2007 ALL MR (Cri) 2214
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

K.J. ROHEE AND S.R. DONGAONKAR, JJ.

Shama Vishwanath Rodage & Ors.Vs.State Of Maharashtra

Criminal Appeal No.173 of 2000

25th June, 2007

Petitioner Counsel: Mrs. SUMAN CHOKHARE
Respondent Counsel: Mr. D. B. PATEL

(A) Evidence Act (1872), S.3 - Appreciation of evidence - Child witness - Omissions in statement before police - Evidence showing that the child witness was on the spot and his presence there was quite natural - No sufficient reason to disbelieve his testimony on this count - Suffice it to say that such omissions in the statement before the police, are not so material, so also the contradictions - On the contrary, this shows that witness is not tutored one. 1993 Supp (1) SCC 78 and (2001)9 SCC 129 - Ref. to. (Paras 21, 22)

(B) Evidence Act (1872), S.3 - Appreciation of evidence - Criminal trial - Absconding of accused - Held, mere absconding cannot be a ground for drawing any adverse inference against defence and the prosecution case cannot be held to be established only on that count.

Circumstance which cannot be overlooked in this case is the late arrest of the accused appellant Shama and Ramchandra. It is specific evidence of I.O. P.W.1 A.P.I. Chavan that appellant Shama and Ramchandra were absconding and they were arrested on 8.6.1999 i.e. after about a month from the date of the incident. It is stated by him that appellant Shamrao was arrested at Malegaon and Ramchandra was arrested at village Sudi. Learned counsel for the appellant has contended that they were arrested from their in-laws' houses. However, no such explanation has been appearing from the statement of these appellants, but all the same, it is impossible to believe that they were not absconding, in as much as the fact that they were away from the village of incident on the date of incident, is not established. It is not established that they could not have any knowledge about the incident of assault on deceased Anandrao and Haridas and therefore, it is quite unnatural, that they would stay at the in law's house. Leave apart their in laws are not examined; as to; since when they were with them, it is quite unnatural conduct on their part of not reaching to village of incident i.e. house of P.W.1 Rekha etc. on hearing of the incident if everything was fine according to them. No doubt mere absconding can not be a ground for drawing any adverse inference against defence and the prosecution case can not be held to be established only on that count. But fact remains, that in the present case, these appellants when they are close relatives of deceased, normally would have come to the place of incident to help deceased or the prosecution witnesses. It is true that the report was lodged against them immediately after the incident, but then as already pointed out above, it is not the case of the accused that they were not knowing about the incident at the relevant time. The evidence of P.W.3 Akash coupled with the other evidence on record will lead to the conclusion that the appellants were involved in the assault. [Para 31]

Cases Cited:
State of Maharashtra Vs. Gajanan Baburao Phakatkar, 2005 ALL MR (Cri) 306 [Para 14]
Sadashiv s/o. Tukaram Dipake Vs. The State of Maharashtra, 2000 ALL MR (Cri) 496 [Para 16]
State of Tamil Nadu Vs. Karuppusamy, 1993 Supp (1) SCC 78 [Para 18]
Suryanarayana Vs. State of Karnataka, (2001)9 SCC 129 [Para 19]


JUDGMENT

S. R. DONGAONKAR, J.:- The appellants are taking exception to the judgment of conviction and sentence delivered by Additional Sessions Judge, Washim in Sessions Trial No.111/1999 dated 6.5.2000 by which all the appellants were found guilty for the offences punishable under sections 147, 148, 302, read with section 149 of the Indian Penal Code and sentenced to suffer R.I. for various terms and fine.

