2009 ALL MR (Cri) 1281


State Of Maharashtra Vs. Dr. Arvind S/O. Ghanshyam Aajabe

Confirmation Case No.2 of 2008,Criminal Appeal No.667 of 2008

13th March, 2009

Respondent Counsel: Shri. S. K. KADAM,Smt. S. S. JADHAV

(A) Evidence Act (1872), S.3 - Appreciation of evidence - Criminal trial - Preponderance of probability - In a Criminal trial, the defence can succeed, by creating a preponderance of probability compatible with innocence of the accused - The defence is not required to prove its theory beyond all reasonable doubts, as the prosecution is required to prove its case - Failure of prosecution can be success of defence, but vice-a-versa is not a permissible proposition. (Para 8)

(B) Evidence Act (1872), S.25 - Confession - Confessional statements of accused recorded while he was in Police Custody - Not admissible in evidence. (Para 9)

(C) Evidence Act (1872), S.9 - Identification by sniffer dog - Identification of any of the accused persons on the basis of stones used as weapon, by the sniffer dog, held, would have been a stronger piece of evidence, regarding involvement of accused persons in the violence. (Para 11)

(D) Evidence Act (1872), S.3 - Appreciation of evidence - Interested witness - Credibility of - A witness need not be disbelieved, merely because he is related to the victim - Apathy of people to enter the witness box for someone else, is not rare, nowadays - Conviction can also be based on evidence of sole trustworthy witness - Therefore, held, efforts taken by the witness to avoid any admission regarding relationship with the victim, makes him a witness required to be considered seriously, before accepting his version on the incident. (Para 15)

Cases Cited:
Jamil Fihmed Vs. State of Maharashtra, 2003 ALL MR (Cri) 1621 [Para 5]
Suchasing Vs. State of Punjab, 2003 ALL MR (Cri) 2346 (S.C.) [Para 5]
Shivaji Bobade Vs. State of Maharashtra, AIR 1973 SC 2622 [Para 5]
Chanan Singh Vs. State of Haryana, AIR 1971 SC 1554 [Para 5]
Sobrati Mian Vs. State of Bihar, 1986 Cri.L.J. 1226 [Para 5]


N. V. DABHOLKAR, J.:- Criminal Appeal under/Sec.374 (2) of Code of Criminal Procedure, 1973, preferred by original accused Nos.1 and 2, challenging death and life sentence and reference by III Adhoc Additional Sessions Judge, Ahmednagar under Section 366 of the Code of Criminal Procedure, 1973, for confirmation of the death sentence, both arising from his judgment and order passed on 21st October 2008, in Sessions Case No.160 of 2005, are being disposed of by this common judgment.

As many as five accused persons, including the two appellants, were charge-sheeted for the offences punishable under Sections 120-B and 302 read with Section 34 of I.P.C., by Police Station, Karjat, District Ahmednagar. Accused No.5 Navnath Kale was absconding, when the Judicial Magistrate, First Class, Karjat, committed the case under Section 209 of Code of Criminal Procedure, 1973, to the court of Sessions. Hence, the learned Magistrate directed police to file fresh charge-sheet against accused No.5, as and when he is traced and committed the case to the court of sessions for trial of accused Nos.1 to 4. Naturally, learned Adhoc Additional Sessions Judge charged only four accused persons for offences punishable under Sections 120-B and 302 read with Section 34 of IPC. We believe that, by amendment of the charge on 10.4.2008 (by order below Exh.192), learned Additional Sessions Judge has substituted second charge head, by which accused were initially charged for offence punishable under Section 120-B read with 34 of IPC, by only charge for offence under section 120-B, although it is not so specifically said below Exhibit 18. At the conclusion of the trial, the learned Judge has held accused Nos.1 and 2 (present appellants) guilty for offence punishable under Section 302 read with 34, IPC i.e. for having committed murders of Dr. Vijay Aajbe and Abasaheb Aajbe, in furtherance of their common intention. He has recorded a negative finding on the issue of criminal conspiracy. He has also, by implication; recorded a negative finding, so far as involvement of accused Nos.3 and 4 is concerned, in the commission of murders. Accused No.1 Dr. Arvind Aajbe is sentenced to death, fine Rs.2,000/-, in default, simple imprisonment for one month. However, accused No.2 Suresh is sentenced only to life imprisonment and fine Rs.2,000/-, in default, simple imprisonment for one month.

