under section 302 the first and foremost aspect to be proved by the prosecution is the homicidal death. The evidence on record produced by the prosecution falls short of the proof of homicidal death of Om Singh. According to PW-11 Dr. Lakhan Lal, his face had been crushed. According to testimony of PW-15 Dr. Disaniya, the injuries received by the deceased could be sustained in the accident. Besides these two witnesses, there is no evidence to prove that it was a case of homicidal death.

.....

8. In the absence of proof of homicidal death, the appellants cannot be convicted merely on the theory of last seen - they having gone with the deceased in the manner noticed hereinbefore. The appellants' conviction cannot be maintained merely on suspicion, however strong it may be, or on their conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that all the three were good friends for over a decade."

It is thus well settled that in the absence of proof of homicidal

death, the conviction cannot be recorded merely on the

theory of last seen together, which cannot be maintained

merely on the suspicion, however strong it may be or on the

conduct of the accused. Hence, the finding of the Sessions

Court on the homicidal death needs to be seen.

10] In the present case, PW-5 Dr. Anil Pariyal

conducted autopsy on the dead body of the deceased on

04.02.2003 at 12.10 p.m. and noticed the following injuries

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which are contained in the post mortem report at Exh. 21.

"EXTERNAL INJURIES :-

1. Contusion 6x4 c.m. upper end of left shoulder joint.

2. Dislocation of left should joint.

3. Head injury left front temporal region 4x2 c.m. with fracture front temporal bone 3x1 c.m. bone deep.

4. Contusion with dislocation of left elbow joint 6x4 c.m.

5. Sign of throttling multiple abrasions and contusion on front and both side of neck.

6. Contusion over 1/3rd of left side of back 6x3 c.m. infrascapula with multiple abrasion.

INTERNAL INJURIES :-

1. Brain - multiple clots present left cerebral hemisphere.

2. Left side middle 2x1x1 c.m. lacerated wound due bonee part injury.

GENERAL OBSERVATION : Blood was oozing from ear. Lungs were pale. Undigested food particle were found in stomach. Rigour mortis well marked all over the body. P.M. lividity on left thigh and hip."

11] The Sessions Court deals with the first objection

in respect of the homicidal death that undigested food

particle in the stomach indicates that the deceased must

have taken last meal 1 to 1½ hour before the death. It was

urged that the evidence of Anita, PW-1 does not indicate that

the deceased had taken food before consuming liquor. The

Sessions Court holds that the story of the prosecution that

the accused and the deceased had taken dinner at the house

of Anita just before the incident gets established by presence

of undigested food particles in the stomach of the deceased.

11 apeal684.04 + 737.04.odt

We do not find any infirmity with this finding.

12] The Sessions Court holds that rigor mortis was

developed all over the body of the deceased, which shows

that the death must have been occurred 12-24 hours before

the post mortem. The evidence on record clearly establishes

that the deceased was alive till 8.30 p.m. on 03.02.2003 and

the post mortem was conducted at 12.10 p.m. on

04.02.2003. The Court, therefore, rejects the objection about

the absence of exact time of the death in the post mortem

report and holds that the death must have been occurred

between 8.30 to 10.00 p.m. on 03.02.2003.

13] On the question of probability of causing injury

by fall on the railway cement slipper is concerned, the Court

holds that Medical Officer PW-5 Dr. Anil, without verifying the

nature of injury, has abruptly supported the version of the

accused by giving vague reply that all the injuries are

possible by fall. The Court accepts the contention that the

injury by throttling described at Sr.No. 5 is highly impossible

by fall on the cement slipper besides the railway track. It

holds that the neck region contains several flexible muscle

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and cartilage. Therefore, the possibility of causing laceration

is more and the presence of abrasion and contusion mark on

front and both side of neck are indication of throttling. On the

basis of photographs Article No. A-5, it holds that deceased

was manhandled by his neck and the description of the

injuries indicate that it was not possible by a single fall and

muchless on the cement slipper.

14] The Sessions Court has taken into consideration

11 injuries shown in the inquest panchnma at Exh. 29, as

under;

"1. Swelling below the eyes. The eyes were having blood.

2. Bruise and abrasion on neck.

3. Abrasion on chest.

4. Contusion on left shoulder.

5. Laceration on right hand.

6. Laceration on left hand.

7. Abrasion on both knee.

8. Laceration below left knee.

9. Laceration on both feet.

10.Contusion on right thigh.

11.Abrasion injury on back."

15] The Court holds that the presence of clotted

blood in both eyes and the mouth shows that there was

internal injury to the head which was detected in the post

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mortem report. It holds that lacerated wound to left leg below

knee is obvious from photographs Article A-5, however, the

Medical Officer has not taken any pain to note down this

injury. It holds that there are some injuries which are

mentioned in the post mortem report. The Court holds that

the obvious look of photograph Article A-5 clearly shows the

contusion and lacerated wound on right upper and lower arm

which are not taken into consideration in the report of the

Medical Officer. It is held that if these two reports are

considered together, it shows that the dead body was

dragged to a considerable extent and if the deceased was in

a drunken condition, he would not be in a position to walk

after receiving injury to the head.

