[Cites 18, Cited by 0]
Bombay High Court
Suryakant Vithal Ghadge vs The State Of Maharashtra on 12 January, 2026
2026:BHC-AUG:968
*1* apeal417a424o07
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.417 OF 2007
1. Sanjay S/o Sahebrao Wayakar
Age: 25 years, R/o Sonegaon,
Tq. & Dist.Osmanabad.
(Died during pendency of appeal).
(accused No.1)
2. Dilip Vasant More
Age: 38 years,
R/o Sonegaon, Tq. & Dist. Osmanabad.
(accused No.3)
3. Hari @ Harischandra Rajaram Survase
Age: 27 years,
R/o Sonegaon, Tq.& Dist. Osmanabad.
(Died during pendency of appeal).
(accused No.4)
4. Sahebrao Dnyanoba Wayakar
Age: 73 years,
R/o Sonegaon, Tq.& Dist. Osmanabad.
(accused No.6)
5. Youraj Namedo Gopane
Age: 26 years,
R/o Sonegaon, Tq.& Dist.Osmanabad.
(accused No.7)
6. Pappu @ Jarichandra Rajaram Survase
Age: 25 years,
R/o Sonegaon, Tq.& Dist. Osmanabad.
(accused No.8)
7. Anil Sahebrao Wayakar
Age: 35 years,
R/o Sonegaon, Tq.& Dist.Osmanabad.
(accused No.9)
*2* apeal417a424o07
8. Sunil Sahebrao Wayakar
Age: 39 years,
R/o Sonegaon, Tq.& Dist.Osmanabad.
(accused No.10)
9. Mohan Vithal Ghadge
Age: 33 years,
R/o Sonegaon, Tq.& Dist.Osmanabad.
(accused No.11)
10. Pandit Vithal Ghadge
Age: 28 years,
R/o Sonegaon, Tq.& Dist. Osmanabad.
(accused No.12)
11. Vithal Dattatraya Ghadge
Age: 63 years,
R/o Sonegaon, Tq. & Dist. Osmanabad.
(Died during pendency of appeal).
(accused No.13)
12. Suryakant Vithal Ghadge
Age: 36 years,
R/o Sonegaon, Tq.& Dist.Osmanabad.
(accused No.14)
...Appellants/ accused
- Versus -
1. The State of Maharashtra.
2. Pramod Tribakrao Pawar,
Age : 39 years, Occ : Service,
R/o Sonegaon,
Tq. & Dist. Osmanabad.
...Respondents
(No.2: Orig. Complainant)
...
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WITH
CRIMINAL APPLICATION NO. 2363 OF 2023
IN
CRIMINAL APPEAL NO.417 OF 2007
SURYAKANT VITHAL GHADGE
(Orig. Appellant No.12)
VERSUS
THE STATE OF MAHARASHTRA
...
WITH
CRIMINAL APPEAL NO. 424 OF 2007
1. Laxman s/o Rajaram More,
Age : 39 years, Occ : Teacher.
(accused No.2)
2. Vikram s/o Rajaram More,
Age : 33 years, Occ : Agri,
Both r/o at post Sonegaon,
Tq. & Dist. Osmanabad.
(accused No.5)
...Appellants
(Orig. accused Nos.2 and 5)
- Versus -
1. The State of Maharashtra.
2. Pramod Tribakrao Pawar,
Age : 39 years, Occ : Service,
R/o Sonegaon,
Tq. & Dist. Osmanabad.
...Respondents
(No.2: Orig. Complainant)
...
Shri R.N. Dhorde, Senior Advocate i/by Shri Dhorde Vikram R.,
advocate for the appellants in Criminal Appeal No.417/2007.
Shri Jadhav Satej S., Advocate for the Appellants in Criminal
Appeal No.424/2007.
Shri V.M. Lomte, APP for the Respondents/State.
*4* apeal417a424o07
...
CORAM : SUSHIL M. GHODESWAR, J.