As a result of death penalty imposed upon accused No.1, record and proceeding is submitted by the learned Adhoc Additional Sessions Judge to this court for confirmation of the same, as required by Section 366 of Cr.P.C. and both the accused have challenged finding of guilty, conviction and sentence by appeal under Section 374(2) of Cr.P.C.

2. The prosecution story can be narrated as follows:

Complainant PW-1 Bhanudas Lokhande (Exh.46), who set the criminal law in motion by FIR (Exh.47) lodged with Karjat Police Station on 30.3.2005 at 22.45 hours, is father-in-law of deceased Dr. Vijay. Deceased Dr. Vijay was practising at village Shiral, Taluka Ashti, District Beed. Accused No.1 is also a Medical Practitioner at the same place and accused No.2 was running his pharmacy (Medical Store), also at Shiral. It is said that the deceased Vijay and accused No.1 Arvind are distant relatives (Yebkr). Admittedly, Dr. Arvind (Accused No.1) had started his medical practice at village Shiral, 3-4 years prior to Dr. Vijay (deceased). Starting of medical practice by Dr. Vijay at Shiral had adverse effect on the practice of Dr. Arvind. It is said that, pharmacy of accused No.2 Suresh was also required to be closed down about 7-8 months prior to the alleged incident. At the material time, construction of the hospital of deceased Dr. Vijay at Shiral was nearing completion. In fact, hospital was to be inaugurated on 9.4.2005. Due to adverse effect on their professions, accused Nos.1 and 2 had started threatening Dr. Vijay. They had desired Dr. Vijay to shift his medical practice elsewhere and they were also threatening to kill him, if he does not do so. About 3-4 months prior to the alleged incident, they had threatened Dr. Vijay, through hired gundas.

On 30.3.2005, deceased Dr. Vijay along with second deceased Abasaheb Aajbe had been to Ahmednagar, for delivering invitation cards, regarding inauguration of his hospital. They are said to have been killed, while they were travelling back on motorcycle Bajaj Calliber, having registration No.MH-23/G-7019 in Kokangaon Shivar, on Ahmednagar-Solapur road. Swati (daughter of complainant Bhanudas and widow of Dr. Vijay) telephoned Bapurao (brother of complainant) from Shiral, on 30.3.2005 at about 8.00 p.m. and informed that, there was some mishap involving Dr. Vijay on Ahmednagar-Solapur road. Brother Bapurao, in turn; gave the same message to complainant Bhanudas. Complainant along with his relatives, immediately proceeded to the place of occurrence. At the location, he was informed by some inhabitants of Ingawade locality that they had seen a white Tata Sumo going towards Mirajgaon, after the incident. It struck the complainant that accused No.1 Dr. Arvind Aajbe owns a white Sumo. The motorcycle of the deceased was lying in a ditch, by the road side. There were blood stains on the ground and on the stones. The complainant believed that the deceased Vijay and his cousin Abasaheb were killed by repeated blows with the help of stones and hence, he registered his complaint which was reduced to writing, by Police Head Constable Gafar Ibrahim Shaikh of Karjat Police Station (PW-15).

Entire investigation is carried out by Police Inspector Dagadu Deshmukh (PW-19). In fact, it is the claim of PI Deshmukh that at about 8.30 p.m., Police Head Constable Pandharinath Bhos from Mirajgaon police out post, had informed on telephone that persons from a white coloured Tata Sumo had killed two persons and the victims were thrown by the road side. Hence, PI Deshmukh had immediately visited the spot along with other police staff.

