Anant Dnyaneshwar Jadhav vs The State Of Maharashtra
2017 Latest Caselaw 7604 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION
                         CRIMINAL APPEAL NO.544 OF 2012

    Anant Dyaneshwar Jadhav
    Aged 35 years, Indian Inhabitant,
    permanently residing at
    Maratha Vasti, Bhavani Peth,
    Solapur, Maharashtra and
    currently admitted in Civil 
    Hospital at Solapur.                                    ... Appellant
                     versus
    The State of Maharashtra
    (At the instance of 
    Jail Road Police Station,
    Solapur-C.R.No.100/09)                                  ... Respondent

                                     WITH
                         CRIMINAL APPEAL NO.772 OF 2013

    The State of Maharashtra
    (At the instance of 
    Jail Road Police Station,
    Solapur-C.R.No.100/09)                                ... Appellant
                                                       (Orig. Complainant)
                     versus

    1.      Siddheshwar @ Tatya Jaiprakash Vadtile

    2.      Shivanand Nagnath Wadkar

    3.      Anand Nagnath Kadam

    4.      Jyotiba @ Sarja Sidram Mohite

    5.      Bandu Murlidhar Jadhav                   ... Respondents
                                          (Orig. Accused Nos.2, 4 to 7)
                                      .......

Nesarikar




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 •      Mr.Ashok Mundargi a/w Ayaz Khan and Priyal G. Sarda, for 
        the Appellant in Appeal No.544/12.
 •      Mr.Priyal G. Sarda for Respondent Nos.1, 3, 4 and 5 in Appeal 
        No.772/13.
 •      Mr.Viresh V. Purwant for Respondent No.2 in Appeal 
        No.772/13.
 •      Mr.H.J. Dedhia, APP for the State/Respondent.

                         CORAM         :  A.A. SAYED &
                                          SARANG V. KOTWAL, JJ.
                         RESERVED ON   :  13th SEPTEMBER, 2017
                         PRONOUNCED ON :  27th SEPTEMBER, 2017


 JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. Both these Appeals arise out of the same Judgment and

Order dated 30/04/2012 passed by the Additional Sessions

Judge, Solapur, in Special Case No.30/09 and therefore both

these Appeals are disposed off by this common judgment. For

the sake of convenience the Appellant in Criminal Appeal

No.544/12 and the Respondents in Appeal No.772/13 are

referred to as the Accused as per their serial numbers in the said

Sessions Case. The Criminal Appeal No.544/12 is filed by the

original Accused No.1 challenging his conviction and sentence at

the conclusion of the trial. The State of Maharashtra has

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preferred Criminal Appeal No.772/13 against the Respondents

therein, who were the original accused Nos.2, 4 to 7 in the said

Special Case, who were acquitted. The accused No.3 who was

also convicted alongwith accused No.1, has not preferred any

Appeal.

2. The Appellant in Criminal Appeal No.544/12, the

original accused No.1 and the original accused No.3 were

convicted for the commission of offence punishable u/s 302 of

the Indian Penal Code and they were sentenced to suffer

imprisonment for life and to pay a fine of Rs.2,000/- each and in

default of payment of fine to suffer rigorous imprisonment for

six months. Both these accused Nos.1 and 3 were further

convicted for the offence punishable u/s 4 (25) of the Arms Act

and they were sentenced to suffer rigorous imprisonment for

one year and to pay a fine of Rs.500/- each and in default of

payment to suffer rigorous imprisonment for three months. The

substantive sentences were directed to run concurrently and

both these accused were given benefit of set of u/s 428 of

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Cr.P.C. The original accused Nos.2 and 4 to 7 were acquitted

from all the charges. These accused and accused Nos.1 and 3

were acquitted from the offences punishable u/s 143, 147, 148,

323, 324, 302, 504, 506 r/w 149 of the IPC and u/s 3(i)(x) r/w

6 as well as u/s 3(ii)(v) of The Scheduled Castes and Tribes

(Prevention of Atrocities) Act, 1989 and u/s 7(1)(d) and 10 of

the Protection of Civil Rights Act, 1955 and u/s 4(25) of the

Arms Act and u/s 135 of the Bombay Police Act. The original

accused Nos.2 and 4 to 7 were further acquitted for the offence

punishable u/s 302 r/w 149 of IPC and u/s 4(25) of the Arms

Act.

