Sopan @ Sopya S/O Bhagwan Gdadhe ... vs The State Of Maharashtra And Anr
2022 Latest Caselaw 12470 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 211 OF 2015

1.     Sopan @ Sopya s/o Bhagwan Gadhe
       Age 26 years, occ. Labour
       R/o Newasa, Tq. Newasa
       Dist. Ahmednagar.

2.     Dhanu @ Dhananjay s/o Govind Kale
       age 26 years, occ. Labour
       R/o as above.

3.     Bittu @ Anil S/o Chimaji Lashkare
       Age 36 years, occ. Labour
       R/o as above.                                        Appellants

       Versus

1.     The State of Maharashtra

2.     Halimabee w/o Yusuf Patel
       Age 55 years, Occ. Household
       R/o Ganganagar, Newasa, Tq. Newasa
       Dist. Ahmednagar.                                    Respondents

Mr. S. G. Laddha, Advocate for the appellants.
Mr. A. M. Phule, APP for State/Respondent No. 1.
Mr. G. R. Syed, Advocate for respondent No. 2.

                                  WITH
                      CRIMINAL APPEAL NO. 146 OF 2015

Halimabee w/o Yusuf Patel
Age 56 years, occ. Household
R/o Ganganagar, Newasa (Kh)
At present Naikwadpura, Newasa(K)
Tq. Newasa, Dist. Ahmednagar                                Appellants

       Versus




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1.     The State of Maharashtra

2.     Ravindra S/o Baban Kale
       Age 27 years, occ. Nil.

3.     Santosh s/o Jagannath Pandure
       Age 34 years, occ. Nil.

4.     Rajendra S/o Karbhari Kale
       Age 36 years, occ. Nil.

5.     Ambadas S/o Laxman Dhotre
       Age 28 years, occ. Nil.

       Respondents No. 2 to 5 r/o Newasa (Kh)
       Tq. Newasa, Dist. Ahmednagar.

6.     Sanjay s/o Laxman Sukhdan
       Age 39 years, occ. Agri.
       R/o Shivajinagar, Newasa(Kh)
       Tq. Newasa, Dist. Ahmednagar                Respondents

Mr. A. P. Gaikwad, Advocate for the appellant.
Mr. A. M. Phule, APP for State/Respondent No. 1.
Mr. M. A. Tandale, Advocate for respondents No. 2 to 5.
Mr. A. P. Bhandar, Advocate for respondent No. 6.


                                 CORAM : R. G. AVACHAT &
                                          R. M. JOSHI, JJ.

RESERVED ON : 22nd NOVEMBER, 2022.

PRONOUNCED ON : 2nd DECEMBER, 2022.

JUDGMENT : ( Per : R. M. Joshi, J.)

1. Being aggrieved by the judgment and order dated 30 th

December, 2014, passed by the learned Additional Sessions Judge,

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Newasa, Dist. Ahmednagar, in Sessions Case No. 51/2014, appellants

in Criminal Appeal No. 211/2015 have preferred the appeal

challenging their conviction under Section 302, 341 read with Section

34 of the Indian Penal Code and Section 3, 5(25) of Arms Act,

whereas appellant/informant in Criminal Appeal No. 146/2015 has

preferred the appeal challenging acquittal of respondents No. 2 to 6

therein.

2. In short, case of the prosecution is as follows :-

On 13th September, 2011, at about 10.15 pm Halimabee

lodged report with Newasa Police Station, stating that on 31 st August,

2011, in village Newasa, communal riot occurred over the issue of

tearing of fex of Eid greetings by the boys from Vadari Community. It

is stated that those boys burnt the house of the informant and by

naming them, report was lodged to the police. According to her, on

13th September, 2011, at about 6.00 pm, her sons Asif (deceased) and

Ejaj were proceeding on motorcycle towards the agricultural feld for

repairing irrigation pipeline. At about 6.30 to 6.45 pm, Ejaj called

her informing that when they were proceeding to the land, Bittu @

Anil Chimaji Lashkare, Ravi Baban Kale, Santosh Jagannath

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Pandure, Sopan Bhagwan Gadhe, Dhanu @ Dhananjay Kale, Sonya

@ Suil Mohan Pardeshi, Sanjay Laxman Sukhdan and Rajendra

Karbhari Kale came on three motorcycles from behind and they

prevented Asif and Ejaj from proceeding further. They all had

country-made pistols in their hand and by alleging as to why

complaint was made against them for burning the house, they

abused and threatened them. Ejaj also informed her that Sopan

Gadhe, Bittu Lashkare and Dhananjay Kale fred three bullets from

the country-made pistol on Asif in which he was injured. He also

informed that he fed away from the spot and concealed himself.

