Confirmation Case No.1 of 2002,Criminal Appeal No.371 of 2002

11th October, 2002

Petitioner Counsel: Shri. S. V. CHILLARGE
Respondent Counsel: Shri. N. B. SURYAWANSHI

Cases Cited:
Pandit Ram Prakash Sharma Vs. Khairati Lal, AIR 1998 SC 2820 [Para 29]
State of Rajasthan Vs. Magni Ram, (2001)9 SCC 589 [Para 30]
Ajaib Singh Vs. State of Haryana, 1992 SCC (Cri) 941 [Para 31]
Francisco Paulo Saldhana Vs. The State, 1990(3) Crimes 293 [Para 32]
Bachan Singh Vs. State of Punjab, (1980)2 SCC 684 [Para 35]
Machhi Singh Vs. State of Punjab, AIR 1983 SC 957 [Para 35]
Om Prakash Vs. State of Haryana, JT 1999(1) SC 599 [Para 35]
Prakash Dhawal Khairnar (Patil) Vs. State of Maharashtra, (2002)2 SCC 35 [Para 35]
Lehna Vs. State of Haryana, (2002)3 SCC 76 [Para 35]
State of Punjab Vs. Gurmej Singh, (2002)6 SCC 663 [Para 35]

JUDGMENT

B. B. VAGYANI, J. :- The Criminal Appeal filed by original accused nos.1 to 3 is directed against the order of conviction and sentence dt.30th of April, 2002, passed by the Ad Hoc Additional Sessions Judge, Nandurbar. The accused no.1 Prakash and accused No.2 Ramu are convicted under Section 302 read with Section 34 of IPC and both of them are sentenced to suffer capital punishment.

2. The accused no.3 Shiva is convicted under Section 302 read with Section 34 of IPC and is sentenced to suffer imprisonment for life. The original accused nos.1 to 3 are also convicted under Section 506(ii) read with Section 34 of CPC, however, no separate sentence is inflicted on them in view of capital punishment and imprisonment for life.

3. In brief, the facts giving rise to the Criminal Appeal are as under :

Jaitubai is the sister of appellant accused nos.1 and 2 and niece of appellant accused no.3. Jaitubai was married to deceased Madhukar long back. Jaitubai has Son Alpesh (PW 6) and daughter Hema (PW 5). Alpesh and Hema are major. All of them are resident of Rayangaon (Patilfali), taluka Nawapur, district Nandurbar.

4. Deceased Madhukar brought Ramabai, a married woman and kept her as his second wife. On 15.7.2001, first husband of Ramabai, along with 15 to 20 persons came to Madhurkar. There is a custom prevailing in their community, which is commonly known as ZAGDA system. As per this custom compensation is required to be paid to former husband. Pursuant to ZAGDA system, Madhukar paid Rs.5,051/- to the former husband of Ramabai. Thereafter Madhukar was allowed to retain Ramabai as his second wife. Jaitubai and Ramabai stayed with Madhukar for a period of 15 days.

5. On account of retention of Ramabai, as a second wife, the married life of Jaitubai was disturbed. Accused nos.1 to 3 were not happy over this affair. They were shocked to know that their brother-in-law Madhukar brought Ramabai as his second wife and kept her in the house which adversely affected the married life of Jaitubai. Accused became furious and decided to teach a lesson to Madhukar.