2. Facts leading to the prosecution of the appellants in the aforesaid Sessions Trial in nutshell can be stated thus. Appellant Shama, Ramchandra and Ashok are sons of appellant Vishwanath and Janabai. They were residing in Gawalipura at Washim. Deceased Anandrao was the brother of appellant Vishwanath. He was also staying in the same locality. Second deceased Haridas was the grandson of deceased Anandrao. Complainant Rekha is married daughter of deceased Anandrao. She was staying along with her husband at Nandana, however, at the time of incident, she had come to her parental house for the marriage of her cousin - sister. It is alleged that appellant Vishwanath was asking for the share in agricultural land and also Mango trees to deceased Anandrao and on that count there used to be quarrels. The incident for which the appellants were prosecuted occurred on 9.5.1999 in the afternoon. On that day deceased Anandrao had gone to his field for bringing Mango fruits in the morning. In the noon time Akash (P.W.3), grandson of deceased Anandrao, and Haridas had gone to field for reaching the food for their grandfather. At about 4.00 p.m., this Akash - P.W.3 came running to the house and informed complainant Rekha (P.W.1) and other family members including P.W.2 Baban and P.W.10 Usha that Motha i.e. appellant no.3 Vishwanath, Mothi i.e. appellant no.5 Janabai, appellant no.1 Shama, appellant no.4 Ashok and appellant no.2 Ramchandra have beaten Haridas and Baapa [Anandrao]. Thereafter, all these P.Ws. went to the spot of incident in the field. They noticed deceased Anandrao and deceased Haridas lying in the pool of blood near Umbar tree. They were taken to Reynolds Hospital, at Washim. At the time of admission, deceased Anandrao was declared dead. Deceased Haridas had serious injuries so he was asked to be shifted to main hospital at Akola. It is alleged that on the spot deceased Haridas had informed these witnesses i.e. P.W.1 Rekha and others that these appellants had assaulted them. It may be stated that it is the case of the prosecution that P.W.3 Akash had witnessed the incident by hiding himself in the backside of the heap of cattle fodder due to fear. Thereafter, he went to the house to tell family members about the incident. The report was lodged by P.W.1 Rekha. At that time; she had told that appellants had made an attempt to kill her father and Haridas. Therefore, the offence under section 307 of the Indian Penal Code was registered. Postmortem examination on the dead body of deceased Anandrao was carried out at Washim by Dr. Santosh Rathod (P.W.8). Incised wounds were found on his forehead and on trachea. On internal examination fracture of frontal bone and underlying frontal lobe of brain was seen damaged. He had issued the Postmortem Report as well as his opinion regarding the cause of death i.e. death due to shock as a result of direct injury to frontal lobe of brain with severe haemorrhage; as per Ex.54. According to him, this injury was sufficient to cause death in ordinary course of nature. Deceased Haridas was taken to the Hospital at Akola. He however, expired there. His autopsy was conducted by Dr. Sanjay Wathore, Medical Officer, of Akola and he has issued his report of postmortem examination as per Ex.30. According to him; several incised wounds were found on person of deceased and he had died due to haemorrhagic shock with multiple incised injuries on his body with multiple fractures bones and torn menines. The injuries on both the deceased were found to be ante mortem.

3. During the investigation the statements of the prosecution witnesses were recorded including that of P.W.3 Akash alleged eye witness to the incident, P.W.Rekha who has lodged report to police station, P.W.2 Baban and P.W.10 Usha who had heard deceased Haridas telling about the incident mentioning names of the appellants as assailants and that they had caused fatal injuries to deceased Anandrao and Haridas. The investigation was carried out by P.W.11 A.P.I. Suresh Chavan. He has prepared spot Panchanama. He has seized sticks, stones, chappals etc. from the spot. He has arrested the appellants Janabai and Ashok on 9.5.1999. He arrested appellant Vishwanath on 11.5.1999 and remaining appellants Shama and Ramchandra on 8.6.1999 at Malegaon and Sudi. During the investigation it is alleged that appellant Shama made a statement to discover, the concealed weapon and on memorandum he discovered the same. Said instrument used in the offence i.e. instrument of cutting fodder was seen concealed in the heap of fodder which was discovered by appellant Shamrao. Seized weapon was sent to Medical Officer for opinion. So also seized clothes of the deceased and the accused; were sent to Chemical Analyser. The report of Chemical Analyser was received and after due investigation, all the appellants were charge-sheeted for the offences under sections 147, 148, 302, read with section 149 of I.P.C.

4. On committal of the case, the learned Additional Sessions Judge framed charge for the aforesaid offences. Appellants pleaded not guilty for to the same. Their defence is that of total denial and false implication on account of bad terms between the deceased and their other relations. The deaths of the deceased as homicidal, is not disputed.