After receipt of the said information from Ejaj, she informed about

the same to Altaf Pathan. Thereafter, police staff went to the spot

and took Asif for treatment to the hospital where he was found dead.

On the basis of the said report, offence came to be registered vide

C.R. No. I-186/2011 against the accused. Her supplementary

statement was recorded wherein she claimed presence of other

accused at the spot of incident.

3. During investigation, police visited the spot and

panchanama was drawn showing recovery of one empty cartridge,

simple soil and soil stained with blood. At the spot it was also

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noticed that in the cotton feld blood was found scattered. The spot

was shown by Firoz on 14th September, 2015 at about 8.40 am.

Inquest on the dead body was done and the corpse was sent for post

mortem and it was opined by the Medical Offcer that the cause of

death is fre arm injury to vital organ. Accused came to be arrested.

Statement was made by accused Sopan while he was in police

custody and pursuant to his memorandum statement, there is

discovery of country-made pistol which came to be seized. On

completion of investigation, charge-sheet came to be fled and the

case was committed for trial to the Sessions Court.

4. The learned trial Court framed charge against the

accused vide Exhibit 110 and 137. Prosecution examined ten

witnesses to prove the charges against the accused. In short, the

testimonies of these witnesses can be summarised as follows :-

Halimabee (PW 1) is mother of the deceased who lodged

First Information Report (Exhibit 140) on the basis of information

received over phone from Ejaj. Sharif Patel (PW 2) is the panch

witness to the spot panchanama (Exhibit 145). Ejaj Yusuf Patel (PW

3) is the eye-witness to the incident and he gave account of the

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incident occurred at the relevant time in which Asif sustained

injuries with fre arm. Altafkhan Imamkhan Pathan (PW 4) is the

person who after receiving information from Halimabee, went to the

spot with Advocate Pathan from where the deceased was taken to the

hospital. To prove inquest panchanama, the prosecution has

examined Monin Jainoddin Shaikh (PW 5). Dr. Kailas Zine (PW 6)

deposed about conducting of autopsy on the dead body of Asif and

opined cause of death. ASI Rathod (PW 7) recorded report given by

Halimabee. Recovery of country-made pistol at the instance of

accused Sopan was sought to be proved through Afsar Patel (PW 8).

Investigation Offcers Gawade (PW 9) and Ugale (PW 10) shed light on

the investigation conducted in this crime.

5. Mr. Laddha, learned counsel for appellants in Criminal

Appeal No. 211/2015 submitted that evidence of eye-witness Ejaj is

not trustworthy as from his admissions in the cross-examination, it

can be inferred that he was not at all present at the spot and is

planted eye-witness. To support his contention he drew attention of

this Court not only to the cross-examination of this witness but also

has taken this Court through the testimony of Halimabee (PW 1) to

state that their evidence goes contrary on material aspects with

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regard to the previous complaint against the accused and also creates

doubt about the whole story sought to be narated by Ejaj.

According to him, conduct of Ejaj is absolutely unnatural which

makes his testimony not reliable. He further submitted that perusal

of spot panchanama and seizure of motorcycle stained with blood

contradicts the version of eye-witness about the occurrence of

incident. Attention of this Court is also drawn to the testimonies of

Altaf and Investigation Offcer which shows that inspite of being

informed by Halimabee about the report given to her of the incident

by Ejaj, Altaf did not disclose the names of the assailants to the

police offcer who was present at the spot and had taken deceased to

the hospital. It is submitted that investigation in this crime is not

honest as the very important evidence regarding conversation on

mobile phone of Halimabee by Ejaj is not proved by calling CDR and

SDR. It is submitted that evidence of the existance of person whose

mobile phone was used to communicate with Halimabee is also

absent and this, according to him, is a serious lapse in the

investigation. As far as ballistic report is concerned, it is submitted

that the bullet recovered from the dead body of Asif was never sent to

ballistic expert in order to ascertain that the same was fred from the

country-made pistol allegedly recovered at the instance of accused

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Sopan. It is pointed out that accused made application to the trial

Court for calling ballistic expert for cross-examination on the report.

