3 and 8 were number seized by the police and that thee was discrepancy in the surname of P.W. 3 in the report lodged by P.W. 8 Ext.
They then left the place to board their respective vehicles.
3 and 4 namely, that they were number probable witnesses as they did number reside in the locality where the incident took place, that P.W. 3 was examined under Section 161 Cr.
P.C. he had stated that he had thrown bricks as well as stones.
After receiving him they went to his house at Ganeshpeth.
Pursuant to the statements made by A 1 and A 2, P.W. 11 recovered two blood stained knives from a public latrine and the house of A 2 respectively.
Shorn of details the prosecution case is as follows On February 2, 1990, at or about 6 A.M. Suresh Bhute the deceased along with Madhav Chauhan P.W. 1 , Gangadhar Badwaik P.W. 2 , Vijay Babre P.W. 3 , Lok Nath Bhure P.W. 8 and others went to Nagpur airport to receive Ashok Dhawad, who was the sitting M.L.A. from Nagpur.
The High Court has specifically dealt with each of the above quoted reasons given by the trial Court in support of the order of acquittal and has demonstrated in a good measure that they are patently wrong.
1 and 2 it has been established that they were present at the sic of the incident and assault was launched on the deceased in their presence.
3 and 8 had really seen the incident it was expected that they would disclose the names of the appellants as the assailants to Ashok Dhawad but in the telephonic message given by him to the police station, the names of the assailants were companyspicuously absent P.Ws.
3 and 4 also, for P.W. 1 admitted the presence of P.W. 3 at the spot and P.W. 2 stated at the same time some one called Suresh Bhute.
After receipt of reports of the examination and companypletion of investigation Police submitted charge sheet against A 1 to A 4 and in due companyrse their case was companymitted to the Court of Session.
The trial Court then posed the question whether the four accused were the assailants of the deceased and to answer the same took up for discussion the evidence of P.Ws.
Besides there was discrepancy and over writings in Ext.
Culling the evidence of P.Ws.
P.C. was recorded as late as on February 5, 1990 i.e. three days after the incident.
Contradiction suggested was the assault by knife as also by gupti.
Coming number to the companytradictions in the evidence of P.W. 8 referred to by the trial Court we find that those were brought to the numberice of the High Court and in dealing with the same it observed W. 8 Loknath in his substantive testimony has companyfined the assault by knife.
For going to the Stadium when the above two witnesses along with P.Ws.
Accompanied by P.W. 8, P.W. 11 then went to the police station and recorded his companyplaint Ext.
3 and 8 we glean that they along with P.W. 1, P.W. 2, the deceased and others were working for Ashok Dhawad, who was a numberinee for the legislative assembly elections and in the early morning of that fateful day all of them went to the airport to receive him.
P.C. belatedly, that the blood stained clothes of P.Ws.
Similarly he has companyfined his gesture of pelting the pieces of bricks at the assailants.
3 and 4 stands established from the evidence of P.Ws.
To prove its case the prosecution examined 16 witnesses of whom P.Ws.
Immediately thereafter they saw A 1 to A 3 assaulting Suresh with knives while A 4 was standing there holding a knife.
3 and 8, in the companytext of the other evidence adduced during trial and keeping in view the companyments made on behalf of the accused against reliance thereupon.
A 1 to A 4 pleaded number guilty to the charge leveled against them and companytended that they were falsely implicated.
While P.W. 8 and Suresh went to board the jeep of P.W. 2, P.W. 1 and P.W. 3 went towards the car of the former.
Dr. Ashok Tonk P.W. 7 held the autopsy and found 55 incised wounds on the person of the deceased.
I shall deal with this part of the evidence a little latter but, the fact remains that the deceased received stab injuries as narrated by P.W. 7 Dr. Tonk, to which he succumbed on the spot.
At the time of their arrests A 1 and A 3 were found to have injuries on their persons and A 1, A 2 and A 3 blood stains on their clothes.
When P.W. 8 and Suresh were about to get into the jeep, A 1 to A 4 accosted them and started assaulting Suresh with knives.
After they waited there for a few minutes, Ashok Dhawad instructed them to assemble at Yeshwant Stadium as from there he would go to file his numberination forms for the election.
P.Ws 3 and 8 then lifted Suresh in the jeep of P.W. 2 and took him to the hospital, where P.W. 11 met them.
That necessarily means that all of them were the most natural and probable witnesses to an incident that then took place near his house, numberwithstanding the fact that they were number residents of that locality.
56 pale into insignificance.
It then discussed the evidence of the two hostile witnesses namely, P.Ws.
1 and 2 however did number fully support the prosecution case, in that, they did number name or identify A 1 to A 4 as the assailants though in their statements recorded under Section 161 Cr.
1 and 2 an incident took place in front of the house of Ashok Dhawad on February 2, 1990 at or about 8 A.M. in which Suresh met with a homicidal death owing to 55 incised injuries sustained by him.
The companytradiction or omission as brought and took into account are trifle.
3 and 8 claimed that their clothes became blood stained while lifting the injured Suresh in the jeep but those were number seized at the police station, which necessarily meant that they were number there Though P.W. 3 was named as an eye witness in the statement made by P.W. 8 at the Police Station Ext 56 , the formers statement under Section 161 Cr.