5. The learned trial Judge, recorded evidence of 11 witnesses. P.W.3 Akash son of Kishor who is aged about 9 years, child witness is examined as an eye-witness to the actual incident. P.W.1 Rekha, P.W.2 Baban and P.W.10 Usha are the witnesses to the alleged dying declaration by deceased Haridas, when they had been to the spot immediately after the incident on information given by Akash as stated above, P.W.5 Dr. Wathore has conducted autopsy on the dead body of the deceased Haridas and P.W.8 Dr. Rathod has conducted post-mortem examination on the dead body of deceased Anandrao, P.W.9 A.P.I. Todkar is the police witness who has registered offence on the report of P.W.1 Rekha, crime no.155/1999, printed F.I.R. being at Ex.56. P.W.11 P.S.I. Chavan is Investigating Officer. Other witnesses include the witnesses to the spot Panchanama and P.W.7 Gajanan a witness to the memorandum statement of appellant Shama and to the seizure of instrument of cutting fodder on discovery as per Exs.34 and 35. With this main evidence on record, prosecution sought to establish the case against the appellants.

6. As stated above, appellants pleaded false implication. However, during their statements under section 313, Cr.P.C. they only stated that they were intending to sell their agricultural land. Deceased Anandrao wanted to purchase the same and as appellants did not oblige, they have been falsely implicated. They however, did not examine themselves on oath in order to prove this.

7. The learned trial Judge after hearing the parties came to the conclusion that the evidence led by the prosecution is reliable, particularly the evidence of P.W.3 Akash and also dying declaration made by deceased Haridas. He also found that there is sufficient corroboration to the evidence of eye witness P.W.3 Akash from other sources and his evidence can be relied for basing conviction of the appellants. Accordingly, he held the appellants guilty for the aforesaid offences and convicted them and sentenced accordingly. This judgment is challenged in this appeal.

8. Learned counsel for the appellants Smt. Chokhare has submitted that the evidence of P.W.3 Akash is totally unreliable. He is a child witness of 9 years and he can not be believed to such an extent so as to base the conviction of the appellants for the serious offences. She has also pointed out that in her report P.W.1 Rekha has stated that deceased Anandrao had told about assault by the appellants and not deceased Haridas, whereas in the evidence she has stated that deceased Haridas had told about the assault. According to her, there was no evidence produced on record to show that deceased Haridas was conscious when he was admitted in the hospital or when he is stated to have made the dying declaration. Her submission is that ocular evidence is not corroborated by medical evidence on record. Further, according to her, there was inconsistency in the evidence about the oral dying declaration of deceased Haridas and further that there were no steps taken by the Investigating Officer for recording the dying declaration of Haridas through Executive Magistrate. She has further submitted that it is impossible to hold that deceased Haridas was in a fit condition to talk and therefore to make dying declaration. According to her, the motive behind the alleged offence is not sufficient so as to provoke the appellants to kill two persons. It is also submitted that evidence in totality is absolutely insufficient for basing conviction of the appellants. It is further submitted that the injuries found on the person of deceased Anandrao cannot be said to have been caused by the weapon i.e. instrument of cutting fodder. Therefore, she submitted that evidence on record cannot be said to be so clinching, cogent and convincing so as to base the conviction. As such judgment of the learned trial Judge is totally incorrect and unsustainable the appeal should be allowed and the appellants should be acquitted of the offences charged.

9. As against this, learned A.P.P. has submitted that there was motive behind these murders. The presence of P.W.3 Akash on the spot at the time of incident, is very much proved. His evidence, although he was a child witness has not been shattered in any way; in the cross examination. There was no reason for him to depose false against the appellants. P.W.s are close relations of the appellants and therefore, had there been some other assailants, there is no possibility of P.Ws. implicating appellants falsely. He has specifically submitted that evidence of P.W.3 Akash is itself sufficient to base conviction of the appellants, he being a solitary reliable and trustworthy witness and in such circumstances, therefore, there is no need to see as to whether the dying declaration of Haridas is properly proved or not and whether the evidence of other witnesses is corroborating the evidence of P.W.3 Akash. Therefore, according to him, the judgment and order of conviction and sentence passed by the learned trial Judge is correct and is not liable to be interfered with in the appeal.