Reserved on : 22 December 2025
Pronounced on : 12 January 2026
JUDGMENT :
-
1. For the reasons stated in the application, Criminal
Application No.2363/2023 praying for fixing the appeal for final
hearing is allowed and both the appeals are taken up for final
hearing forthwith.
2. Since both these appeals filed under Section 374(2)
of the Code of Criminal Procedure (for short, 'the CrPC'), raise
challenge to the same judgment and order, therefore, these
appeals are decided by this common judgment.
3. In these appeals, the appellants/ accused challenge
the judgment and order dated 11.10.2007 passed by the learned
Ad-hoc Additional Sessions Judge, Osmanabad, in Sessions Case
No.27/2005. Operative part of the impugned judgment reads
thus:-
"1. Accused nos.1 to 14 are hereby convicted for the
offences punishable U/Ss.147, 148, 307, 506 r/w
149 of Indian Penal Code vide section 235(2) of
the Code of Criminal Procedure, as under.
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2. Accused nos. 6 & 7 are hereby sentenced to suffer
Rigorous Imprisonment for the period of one year
and to pay a fine of Rs.500/-(Rs. Five hundred
only) each I/d to suffer R.I., for two months as per
Section 147 of the Indian Penal Code.
3. Accused nos. 1 to 5 and 8 to 14 each are hereby
sentenced to suffer Rigorous Imprisonment for
one year and to pay a fine of Rs.500/- (Rs. Five
hundred only) each I/d to suffer R.I., for two
months U/s 148 of the Indian Penal Code.
4. Accused nos.1 to 14 each are hereby sentenced to
suffer Rigorous Imprisonment for seven years and
to pay a fine of Rs.500/- (Rs. Five Hundred only)
each I/d to suffer R.I., for one year U/s 307 r/w
149 of the Indian Penal Code.
5. Accused nos.1 to 14 each are hereby sentenced to
suffer Rigorous Imprisonment for one year and to
pay a fine of Rs.500/- (Rs. Five hundred only) I/d
to suffer R.I., for two months U/s 506 r/w 149 of
the Indian Penal Code.
6. The sentence order shall run concurrently.
7. Set off is given to all accused in sentence period
as per sec.428 of Cr.P.C.
8. In addition to above sentence order, each of the
accused do pay compensation of Rs.4000/- (Rs.
Four thousands only) each to complainant as per
Section 357(2) of the Cr.P.C., and shall deposit
this amount in the court and after depositing this
amount in the court it shall be provided to
complainant after appeal period is over.
9. Accused nos.1 to14 are hereby acquitted for the
offence punishable U/S. 504/149 of Indian Penal
Code and U/s 135 of the Bombay Police Act.
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10. The Bail bonds of all accused stand cancelled and
restored.
11. The muddemal property, sticks and clothes etc.
shall be destroyed after appeal period is over and
the muddemal property Tum Tum No.MH 25/F
1145 and Tractor No. MH-13/J-8032 and trolley
No.MH-13/T-0714 shall be returned to the owner
of it or if returned, owner be retained with it."
4. The brief facts leading to filing of the present
appeals are as under:
(a) The prosecution case is that the complainant PW-1
Pramod Trimbak Pawar lodged complaint while he was under
treatment at Civil Hospital, Osmanabad on 21/6/2004 at about
10.30 am alleging that he is admitted as an indoor patient at Civil
Hospital, Osmanabad. He is resident of village Sonegaon and
resides in joint family. He is in service at Saraswati High School
as a teacher. He used to attend his duty from Sonegaon to
Osmanabad by daily up and down process. He is member of
Rashtrawadi Congress Party.