3. Accused No.1 Dr. Arvind, in his statement under Section 313 of Cr.P.C., admitted the complainant to be father-in-law of deceased Dr. Vijay. He also admitted that PW-2 Dr. Shantilal is real cousin of Dr. Vijay. He also stated that he was arrested at about 9.00 p.m. on the spot by Mirajgaon Police. About all other details, he has pleaded ignorance or denial, by replying the questions, by saying, " I do not know" or "It is false". However, he has filed a detailed written statement on 28.10.2008. He has pleaded that, they are falsely involved in the offence. On 30.3.2005, he was in his dispensary upto 8.30 p.m. There was discussion in the village Shiral that Dr. Vijay and Abasaheb Aajbe suffered accident at Mirajgaon road. Along with other villagers, he had been to the spot. Panchanama of the spot was drawn by the police while he was present there. Motorcycle, two victims, helmet and some invitation cards were the only articles lying on the spot, which the police seized (by implication; accused deny seizure of chappals and a diary from the location). PI, Deshmukh had not visited the spot, he appeared on the scene for the first time at Mirajgaon hospital, when dead bodies reached there. PW-1 Complainant Bhanudas and PW-2 Shantilal, so also eye-witness Pramod Shinde (PW-3), are close relatives of deceased Dr. Vijay. They are father-in-law, paternal cousin and maternal cousin respectively of the deceased. Accused has denied any recovery at his instance under Section 27 of the Indian Evidence Act. He has also challenged panchanama, regarding proceedings with the help of sniffer dog, as also identification parade, as false and fabricated evidence. According to him, at the instance of relatives of the deceased, PI, Deshmukh has framed the accused with false evidence.

According to accused No.1, Dr. Vijay was his close friend; they attended many meetings of medical association together; there was no professional contest between the two nor any bitter feelings about each other. Taking into consideration the population in the area, not only these two doctors were earning sufficient, but couple of more doctors had started practice in the area, even they all could have earned well. According to accused No.1, Dr. Vijay had immoral relations with one Savita, wife of teacher Shantilal Gaware. Relatives of Savita had beaten Dr. Vijay, when they learnt about it. In order to avoid damage to the reputation, Dr. Vijay took treatment at Ahmednagar, by informing to have suffered an accident. Accused No.1 claims to have acted as a middleman between Dr. Vijay and relatives of Savita Gaware and settled the matter, by assurance that Dr. Vijay would maintain no relations with Savita, in future. According to accused No.1, after lapse of few days, Dr. Vijay had started again meeting said Savita and, therefore, her relatives had challenged Dr. Arvind (accused No.1) who, in turn, had reprimanded Dr. Vijay about the same. After that, accused No.1 Dr. Arvind had stopped visiting Dr. Vijay. Accused No.1 claims that in order to avoid defamation, Dr. Vijay might have informed his relatives that accused No.1 is jealous about his (Dr. Vijay's) flourishing practice.

While pleading that he has no concern with deaths of Dr. Vijay and Abasaheb, accused No.1 has said that the two might have suffered death, as a result of accident, it may be a road robbery or some third person might have killed them due to earlier enmity.

Accused No.2 Suresh, apart from pleading total denial in his statement under Section 313 of Cr.P.C., has said that Dr. Vijay was his friend. He (Suresh) was getting benefit in his profession because of medical practice of Dr. Vijay. Deceased Abasaheb was having tea stall at a distance of 12 feet from his pharmacy and Abasaheb was also his good friend. In fact, accused No.2 used to order tea from the hotel of Abasaheb and had good relations with him. According to accused No.2, he had no reason to kill and he has not killed either Dr. Vijay or Abasaheb.

Accused No.2 has narrated that, so far as video cassette is concerned, he was subjected to beating by police and was asked to depose as instructed by police, before the camera. He also pleads that all the witnesses are related to victim, false panchanamas are prepared and both the accused are involved in a false case.

Dr. Mahadeo Nagargoje, a retired Medical Officer, is examined as a defence witness at Exhibit-189.

4. Prosecution has examined as many as 19 witnesses. However, PW-3 Pramod Shinde (Exh.54) is the sole eye-witness. According to Pramod, at the material time, he, along with his brother-in-law Kundlik Ghalme, was returning to his village Thergaon and they saw the incident in Kokangaon Shivar. Dr. Arvind and two others were beating Dr. Vijay, whereas accused No.2 Suresh and another were man-handling victim Abasaheb. He has narrated that both the victims were assaulted by stones.

PW-1 Bhanudas and PW-2 Shantilal are mainly examined, in order to establish 'motive' i.e. professional contest between accused No.1 Dr. Arvind and deceased Dr. Vijay. However, both of them claimed to have visited the location, soon after the incident.