10. As stated above, in this case, there is evidence of P.W.3 Akash who is said to be an eye witness to whole of the incident and then he is said to have reported about the incident to P.W.1 Rekha and others by going to the house. Thereafter, P.W.1 Rekha, P.W. Usha and P.W. Baban had been to the spot of incident and heard Haridas saying that appellants have assaulted both the deceased. The other evidence on record which allegedly implicates the appellants, is the evidence of discovery of an instrument of offence at the instance of appellant Shama on memorandum statement and finding of blood stains of, human blood and of the blood group of the deceased on the same; as per C.A.'s report. The main and crucial question would be, whether in this case the evidence of P.W.3 Akash who is a child witness can be relied upon for basing conviction of the appellants. If yes, to what extent ? As already pointed out above, the prosecution has established that both the deceased had died of multiple injuries on their person and the evidence regarding their cause of death, has not been seriously challenged by the appellants. The fact of their homicidal deaths has clearly been established by the evidence on record of the Medical Officers who had performed postmortem examination on their dead bodies and gave opinion regarding cause of death by mentioning external and internal injuries on their persons.

11. To assail the evidence of P.W.3 Akash is not reliable, learned counsel for the appellant has submitted that he is the witness who has not seen the incident; firstly because at the time of incident he must be grazing cattle, secondly he was put a leading question as regards the weapon in the hands of appellant Shama and because there are considerable contradictions and improvements in the evidence of this witness. According to her the witness would have run away from the spot of incident at the very moment, the incident had started.

12. As against this learned A.P.P. has contended that evidence of eye witness P.W.3 Akash is clearly reliable as it is supported by the circumstances on record. His presence is not denied by the appellants and further his evidence is intrinsically reliable and the learned trial Judge has put up many questions to assess his intelligence and understanding of the questions for giving rational and proper answers.

13. In order to consider as to whether the evidence of this child witness is reliable or not, we have gone through the said evidence carefully. It would be seen from the said evidence that the learned Trial Judge has asked him certain questions to assess his understanding and intelligence. It clearly appears that the witness had given rational answers to the questions put up. It is true that the learned trial Judge has failed to record any certificate about his inference that the witness is able to answer the question properly, but all the same, from the reasons recorded in the Judgment by the learned trial Judge, it does appear that he was conscious about this aspect; while examining the child witness. It is pertinent to note that the learned trial Judge has considered the evidence of this witness in the backdrop of relevant law. He has clearly mentioned that he has asked some questions to him before recording his evidence to ascertain whether he understands sanctity of oath and those questions and answers are at the top of the deposition. Besides this he has recorded his material evidence in the questions and answers form.

14. In this behalf, the decision of this Court in 2005 ALL MR (Cri) 306 [State of Maharashtra Vs. Gajanan Baburao Phakatkar] can be referred.

"As stated by the Supreme Court in the case of Rameshwar (Supra) satisfaction of the Judge that the child understands the duty of speaking truth is very important and such satisfaction can be gathered from the circumstances when there is no formal certificate recorded by the learned Judge."

15. In the present case the trial Judge has put up preliminary questions to the witness. He was found to be able to understand the questions and capable of answering the same and thereafter, his evidence was recorded. We are unable to see any sufficient reason as to why his evidence should be disbelieved.

16. Yet another decision of this court in 2000 ALL MR (Cri) 496, Sadashiv s/o. Tukaram Dipake Vs. The State of Maharashtra, wherein it has been observed :

"Whenever there is an occasion to decide whether oath should be given to a child witness before recording his/her evidence, it is desirable that they should not only put certain questions to such child witnesses to ascertain whether they understood the sanctity of oath or not, but also incorporate, at the top of deposition, the questions put by the court and the answers given by the child witnesses. This enables the appellate court to verify whether the opinion recorded by the court, as to the fact that the child witness is capable of understanding the sanctity of oath, is correct or not."

may be referred. The evidence of this witness will show that the witness understood the questions and replied the same properly. On consideration of the same, no oath was administered to him. But the learned trial Judge has complied with all the requirements of law before recording the evidence of the child witness.