(b) It is alleged by the complainant that on 21/6/2004 at
about 6.00 am, he was proceeding towards Osmanabad to attend
his job. At that time, Balaji Nilu Mane (PW-4) and Shashikant
*7* apeal417a424o07
Ghadge (PW-3) met him. They also wanted to go to Osmanabad,
therefore, all three of them proceeded to Osmanabad on his
motor cycle bearing number MH-25/8040. They came up to one
km. away near to Kotha (hut) of Rangnath Shinde. At that time,
one Tum-Tum rickshaw came from his opposite direction and it
gave severe dash to his motor cycle, therefore, he, Balaji Mane
(PW-4) and Shashikant Ghadge (PW-3) fell down. At that time,
Laxman More (accused No.2) alighted from Tum Tum rickshaw,
who was having iron bar in his hand and assaulted PW-1
complainant by iron bar on his legs, back and tibia. So also, other
accused persons, namely, Vikram More, Suryakant Vithal
Ghatge, Mohan Vithal Ghatge, Pandit Vithal Ghadge, Vithal
Dattatrya Ghadge, Sunil Sahebrao Vyakar, Sanjay Sahebrao
Vyakar, Hari Rajaram Surwase, Pappu Rajaram Surwase, Dilip
Vasant More also alighted from said rickshaw and they were
having sticks in their hands. Vikram More (accused No.5)
assaulted him by stick on his head and both legs. Suryakant
Ghadge (accused No.14), Mohan Ghadge (accused No.11),
Pandit Ghadge (accused No.12), Vithal Ghadge (accused No.13),
Sunil Vyakar (accused No.10) and Anil Vyakar (accused No.9),
have assaulted PW-1 complainant by sticks. So also, Hari
*8* apeal417a424o07
Surwase (accused No.4), Pappu Surwase (accused No.8) and
Dilip More (accused No.3) have assaulted Balaji Mane (PW-4)
and Shashikant Ghatge (PW-3) by sticks on their hands. Due to
the assault caused by these people, the complainant became
unconscious. The village people brought him in the hospital and
he was admitted in the hospital.
(c) According to the prosecution story, all accused have
assaulted PW-1 and other victims because the PW-1 complainant
stopped Lucky Draw Scheme of accused Laxman More, Vikram
More, Suryakant Ghadge, Mohan Ghadge, Pandit Ghadge, Vithal
Ghadge, Sunil Vyakar, Anil Vyakar, Sanjay Vyakar, Hari
Surwase, Pappu Surwase and Dilip More. They have assaulted
the complainant and two victims due to their political rivalry. It is
also alleged that the accused drove Rickshaw bearing MH-25/F-
1145 in such a manner to kill the complainant.
(d) Thus the PSI, Osmanabad, Rural Police Station had
recorded the complaint and registered it at crime No.90/04 U/Ss.
307, 147, 148, 326, 324, 323, 504, 506 r/w 149 of the Indian
Penal Code.
5. After completion of investigation, the charge-sheet
*9* apeal417a424o07
was filed. Since offences were triable by the Sessions Court, the
case was committed to the Sessions Court. The learned Ad-hoc
Additional Sessions Judge framed charge at exhibit 21 against
the appellants/ accused for offences punishable under Sections
147, 148, 307, 504, 506 r/w 149 of the Indian Penal Code and
under Section 37(1) r/w 37(3) of the Bombay Police Act. The
appellants/ accused pleaded not guilty and claimed to be tried. To
prove its case, the prosecution has examined in all 16 witnesses
as under:-
PW No. Name of witness Significance/ role
PW-1 Pramod T. Pawar Complainant
PW-2 Shivnarayan Shinde Eyewitness
PW-3 Shashikant Ghadge Pillion rider/ victim
PW-4 Balaji N. Mane Pillion rider/ victim
PW-5 Digambar Wayakar Panch (spot panchanama)
PW-6 Dr.Vijaya Borade Medical Officer, Solapur
PW-7 Hanmant P. Gopne Photographer of spot
PW-8 Mansoor Ahmed Panch witness to spot
Sayed
PW-9 Namdeo Limbraj Panch witness
Dhole
PW-10 Mahesh M. Bachute Panch at Police Station
PW-11 Dr. Anant Rajmane Private Medical Practitioner
where the complainant was
brought for treatment
PW-12 Ashok S. Aragade Panch witness
PW-13 Shahaji K. Bhosale Panch witness
PW-14 Mahadeo V. Shinde P.I., Osmanabad
*10* apeal417a424o07
PW-15 Ramraje Mane A.S.I., Osmanabad
PW-16 Dr. Hanumandas V. Private medical practitioner,
Chandak examined as expert.
