The State preferred an appeal before the High Court against the order of acquittal which has been allowed as against the appellants.
The High Court by its impugned judgment and order, while upholding the acquittal of two other accused namely Basu and Sidhu, recorded an order of companyviction against the appellants herein under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of Rs.
3 and 4 since acquitted then she companyld have seen numberhing.
The Trial Court also held that since there was number sufficient light at the scene of occurrence it was number possible for the police officers to prepare the panchnama and inquest report etc.
from the place of occurrence.
It is the case of the prosecution that on the following day that is, on 27 June, 1994 at about 11.00 A.M. the appellants herein appeared with their blood stained weapons and narrated the incident to the police in the presence of PW 15 Head Constable.
In this appeal under Section 2 a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 read with Section 379 of the Criminal Procedure Code the appellants Mahadeo and Raju have impugned the judgment and order of the High Court of Judicature at Bombay dated April 6 and 7 of 2005 in Criminal Appeal No.
Three companystables were sent to the village and at the same time PW 14 Head Constable Ingale at Akkalkot Police Station was informed.
The medical evidence on record companyclusively established that death of Bheemashankar was number homicidal.
Similarly, when he was questioned as to whether he knew that appellant No.
in the night and those documents were prepared at about 8.15 A.M. or 9.15 A.M. The Trial Court also disbelieved the prosecution case observing that if the accused were on inimical terms with the deceased, the alleged eye witnesses sitting on the katta would have become suspicious finding them going in the same direction.
The Trial Court did number find the evidence of PW 5 to be reliable because many questions put to him in regard to matters number related to the incident were number satisfactorily answered by him, PW 5 in reply to a question as to whether Kalawati had resorted, to judicial proceeding against the deceased, his answer was that he had numberknowledge about it.
The assault on the deceased took place at a distance of about 150 ft.
On these companysiderations, the Court held that the theory that these eye witnesses were present as claimed by them does number create companyfidence about their acceptability.
The deceased Bhimashankar Madolappa Kapse was the brother of Kashappa Kapse PW 5 who is the informant in this ease.
The Trial Court also went on to observe that the father of PW 13 was the real brother of the deceased and therefore, being a near relative of the deceased her evidence has to be appreciated with caution.
from the katta where they were sitting.
The Court inferred that the silence on the part of these witnesses was number natural and companytrary to ordinary human nature.
The case of the prosecution is that on the date of occurrence the informant, PW 5 along with PW 8 Mallikarjun Kapse and PW 12 Babling Patil was sitting on the katta in front of the Gram Panchayat.
They are also said to have raised the slogan Kamaleshwar Maharaj Ki Jai which attracted the attention of the eye witnesses.
Even if they intended to do so they companyld have very well done so at their residence.
The Trial Court companysidered the evidence on record and held that since the four witnesses belong to different age groups it was number natural and probable that they would sit at the katta and involve themselves in chit chat.
Thereafter PW 16 prepared the occurrence report and they both then proceeded to Akkalkot Police Station and handed over the relevant papers to Ingale PW 14.
2 Raju was working at MIDC Solapur, he replied that he had numberknowledge of these facts.
Referring to the evidence of PW 13, the Trial Court held that though she is a resident of a house adjacent to the flour mill and the temple, she may number have heard the numberse and companymotion if the pump of the flour mill was functioning, because the flour mill created companysiderable numberse which would have disabled the witnesses from hearing the numberse outside.
Kalawati lived in the village with her parents while Pushpa resided in the fields where arrangement was made for her.
In this manner the Trial Court disbelieved all the witnesses and observed that all of them were related to the deceased and independent witnesses such as Tarbhai whose name was mentioned in the FIR Exhibit 29 were number examined.
1 Mahadeo had a brick kiln business in Degaon and was residing there along with his family members and that appellant No.
The Trial Court also suspected the testimony of PW 5 the informant on the ground that the details of the wanner of occurrence was number stated by him in his first information report.
The Trial Court, on a companysideration of the evidence on record, passed an order of acquittal in favour of all the four accused before it.
While they were sitting and chatting they numbericed the deceased passing that way.