3. The prosecution case pertains to the murder of one

Deepak Sable, which took place at around 09.00 p.m. on

07/06/2009 outside Sambhaji Talim in Maratha Vasti, Solapur.

According to the prosecution case, all these accused along with

the other accused, who were absconding, formed an unlawful

assembly. They were having weapons like sword, rod and sticks.

According to the prosecution case when Deepak, his brothers

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and friends were passing on the road in front of Sambhaji Talim,

accused assaulted them. Except Deepak, his companions

managed to escape. Deepak Sable was assaulted by the accused

with their weapons. After some time Deepak's brother and

friends came in search of him. He was found lying unconscious

in another lane. Deepak was removed to hospital. Deepak's

brother Rohit Sable (P.W.5) went to the Police Station and

lodged his FIR, which was registered vide C.R.No.100/09 at Jail

Road Police Station. Deepak succumbed to his injuries in the

hospital on 09/06/2009 and therefore section 302 of the Indian

Penal Code was added. In the mean time, the investigation had

commenced. The spot panchanama and the inquest panchanama

were conducted. Within a few days accused were arrested.

Statements of various witnesses were recorded and at the

conclusion of the investigation, the charge-sheet was filed in the

Court of J.M.F.C. (3), Solpaur. Thereafter the case was

committed to the Court of Sessions. The charges were framed

against the aforementioned 7 accused, to which they pleaded

not guilty and claimed to be tried.

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4. During the trial, the prosecution examined 20

witnesses including the pancha witness and the police witnesses.

Apart from them, the two main witnesses i.e. P.W.5 Rohit Sopan

Sable, who was the brother of the deceased and P.W.6 Babloo

Madhukar Aigole, who was the friend of the deceased, were

examined as eyewitnesses to the incident.

5. P.W.13 Dr. Suryakant Baburao Kambale had conducted

post-mortem examination and he had found following injuries

on the dead body.

"1) C.L.W. (5 x 5 cm) bone deep about 'Y' shaped present over right parieto occipital region of the skull with crepitus positive;

2) Sutured wound about 4 cm over left occipital region of skull with crepitus positive;

3) Linear abrasion about 5 cm over right shoulder with scab formation;

4) Contusion over forehead and above right eye with black eye about 6 cm x 4 cm;

5) Linear abrasion 3 x 1 cm reddish superficial over left cheek with scab formation;

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                   6)          C.L.W.  3 x   1  cm  over   left   middle  finger  bone

deep; fracture left metacarpal bone of left middle finger."

6. According to him the injury Nos.1 and 4 were fatal

injuries as they were corresponding to the fracture of skull

which was an injury to brain. He has opined that injury No.1, 2,

4 and 6 were grievous. He has given cause of death as, 'death

due to head injury'. He has further deposed that the injury No.1

was possible by sword, the injury Nos.2, 4, 6 and 7 were

possible by iron rod and the rest of the injuries were possible by

sticks. Curiously in the cross-examination, after he was recalled,

he has opined that injury No.1 was not possible by sword and

the injury No.2 was also not possible by sword.

7. We have heard learned Senior Counsel Mr.Ashok

Mundargi, for the Appellant in Appeal No.544/12, Mr.Priyal G.

Sarda for Respondent Nos.1, 3, 4 and 5 in Appeal No.772/13,

Mr.Viresh V. Purwant for the Respondent No.2 in Criminal

Appeal No.772/13 and Mr.H.J. Dedhia, APP for the State of

Maharashtra.

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8. As mentioned earlier, the prosecution case mainly rests

on the evidence of the two eyewitnesses i.e. P.W.5 Rohit Sable

and P.W.6 Babloo Aigole. P.W.5 Rohit Sable was Deepak's

younger brother. According to him they used to work as

Labourers in the Siddheshwar Yard and their timing was from

09.00 p.m. to 10.00 p.m. P.W.5 Rohit Sable has deposed that he

and his brother Deepak belonged to Hindu Mahar community

and accused belonged to Maratha caste. When they reached

Sambhaji Talim, they were suddenly attacked by 10-15 persons

including the present accused, carrying sword, sticks and iron

rod. He has further deposed that the accused No.1 abused them

by referring to their caste by passing derogative remarks about

their caste. He has further deposed that the accused No.1

assaulted Deepak on his head with sword. The accused No.3 was

having iron rod, one Bandu Jadhav was having Pharshi (one

kind of axe) and the remaining accused were having sticks.