PW-15 PHC Gafar Shaikh (Exh.115) of Karjat Police Station, had recorded a complaint of PW-1 Bhanudas and registered an offence. PW-19 PI Deshmukh (Exh.153) has carried out entire investigation. Although it is the case of the prosecution that initially, PW-18 ASI Pandharinath Bhos-Exh.132 (who was then PHC at Mirajgaon out post), had given telephonic intimation, regarding incident, he is examined for a different purpose. He was deputed by PI Deshmukh to Vishvanathbhau Aajbe Vidyalaya, Shiral, to collect a document in the handwriting of accused No.2 Suresh from the said school. This was because, accused No.2 Suresh is said to have been educated at that school. He has seized application purportedly in the handwriting of accused No.2 Suresh, given to him by the Head Master of the said school. The said document (Exh.124) is an application by which accused No.2 requested the Head Master for original service book of his father, because the pension proposal of his father was returned with certain objections. Eventually, Pandharinath Bhos has not talked anything as to what telephonic intimation he had given from Mirajgaon Police out post, to Karjat Police Station, soon after the incident.

PW-17 Mahesh Joshi (Exh.131) is a Police Head Constable, who had carried Muddemal property to Forensic Laboratory for examination and analysis.

PW-12 Dr. Ajay Shinde (Exh.90) had carried out post mortem on both the victims viz. Dr. Vijay and Abasaheb and he has opined both the victims to have suffered death due to head injuries and haemorrhagic shock. Dr. Ajay has emphatically denied possibility of victims having suffered injuries during road accident. (In fact, defence witness is examined for the purpose of contradicting this very opinion by Dr. Ajay).

PW-14 Vasudeo Bhapkar (Exh.106), Naib Tahsilder was in charge Tahsildar, Karjat Tahsil, at the material time and at the request of Investigating Officer, he has conducted the test identification parade. It appears from his evidence that, all four accused were simultaneously subjected to test identification parade, by making them stand in the row along with 16 dummies. Both eye-witnesses Kundlik Ghalme and PW-3 Pramod Shinde have identified only accused Nos.1 and 2, who were standing at serial Nos.9 and 13 at the time of their identification by Kundlik Ghalme and at serial Nos.4 and 17 at the time of identification by PW-3 Shinde.

PW-16 Deepak Wagle (Exh.117) is another expert on record. Handwriting at page No.3 of the diary, allegedly recovered at the spot of incident, was asked to be scrutinized and compared by him with specimen handwriting of accused No.2 Suresh, obtained at the police station (Exhibits-118 to 123), as also applications collected by PHC Shri. Bhos from the school. Shri. Wagle, Assistant State Examiner of Documents, has opined that the questioned handwriting is of the same person, whose specimen was provided for comparison. Thus, the prosecution claims that the diary written in the handwriting of accused No.2 Suresh was recovered from the location of the incident.

PW-10 Chandrakant Bokil, working as handler of sniffer dog Santosh (dobermann breed) was examined on the point of identification of accused No.2, on the basis of chappal recovered at the location. Chandrakant claims to have reached the location with his dog and other policemen on the same day, sometime at about 23.30 hours and actual identification proceeding took place at Karjat police station between 6.20 to 6.30 a.m. of 31.3.2005. Out of two suspects (in all probabilities, accused Nos.1 and 2) standing in a queue with 8 dummies, sniffer dog is said to have identified accused No.2 Suresh, on the basis of smell of chappal.

Apart from experts referred to hereinabove, the prosecution is also assisted by a team of seven panchas.

PW-4 Dattatraya (Exh.56) was a panch witness to the panchanama of the spot of offence. PW-5 Pandharinath Aajbe (Exh.59) attended drawing of inquest of both the deceased. He was also present when the application in the handwriting of accused No.2 Suresh, brought from Vishvanath Aajbe Vidyalaya, Shiral, was seized on 30.5.2005. He has identified handwriting of accused Suresh in the diary allegedly seized from the spot. PW-6 Bhagwan Aajbe (Exh.64) was present, when blood stained clothes of both the victims were seized on 31.3.2005 and seizure panchanama of vehicle Tata Sumo bearing No. MH-23 E-2419 was drawn. Specimen handwriting of accused No.2 was collected in presence of PW-7 Machindra (Exh.67). PW-8 Satish (Exh.69) is a panch witness to the proceedings when Lakhani chappal of right foot was tried for accused No.2, in presence of a cobbler Vikas Parihar. Similarly, other chappal at the location was identified to be that of accused No.4 Ranjeet, in presence of panch Satish. However, Accused No.4 having been acquitted and State having preferred no appeal against his acquittal, that part of evidence of PW-8 Satish is now irrelevant. A video cassette regarding interview of accused No.2 Suresh as recorded by Zee (Marathi) news reporter, is attached in presence of PW-9 Ramesh (Exh.75). Last panch witness is PW-13 Arifkhan Pathan (Exh.94). The clothes worn by the two accused at the time of alleged incident, are said to have been recovered at the instance of information given by the respective accused persons.