17. This takes us to consider as to how the evidence of child witness need to be appreciated.

18. In 1993 Supp (1) SCC 78 [State of Tamil Nadu Vs. Karuppusamy and others], the Apex Court has held that :

"A child witness being of tender age, court should be cautious of possibility of tutoring."

19. And in (2001)IX SCC 129, Suryanarayana Vs. State of Karnataka, it was held that :

"The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The act that the witness being a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what the he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspire testimony of such witness for the purpose of holding the accused guilty or not."

20. In this case witness has given details about the incident in question and answers form. During cross examination also,he has given rational answers. He was suggested that government pleader had instructed to depose before the court. He replied in negative, so also he denied the suggestion that he is deposing before court as per instructions of his maternal uncle. Now the question would be whether he has given the evidence with any possibility of his being tutored. Here is a case where the prosecution alleges that this witness had come to P.W.1 Rekha at the house and told her about the incident. This is natural thing. Considering his age, nothing more can be expected of him. It is not possible to take a view that he would have intervened in the assault to save the deceased Anandrao and Haridas, considering his age. The report of P.W.1 Rekha Ex.20 clearly shows that at about 4 O'clock in the afternoon her son Akash reached to the house and informed that Bapuji [grand-father] was assaulted in the field. Nothing more was expected at that stage to tell about the details of assault to this witness. Learned counsel for the appellant has contended that this Akash has not given the names of the assailants to Rekha. The circumstances in which Akash had been to the house and P.W.1 Rekha etc. were required to go to the spot of incident to save lives of the victims, would itself be an answer for the urgency and not hearing the said Akash, giving details of the incident.

21. The next contention of the learned counsel for the appellant is regarding the possibility of this Akash being not on the spot at the time of actual assault and he had been for grazing the cattle. Our attention is drawn to the answers given by this witness to the question; "whether your maternal uncle had asked you to see the cattle" to which he had answered in affirmative. He had also said that he had grazed the cattle in the barren land. He could not tell the distance between the Mango trees and barren land which defence has alleged to be 5-6 furlongs, but then, there seems to be nothing on record to show that he would have been away for grazing cattle at the relevant time. The evidence that he was hiding himself behind the heap of fodder and his answer to question "whether it was correct that heap of fodder was on the barren land" to which he had replied "No, the heap of fodder was near Mango tree, will clearly show that he was on the spot, his presence there was quite natural and there is no sufficient reason to disbelieve his testimony on this count".

22. Turning to the submission of the learned counsel for the appellant that there are omissions and contradictions in his evidence, suffice it to say that such omissions in the statement before the police, are not so material, so also the contradictions. On the contrary, this shows that witness is not tutored one. Learned trial Judge has considered this aspect also and then has held this witness to be reliable.

23. Our attention is specifically drawn to two questions put to this witness - "whether other accused were armed with weapons?" to which he said that he did not remember and "whether other accused Shama was armed with weapon", to which he said that Shama was armed with instrument of cutting fodder. It is contended by learned counsel for the appellant that this question was a leading question and therefore, his evidence is untrustworthy. In our opinion, although this question has a face lift of leading question, this fact by itself can not discredit his testimony considering his answer to other questions and totality of the evidence. Question put to this witness was not whether the accused Shama was possessing any particular weapon. Question put up to him was whether accused Shama was armed with weapon, therefore, had he not been armed with any weapon, this witness would have said - "no". But he stated that Shama was armed with instrument of cutting fodder. This answer itself shows that the witness was not led to any particular answer, nor he was suggested to give any expected answer. Apart from this, this witness had identified the said weapon when it was shown to him. He has also stated as to accused had run away when he was asked what was done by the accused persons after beating. Therefore, evidence of this witness can hardly be disbelieved on this count.

24. Learned counsel for the appellants has also contended that his conduct appears to be unnatural, as instead of going to the victim, he went to his house. It clearly seems from the evidence that when asked - "what you had done", he told that he had gone to Bapu, there was bleeding injury on the person of Bapu and Haridas and then when asked what was done by him, he told that he came back to house and narrated the incident to his mother and maternal uncle of Usha and others. On close scrutiny of this evidence, we are unable to say that his evidence can be said to be that of a tutored witness. His conduct appears to be natural in giving information about the incident to family members. His identification of weapon in the court also does not seem to be unnatural. Much more; his evidence is corroborated by the medical evidence on record.