According to him, all of them assaulted Deepak. Due to fear this

witness and others ran away in a lane and after some time they

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returned to the spot where Deepak was assaulted, but could not

find him. Thereafter he went to his Uncle Pandurang Sable and

came on the spot with him. They saw that a police jeep was

already there in a lane and Deepak was lying unconscious with

injuries on head, chest and below the eye. The police jeep took

Deepak to Civil Hospital. P.W.5 then went to his parents and

informed about the incident. Then they went to the Civil

Hospital, where Deepak was being treated and thereafter this

witness went to the police station to lodge his FIR. He has stated

that Deepak succumbed to his injuries on 09/06/2009 at about

12.30 p.m. He further deposed that his supplementary statement

was recorded on 11/06/2009 and in his supplementary

statement he added five names and he has stated that since his

mental condition was not proper on 07/06/2009, he had not

mentioned their names in the FIR. According to him, the

incident of assault had taken place on 07/09/2009 at about

06.00 p.m. between two groups i.e. boys from their Vasti and

the accused persons. Though he had not seen the incident, he

had come to know about it on the next day. The incident of

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assault on Deepak at 09.00 p.m. was a result of the earlier

incident at 06.00 p.m.

9. P.W.6 Babloo Aigole has described the main incident

on the similar lines as described by P.W.5. He has further stated

that he ran away from the place of incident. He came back after

some time and searched for Deepak, but he was not found there.

Therefore he went to the house of Pandurang Sable and

returned. He has further deposed that he returned to the spot

and found that Deepak was being lifted in a police jeep, behind

the house of one Lata. In his cross-examination he has admitted

that his statement was recorded by the police on 11/06/2009.

10. Mr.Mundargi, the learned Senior Counsel criticized the

evidence of these two witnesses and has submitted that from

their evidence it is clear that they have not seen the incident and

they have implicated the accused because they were guided by

their local leaders to implicate them falsely. In this connecntion

he has invited our attention to the deposition of P.W.1

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Siddheshwar Saybu Kadam, who is examined as the Pancha for

the spot panchanama, but in the cross-examination this witness,

P.W.1, has admitted that in the year 2007 this witness had

contested Municipal Election against the accused No.1. He has

admitted that the accused No.1 was respected in the Maratha

Vasti and this witness was respected in his Mukund Nagar and

Rajiv Gandhi Nagar area. He has further admitted that the

deceased, P.W.5 Rohit Sable, P.W.6 Babloo Aigole and

Pandurang were voters in his locality. He has further stated that

on 07/06/2009, he had gone to the Civil Hospital and had met

P.W.5 Rohit Sable and his parents at 10.00 p.m. and had

enquired with them about the incident.

11. Mr.Mundargi, the learned Senior Counsel also invited

out attention to the evidence of P.W.7 Ajit Shivaji Gaikwad, who

was examined to prove inquest panchanama. This witness has

deposed about the phone calls made to him by the accused No.1

about the crime and the accused No.1 showing willingness to

pay for the expenses if Deepak, who was then injured, was

removed to a private hospital. Apart from this, his cross-

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examination shows that the accused No.1 had contested election

against this witness's wife. This witness states that he had gone

to Civil Hospital and had met P.W.5 Rohit Sable.

12. Mr.Mundargi, the learned Senior Counsel invited out

attention to evidence of P.W.2 Sudhakar Ramchandra Gaikwad.

This witness was examined to prove seizure of stick at the

instance of accused Nos.6 and 7. In the cross-examination he has

admitted that on 07/06/2009 he had gone to the Civil Hospital

to meet P.W.5 Rohit Sable. At that time there were many people

with Rohit Sable including the leaders of their caste. This

witness has admitted that P.W.5 Rohit Sable told him that he

could not see what happened due to rush of people. He further

admitted that this witness and others took P.W.5 Rohit Sable to

Police Station and told him how to file the complaint. This

witness has further clearly admitted that as per their say, P.W.5

Rohit Sable had filed complaint in the police station. After this

clear admission there was no re-examination on behalf of the

prosecution. Therefore Mr.Mundargi has submitted that the FIR

was a result of deliberation of the leaders with P.W.5 Rohit

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Sable and consultation amongst the political opponents of the

accused No.1 and the FIR was lodged as per their say and it is

quite obvious that, due to political rivalry, the accused Nos.2 to

7 and the accused No.1 who was their leader, were implicated in

this crime. Mr.Mundargi submitted that the prosecution has not

led any evidence in respect of the incident, which had taken

place at about 6 O'clock in the evening on 07/06/2009.