6. The incident occurred on 16.7.2001 at about 6.30 p.m. within the close proximity of the house of deceased Madhukar. Madhukar gave alaram to the effect "MARLE, MARLE". On hearing the alarm of Madhukar, Reenabai (PW 3), sister of Madhukar, Gemji (PW 4), brother of Madhukar, daughter Hemabai (PW 5) and son Alpesh (PW 6) immediately arrived on the spot in order to see what had happened to Madhukar, Surtan (PW 7), Gulabsing (PW 8) and persons from neighbourhood also arrived on the spot after having heard the alarm of Madhukar. It is prosecution case that accused Prakash went inside the house and brought two axes. He retained one axe with him and handed over another axe to his brother Remu. Accused no.3 Shiva caught the legs of Madhukar by means of rope. Accused no.1 cut the left hand of Madhukar. He also cut right foot of Madhukar. Accused no.2 inflicted axe blows on the right eye-brow and near the left ear of Madhukar. The blow was given with so much force that the blade of the axe stuck into the head of Madhukar and handle of the axe was broken. It is prosecution version that accused no.2 brought knife from the house and inflicted blows on the back of Madhukar by means of knife. Reenabai (PW 3) tried to rescue her brother Madhukar, however, because of threats administered by the accused, she did not dare to rescue her brother Madhukar. In the presence of dear ones, Madhukar was brutally assaulted. His organs were severed by means of axes. But the dear ones and close ones could not offer any kind of assistance to Madhukar. After the brutal assault on Madhukar, accused nos.1 to 3 disappeared from the scene of offence.

7. Reenabai (PW 3) asked Alpesh (PW 6) to go to the Police Patil. Alpesh (PW 6) went to Pangran and contacted Police Patil Shamji Gavit (PW 11). Alpesh (PW 6) narrated the entire incident to him. Police Patil Shamji (PW 11) went to Navapur Police Station on the bike belonging to Sarpanch and disclosed the occurrence to the Police. Reenabai (PW 3) lodged FIR (Exh.14) at 10.30 p.m. On the basis of FIR (Exh.14), Crime No.55/2001 came to be registered. P.I. Pradip Sonawane (PW 18) carried out further investigation of the crime and after completion of the investigation, sent up the chargesheet against the accused nos.1 to 3. Learned Judicial Magistrate, First Class, Navapur, district Nandurbar, committed the accused nos.1 to 3 to the Court of Sessions to stand their trial.

8. Learned Additional Sessions Judge, Nandurbar framed charge (Exh.3) against accused nos.1 to 3. Accused nos.1 to 3 pleaded not guilty to the charge and claimed to be tried. In order o prove the guilt of the accused nos.1 to 3, the prosecution examined in all 18 witnesses. Learned Additional Sessions Judge accepted the prosecution evidence and held accused nos.1 to 3 guilty under Sections 302 and 506(ii) read with Section 34 of IPC. After recording the order of conviction, he sentenced accused nos.1 to 3 as above. Feeling aggrieved by the order of conviction and sentence, the original accused nos.1 to 3 filed Criminal Appeal No.371/2002. Learned Additional Sessions Judge imposed capital punishment on accused nos.1 and 2 and, therefore, confirmation case No.1/2002 is also heard along with Criminal Appeal No.371/2002. Therefore, both these cases are disposed of by common judgment.

9. Learned Advocate Shri. N. S. Suryawanshi vehemently submitted that Reenabai (PW 3), Gemji (PW 4) and Alpesh (PW 6) are got up witnesses. According to learned Advocate Shri. N. B. Suryawanshi, the presence of these three eye witnesses is very much doubtful. He pointed out number of infirmities from their oral evidence and submitted that the oral evidence of these three eye witnesses does not at all inspire confidence. According to him, the learned Additional Sessions Judge should not have believed the tainted evidence. He submits that if this tainted evidence is eliminated from the record, the whole substratum of the prosecution case vanishes and consequently accused nos.1 to 3 deserve order of acquittal.

10. On the other hand, learned A.P.P. Shri. Chillarge strongly supported the order of conviction and sentence passed by the learned Additional Sessions Judge. According to him, the presence of Reenabai (PW 3), Gemji (PW 4) and Alpesh (PW 6) is very much natural. The incident occurred at a short distance from their house. Voice of Madhukar was audible from their house. All these three eye witnesses immediately appeared on the scene of offence and witnessed the incident. Therefore, according to learned A.P.P. Shri. Chillarge, the evidence of these three eye witnesses cannot be brushed aside easily.