25. In the present case, it clearly appears that assailants are the relatives of the deceased. Had there been other persons who had assaulted the deceased, in our opinion, the prosecution witnesses would not have deposed in this way nor P.W.1 Rekha would have lodged report, which was lodged immediately after the incident implicating, the appellants. It is difficult to hold in these circumstances of the case that these witnesses would have spared the real culprits and would have implicated the appellants falsely taking advantage of somebody's fatal assaults on the deceased.

26. Therefore, on close scrutiny of the evidence of this witnesses Akash, we find that he is not unreliable and in view of the authorities referred above, his evidence can to be accepted for basing the conviction of the appellants.

27. Needless to add that his evidence is corroborated by the contents of FIR lodged by P.W.1 Rekha.

28. Learned counsel for the appellants has contended that there is material discrepancy in the evidence of P.W.1 Rekha and other eye witnesses and in FIR P.W. Rekha has informed that her father i.e. deceased Anandrao had told about the incident and in evidence she and other witnesses have deposed that Haridas had told about the incident. This discrepancy has been visited by plausible explanation by the prosecution on record so also by the reasons given by the learned trial Judge. It is true that said Anandrao had died immediately. Whereas, Haridas had died in the hospital at Akola. It is necessary to consider the reasons given by the learned trial Judge in this behalf. No doubt the statement under section 162 of P.W.1 Rekha can not be used for corroboration of her evidence, fact remains that immediately after lodging report, when the statements were recorded by the I.O., the witnesses had made clear that on enquiry deceased Haridas had told about the assault and the assailants. Stating the name of deceased Anandrao for his telling about the incident in FIR, appears to be incorrect and inherently improbable and therefore, evidence of these prosecution witnesses cannot be thrown away only because of these discrepancies.

29. Further, it is contended by learned counsel for the appellant that P.W. Rekha has stated in cross examination that dispute between the parties was settled and there was no motive for appellants to commit this office, but then, it is not possible to hold that their relations were cordial considering the circumstances of the case. The defence itself has suggested that the appellants were intending to sell the field and deceased Anandrao was intending to purchase the same, but as the appellants were not willing to sell the same, to the deceased Anandrao, they have been implicated falsely. In our opinion, this is not any way sufficient reason to implicate the appellants falsely, had the assault would have been made by somebody else. It cannot be forgotten that those are relatives of the prosecution witnesses and the deceased. As already pointed out above, and at the cost of repetition; we must mention that it is impossible to hold that in such circumstances, prosecution witnesses would have spared real culprits and implicate the appellants falsely, even by taking advantage of the fatal assaults by somebody else on the deceased; lodge false report against appellants immediately; after the said incident.

30. Further, it would be seen that the Chemical Analyser's report will show that the instrument of cutting fodder, was found stained with blood and of blood group B and human blood. This instrument of cutting fodder has been discovered at the instance of the accused Shama vide evidence of P.W.7 Gajanan Wankhede. This witness is suggested to be a stock witness of the police. However, three is nothing substantial in his evidence to show that he would have deposed false against the appellants. Apart from this appellants have been not able to show that there was any sufficient reason for all the prosecution witnesses to depose false against them.