Therefore, in any case, there was no motive for the accused to

assault Deepak, who was not even said to be involved in the

incident at 06.00 p.m.

13. It was further contended that there are material

contradictions between the evidence of P.W.5 and P.W.6 Babloo

Aigole. P.W.5 Rohit Sable has stated that after the incident, he

returned to the spot. He did not find Deepak there. Therefore he

went to Pandurang Sable and came back to the spot. Whereas

P.W.6 Babloo Aigole has deposed that after the assault, they

returned to the spot. Deepak was not found at the spot. Then

they went to the house of Pandurang Sable and then this witness

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P.W.6 and Pandurang Sable came to the spot and found Deepak

being lifted by police and kept in police jeep. This evidence

shows that there are two versions. On one hand P.W.5 says that

he and Pandurang Sable came to the spot after the incident. On

the other hand P.W.6 Babloo Aigole says that he and Pandurang

Sable came to the spot. They did not speak about each other's

presence when they had returned to the spot to search for

Deepak. Pandurang Sable is not examined by the prosecution for

the reasons best known to it. He was an important witness. He

could have established presence of these two witnesses or the

presence of either of these two witnesses at the spot soon after

the incident. In the light of the fact that these two witnesses are

giving contrary versions, in that behalf, it was necessary for the

prosecution to have examined Pandurang Sable.

14. It is also quite surprising that, when after the incident

either P.W.5 or P.W.6 Babloo Aigole returned to the spot,

Deepak was not found lying there. The prosecution evidence

shows that he was lying in front of the house of Awtade and the

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evidence is also on record to show that the said spot was merely

200 ft away from Sambhaji Talim. Therefore it is rather difficult

to believe that when Pandurang Sable and either of these

witnesses P.W.5 and P.W.6 Babloo Aigole searched for Deepak

at the spot, they could not find him. This gives rise to a

reasonable possibility that both these witnesses were not at the

spot and had not seen the incident, but came to know about the

incident only in the hospital.

15. According to the P.W.5 Rohit Sable the incident took

place at about 09.00 p.m. Thereafter he came to the spot in

search of Deepak. Then the police took Deepak to hospital. Then

this witness had gone to his house to inform his parents and he

was in his house for about 10-15 minutes and thereafter they

went to the Civil Hospital, which took 15-20 minutes. He has

further stated that Deepak was treated for about 1-2 hours, he

met others and then he had gone to the police station. P.W.6

Babloo Aigole has also admitted that, in the Civil Hospital he

was with Rohit Sable for 1 or 2 hours and after two hours Rohit

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Sable went to the police station to lodge his FIR. In such

circumstances, it was not possible that the FIR could have been

lodged at 10.35 p.m. as is the prosecution case. Thus, the

possibility of manipulation of the FIR and the timing thereon, is

not ruled out.

16. As far as P.W.6 Babloo Aigole is concerned, his

statement was not recorded by the police either at the spot or in

the hospital, where he was available for 2-3 hours or even for

the next four days though he was available. His statement was

recorded for the first time on 11/06/2009. There is no

explanation as to why his statement could not be recorded

earlier. Thus, there was sufficient time for him to discuss the

matter with his friends and leaders of his locality and therefore

false implication of the accused cannot be ruled out.

17. Even P.W.5 Rohit Sable had given his supplementary

statement on 11/06/2009 and has added a few names, which

clearly means that he has implicated even some more accused

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on 11/06/2009. There are major important omissions from his

FIR which are brought on record by the defence. Though in his

deposition P.W.5 has explicitly mentioned abusive words uttered

by the accused No.1, those words are missing in the FIR. In the

FIR no specific role or weapon was attributed to any of the

accused except the statement that they were carrying weapons

and had assaulted. However, in his supplementary statement

and in his deposition he has attributed specific roles and

weapons, in particular to the accused Nos.1 and 3, which also

points to deliberate false implication. Therefore, we are of the

opinion that the P.W.5 has deliberately tried to implicate the

accused. We do not feel it safe to rely on his evidence.