However, said application came to be rejected by the trial Court and

thereby accused are denied fair opportunity to defend themselves. In

support of his contention, he placed reliance on the following case

laws :-

i) Briesh Mavi vs. State of (NCT of Delhi) reported in (2012) 7 Supreme Court Cases, 45.

ii) State of Gujrat vs. Adam Fateh Mohmed Umatiya and others reported in (1971) 3 Supreme Court Cases 208

iii) State of H.P. vs. Jai Lal and others reported in (1999) 7 Supreme Court Cases 280

iv) Madan Singh vs. State of Rajasthan reported in (1978) 4 Supreme Court Cases 435.

v) State of U.P. vs. Noorie (Smt.) Alias Noor Jahan and others reported in (1996) 9 Supreme Court Cases 104.

vi) Lachhman Singh and Two others vs. State reported in 1952 SCR 839

vii) Badam Singh vs. State of M.P. reported in (2003) 12 Supreme Court Cases 792

viii) State of Uttar Pradesh vs. Om Pal and others reported in (2018) 5 Supreme Court Cases 805.

6. Learned APP fled written notes of arguments in addition

to the oral submissions wherein it is contended that the guilt of all

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the accused is duly established with testimony of Ejaj who has

identifed the accused in the Court and has described in detail the

incident in question in which bullets were fred at Asif by the

accused. It is submitted that the the evidence of Medical Offcer

supports the case of prosecution of death due to fre arm injury to

the vital organs. It is stated that the conduct of the eye witness of

informing the incident immediately to his mother Halimabee is

normal and pursuant thereto presence recorded by Altaf Pathan with

Advocate Pathan at the spot cannot be doubted. With regard to

ballistic expert's report, it is submitted that in view of provisions of

Section 293 of the Code of Criminal Procedure, the said report

without formal proof has been rightly accepted by the learned trial

Court and no cross examination of ballistic expert was essential.

Thus, according to him, no case is made out for causing interference

in the conviction of accused and on the contrary, acquittal of the

other accused deserves to be reversed.

7. Mr. Gaikwad, learned counsel for appellant/informant in

Criminal Appeal No. 146/2015 opposed the appeal challenging

conviction of the accused and supported the appeal against acquittal

of rest of the accused. He drew attention of this Court to the

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evidence on record in order to submit that the First Information

Report in this case is lodged immediately and the case of the

prosecution is based on the testimony of eye-witness and there is no

reason to discard his evidence. He submitted that the previous

incident of riot and burning of house of informant and complaint

lodged against the accused was the motive for eliminating the

deceased. It is argued that the conduct of Ejaj of saving himself from

the assault and running away from the spot cannot be termed as

unnatural conduct. It is also argued that there are criminal

antecedents against the accused. He placed reliance on judgment of

the Hon'ble Apex Court in case of Gulab vs. State of Uttar Pradesh

reported in 2022 ALL MR(Cri) 390, to submit that the report of

ballistic expert is suffcient to connect the accused to the death of

deceased, considering ocular statement of eye witness and medical

evidence on record coupled with recovery of country-made pistol at

the instance of one of the accused. He also relied upon following

case laws :-

i) Rakesh and another vs. State of U.P. and another reported in 2021 AIR (Supreme Court) 3233

ii) Himanshu Mohan Rai vs. State of U.P. and another reported in 2017(4) SCC 161.

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iii) Pravin Sheshdhar Mishra @ Sachin and others vs. The State of Maharashtra reported in 2021(3) AIR Bom.R.(Cri) 357.

8. Learned counsel for acquitted accused submitted that

there is no reason for causing interference in the fndings recorded by

the learned trial Court as prosecution and the victim were unable to

show any perversity therein. It is also argued that the place of

incident is on road and it is inconceivable that no one else has

witnessed the incident in which Asif died. According to them, it is

unsafe to place reliance on the testimony of Ejaj for the reason that

he is interested witness and is evidence is full of contradictions in

comparison with other material on record.