5. For the reasons recorded in paragraph 10 of his judgment, the learned trial judge has held death of the two victims, namely, Dr. Vijay and Abasaheb, to be homicidal. For the purpose, the learned judge has placed reliance upon inquest panchanama, post-mortem notes along with oral evidence rendered by Dr. Ajay (PW-12). To some extent; he has also relied upon eye-witness account of incident, as provided by PW-3 Pramod Shinde. While doing so, learned Judge has impliedly rejected opinion of defence witness Dr. Nagargoje, by observing that accused Nos.1 and 2 have really not led any evidence to prove that the victims suffered road accident, as against examination of sole eye-witness PW-3 Pramod Shinde by the prosecution. Learned judge has recorded here itself that evidence of Pramod is confidence inspiring. In fact, learned Judge has discussed evidence of eye-witness Pramod in judgment paragraphs 12 to 21. In all these paragraphs, learned judge has practically described evidence of PW-3, by saying, "His evidence shows that......" (In fact, it may not be inappropriate to say here itself that in such a lengthy discussion, there is very little material which can be said to be appreciation of evidence of PW-3 Pramod).

PW-3 is said to have been corroborated by PI Shri. Deshmukh, because both of them talk about having met on the spot, soon after the incident and variance in their depositions, regarding time of meeting, is said to be unimportant. Relying upon couple of judicial pronouncements, learned Judge has also observed that non disclosure of incident by PW-3 or his not having gone to the police station to report, need not necessarily lead to irresistible inference that the witness did not see the incident.

In paragraphs 22 to 26 of the judgment, the learned judge has dealt with medical evidence. This includes evidence of PW-12 Dr. Ajay, who had performed post mortem on both the dead bodies, as also defence witness Dr. Nagargoje. After describing oral evidence rendered by both the doctors and observations from the post-mortem notes prepared by Dr. Ajay, learned judge arrived at a conclusion as follows;

"I have carefully scrutinised the evidence of P.W. No.12 and D.W. No.1 who have given different opinion about the probable cause of both deceased and I am satisfied that the evidence of PW.12 is found more reliable than the evidence of D.W.No.1 as P.W.No.12 has personally carried out Post-mortem-examination over the dead bodies of both deceased. He had personally seen the injuries caused to both deceased and thereafter, he has immediately formed his opinion about the probable cause of both the deceased, as mentioned in post-mortem notes vide Exhibits Nos.91 and 92. Admittedly, D.W. No.1 has not carried out Post-mortem Examination over the dead bodies of both deceased and he has given his opinion seeing injuries caused to both deceased in Post-mortem Notes by which his evidence cannot be relied upon so as to come to the conclusion that really both deceased have died in road accident for want of proper corroboration by other evidence about the same."

(It is evident from the portion quoted above that the learned Judge has preferred to rely upon PW-12 Dr. Ajay, because he had personally seen the injuries while carrying out post-mortem, whereas Dr. Nagargoje had not. Dr. Nagargoje has expressed his opinion by referring to the nature of the injuries from the same post-mortem notes prepared by PW-12 Dr. Ajay. Dr. Nagargoje did not have benefit of seeing the injuries, himself. In view of these reasons, for preferring evidence of Dr. Ajay as being reliable than the evidence of Dr. Nagargoje, we are unable to appreciate the opening part of above quoted portion, namely,

"I have carefully scrutinized the evidence of P.W. No.12 and D.W. No.1. ....".

We believe that such an expression could have been used only if the learned Judge, by studying the nature of injuries; may be on the basis of treatise on medical jurisprudence; had formed his opinion that the opinion given by Dr. Nagargoje was erroneous and not sustainable on the touchstone of norms prescribed by medical science.) Suffice it to say that evidence of defence witness Dr. Nagargoje is rejected because, he did not have benefit of observing the injuries, himself.