11. Let us examine the correctness of the rival contentions in the light of infirmities pointed out by the learned Advocate Shri. N. B. Suryawanshi. Reenabai (PW 3) and Alpesh (PW 6) have claimed that they had witnessed actual assault by accused nos.1 to 3, Gemji (PW 4) arrived on the spot little bit late and, therefore, he did not witness the actual assault by accused, by means of dangerous weapons. It is tried to be suggested by the learned Advocate Shri. N. B. Suryawanshi that Reenabai (PW 3) and Alpesh (PW 6) had not witnessed the incident otherwise they would have given full account of multiple injuries which were found on the dead body of Madhukar. Inability to explain the multiple injuries makes the tall claim of eye witnesses doubtful.

12. Following external injuries were found on the dead body of Madhukar:

(1) CLW over Right eyebrow, with curve downwards, horizontally placed, measuring 5 cms x 2 cm x bony deep with fracture of frontal bone.

(2) CLW just below the right eye, extending from nose upto the right maxila transverse measuring 9 cm x 1.5 cm x bony deep with fracture of maxilla (right).

(3) CLW over occipital region curved upwards with peeling off of scalp with small tag of scalp remaining, measuring 9 cms of length with fracture of occipital bone.

(4) CLW over left side of head, piercing through the junction of upper 1/3rd with the lower 2/3rd of pinna of left ear, extending from left maxilla upto the occipital area, measuring 9.5 cm x 2 cm x 10 cm deep with axe in situ with fracture of front temporal bones with brain matter protruding out of wound.

(5) CLW over occipittal area, transverse measuring 3 cms x 1 cm x bony deep.

(6) CLW over right side of back, over the scapula, curved upwards, transversely placed measuring 7 cm x 3 cms x 3.5 cm deep with fracture of right scapula.

(7) CLW over left side of back over upper part of scapula curved laterally, measuring 7 cm x 3 cm x 3 cm deep with fracture of left scapula.

(8) Incised wound over middle of back over lumber region, vertically placed, about 2 cm x 0.5 cm. x 3 cm deep.

(9) Incised wound over Right side of neck just above the Rt. clavicle, obliquely placed, measuring 2 cm x 1.0 cm x 3 cm deep.

(10) CLW over middle of chest over upper part of sternum, obliquely placed measuring 6 cms x 2.5 cm with fracture of sternum, separating upper part of sternum with lower 2/3rd part.

(11) CLW over chest, just lateral to and in line of injury No.10 measuring 3 cm x 0.5 cm x 0.5 cm deep.

(12) Incised wound over right side of chest 3 cms lateral to right nipple transversely placed measuring 3 cm x 1 cm deep.

(13) Abrasion over lateral aspect of right thigh in middle 1/3rd part measuring 3 cm x 1 cm transversely placed.

(14) Amputation of left hand at wrist joint with only small tag of skin remaining behind.

(15) CLW over left thigh over anterior aspect, just above the knee joint, transverse, measuring 6 cm x 3 cm x 1 cm deep.

(16) Abrasion over medial aspect of left knee, 2 cm in length.

(17) Incised wound over medial aspect of right knee joint, curved laterally vertical, measuring 4 cm x 1.0 cm x 4 cm deep.

(18) Amputation of right foot, just above the ankle joint with small tag of skin remaining behind.

(19) CLW over right leg just above the amputed part, over anterior aspect, measuring 4.5 cm x 3 cm. bony deep, transversely placed.

(20) CLW over anterior aspect of left leg, just above the ankle joint, transversely placed, measuring 2 cm x 1.0 cm. x 0.5 cm deep.

Following internal injuries were seen on the dead body of Madhukar.

Head:

(i) Injuries under the scalp, their nature:

1) Fracture frontal (left sided) temporal bones, split fracture corresponding to injury no.4.

2) Fracture of frontal bone over Rt. side, corresponding to injury No.1.

3) Fracture of occipital bone, split fracture, corresponding to injury no.3.

(ii) Skull : Vault and base, describe fractures, their sites, dimensions, directions, etc:

..... as above...