9. The Hon'ble Apex Court in the matter of State of Uttar

Pradesh vs. Noorie (supra) has observed that the credibility of

witness has to be tested by referring to his evidence and fnding out

how he has fared in cross-examination and what impression is

created by his evidence taken in other context of the case and not by

entering into the realm of conjecture and speculation. While

assessing and evaluating the evidence of eye-witnesses, the Court

must adhere to two principles, namely, whether in the circumstances

of the case it was possible for the eye-witness to be present at the

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scene and whether there is anything inherently improbable or

unreliable.

10. In the instant case, the entire gamut of prosecution story

rests upon acceptance of the testimony of solitary witness Ejaj who

is brother of the deceased. According to him, on 31 st August, 2011,

persons from Vadari community had set his house on fre and riot

occurred at that time. He further deposed that on 13 th September,

2011, at 6.00 pm, he along with Asif was proceeding to the feld for

repairing pipeline and when they reached near Balu Patil Vasti,

accused came on motorcycle from behind and blocked their way.

According to him, accused abused and threatened them for the

reason as to why complaint was made against them alleging setting

their house on fre. All accused had country-made pistols in their

hands and Bittu, Sopan and Dhananjay fred bullets at Asif. He

further stated about being scared and ran away. He claims that

thereafter he informed the incident to his mother on phone and their

relatives and police went to the spot and took Asif to Newasa and

from there to the hospital at Ahmednagar.

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11. As far as previous dispute for the reason of which

incident in question is alleged to have occurred, Halimabee claimed

in her testimony that she lodged complaint against accused and

others for setting her house on fre, however, the same is found to be

an improvement as it is not so mentioned in the First Information

Report (Exhibit 140). She admitted acquaintanceof accused Raju

Kale since his childhood but has refused to answer question about

having good relations with his family. She further accepted Asif and

Ejaj being seen together with Raju Kale in photographs (Exhibit 142

and Exhibit 143), wherein Asif is seen with Raju and Anna Lashkare.

According to her, accused might have visited to her house as friends

of her sons.

12. In the cross examination, Ejaj accepted that there was no

quarrel with the accused prior to the incident in question either with

him or Asif nor any complaint was made by them against accused.

Though he claimed that accused were not in visiting terms to his

house but that claim runs contrary to testimony of Halimabee. He

denied contact with accused Raju Kale, Dy. Sarpanch of Newasa

Gram Panchayat, but when he was shown photograph (Exhibit 142),

he accepted to be seen with Asif and Anna Lashkare therein. He

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further accepted Asif seen in photograph (Exhibit 143) congratulating

accused Raju. Testimonies of both witnesses reveal that they

unsuccessfully tried to hide their cordial relations with the accused.

13. The appreciation of evidence of these two witnesses is

suffcient to hold that there was no previous dispute between Asif or

Ejaj or their family with accused herein and no complaint was lodged

against them prior to the incident in question. There is thus no

evidence to indicate any reason for the accused to cause assault on

Asif. If the case of prosecution is accepted that owing to previous

complaint lodged by Halimabee, the incident of accused fring bullets

at Asif to kill him has been given effect, then in absence of any

specifc dispute been shown only against Asif, it does not stand to

any reason as to why the assailants made no efforts to assault Ejaj

too. no shot is fred at him nor even any attempt is made to prevent

his escape, though number of assailants was more. This question

assumes great importance when there is no evidence on record to

show any reason for the accused to kill deceased. Prosecution,

therefore, was expected to place adequate material to explain the said

situation.

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14. With regard to the actual incident of fring of bullets, Ejaj

was questioned as to the position in which deceased was when shots

were fred at him. According to Ejaj, Asif was not sitting on the

motorcycle and he was at a distance of about 5 to 6 feet from the said

vehicle. He further accepted that a shot on the head of Asif was

taken from close distance. This version about incident is not

supported by spot panchanama (Exhibit 145) which indicates that

motorcycle of deceased found at spot had blood stains on seat as well

as engine cover. From this case of Ejaj an inevitable question arises

as to if Asif was shot while he was not sitting on the motorcycle and

he was at some distance, how blood stains would appear on the

motorcycle. The evidence of fnding blood on motorcycle may lead to

a reasonable inference that Asif was shot while he was sitting on

motorcycle and not as claimed by Ejaj. Learned trial Court has also

noted demenor of witness by recording that he is twisting answers.