18. Both these witnesses P.W.5 and P.W.6 Babloo Aigole

have deposed that the incident has taken place on the road in

front of Sambhaji Talim. Both these witnesses have stated that

when the assault started they ran away from the spot and came

back there after some time. But they did not find the injured

Deepak lying there. Their initial search was unsuccessful and

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when they came back with Pandurang Sable, though it is unclear

as to which one of them returned to the spot with Pandurang

Sable, the injured Deepak was not lying in front of Sambhaji

Talim. According to the prosecution case, Deepak was found

lying in front of the house of Awatade in a different lane from

where the police removed him to the hospital. Thus the

prosecution case involves two spots. The first spot was more

important because according to eyewitnesses P.W.5 and P.W.6

when they had seen the incident, Deepak was assaulted at that

spot. The second spot was in front of house of Awatade, where

Deepak was lying injured. The second spot is not that important

because it is not much disputed that Deepak was lying in injured

condition at the spot. However, the spot in front of Sambhaji

Talim was more important because according to eyewitnesses

Deepak was assaulted at that spot. The investigating agency has

not made any efforts to collect any evidence to corroborate this

version of the eyewitnesses that the incident of assault had

taken place in front of Sambhaji Talim. They did not collect the

sample of earth from that spot for chemical analysis. Such

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sample could have established the fact that the assault had

indeed taken place in front of Sambhaji Talim. This could have

lent corroboration to the version of eyewitnesses. In this behalf,

Mr.Mundargi has relied on the Judgment of the Hon'ble

Supreme Court in the case of Lakshmi Singh and Others Vs.

State of Bihar, reported in AIR 1976 SCC 394 wherein the

Supreme Court has held that;

"To add to this another important circumstances is the omission on the part of the prosecution to send the bloodstained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assailants. In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent ot the Chemical Examiner and his report along with the earth is produced in the Court, and yet this is one exceptional case where this procedure was departed from for reason best known to the prosecution. This also, therefore, shows that the defence version may be true. It is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable

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doubt on the prosecution case which is sufficient to enable the Court ot reject the prosecution version.

19. Thus, in the present case also it was important for the

prosecution to have led some corroborative evidence to show

that the assault had taken place in front of Sambhaji Talim as

deposed by P.W.5 and P.W.6 Babloo Aigole.

20. There is another circumstance in this case in the nature

of alleged extra judicial confession made by the accused No.1 to

P.W.7 Ajit Gaikwad. According to this witness, P.W.7 Ajit

Gaikwad, when he was in the Civil Hospital in the night, he

received a phone call from the accused No.1 and according to

this witness, accused No.1 told him that they had beaten Deepak

and he further requested that Deepak should be shifted to a

private hospital and that he was ready to incur the expenditure.

Similar phone calls were received on 08/06/2009 at about

01.00 p.m. and again on 09/06/2009 at 01.30 p.m. There was

one more phone call from a different phone number and P.W.7

Ajit Gaikwad claims that last phone call was made from the mobile

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phone of Ganesh Jadhav who was the brother of the accused

No.1. In this connection, the prosecution has not brought on

record any material in the form of the call data records. There is

nothing to show that in fact call received by this witness was

from the phone belonging to any of the accused. There is no

record to show that the accused No.1 himself spoke to this

witness on the phone call. In any case, recognition of voice on

the phone call is not as clear as it is in the case of direct

conversation. Moreover, this witness P.W.7 Ajit Gaikwad has

admitted that he himself was a political opponent of accused

No.1. Wife of this witness had contested election against the

accused No.1. The statement of this witness was recorded by the

police on 12/06/2009. There is no reason why this witness had

not informed the police about receiving such calls from the

accused No.1 on earlier occasions. As per his version, he was

receiving calls of the accused from 06/06/2009 to 09/06/2009.

Thus, the totality of evidence creates doubt about truthfulness of

his version. It is not supported by any phone call details which

were not very difficult to procure.

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21. Apart from this evidence, there is evidence of recovery

of alleged weapons. According to the prosecution case, in this

case, four bamboo sticks, one iron road and one sword was

recovered at the instance of the accused and except the sword,

none of the weapons showed presence of blood on it. Therefore

in any case, this is not an incriminating circumstance against the

accused from whom such recovery was effected. Bamboo sticks

are in any case common articles and the recovery of such sticks

cannot be of much assistance to the prosecution.