(iii) Brain:

Membranes pale, Crushed brain matter over left side of temporal lobe with axe piercing upto the whole breadth of central hemisphere over the left side.

The cause of death is shock due to fatal brain trauma with Axe with amputation of left hand at wrist joint with amputation of Right foot at just above the ankle joint due to assaulted injuries.

13. Dr. Pramod Gavit (PW 1) (Exh.10) performed autopsy on the dead body of Madhukar. According to Dr. Pramod Gavit (PW 1), injuries Nos.1 to 7, 10, 14 and 18 mentioned in column no.17 of the post mortem report (Exh.11) are possible by means of axe. Injuries mentioned in column Nos.19 and 20 are possible by axe. The injuries at Sr. Nos. 8, 9, 11, 12 and 17 mentioned in column No.17 of the post mortem report are possible by knife. Injuries at Sr. Nos. 13, 15, 19 and 20 mentioned in column no.17 of the post mortem report are possible by blunt object.

14. It is clearly seen from the post mortem report (Exh.11) that there were 20 external injuries on the dead body of Madhukar. Eye witness Reenabai (PW 3) and Alpesh (PW 6) gave account of only 4 to 5 injuries i.e. external injuries no.1, 4, 8, 14 and 18. Both the eye witnesses did not at all utter a single word about remaining 15 injuries. If at all these two eye witnesses witnessed the incident from short distance, then why they are not able to account the remaining injuries which were found on the dead body of Madhukar. Reenabai (PW 3) admits the presence of Alpesh (PW 6) on the spot at the time of occurrence. Similarly, Alpesh (PW 6) admits presence of Reenabai (PW 3). It is material to note that all the prosecution eye witnesses, including unfriendly witness Hemabai (PW 5) came from the same house. Alarm of Madhukar no doubt suggests that he was already assaulted and, therefore, he shouted loudly for help. Reenabai (PW 3) has, however, testified in her evidence (Exh 13) that after her arrival on the spot it was accused no.1 who brought two axes from his house, retained one axe with him, and handed over another axe to accused no.2 and thereafter they assaulted deceased Madhukar. Therefore, having taken into account the narration of Reenabai (PW 3) with regard to commencement of the incident the alarm "MARLE, MARLE" loses its significance. After arrival of eye witnesses, actual assault was commenced and not before. There is no explanation from Reenabai (PW 3) and Alpesh (PW 6) as to why they are unable to give account in respect of the remaining 15 injuries, if at all they had witnessed the entire occurrence from short distance. This is a serious infirmity which makes their presence doubtful. In our view, the learned Additional Sessions Judge has not considered this aspect in proper perspective.

15. Eye witness Gemji (PW 4) does not at all speak about presence of Reenabai (PW 3) on the spot at the time of occurrence. Reenabai (PW 3) also does not refer the presence of Gemji (PW 4) at the spot at the relevant time. This is also another serious infirmity in the prosecution case which invites a shadow of doubt on the fairness of the trial. There is a lot of confusion with regard to the place of recording of FIR (Exh.14). Reenabai (PW 3) states in the examination-in-chief that her complaint was recorded in the hospital. However, she testified in her cross examination that her complaint was recorded at the spot, after arrival of police. It is interesting to notes that this star witness Reenabai (PW 3) does not at all whisper about the assault by accused no.2 by means of knife. There is no reference with regard to assault by accused no.2 by means of knife in the FIR (Exh.14). This omission is serious in nature which adversely affects the veracity of Reenabai (PW 3). It is not expected from eye witness to commit such a serious lapse.

16. Alpesh (PW 6) has, however, tried to improve his version by making reference to the knife. However, there is a serious lacuna in his evidence. Though he states in his evidence (Exh.18) that accused No.2 Remu brought the knife from his house but he does not speak about the assault by knife. It is prosecution version that accused No.2 Remu brought knife from his house and stabbed Madhukar on his back by means of knife. But eye witness Alpesh (PW 6) does not at all refer the assault by means of knife.