At one breath he volunteered that Asif had fallen down therefore he

does not know at which side of head bullet hit. He also claimed that

he does not know on which side of body. He claimed at frst instance

that after frst shot on head Asif fell down. Then further he claimed

Asif fell when shot was fred on his chest from close distance, which

indicates that there is no consistency in his evidence about manner

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of occurrence of incident. However, he claimed that after listening

sound of frst shot he started running fast to save himself and ran

upto 40 ft. distance. It becomes seriously doubtful whether he could

have seen the second shot taken at deceased.

15. Ejaj does not state which clothes were worn by assailants

or even gives make of motorcycle on which they arrived at spot. He

also has not mentioned to police on which motorcycle who and how

many persons occupied seats. This information being easily

noticeable by witness to the incident is not proved by him. Though

such information appearing innocuous, assumes importance where

presence of witness at the spot is not undisputable.

16. At one point of time, during cross examination, he claims

that scuffe took place but when questioned about clothes being torn

stated that no one had scuffe with him. He claimed that he was

scared and hence ran away and no attempt was made to snatch pistol

from assailants. No doubt, it depends on personality and reaction of

an individual to a particular situation and if Ejaj being scared by the

incident in question of gunshot being fred at his brother, so also his

not attempting to prevent assailants running away from the spot

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cannot be called as unnatural conduct. However, his further conduct

in the facts and circumstances as they are brought on record is not

consistent with the natural/normal conduct that of a prudent man.

It is the case of Ejaj that he ran away from the spot but he does not

go to Balu Patil Vasti which was near to place of incident to seek any

help. Nor even after passage of some time, he tries to go the spot to

ascertain the condition of Asif.

17. He gave candid admission that Khupti road is his usual

way and he had acquaintance with the persons residing adjacent to

the road, with whom there is no enmity, but he does not go to them.

Most shockingly, he stated that he did not feel it necessary to go to

those persons and ask their help to save Asif. According to him, he

reached house at about 10.30 to 1.00 pm but is conspicuously silent

as to where he was hiding and when left place of hiding and how

went home. Though he claims to have made phone calls to his

mother, Halimabee, but even she was not told where he was hiding or

there was any danger to his life or to save him. Testimony of Altaf

shows that though he went to the spot along with Advocate Pathan,

no attempt was made to search Ejaj. After receipt of information

from Halimabee about phone call of Ejaj giving narration of incident,

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it was abnormal conduct not even to look around for Ejaj. This could

only happen when Altaf was certain that Ejaj was never at the spot at

the time of incident.

18. It is the claim of Ejaj that he made phone call to

Halimabee by borrowing mobile phone from unknown person whose

name is not disclosed during investigation and trial. For that sake

there is no evidence even of existence of any such person. If Ejaj had

spoken to his mother about the incident in the presence of said

unknown person, there ought to have been some reaction from the

said person and surprisingly even that evidence is absent in this

case. Ejaj simply does not say anything in this regard. It was even

possible for Ejaj to request said person to pay visit to spot of the

incident for ascertaining situation therein which could have been

helpful to save Asif, but Ejaj even does not make any attempt in this

regard, which is strange and does not appeal to the conscious.

19. If the case of prosecution is to be accepted that Ejaj

informed the incident in question to his mother immediately after

occurrence of the incident by naming the accused and the said

information is shared by her with Altaf, in that case, it would have

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been obvious conduct of Altaf to disclose the same to PI Gawade who

went to the spot after getting independent information about

occurrence of the incident of fring. He also claimed to have informed

about incident to PI Gawade near dispensary of Dr. Wagh. He,

however, does not go to police after receiving information from

Halimabee. It is quite understandable that he preferred to go to spot

and then to hospital. But PI Gawade also makes no efforts to register

First Information Report on revealation of cognizable offence. If such

information was given, it was incumbent on the part of the police

offcer to inform same to the police station for taking entry in the

station diary and registration of crime.