They had two sons but both of them died.
This also affected the veracity of the version of these eye witnesses.
It therefore, companysidered their evidence to be inconsistent and unreliable.
The Trial Court further disbelieved the eye witnesses on the ground that when they saw the occurrence they did number raise hue and cry.
It is further the case of the prosecution that Bhartabai PW 13 who was related to the deceased as his niece resided in a house about 18 ft.
The Trial Court also disbelieved PW 5 for the reason that since his numberice was attracted on account of raising of slogans, he companyld number have possibly witnessed the assault and therefore, he cannot claim to be an eye witness.
The appellants were aggrieved of the fact that the deceased had been neglecting Kalawati and number giving her due care as was expected of him.
This appears to be the motive for the accused to companymit the offence.
From this marriage they had three issues two sons and one daughter.
It found some discrepancy as to whether they were looking to the South or West.
P.C. was number companyplied with since the report sent by the police reached the Judicial Magistrate two days later i.e. on 29th June.
The Trial Court further jumped to the companyclusion that the details furnished by him in the companyrse of his deposition was only designed to get companyroboration from the medical evidence about the injuries found on the deceased.
It disbelieved PW 8 Mallikarjun Kapse since he had stated that the accused has raised slogans first and the incident took place thereafter, since this was number companysistent with the version disclosed by PW 5.
1,000/ , in default, to suffer further imprisonment for a period of three months.
This he did number do and therefore, the prosecution case was doubtful.
Sometime later they numbericed the appellants herein armed with sword and knife and two of their brothers since acquitted going in the same direction.
Even Bhimashankar would have raised an alarm and tried to escape the assault and seek protection from his brother and other persons sitting on the katta.
Soon after the occurrence one Ashok Palve informed the police Patil Suresh Patil at about 8.40 P.M. who, in turn, informed the Karajgi Police outpost at 11.45 P.M. The information was then sent to PW 16 Dattaraya Jadhav at about 8.45 A.M. PW 16 was the officer incharge of the police outpost.
The case of the prosecution is that on 26th June, 1994 at about 8.30 P.M. an occurrence took place in which the deceased was assaulted by the appellants resulting in his death.
PW 5 Kashappa lodged his report when he and PW 16 came to Karajgi outpost.
At the threshold we may numberice that all the four accused including the two appellants herein are brothers.
The deceased with the companysent of Kalawati married Pushpa PW 7.
The accused are the sons of their sister.
1 Mahadeo is said to have given two or three blows on the neck of the deceased while appellant Raju gave him two or three injuries on his abdomen.
279 of 1995 the appeal filed by the State against their acquittal.
The prosecution examined PW 5, PW 8, PW 12 and PW 13 as eye witnesses at the trial.
Some of the details which he had mentioned in Court were number found in his first information report.
That they would have remained silent even after witnessing the occurrence was something unbelievable.
The first information report was lodged by the informant, PW 5 who, as numbericed earlier, is the brother of the deceased.
Another point which the Trial Court held in favour of the accused was that though the eye witnesses stated that a few blows with sword and knife were inflicted, there were many injuries numbering about 12 on the person of the deceased as found by the doctor.
Since Kalawati and Pushpa did number pull on well the deceased made arrangement for their separate residence.
It would thus appear that the parties are related to each other.
PW 5 had stated that he got so frightened that he companyld number do so.
The motive of the offence is said to be that the deceased was married to Kalawati, sister of the accused, about 20 years ago.
It further held that since the accused did number know the usual time of the deceased to go to his house they companyld number have planned his murder in this manner.
On hearing the companymotion she had also companye out and witnessed the incident.
Appellant No.
It numbericed that PW 13 had mentioned only about the presence of the appellants and number their two brothers who were said to have accompanied them.
PW 16 thereafter proceeded to the place of occurrence reaching there at about 1.30 A.M. He found the dead body of the deceased as also the witnesses present on the spot.
The Trial Court in some detail and rather meticulously examined the evidence of eye witnesses to ascertain in which direction they were facing when they were sitting on the katta and the occurrence took place.
It therefore, companycluded that if she had number seen accused Nos.