31. Yet another circumstance which cannot be overlooked in this case is the late arrest of the accused appellant Shama and Ramchandra. It is specific evidence of I.O. P.W.1 A.P.I. Chavan that appellant Shama and Ramchandra were absconding and they were arrested on 8.6.1999 i.e. after about a month from the date of the incident. It is stated by him that appellant Shamrao was arrested at Malegaon and Ramchandra was arrested at village Sudi. Learned counsel for the appellant has contended that they were arrested from their in-laws' houses. However, no such explanation has been appearing from the statement of these appellants, but all the same, it is impossible to believe that they were not absconding, in as much as the fact that they were away from the village of incident on the date of incident, is not established. It is not established that they could not have any knowledge about the incident of assault on deceased Anandrao and Haridas and therefore, it is quite unnatural, that they would stay at the in law's house. Leave apart their in laws are not examined; as to; since when they were with them, it is quite unnatural conduct on their part of not reaching to village of incident i.e. house of P.W.1 Rekha etc. on hearing of the incident if everything was fine according to them. No doubt mere absconding can not be a ground for drawing any adverse inference against defence and the prosecution case can not be held to be established only on that count. But fact remains, that in the present case, these appellants when they are close relatives of deceased, normally would have come to the place of incident to help deceased or the prosecution witnesses. It is true that the report was lodged against them immediately after the incident, but then as already pointed out above, it is not the case of the accused that they were not knowing about the incident at the relevant time. In our opinion, the evidence of P.W.3 Akash coupled with the other evidence on record will lead to the conclusion that the appellants were involved in the assault.

32. It takes us to consider as to whether all the appellants or any of them can be held guilty of the offences charged. It may be mentioned here that accused no.4 is shown to be absconding and his appeal has been separated. Appellant no.5 is reported to be dead.

33. Considering the fact that of only eye witness is child witness and conviction is being based on his evidence, we are of the opinion that there is clinching evidence as regards the actual assault only against appellant no1. Shama and appellant no.5 Janabai. It is pertinent to note that on perusal of evidence of P.W.3 Akash, it would be seen that he had stated "I have seen Motha Mothi i.e. appellant no.3 Vishwanath, appellant no.5 Janabai, Ramchandra appellant no.2, Shama appellant no.1 and Ashok appellant no.4 had beaten Bapu". Those persons have beaten Bapu and Haridas. When asked "by which weapon", he answered "axe". When asked as to who was armed with an axe he answered "Mothi" and when asked as to whether other accused were armed with weapon, he said that he did not remember and when asked as to the weapon in the hands of accused Shama, he answered Shama was armed with the instrument of cutting fodder. The seized weapon was identified by him. This would clearly mean that although he stated that all the appellants had beaten the deceased, the relevant weapons are specifically alleged to be with the appellant Janabai and appellant Shama. But he did not say anything about the weapons in the hands of other appellants. Learned trial Judge, holding that his evidence is totally acceptable; has found all the appellants guilty of the offences charged. In our opinion, however, it appears that the weapons are proved only to be in the hands of appellant Shama and appellant Janabai and therefore, unless there is connecting evidence for other appellants with the weapons and injuries caused to the deceased, they can not be considered as an offenders beyond reasonable doubts for the offence under section 302 of the Indian Penal Code. The injuries found on the person of the deceased can clearly be attributed to the weapons possessed by appellant Shama and appellant Janabai and therefore, although, we are accepting the evidence of P.W.3 Akash, as reliable, we are unable to find clinching evidence to link the appellant Ramchandra, Vishwanath and Ashok, with sufficient credibility to convict them for the aforesaid offences.

34. It is also necessary to mention that merely because other appellants are found not guilty, this circumstance cannot lead to the inference of being not guilty in respect of appellant Shama and appellant Janabai. However, as appellant no.5 Janabai is reported to be dead, order that can be passed would be only against appellant no.1 Shama.

35. As regards the conviction for the offence under sections 147, 148, read with section 149, obviously accused nos.1 to 5 cannot be held guilty. Appellant no.1 Shama will have to be held guilty for the offence under section 302 of the Indian Penal Code and sentence as imposed by the learned trial Judge for the said offence i.e. imprisonment for life and fine of Rs.1,000/- in default to suffer R.I. for three months, would be sufficient.

36. Hence the appeal is partly allowed. Appellant no.1 is held guilty of the offence punishable under section 302 of Indian Penal Code and his conviction and sentence to this extent is confirmed. Rest of the appellants are held not guilty and are acquitted of the charges for the offence punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code. They be set at liberty forthwith. If the appellant no.3 is on bail as per order of this court dated 9.11.2004, his bail bonds stand cancelled.

37. Needless to mention that the accused no.1 - Shama is held acquitted of the charges for the offence punishable under sections 147, 148 of the Indian Penal Code.

38. To this extent the judgment and order of the learned trial Judge is set aside.

Appeal partly allowed.