20. Altaf (PW 4) does not specifcally depose about disclosure

of the names of accused to PI Gawade nor makes mention of Ejaj and

even did not try to search of Ejaj. This fact creates serious doubt

about the phone call being made by Ejaj to Halimabee after

occurrence of the incident and in turn the same is disclosed to him

by her. In such circumstances, the investigation agency ought to

have investigated into the alleged phone call received by Halimabee by

calling CDR of the relevant phone i.e. mobile phone of Halimabee

and calls received by her. No efforts are taken by the investigating

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agency in this regard nor even it was tried to fnd out as to who was

the person who facilitated Ejaj to make a phone call to his mother.

21. As recorded earlier, the conduct of Ejaj of running away

from the spot of save himself is quite natural. However, it does not

stand to any reason that after running away from the spot, he did not

make any effort to ascertain the condition of his brother who was

injured with fre arm shots. He also did not try to make an attempt

to go to the police station to inform about the incident to the police

and to seek help. He does not go to hospital to see Asif. Even

Halimabee fails to go there. PI Gawade in no uncertain terms stated

that Advocate Pathan and Altaf have not told him that Ejaj was with

Asif. Not only this, in this backdrop, it is suggested by the defence to

this witness that on the relevant day, he was at Solapur and he is

being planted as an eye-witness. Thus, close scrutiny of evidence of

Ejaj does not inspire confdence and it is not found trustworthy in

order to base conviction upon it. In such circumstances, it is

absolutely necessary to seek corroboration to his version from

independent evidence. Similarly, situation mandates that

prosecution proves the important links which are found missing from

the testimony of this witness.

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22. Having doubted trustworthiness of testimony of Ejaj and

is kept out of consideration then there remains circumstances such

as motive of all accused and recovery of pistol at the instance one of

the accused. The alleged motive for commission of crime for the

accused is the previous complaint lodged by Halimabee in respect of

setting her house on fre. There is no evidence on record to show

that any such complaint was made by her against present accused.

Moreover, her testimony as well as admission given by Ejaj show that

there were not dispute or differences between accused and Asif or

Ejaj in order to provide motive for eliminating Asif. In fact, there is

reason to believe from evidence on record that the accused had

friendly relations with both Ejaj and Asif and were in visiting terms to

their house.

23. If at all case put forth by prosecution is to be accepted

that on account of previous complaint against them the accused

prevented both Asif and Ejaj to proceed further, it is not digestible as

to why no attempt was made to fre any shot at Ejaj as against both

Asif and Ejaj accused had same reason to cause assault and no

independent motive was there to assault Asif only.

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24. Prosecution has attempted to connect accused Sopan

with the crime in question with recovery of country-made pistol from

him pursuant to memorandum statement (Exhibit 177) and seizure of

weapon vide panchanama (Exhibit 178) which was sought to be

proved through Afsar Pathan (PW 8). From evidence of Afsar Pathan,

it is apparent that said recovery of the weapon was done from open

space and as admitted by him, anyone could have gone to the tree

from where the weapon was seized. Thus, as far as said recovery is

concerned, no exclusive knowledge of the said weapon can be

attributed to accused Sopan. Even otherwise, in the absence of any

further evidence to show that the very same weapon was used to fre

bullets at deceased Asif, the said recovery could not be treated as

incriminating circumstance against the accused.

25. Prosecution has placed reliance on ballistic expert's

report (Exhibit 192). From said report, it can at the most be

ascertained that the said weapon was in working condition. However,

there is absolutely no evidence on record to show that one bullet

which was removed from the dead body of Asif was ever sent to

expert to ascertain that it was shot from the weapon which is seized.

Absence of any such steps taken by the investigating agency makes

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the evidence brought on record short to connect the seized weapon

with the crime in question. It would be relevant to consider the

judgment of the Hon'ble Apex Court relied upon by learned advocate

for informant in the case of Gulab (supra), wherein failure to recover

the weapon and examine ballistic expert was not considered fatal

case of prosecution. In the said case, however, the testimonies of the

eye witnesses were found trustworthy and suffcient to record

conviction against accused therein. In view of this, the views

expressed in the case of Gulab (supra) will have no application to the

facts of the present case as the evidence of eye witness is found to be

not reliable to base conviction thereupon and there is no further

evidence to connect recovery of country-made pistol at the instance of

one of the accused with the bullet fred at the deceased. On the

other hand in case of Briesh Mavi (supra) it is held by the Supreme

Court of India that non sending of bullets extracted from dead body

to ascertain that it was fred from said weapon a is serious lacuna.