17. There is another reason which makes presence of this witness doubtful. It is prosecution case that accused no.3 had tied the legs of Madhukar and had held the rope tightly throughout the assault by accused Nos.1 and 2. This is a major overt act attribued to accused no.3. But it is surprising to note that Alpesh (PW 6) does not at all whisper a word about the overt act of accused no.3. He does not even refer the presence of accused no.3 on the spot at the material time. If really Alpesh (PW 6) is an eye witness and had witnessed the incident from close quarters, then as to how he omitted to disclose the name of accused no.3. Alpesh (PW 6) testified in his evidence that he went to Police Patil Shamji (PW 11) and disclosed the incident and came back. However, Shamji, PW 11, has given a different story. According to him, he took Alpesh (PW 6) along with him and went to Navapur Police Station. Alpesh (PW 6) however does not admit that he had gone to Police Station along with Shamji (PW 11).

18. Gemji (PW 4) has testified in his evidence (Exh.16) that when he arrived on the spot, he saw accused nos.1 and 2 at the spot armed with axes. He saw severed hand and leg of Madhukar and profuse bleeding. He saw accused no.3 at the spot. According to Gemji (PW 4) accused no.3 had held the rope which was found tied to the legs of Madhukar. Actual assault is, however, not witnessed by Gemji (PW 4). He does not refer incident of assault by knife. First Informant Reenabai (PW 3) does not refer his presence at the spot at the time of occurrence. Gemji (PW 4) who happens to be brother of Madhukar, also spoke only about few injuries. He only gave account of amputation of hand and leg. He has also not given the full account of multiple injuries which were found on the body of Madhukar. He has also improved his version. He omitted to disclose before Police that accused nos.1 and 2 tied the legs of deceased Madhukar by means of rope. He also omitted to disclose before Police that the axe was found fixed in the head of Madhukar to the extent of 4 to 5 inches. The evidence of Gemji (PW 4) also suffers from serious infirmities. His evidence does not at all inspire confidence because of serious lacunas in his oral evidence.

19. Hemabai (PW 5) who happens to be daughter of deceased Madhukar is unfriendly with the prosecution. She also emerged out from the same house after hearing the alarm of Madhukar. However, she does not implicate accused nos.1 to 3 in the crime in question. Similarly, eye witness Surtan (PW 7) and Gulabsing (PW 8) are unfriendly with the prosecution. They have not supported the prosecution case.

20. Learned Advocate Shri. N. B. Suryawanshi has raised a serious objection to the FIR (Exh.14). According to him, Exh.14 is not FIR in law. Police Patil Shamji (PW 11) disclosed the commission of cognizable offence to the Police before recording of FIR (Exh.14). Similarly, Gemji (PW 4) had been to the Police Station, Navapur, and lodged FIR. According to learned Advocate Shri. N. B. Suryawanshi, the earlier complaint lodged first in point of time is first information report. He made serious grievance about suppression of FIR which was lodged at the earliest point of time. Learned Advocate Shri. N. B. Suryawanshi argued that if the said FIR would have been placed on record, would have gone against the prosecution.

21. We find considerable force in the argument of learned Advocate Shri. N. B. Suryawanshi. An information with regard to commission of cognizable offence is in fact, FIR in law. The information must be given to an officer in charge of a Police Station. If oral, it must be reduced to writing by the officer in charge of Police Station or by somebody under his direction. Information must be in the form of accusation. The oral information when reduced to writing must be signed by the informant. The substance of the information must be entered in a station diary. In short, first information of the commission of a cognizable offence is enough to constitute FIR. The object of FIR is to set criminal law in motion. FIR need not be given by eye witness. Any kind of preliminary inquiry even after receipt of definite and reliable information as to the commission of cognizable offence is to destroy its value and provide room for fabrication. Therefore FIR assumes much importance. Because the earliest information about commission of crime is the original story of occurrence.