16] The Court further holds that the Investigating

Officer has not taken into consideration the photograph of left

side, but the Medical Officer has shown that the injuries were

to the left arm including dislocation. The Court considered

the position of the dead body firmly holding the left hand by

the fist of right hand, which shows that deceased must have

realised immense pain of dislocation or fracture of left arm. It

holds that if the inquest panchnama and post mortem report

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are considered together, it would show that the deceased

was beaten mercilessly and it is not possible to accept the

defence version that all the injuries were possible by a single

fall. It holds that presence of strangulation mark ruled out the

possibility of accidental death. It holds that the post mortem

report shows that the heart and lungs were empty, which

means that the blood had flown out from the body when the

person was alive, which shows that the deceased must have

been assaulted at some other place and was thereafter

moved or shifted to the place of incident.

17] With the assistance of the learned counsels

appearing for the parties, we have gone through the post

mortem report, inquest panchnama and the photographs.

The cause of death shown in the post mortem report is the

intracranial hemorrhage due to head injury. The nature and

the manner in which injuries are found, rule out the possibility

of characterising the death as accidental. We also find that

the clothes of the deceased, his slipper, bicycle, and body all

were lying at different places. What we find additionally is

that the head of the body of the deceased was neatly kept on

the folded soiled coloured full pant as if the deceased was

15 apeal684.04 + 737.04.odt

sleeping on the left side, which rules out the possibility of

accidental fall and death. We do not find any reason to take

a different view of the matter and we confirm the finding of

the Sessions Court that the prosecution has established that

it was a homicidal death of Sadaram.

18] Though PW-1 Anita, complainant, has turned

hostile, there is no reason to disbelieve her version that lastly

the accused persons and the deceased were together on

03.02.2003 between 8.00 to 8.30 p.m. at her house where

the deceased Sadaram was heavily drunk and thereafter also

vomited blood. Anita was annoyed and therefore, the

accused persons and the deceased came out of the house.

In the statement under Section 313 of Cr.P.C., the accused

No.1 - Hemraj admits this position and further states that all

the three went ahead for a short distance, scolded the

deceased and thereafter the accused persons came back to

the house of Anita. In view of this, there is no difficulty in

accepting the theory of last seen together proved by the

prosecution.

          19]              Let   us   turn   to   find   out   if   any   corroborative





                                         16             apeal684.04 + 737.04.odt

evidence is available on record to implicate the accused

persons. The blood of the deceased is found to be of group

"B". The blood stains on the clothes of the deceased were

also of group "B". The blood stains found on the Bamboo

seized from the house of PW-1 Anita are of group "B". The

blood found on the earth and the plastic chair seized is of

human, though group of blood is inconclusive. The blood

group of both the accused is found to be unsuitable for

grouping and it is inconclusive. The blood group of the stains

on the clothes of the accused No.1 - Hemraj is inconclusive,

though it is found to be human blood. No blood stains are

found on the clothes of accused No.2 - Shriram. Group of

blood found on the chair seized from the house of Anita is

inconclusive.

20] The question is what evidence is available on

record to connect the accused persons with the crime. The

oral complaint by PW-1 Anita at Exh.14, F.I.R at Exh.27, spot

panchnama at Exh.28, inquest panchnama at Exh.29 and the

rough sketch of the spot of incident at Exh.30 prepared by

PW-7, I.O Dhanraj shows the spot of occurrence as the

residential house of complainant PW-1 at Singletoli,

17 apeal684.04 + 737.04.odt

Salekasa, where, according to the prosecution, deceased

was killed and PW-1 took out a (wooden) bamboo stick from

the caves of the room which was seized and sealed. The

articles seized and sealed on the spot of occurrence are

described in panchnama at Exh.28, as under;

1] Sample of blood mixed earth and cement. 2] Sample of ordinary earth from besides the spot of occurrence.

3] One catcchu coloured plastic chair. It is broken on the back side upper portion. It bears blood stains on its right leg.

4] One bamboo stick having 5 nodes. It is measuring 3 feet 9 inches in length and it's girth at the middle portion is 7 inches.

5] One old and used 'Hero' company bicycle of green colour. It is bearing Frame No. 9-87/G-761296. Word 'Tiwari Cycle Stores, Binzli No.6' is written with paint on the chain cover. Name 'Bablu Ramsingh Somvanshi, Post - Tonda' is carved on the handle."

21] PW-1 Anita in her examination-in-chief proves

the contents of the oral report at Exh.14 and the first

information report at Exh.27 and states that the contents

were stated by her to the Police and she also accepts in her

examination-in-chief, the seizure of one 'gamchha', plastic

chair, blood stained earth and one bicycle of accused no.2

Shriram. She has neither been declared as hostile, nor

permission was sought to cross examine her by the

prosecution. In cross examination, PW-1 Anita states that

18 apeal684.04 + 737.04.odt

the contents of F.I.R were not read over to her and she

cannot read and write, but can simply put her signature. She

states that accused No.1 Hemraj abused the deceased

Sadaram in filthy language and she stated so because police

also abused her in filthy language. She states that the blood

stained earth was seized behind her back. Whatever she had

stated in examination-in-chief was completely washed away

in the cross examination.