26. Evidence of PI Gawade (PW 9) shows that he came to

know from the police station about the incident of fre having taken

place at about 6.45 to 7.00 pm. He thereafter proceeded with the

staff to the place of incident and on the way, met Altaf and Advocate

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Pathan who also informed him about the incident of fring having

taken place. He admits that after receipt of information from the

Station House offcer, no entry is taken in the station diary while

leaving police station. Though he did not go to Ahmednagar when

Asif was taken to hospital there but he makes no attempt to lodge

First Information Report after getting knowledge of occurrence of

cognizable offence. Most shocking part of his testimony is his claim

that Ejaj was present near spot and gave information of incident to

him. This part of the evidence of Investigating Offcer is totally in

contradiction to the testimony of Ejaj who never claims to have gone

back to the spot and even met PI Gawade at the spot. In fact,

evidence of ASI Rathod (PW 7) shows that there is no entry in station

diary that when PI Gawade came to police station on 13 th September,

2011, and in 24 hours on that day there is no entry about AI Gawade

being present in police station or going out of police station. There is

entry in station diary at serial No. 34 made at 7.25 pm about sending

police staff offcer to Newasa town as there was sound of something.

There is also different vrsions of PI Gawade and Altaf as to who

helped to keep Asif in van. In the light of these facts, it is even

doubtful whether at 6.45 to 7.00 pm PI Gawade went to spot and met

Advocate Pathan and Altaf.

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27. The aforediscussed evidence on record shows that it is

doubtful as to whether Ejaj was really present at the spot when the

incident occurred in which deceased Asif sustained bullet injuries.

The conduct of Ejaj is unnatural of not bothering to even make an

attempt to come back to the spot for ascertaining the condition of his

brother nor asking anyone else to do so, and not even going to the

hospital. Further, Police Offcer of the rank of PI who got knowledge

about the incident in which deceased had sustained injuries makes

no attempt to record any First Information Report. Altaf though

claims to have knowledge about the incident from Halimabee does

not disclose names of the assailants to PI Gawade. No investigation

is done about the phone from which call was made to Halimabee by

Ejaj informing her about the incident including names of the

accused. Ejaj does not explain as to how he went home after feeing

from the place of incident. Lastly, there is no evidence to show that

bullet hit to the deceased was fred from country-made pistol

allegedly recovered at the instance of accused Sopan. All these

circumstances appearing on record create serious doubt about the

case of the prosecution that Ejaj witnessed incident of assault on Asif

with fre arm. In absence of any other cogent evidence to connect

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criappeal211.15.odt

accused with crime makes conviction recorded against them

unsustainable.

28. Here in this case, evidence of Monin Shaikh (PW 5), in

whose presence inquest on the dead body was conducted and

evidence of Dr. Zine (PW 6) who conducted autopsy on the dead body,

suffciently shows that the deceased died due to fre arm injuries to

his vital organs. This, however, is not suffcient for the prosecution to

prove homicidal death but it must also be proved beyond doubt that

accused are author of said injuries which led to death of deceased.

That evidence is absent. In the result, for want of cogent and reliable

evidence to bring home guilt of accused beyond shadow of reasonable

doubt, no order of conviction can sustain against them.

29. For the aforesaid reasons, this Court fnds no perversity

in the fndings recorded by the learned trial Court while acquitting

the co-accused and hence their acquittal calls for no interference.

30. In the result, following order is passed :-

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ORDER

i) Impugned judgment to the extent of conviction of appellants is set aside and Criminal Appeal No.211/2015 stands allowed.

ii) Appellants in Criminal Appeal No. 211/2015 be released forthwith, if not required in connection with any other crime.

         iii)     Their bail bonds stand cancelled.


         iv)      Criminal      Appeal    No.     146/2015     challenging
         acquittal of co-accused is dismissed.




( R. M. JOSHI)                                             ( R. G. AVACHAT)
     Judge                                                        Judge

dyb