6. After recording evidence and hearing the appellants
and prosecution side, the learned Ad-hoc Additional Sessions
Judge was pleased to pass the impugned judgment thereby,
convicting and sentencing the appellants/ accused, as reproduced
above.
7. During pendency of these appeals, the appellants/
accused were released on bail. Appellant No.1 Sanjay Waykar,
appellant No.3 Harishchandra Surwase and appellant No.11
Vitthal Ghadge, have expired during the pendency of the appeal
and hence, the appeal stands abated against them.
8. The learned Senior Advocate Shri R.N. Dhorde
appearing for the appellants in Criminal Appeal No.417/2007 has
vehemently submitted that the impugned judgment and order is
totally based on frivolous findings. The learned Trial Court has
failed to consider that the prosecution has not proved various
aspects as regards the alleged incident beyond all reasonable
doubts. According to him, PW-1 complainant was not assaulted,
*11* apeal417a424o07
however, on the contrary, he met with road accident wherein, his
motorcycle collided with one Tum Tum rickshaw and he
sustained injuries. The learned Senior Advocate Shri Dhorde
submitted that PW-1 complainant was facing prosecution under
Section 138 of the Negotiable Instruments Act filed by one of the
accused, therefore, in order to save himself, the complainant has
falsely implicated the appellants/ accused by preparing false and
concocted story.
9. The learned Senior Advocate Shri Dhorde further
submitted that in fact, another false FIR bearing Crime
No.91/2004 was lodged by one Giridhar Mane at the behest of
PW-1 complainant against 25 persons of the village for the
offences punishable under Sections 147, 148, 326, 324, 452, 323,
504 and 506 r/w 149 of the Indian Penal Code and Section 135 of
the Bombay Police Act. It was alleged in the said FIR that the
accused persons assaulted the informant Giridhar Mane, his
nephew Pramod Pawar (i.e. PW-1 complainant) and Laxman
Mane. All the accused persons in the said FIR came to be
acquitted on the ground of plea of alibi vide the judgment and
order dated 16.08.2011 passed by the learned Chief Judicial
*12* apeal417a424o07
Magistrate, Osmanabad, in R.C.C. No.413/2004. According to
the learned Senior Advocate, the allegations in the said acquitted
case and in the present case, are somewhat identical. Due to
political rivalry in the village, the complainant PW-1 has been
implicating his political opponents by lodging false complaints.
10. Shri Dhorde further submitted that PW-1
complainant has used his injuries caused in road accident, in
order to frame the appellants/ accused due to political enmity.
Eyewitnesses examined by the prosecution are interested
witnesses. There is political rivalry in the village. On perusal of
evidence of these eyewitnesses, it is evident that there is no
corroboration in testimonies of these eyewitnesses and it also
suffers from discrepancies. Shri Dhorde has drawn attention of
this court to the medical evidence and submitted that even the
Medical Officer has admitted that injuries were simple in nature
and were consistent with the accidental injuries. Therefore, it was
not appropriate for the learned Trial Court to base conviction on
such frivolous prosecution.
11. Shri Dhorde further submitted that out of 14 accused
persons, two accused persons are teachers and at the relevant
*13* apeal417a424o07
time of the alleged incident, they cannot be said to be present on
the spot. Even otherwise, other accused persons were also not on
the spot. Maximum seating capacity of Tum Tum rickshaw is up
to six persons only, however, PW-1 complainant in order to settle
his personal goal, has named 14 persons as accused. There are
material omissions and contradictions in testimonies of the
witnesses. No elaborate evidence has come forward from the
prosecution side as to who has assaulted the injured persons.