22] PW-1 Anita does not state in her examination-in-

chief that there was quarrel between the accused persons and

the deceased on the question of non-payment of Rs.4,000/-

by the deceased to the accused No.1 - Hemraj for sale of his

cow. She does not say that the accused persons assaulted

the deceased with bamboo stick. The reason for accepting

the blood of the deceased on the bamboo and the chair seized

from her house is that the deceased vomited the blood after

he was drunk. Though the spot panchnama at Exh.28 shows

the seizure of bamboo stick containing the blood stains, it is

not the seizure under Section 27 of the Evidence Act and

PW-1 Anita even in her examination-in-chief does not speak of

the seizure of such bamboo stick from her house. In view of

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the decision of the Apex Court in the case of Javed Rasool

and another vrs. State of Rajasthan, reported in AIR 2010

SC 979, in the absence of PW-1 being declared as hostile

and cross-examined, the accused persons are entitled to rely

upon her statements which are in their favour. In our view, the

evidence of PW-1 Anita does not support the case of the

prosecution that the deceased was killed in the house of PW-1

Anita, which is the spot of occurrence of incident shown. We

are also of the view that the conviction of the accused also

cannot be sustained on the basis of oral evidence of PW-1

Anita.

23] The spot panchnama at Exh. 28 shows that on the

southern side upto a distance of 80 feet from the spot of

occurrence i.e. the house, there is a open place of railway.

PW-1 Anita states in her cross examination that the railway

line is 20 feet away from her house and it is at a higher level

nearly 6 to 7 feet from her house. The dead body of deceased

Sadaram was found lying on the bank of Managad canal near

railway track. PW-1 Anita states that deceased Sadaram

consumed country liquor at her house and vomited. She was,

therefore, annoyed. The accused persons and Sadaram,

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therefore, left her house. There is absolutely no evidence to

support the case of the prosecution that the accused persons

had assaulted the deceased Sadaram by way of bomboo stick

in the house of PW-1 Anita and thereafter he was dragged out

of the house and was taken near the railway track.

24] One of the circumstance considered by the

Sessions Court is that both the accused persons absconded.

In this connection, the decision of the Apex Court in the case

of Sujit Biswas vrs. State of Assam reported in (2013) 12 SCC

406 is relevant. Para 22 of the said decision is reproduced

below.

"22. Whether the abscondence of an accused can be taken as a circumstance against him has been considered by this Court in Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638, wherein the Court observed: (SCC pp. 98-99, paras 28 -27)

"27. In Matru v. State of U.P., 1971 SCC (Cri.) 391, this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under: (SCC p. 84, para 19);

'19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the

21 apeal684.04 + 737.04.odt

circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.'

28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself is not conclusive either of guilt or of guilty conscience."

While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru and State of M.P. v. Paltan Mallah (2005) 3 SCC 169".

Merely because the accused No.1 absconded would not be

enough to implicate him in the crime.

25] Except PW-1 Anita, none other witness supports

the theory of prosecution and the evidence of PW-8 Khelanbai

and PW-10 Bhojram is on the motive of the accused persons

to kill Sadaram. The motive even if established on the basis of

the evidence of PW-8 and PW-10, does not advance the case

22 apeal684.04 + 737.04.odt

of prosecution. The theory of last seen together and the

established fact of homicidal death of the deceased does not

advance the case of the prosecution to implicate the accused

persons in the crime. The presence of blood stains on bamboo

stick and the seizure of clothes of the deceased as well as the

accused persons also in no manner advance the case of the

prosecution. The circumstances taken into consideration by

the Sessions Court,even if found to be true, are not sufficient

to connect the accused persons with the crime.

26] The accused persons are already acquitted by the

Sessions Court for the offence punishable under Sections 452

and 506 read with Section 34 of Indian Penal Code. For the

reasons stated above, the conviction of the accused persons

for the offence punishable under Section 302 read with

Section 34 of the Indian Penal Code cannot be sustained and

consequently the punishment imposed of rigorous

imprisonment for life along with fine of Rs.5,000/- each needs

to be set aside.

27] Both the appeals are, therefore, allowed and the

judgment and order dated 30.08.2004 passed by the learned

Sessions Judge, Gondia, convicting both the accused persons

23 apeal684.04 + 737.04.odt

under Section 302 read with Section 34 of I.P.C. in Sessions

Trial No. 21 of 2003 is quashed and set aside. The accused

persons namely, Hemraj Laxman Gondane and Shriram @

Bablu Gorelal Lilhare are acquitted of the offence punishable

under Section 302 read with Section 34 of Indian Penal Code.

Both the accused persons be released forthwith, if not

required in any other offence. If the accused persons are

already released on bail, their bail bonds stand discharged.

The fine, if any, paid by the accused persons be refunded.

The learned counsel Shri Shriniwas Deshpande,

who is appointed to represent the accused persons, shall be

entitled to fee, which is quantified at Rs.5,000/- (Rs. Five

Thousand), from the High Court Legal Service Sub

Committee, Nagpur.

                                JUDGE                            JUDGE

 Rvjalit