22. As far as recovery of sword at the instance of the

accused No.1 is concerned; for the said purpose, P.W.11

Audumbar Sanjay Shinde and P.W.16 Mainoddin Mazum

Naikwadi are examined as the Panchas before whom, the

accused No.1 had allegedly made disclosure statement leading

to the recovery. Both these Panchas have not supported the

prosecution case and were declared as hostile witnesses.

Therefore for the said purpose, the only available evidence is

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that of the A.C.P. Shivprasad Gurubasayya Ghalimath, P.W.19.

He has stated that, on 18/06/2009, the accused No.1 showed

willingness to produce the sword used in the offence and

pursuant to his disclosure statement, the Panchas were taken

near Rupbhavani Mandir from Sambhaji Talim road and at his

instance, the sword was recovered from the bushes. In the cross-

examination, he has admitted that the spot from where the

sword was recovered was an open space and it was easily

accessible. Though, this witness has stated that the sword was

seized, sealed and labelled with signature of the Panchas, the

Panchanama Ex.165 itself does not mention that it was sealed. It

is merely mentioned that the label bearing signature of the

Panchas was pasted on the said sword. The C.A. report shows

that sword was seen in the sealed parcel and the seal was intact.

However, in the absence of any indication to that effect

regarding the seal in the Panchanama, it is difficult to believe

that the sword was properly sealed. In any case, though there

was human blood detected on the sword, the blood grouping

was inconclusive. Because of these infirmities even this

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circumstance of recovery of sword cannot be held to be proved

by the prosecution.

23. As far as recovery of iron rod is concerned, according

to prosecution case, it was recovered at the instance of the

accused No.3 Bhagwat. It was recovered from Sambhaji Talim,

where it was buried inside the practicing arena. Here again, the

panchanama does not show that it was properly sealed and as

mentioned earlier, the rod does not show presence of human

blood. In this behalf the prosecution has examined P.W.8

Shankar Mallapa Awale and P.W.12 Youraj Ram Lomte. Both

these witnesses have not supported the prosecution case. This

circumstance is not helpful to the prosecution.

24. The clothes of the accused did not show presence of

human blood and therefore seizure of such clothes is of no

consequence.

25. The prosecution has not established the fact by

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independent evidence to prove that the P.W.5 Rohit Sable and

P.W.6 Babloo Aigole alongwith deceased used to regularly go to

the marketyard for their work in the night shift. Both these

witnesses have tried to project that they used to go from that

road every night and therefore they were not the chance

witnesses. However, the prosecution has not established that

they used to regularly use that road at the same time every

night. According to them, apart from these two witnesses and

Deepak, there were other friends namely Suresh Babale, Kishore

Gaikwad, Balu Sarvade who were with them. However, none of

these witness is examined and as mentioned earlier, even

Pandurang Sable who was a material witness, was not

examined. Therefore we are of the view that P.W.5 and P.W.6

Babloo Aigole are not reliable witnesses. The prosecution has

not proved its case through these witnesses beyond reasonable

doubt.

26. From the sequence of events it appears that the

prosecution has relied on the incident which had taken place

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earlier in that evening at about 06.00 p.m. According to the

prosecution case, the main incident of assault was the fallout of

the earlier incident which had taken place at 06.00 p.m. The

prosecution has not led any evidence whatsoever to show that

such an incident had in fact taken place. None of the

participants or victims of that incident was examined by the

prosecution. Even as per the prosecution case, neither P.W.5

Rohit, nor P.W.6 Babloo Aigole nor Deepak and other friends

were part of the earlier incident. Therefore there was no reason

for the accused to target them. Mr.Mundargi has rightly

submitted that the only inference which can be drawn is that

these eyewitnesses have not witnessed the incident and the

incident had not taken place in front of Sambhaji Talim.

27. In any case, the learned trial Judge has already given

benefit of doubt to other accused except the accused Nos.1 and

3. Accused No.2 and 4 to 7 are already acquitted. Accused No.3

for some reason has not preferred any Appeal. During the course

of arguments Mr.Mundargi pointed out that against other

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accused apart from these accused, another trial was held vide

Special Case No.36/14 before the Special Judge at Solapur. In

the said case Ganesh Dyaneshwar Jadhav, Gopal Mohan Mane,

Dnyaneshwar Bhagwat Shirsat and Raju Ramehs Surwase were

the four accused. At the conclusion of the trial, all of them were

acquitted of all the offences and the State has not preferred any

Appeal against that Judgment and Order dated 16/05/2015

passed by the learned Special Judge, Solapur, in Special Case

No.36/14. Though we have strictly gone by the evidence on

record in the Appeals before us, the fact remains that except

accused Nos.1 and 3, all other accused were given benefit of

doubt in the trials.