Moreover, the charge under Section 307 is not at all proved.
Therefore, the learned Trial Court has committed grave error by
convicting the appellants as it has not properly appreciated
evidence brought on record. The prosecution has failed to prove
guilt of the appellants beyond reasonable doubt.
12. The learned advocate Shri Satej Jadhav appearing
for the appellants in Criminal Appeal No.424/2007 has adopted
the submissions of the learned Senior Advocate Shri Dhorde. In
addition, he submitted that these two appellants in Criminal
Appeal No.424/2007 are real brothers and residents of the same
village, therefore, they have been deliberately implicated by PW-
1 complainant due to political enmity in village. In fact, appellant
*14* apeal417a424o07
No.1 (Laxman More) is teacher and he was not present at the
spot of alleged incident. Therefore, the learned advocate
submitted that the prosecution has failed to prove guilt of the
appellants. As such, the appeal needs to be allowed and the
appellants be acquitted.
13. Per contra, the learned APP strongly opposed the
submissions of learned advocates for the appellants. According to
the learned APP, the statements of witnesses proved the guilt of
the appellants beyond all reasonable doubts and, therefore, their
evidence cannot be discarded. The impugned judgment of
conviction is correct and proper. Since the learned Trial Court
has appreciated evidence in proper perspective, therefore, the
impugned judgment is legally correct and requires no
interference. The learned APP has taken this Court through the
depositions of material eyewitnesses and submitted that the
appellants have been rightly convicted by the learned Trial Court.
The learned APP, therefore, prayed for dismissal of the appeals
and for maintaining the impugned judgment. In support of his
submissions, the learned APP has relied upon the judgment of the
Hon'ble Supreme Court in Abdul Sayeed vs. State of M.P.,
*15* apeal417a424o07
(2010) 10 SCC 259.
14. After hearing the submissions of learned advocates
for the respective parties and with their assistance, after going
through evidence on record carefully, it is to be noted here that
the prosecution has examined as many as 16 witnesses as
reproduced above. On perusal of evidence of PW-1 complainant
at exhibit 53, it goes to show that he was driving the motorcycle
and PW-3 (Shashikant Ghadge) and PW-4 (Balaji Mane) were
pillion riders. His motorcycle met with an accident with Tum
Tum rickshaw. As per the evidence of PW-1, PW-3 and PW-4,
who were injured witnesses, all of sudden all 14 accused persons
alighted from Tum Tum rickshaw and they were carrying
weapons in their hands and they assaulted the injured victims.
Though as per the prosecution case, the alleged incident took
place on 21.06.2004 in early morning at 06:00 am, however, the
prosecution has not explained as to when there was previous
meeting between the accused and they had hatched conspiracy so
as to assault PW-1 complainant. It is also not brought on record
by the prosecution as to how and when 14 accused persons all of
sudden caught Tum Tum rickshaw in early morning, went at the
*16* apeal417a424o07
spot and alighted from rickshaw. The prosecution has also not
explained as to how PW-1 complainant reached to the hospital
after the incident. His statement was recorded by the police in the
hospital and on the basis of the said statement, the complaint
came to be registered. PW-1 complainant stated in his deposition
that when he was Up-Sarpanch of his village, he had initiated the
cause for prohibition of liquor in village and had also closed
gambling business and due to his actions, the accused persons
were affected and as such, they assaulted him on the given date
and time. PW-1 complainant also deposed that at his behest, legal
action was taken against one accused Ghadge on account of
grabbing one school of said village and due to which, he was
arrested for 10 to 12 days. Though PW-1 complainant has tried to
depose that the accused persons were having enmity with him,
however, it is not brought on record as to how in early hours of
morning of the alleged incident, the accused persons, 14 in
number, boarded one vehicle from village and came to the spot
and after the accident, immediately started assaulting the injured
persons including PW-1 complainant. It is brought on record that
accused Laxman More and Suryakant Ghadge are teachers and at
the relevant time of the alleged incident, they were not present on
*17* apeal417a424o07
the spot. However, the prosecution has not proved beyond all
reasonable doubts that they were present at the spot. Therefore,
the case of false implication by PW-1 complainant cannot be
ruled out.