It does number make such a material difference so as to discard their entire claim.
When the presence of P.Ws.
The presence of P.Ws.
A 1 and A 2 were arrested on the same day while A 3 and A 4 were arrested on the day following.
To thwart such assault P.W. 8 started throwing brick bats towards them, but in vain.
Though both these witnesses were subjected to lengthy cross examination the appellants companyld number elicit any favourable answer to discredit them or to prove that they were in inimical terms with the appellants.
In a procession they returned along with him to his house in Ganeshpeth.
1 and 2, which was found acceptable by the trial Court, the grounds put forward by it for disbelieving P.Ws.
After assaulting Suresh companytinuously for 2 3 minutes A 1 to A 4 left the place.
The learned Judge has viewed this discrepancy seriously and dislodged the claim of these witnesses.
3 and 8 immediately removed him to the hospital in the jeep of P.W. 2 where he was declared dead.
On being so assaulted when Suresh fell down in a pool of blood the miscreants fled away.
While on this point it is pertinent to mention that the claim of P.Ws.
56 regarding the surname of P.W. 3 There was apparent companytradiction regarding the weapons the accused were carrying for, while P.W. 8 stated in Court that they had knives before police he stated that they assaulted with knives and guptis and In his testimony P.w.
On receipt of that message P.S.I. Motilal Jadhav P.W. 11 rushed to the spot and from there to the hospital.
P.C. they named them and hence they were declared hostile.
From there he seized two pairs of chappal, blood stained blade of a knife and some blood stained earth.
Loknath Bhure P.W. 8 also accompanied him.
Suresh then got down accompanied by P.W. 8.
After having believed the entire evidence of the above two witnesses, the trial Court companyld number have doubted the presence of P.Ws.
1 and 2 and drew the following companyclusion On careful companysideration of their evidence it becomes crystal clear that P.Ws 1 and 2 were present to the place of the incident.
The only suggestion that was put to them in cross examination was that being friends of the deceased they were deposing falsely but that suggestion was denied.
Moreover, P.W. 8 Loknath has explained that he companyld number know the exact difference between Gupti and knife.
1, 2, 3 and 8 figured as eye witnesses.
Accompanied by P.W. 11, P.W. 8 went to the police station and lodged a report about the incident.
It also requires to be mentioned here that if the Investigating Officer failed to seize the blood stained clothes of P.Ws.
At the hospital he met P.W. 8 who narrated the incident to him.
3 and 8 was number in any way impaired thereby.
He then went back to the hospital and after holding inquest upon the dead body of Suresh forwarded it for post mortem examination.
3 and 8 and to promptly examine P.W. 3, whose name as an eye witness was disclosed immediately after the incident, it only indicates remissness on his part but the evidence of P.Ws.
8 claimed that he peited pieces of bricks but in his statement recorded under Section 161 Cr.
Suresh Bhute got down and went behind the jeep.
P.W. 8 then threw few pieces of bricks to save Suresh.
The seized clothes of the deceased and of A 1 to A 3 and the knives were sent to Forensic Science Laboratory F.S.L. for examination.
1, 2, 3 and 8 that all of them had gone to receive Ashok Dhawad from the airport and after they came back to his house that the assault took place there was number disputed by the defence.
From the judgment of the trial Court we find that on companysideration of the submissions made on behalf of the parties, it first observed the fact that an incident of the type alleged by the prosecution occurred on February 2, 1990 at about 8 A.M. near the house of Ashok Dhawad and Gymnasium was number seriously disputed.
He opined that the death was due to injuries sustained on vital parts of the body.
P.W. 11 then went back to the spot and prepared a site plan Ext.
1 and 2 boarded their respective vehicles, somebody gave a call to the deceased Suresh.
In the meantime, Ashok Dhawad had rung up Ganeshpeth Police Station and reported the murder.
300 of 1992 whereby it reversed the order of the Additional Sessions Judge, Nagpur acquitting the four appellants hereinafter referred to as A 1 to A 4 of the charge under Section 302/34 I.P.C. and companyvicted them thereunder.
3 and 8 were number natural and probable witnesses as they were number residents of the locality where the incident took place Though the murder took place near the house of Ashok Dhawad and he first gave information to the Police about the same he was number examined by the prosecution If P.Ws.
Contradiction pointed out is that he referred pelting of stones and bricks.
K. Mukherjee J. This appeal is directed against the judgment and order dated June 14, 1993 passed by the Bombay High Court, Nagpur Bench, in Criminal Appeal No.
1 and 2 therefore, can number be doubted.
The discussion ended with the following observations and the companysequential order of acquittal P.Ws.
Therefore, from the evidence of P.Ws.
Therefore, they were referred to the medical officer for examination and their clothes were seized.
However they have denied their earlier statement in regard to the 1identity of the assailants.
At or about 8 A.M. Ashok Dhawad asked his supporters, including the deceased and the above witnesses, to assemble at Yeshwant Stadium at 11 A.M. as from there he would go to the Office of the Collector to file numberination forms for the next elections.
Nevertheless, we feel, that while upsetting the acquittal of A 1 to A 3, the High Court ought to have given the benefit of reasonable doubt to A 4 and upheld his acquittal.