22. FIR (Exh.14) does not at all satisfy the test which is laid down by law. Gemji (PW 4) testified in his evidence (Exh.16) that after having witnessed the incident, he immediately went to Navapur Police Station and lodged FIR at 7 p.m. He hired auto rickshaw and went to Navapur Police station for the purpose of reporting the matter to the Police. In the cross examination, he was driven to admit that Police Sub Inspector was found present in the Police Station to whom he narrated entire incident. Thereafter said PSI reduced his complaint into writing as per his narration and, after completion, he took his signature at the foot of the said complaint. In our view this report lodged by Gemji (PW 4) is in fact FIR. But this valuable piece of evidence is not at all brought on record for the reasons best known to the prosecution. Suppression of earliest report of commission of cognizable offence provides room for fabrication of case.

23. Shamji (PW 11) testified in his evidence (Exh.31) that Alpesh (PW 6) told him the entire incident and thereafter he had been to Navapur Police Station at about 7.30 p.m. He further states in his evidence that PSI Sonawane recorded his complaint. However, PSI Sonawane did not take his signature on the said complaint. He has specifically pointed out the lodging of report. Alpesh (PW 6) has testified in his evidence that he had divulged entire incident to Police Patil Shamji (PW 11). Therefore, the report lodged by Shamji (PW 11) is also important circumstance in the absence of earliest report. It may not be FIR in the eye of law because Gemji (PW 4) lodged report at 7 p.m. while Shamji (PW 11) lodged report around 7.30 p.m. Admittedly, FIR (Exh.14) is lodged around 10.30 p.m. We therefore fully agree with learned Advocate Shri. N. B. Suryawanshi and conclude that the FIR (Exh.14) is not FIR in the eye of law. It is Police Statement recorded under Section 161 of Cr.P.C. Because Police party left Police Station acting on the FIR lodged by Gemji (PW 4). This being the position, subsequent statement is a statement which falls within the ambit of Section 161 of Cr.P.Code.

24. The evidence of Shamji (PW 11) is also not away from infirmities. Shamji (PW 11) omitted to disclose before the Police that Alpesh (PW 6) told him that his father was assaulted by his maternal uncles by means of axes. The omission casts shadow of doubt on the prosecution story. It means, names of the assailants were not known even to eye witnesses. The conduct of Police Patil Shamji (PW 11) is also unnatural. He admits in his evidence (Exh.31) that being Police Patil it was his duty to prepare an occurrence report. He also admits in his evidence that he is having with him khaber Book which is meant for filling occurrence report. He did not prepare occurrence report inspite of the fact that he came to know about the commission of cognizable offence like murder.

25. This takes us to consider the prosecution evidence with regard to discovery of incriminating weapons used in the crime and blood stained clothes. According to the prosecution, bloodstained half pant, bloodstained banian and bloodstained axe were recovered at the behest of accused no.1. Memorandum with regard to disclosure statement alleged to have been made by accused no.1 is at Exh.43 dt.19.7.2001 and the seizure panchnama of the articles is at Exh.44. The knife was attached from the spot under seizure panchnama (Exh.39). The handle of the axe (Art.17), black pant (Art.15), open shirt (Art.15) and black banian (Art.16) are said to have been discovered at the benest of accused no.2 on 21.7.2001. The memorandum about the disclosure statement of accused no.2 is at Exh.47. Seizure panchnama is at Exh.48. Bloodstained Dhoti (Art.12) and bloodstained blue banian (Art.15) are said to have been recovered at the behest of accused no.3 on 20.7.2001. Memorandum about the disclosure statement alleged to have been made by accused no.3 is at Exh.45 and Exh.46 is seizure panchnama.

26. The discovery of incriminating articles under Section 27 of Evidence Act is nothing but a farce made by investigating officer. Reenabai (PW 3) has testified in her evidence that the broken handle of the axe i.e. Art.17 was lying on the spot and the same was taken away by the Police when Police visited the scene of offence. Reenabai (PW 3) further testified in her evidence that the bloodstained clothes were already attached when accused were arrested and taken to the Police Station. Gemji (PW 4) has also disclosed in his cross examination that when Police arrived at the spot, they took search of the accused and during that search Police seized clothes of accused and the weapons. He further disclosed that Police were in the village for about one hour that time and thereafter Police again visited the village second time for removing the dead body of Madhukar from the spot. Investigating Officer Pradeep Sonawane (PW 18) also testified in his deposition (Exh.53) that when accused were produced before the Magistrate they had on their persons the clothes which were on their person at the time of their arrest.