15. PW-2 Shivnarayan Shinde is the eyewitness, who
initially deposed that he saw assault, however, later on, he stated
that he could not see the place of incident from where he was
standing. PW-3 (Shashikant Ghadge) and PW-4 (Balaji Mane)
are pillion riders along with PW-1 complainant. PW-3 and PW-4
are maternal cousins of PW-1. There are material omissions and
contradictions in testimonies of PW-3 and PW-4 on account of
who assaulted whom.
16. As regards medical evidence, the prosecution has
examined PW-6 (Dr. Vijaya Borade), Medical Officer, PW-11
Dr.Anant Rajmane, who is private medical practitioner and
treated the complainant and PW-16 Dr.Chandak, who is an expert
witness. PW-6 Dr.Borade stated that he had examined all three
victims one by one. Three injuries were suffered by injured PW-3
(Shashikant Ghadge) i.e. Contused Lacerated Wound (CLW) on
left eye, Swelling diffuse at right hand and CLW on left leg calf.
*18* apeal417a424o07
According to PW-6 Dr. Borade, all these injuries are simple in
nature. PW-6 also checked PW-4 (Balaji Mane) and she found
two injuries on his person i.e. Sutured wound on right parietal
region and swelling diffused over left leg and out of these two
injuries, first one is simple in nature and second one is grievous.
PW-6 Dr.Borade also checked PW-1 complainant and found
three injuries on his person i.e. CLW at left eye, swelling
diffused at right calf and deep lacerated muscle at left leg
anterior aspect. According to her, all these three injuries are
grievous in nature. PW-6 stated that all these injuries sustained
by the victims were caused by hard and blunt objects. However,
in cross-examination, PW-6 Dr. Borade has candidly stated that
injuries caused were not on vital parts of the body like head,
chest and abdomen. She further stated that she cannot state
exactly that injuries sustained by PW-1 complainant are
dangerous or not. She stated that it is probable that such injuries
may be caused by fall or accident.
17. As regards testimony of PW-11 Dr.Anant Rajmane,
it is brought on record that he treated the injured victims
including the complainant at the first point of time. PW-11
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candidly admitted in his cross-examination that all these patients
had not sustained injuries on vital parts of their bodies. PW-16
Dr.Chandak came to be examined as expert witness, who is
private medical practitioner. PW-16 Dr. Chandak has candidly
admitted in his cross-examination that PW-1 complainant had
come to his hospital as patient and he had checked him.
According to this witness, all injuries were grievous in nature.
18. It is settled position of law that when ocular
evidence in the form of eyewitnesses is available then, medical
evidence does not require to be given much weightage. So also,
where ocular evidence itself is doubtful, inconsistent or
improbable, medical evidence gains significance. Eyewitnesses
PW-1 to PW-4 have stated that all accused persons assaulted
injured victims and as a result of such assault, the injuries were
sustained by the victims. In this regard, testimony of PW-2
(Shinde), who is eyewitness, but not injured witness, needs to be
perused for the reason that he deposed that he only saw the
collision of rickshaw and motorcycle and not the actual assault.