28. As far as the Criminal Appeal No.772/13 which is filed

by State of Maharashtra is concerned, we find that the view

taken by the learned Special Judge in the Special Case No.30/09

in acquitting the accused Nos.2 and 4 to 7 is a reasonable and

possible view. We do not find such finding or reasoning to be

perverse. Therefore we are not inclined to interfere with the said

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judgment and order of acquittal. On the basis of the above

discussion, we are of the view that the prosecution has failed to

prove its case beyond reasonable doubt. The accused No.3 has

not preferred any Appeal; but since we are holding that the

prosecution has failed to established its case, the benefit should

also be given to the accused No.3 of these findings. In that

behalf, we are relying on the judgment of Hon'ble Supreme

Court in the case of Ashok @ Dangra Jaiswal Vs. State of M.P.

reported in 2011 AIR SC 1335, wherein the benefit of acquittal

of one accused was given to the other accused who were not

before the Court. Similar view is taken by the Hon'ble Supreme

Court in the case of Vajrapu Sambayya Naidu and others Vs.

State of A.P., reported in 2003 Cr.L.J. 4433. Even a Division

Bench of this Court in the case of Ankush s/o. Munjaji Pawar

Vs. State of Maharashtra, reported in 2005 ALL MR (Cri)

2624, had given benefit of their findings to the accused who had

not preferred any Appeal. The Division Bench has held thus;

"......For the reasons discussed hereinabove, we must say

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that, the prosecution has failed to establish the guilt. The judgment and conviction, therefore cannot be sustained against either of the accused, in view of the fact that, the evidence relied upon for conviction of the two accused, by the learned Trial Judge, is one and the same, which we have found to be unworthy of credence and belief. Hence, although there is no appeal filed by accused No.2, Sow. Sunanda Pandurang Pawar, resident of Mumbai, Taluka-Loha, District-Nanded, she should be entitled to the benefit of our observations and findings, as recorded pursuant to the arguments advanced on behalf of appellant-accused No.1, Ankush Munjaji Pawar. Such a course of action is necessary in the interest of justice, failing which, accused No.2 Sunanda would be undergoing life imprisonment, by reason of impugned judgment, which we found to be unsustainable.

We are, therefore, inclined to exercise our inherent powers, as conferred by section 482 of the Code of Criminal Procedure, 1973, in favour of accused No.2 Sunanda. Section 482 reads :-

"482. Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order

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under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

We will be justified in directing acquittal of original accused No.2 Sow. Sunanda Pandurang Pawar and her enlargement immediately, simultaneously with accused No.1, in the light of clauses underlined hereinabove for the purpose of emphasis. It would be absurd that accused No.2 should continue to undergo life imprisonment, merely because she has not filed any appeal, after we found the judgment convicting her, to be unsustainable......"

29. Following the same ratio, we are inclined to extend the

benefit to the accused No.3 who has not preferred any Appeal

against the impugned judgment and order convicting him.

Hence the following order:

ORDER

1. The Criminal Appeal No.544/12 preferred by the original Accused No.1 Anant Dyaneshwar Jadhav is allowed.

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2. The Judgment and Order dated 30/04/2012 passed by the Additional Sessions Judge, in Special Case No.30/09, convicting and sentencing the Appellant/Accused No.1 u/s 302 of the Indian Penal Code and u/s 4(25) of the Arms Act are set aside. The Accused No.1 Anant Dyaneshwar Jadhav is acquitted of all the charges.

3. The Judgment and Order dated 30/04/2012 passed by the Additional Sessions Judge, in Special Case No.30/09 convicting and sentencing the original Accused No.3 Bhagwat @ Bhagya Devidas Bhosale u/s 302 of the Indian Penal Code and u/s 4 (25) of the Arms Act are set aside and the said Accused No.3 (who has not preferred any Appeal before us) is acquitted of all the charges.

4. The Criminal Appeal No.772/13 preferred by the State of Maharashtra is dismissed.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)