27. Reenabai (PW 3) has testified in her cross examination that PSI had visited the spot along with four Police Constables after disclosure of the names of the accused, Police arrested accused persons. She further testified in her cross examination that the Police arrested the accused, took them to the Police Station and seized their clothes from their person and the very clothes were identified by witness Reenabai (PW 3) when she gave her evidence. If the evidence of Reenabai (PW 3) and Gemji (PW 4) is taken into account, the evidence on the point of discovery of bloodstained clothes and bloodstained weapons loses its probative value. PSI Sonawane (PW 18) is exposed by Reenabai (PW 3) and Gemji (PW 4). We are constrained to observe that the investigation carried out by the investigating officer Pradeep Sonawane (PW 18) is not at all fair and honest.

28. There is another lacuna in the prosecution case. The prosecution has not brought on record time of death of Madhukar. According to learned Advocate Shri. N. B. Suryawanshi, the deceased had animosity with the villagers. Two criminal cases are also pending against him. Alpesh (PW 6) also admits that his father Madhukar had enmity with some of the villagers. Learned Advocate Shri. N. B. Suryawanshi further submits that the former husband of Ramabai himself must have nursed a serious grudge against Madhukar. According to him, Madhukar was murdered in the dark and the inmates of his house came to know this fact must later. Thereafter busy brains must have been set in motion for implication of somebody in the crime.

29. Learned Advocate Shri. N. B. Suryawanshi heavily placed reliance on Pandit Ram Prakash Sharma Vs. Khairati Lal (AIR 1998 SC 2820). In the said case number of injuries remained unexplained. The witnesses made subsequent improvement. Therefore, the evidence of the witnesses on this count was discarded. Similar infirmities are also present in the case in hand.

30. Learned Advocate Shri. N. B. Suryawanshi has also relied upon (2001)9 SCC 589 (State of Rajasthan Vs. Magni Ram). In the said case, testimony of witnesses was inconsistent with medical evidence. The conduct of the witnesses was also found unnatural and, therefore, the High Court acquitted the accused. The Supreme Court refused to interfere with the order of acquittal on the ground that testimony of eye witnesses was untrustworthy and unreliable. In the instant case, the eye witnesses i.e Reenabai (PW 3), Gemji (PW 4) and Alpesh (PW 5) have not given account of 15 to 16 injuries which were found on the person of Madhukar. Their presence is doubtful. Major overt acts are also omitted by these witnesses. Eye witness Alpesh (PW 6) omitted to disclose the presence of accused no.3. Therefore, the evidence of these witnesses falls short for the purpose of conviction.

31. Learned Advocate Shri. N. B. Suryawanshi drew our attention to Ajaib Singh Vs. State of Haryana (1992 SCC (Cri) 941). The Supreme Court interfered with the concurrent findings with regard to conviction on the ground that there were infirmities in the case of prosecution with regard to place and time of recording of FIR, that oral evidence was in conflict with the medical evidence, that nature of the injury did not conform with the alleged weapons of offence recovered from the accused persons, that three days delay was committed in interrogating the accused persons and seizure of weapons, that the probable cause of death given by the Doctor was not in conformity with that stated by the witness and that visibility was obstructed on account of night time, explain the conflict, it entitles the defence to the benefit of doubt and the use of such serious lacuna against the prosecution is legitimate. In the instant case also there is serious conflict between the eye witnessed account and the number of injuries found on the body of Madhukar. There was no attempt on the part of the prosecution to explain the conflict and, therefore, the accused are entitled to get benefit of doubt.