PW-3 and PW-4 are maternal cousins of PW-1 and, therefore,
they are interested witnesses. Though the law on the point of
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interested witnesses is very much settled that only because the
witnesses are interested, their testimonies are not required to be
kept aside, however, same are required to be examined
scrupulously. If testimony of PW-3 and PW-4 is perused, there
are material omissions and contradictions as regards the assault
and no specific overt act has been attributed to each of the
accused persons. PW-3 (Ghadge) has virtually not supported the
version of PW-1 complainant as regards the location of incident
and there are material inconsistencies as regards the person, who
taken them to hospital. PW-3 (Ghadge) stated that after the
incident, Ashok Sangle and Dwarkabai Sangle took the injured
persons to hospital at Osmanabad in tempo of one Namdeo
Dhone. However, the prosecution has not examined the said
Ashok Sangle, Dwarkabai Sangle and Namdeo Dhone, to prove
its case beyond reasonable doubt. In view of such discrepancies,
evidence of PW-3 cannot be said to have corroborated the
version of PW-1 complainant. Likewise, testimony of PW-4
(Balaji Mane) also suffers from discrepancies and it is not
corroborated with the testimony of PW-3.
19. In view of the aforesaid discussion, the case of the
*21* apeal417a424o07
prosecution cannot be said to be genuine for the reason that PW-
1 complainant had also filed another FIR against 25 persons with
similar allegations and those 25 persons have been acquitted by
the learned Chief Judicial Magistrate on the ground of alibi.
20. Reliance placed by the learned APP on the judgment
of the Hon'ble Supreme Court in Abdul Sayeed vs. State of M.P.
(supra), is misplaced. In the said case, the injured witnesses were
found to be wholly reliable, consistent, and their presence at the
spot was never in doubt, and their ocular version was fully
corroborated by medical and circumstantial evidence. However,
in the present case, the evidence of injured witnesses suffers
from material contradictions and omissions, particularly
regarding the presence and role of all accused, the manner of
assault, and the immediate steps taken after the incident. Further,
medical evidence in the present case supports probable
accidental injuries, which was not the situation in Abdul Sayeed
(supra). Therefore, ratio of the said judgment is clearly
distinguishable on facts and does not advance the case of the
prosecution.
21. It is well settled that the evidence of eyewitnesses is
*22* apeal417a424o07
not to be accepted mechanically as wholly reliable merely
because they claim to have witnessed the incident. In Thevar
Vedivelu v. State of Madras (AIR 1957 SC 614), the Hon'ble
Supreme Court classified witnesses into three categories, namely,
wholly reliable, wholly unreliable, and neither wholly reliable
nor wholly unreliable. The Hon'ble Supreme Court held that
where a witness falls in the third category, conviction cannot be
based on such testimony without substantial corroboration. In the
present case, the conduct of the eyewitnesses and their inter se
inconsistencies and contradictions on material particulars, render
their testimony unsafe to be treated as wholly reliable. Their
evidence, therefore, falls in the category of witnesses who are
neither wholly reliable nor wholly unreliable, and in the absence
of independent and cogent corroboration, reliance on such
testimony would be contrary to the settled principles of criminal
jurisprudence.
22. It is settled principle of criminal jurisprudence that
the prosecution must establish its case beyond reasonable doubt.
In the present case, the prosecution has failed to prove the
presence of all accused at the spot, the existence of common
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object under Section 149 IPC, and the essential ingredients of
Section 307 IPC, namely intention or knowledge to cause death.
The inconsistencies in oral evidence, lack of independent
corroboration and medical evidence supporting the defence
version create serious doubt about the prosecution case. In such
circumstances, the appellants are entitled to benefit of doubt, and
interference with the conviction recorded by the learned Trial
Court is necessary to prevent miscarriage of justice.
23. In view of the foregoing discussion, I am of the view
that the prosecution has failed to establish the ingredients of the
charge levelled against the appellants beyond reasonable doubt.
Consequently, both these Criminal Appeals are allowed and the
impugned judgment and order is quashed and set aside. The
appellants/ accused are acquitted for the said offence. As the
appellants are on bail, they need not surrender. The bail bond
stands cancelled. Surety, if any, stands discharged. Fine amount
and compensation, if deposited, be refunded. The record and
proceedings be sent back to the concerned Court.
kps (SUSHIL M. GHODESWAR, J.)