32. Learned Advocate Shri. N. B. Suryawanshi also relied upon the decision of this court in the case of Francisco Paulo Saldhana and others Vs. The State (1990(3) Crimes 293) wherein it is held that if acting on the FIR investigation is started then the report which is acted upon becomes FIR. In the case in hand, the report which was lodged by Gemji (PW 4) was not at all cryptic. He posed himself as an eye witness. He knew the deceased, the names of the assailants, the weapons used by the assailants and, their presence at the spot. Therefore, the report lodged by Gemji (PW 4) was, in fact, FIR which was in fact acted upon and the investigating officer left the Police Station and visited the spot. Therefore, the report lodged by Gemji (PW 4) was legal FIR and not Exh.14 which was recorded after investigation was commenced. It is also strange that Alpesh (PW 6) did not communicate the incident to P.S.I. Police Patil Shamji (PW 11) has taken Alpesh (PW 6) with him to Police Station. Navapur, Shamji's complaint was recorded. But Investigating Officer did not record complaint of Alpesh (PW 6).

33. We also propose to deal with motive of the crime. There is nothing on record to show that Jaitubai complained to her brothers about second marriage of Madhukar. On the contrary, evidence on record shows that Jaitubai and Ramabai peacefully resided with Madhukar. There is nothing on record to show that accused tried to interfere Zagada settlement. Under the circumstance, we find it extremely difficult to hold that accused would take such extreme step and eliminate Madhukar. How brothers would commit murder of their brother-in-law and would make their sister widow and children orphan. Motive suggested by the prosecution does not appeal to reason.

34. After having scanned the entire evidence and after having considered the facts and circumstances of the case, we are of the clear opinion that the prosecution has miserably failed to prove the guilt of any of the accused beyond reasonable doubt. Therefore, the accused are entitled to order of acquittal.

35. We are inclined to allow the Criminal Appeal. Therefore, we need not deal with the issue of capital punishment. However, by way of abundant precaution we express our view, after having perused -

(1) Bachan Singh Vs. State of Punjab ((1980)2 SCC 684)

(2) Machhi Singh Vs. State of Punjab (AIR 1983 SC 957)

(3) Om Prakash Vs. State of Haryana (JT 1999(1) SC 599)

(4) Prakash Dhawal Khairnar (Patil) Vs. State of Maharashtra ((2002)2 SCC 35)

(5) Lehna Vs. State of Haryana ((2002)3 SCC 76)

(6) State of Punjab Vs. Gurmej Singh ((2002)6 SCC 663)

that the present case is not at all rarest of rare. We are constrained to observe that the learned Additional Sessions Judge has not considered the guidelines given by the Supreme Court. Amputation of wrist or foot does not make the case rarest of rare. Sentence of imprisonment of life is a normal rule and penalty of death sentence is an exception. In case of Machhi Singh Vs. State of Punjab (AIR 1983 SC 957), the Supreme Court has observed that the extreme penalty of death need not be inflicted except in gravest case of extreme culpability. It is to be noted that the accused did not gain out of crime. The learned Additional Sessions Judge has not at all taken into consideration the element of impact of crime on the society as a whole. The learned Additional Sessions Judge has not taken into consideration that crime is not committed for any kind of lust, greed or in pursuance of any organized anti social activity or by way of organised crime, drug trafficking. We feel that the facts and circumstances of the present case do not fall in any of the categories and, therefore, infliction of capital punishment on accused nos.1 and 2 is unjustified.

36. In the result, Criminal Appeal is allowed. The order of conviction and sentence passed by the Ad Hoc Additional Sessions Judge, Nandurbar, is quashed and set aside. The appellants accused nos.1 to 3 are hereby acquitted of the offences punishable under Sections 302 and 506(ii) read with Section 34 of IPC. They be set free forthwith if not required in any other matter. The fine amount, if paid, be refunded to them.

37. As Criminal Appeal is allowed and accused nos.1 to 3 are acquitted, prayer for confirmation of capital punishment stands rejected. Confirmation Case, therefore, stands disposed of. Order accordingly in Confirmation Case No.1/2002.

Criminal Appeal allowed.