In paragraphs 27 to 32, learned Judge has summed up his discussion for finding evidence of PW-3 Pramod, as reliable and acceptable. According to learned judge, his ocular evidence stood corroborated by medical evidence of Dr. Ajay (PW-12). In doing so, the learned judge has also discussed the case law relied upon by both the sides. He has accepted the submission of the prosecution that, law does not require a fact to be proved by evidence of particular number of witnesses and even evidence of single witness is sufficient to base conviction (2003 ALL MR (Cri) 1621, Jamil Fihmed Vs. State of Maharashtra); that a relation would not conceal actual culprit and make allegations against an innocent person and that defence is required to lay foundation if plea of false implication is made. (2003 ALL MR (Cri) 2346, Suchasing Vs. State of Pubjab) and also the case of Shivaji Bobade Vs. State of Maharashtra, AIR 1973 SC 2622, which also lays down the same principle that evidence of single eye-witness may be enough to sustain the conviction.

Learned Judge found that the observations in the matter of Chanan Singh Vs. State of Haryana, AIR 1971 SC 1554 were not applicable, because PW-3 Pramod had run away in a scared state of mind, because two of the assailants had charged towards him, and yet there was no failure on the part of Pramod to make a disclosure to PI Deshmukh at 9.30 p.m., when PW-3 Pramod had returned to spot after visiting home, although in the reported matter conduct of the witness in running away from the place of occurrence, in spite of not being chased or threatened by the assailant, was held to be abnormal. Due to claim of Pramod, of immediate disclosure of incident to PI Deshmukh, the observations in the matter of Sobrati Mian Vs. State of Bihar, 1986 Cri.L.J. 1226 are held inapplicable because, in the reported case, disclosure of incident by solitary eye-witness was after a time gap of seven days.

At the beginning of para 33 of the judgment learned Judge gave an indication that he was dealing with circumstantial evidence. In paragraphs 33 to 46, learned Judge dealt with all the panchanamas and by a common theme of reasoning that the panch witnesses have supported the panchanamas and the police officer drawing panchanamas has corroborated the panch witnesses, learned trial judge held all panchanamas and events recorded therein to be duly proved. We may only enlist them as follows:


Proved panchanama Exh.57 and, therefore, seizure of motor-cycle,
helmet, four stones, a diary, a pair of chappals (black colour), two
single chappals (one Lakhani and one Kolhapuri) and four invitation cards.
P.W. No.6.
Bhagwan Ajbe

Proved Exhibit 65 i.e. panchanama of seizure of clothes of the two
Exh.66, seizure of Tata Sumo bearing No.MH-23/E-2419.
P.W. No.-13
Arif Khan

Exhibits 95/96, memorandum and seizure panchanama of his clothes,
at the instance of accused No.2 Suresh.
Exhibit 97, Seizure of Yamaha motorcycle of accused No.2 Suresh.
Exhibit 98/99, memorandum and panchanama regarding seizure of clothes
of Accused No.1 Arvind at his instance.
Exhibit 102, seizure of tin sheet of Tata Sumo.
P.W. No.7
Exh.69, panchanama regarding collection of specimen handwriting
(Exhs.118 to 123) of accused No.2.
P.W. No.5
Exhibit 63, panchanama regarding seizure of application (Exhibit-124)
in the hand-writing of accused No.2 Suresh, from Head Master of
Visvanath Bhausaheb Vidyalaya.

In the continuity, the Judge has also referred to evidence of carrier PW-17 Mahesh and arrived at a conclusion that he had received articles in a sealed condition and had delivered those to the Assistant State Examiner of Documents, Pune and Forensic Science Laboratory, Aurangabad in a sealed condition. According to the learned Judge, there is no material on record to raise any doubts about tampering of any of the articles. By describing his evidence in paragraph 46, learned Judge has held P.W.5 Pandharinath Ajbe (who is, in fact, examined as a panch witness to inquest) to have proved entry of Rs.85/- against his name in the diary Exh.62, because of deposition of this witness that the entry was effected by accused No.2, when he (Pandharinath) purchased some medicines from the shop of accused No.2, on credit.

Learned Judge has concluded paragraph 46, by observing that by relying upon testimony of PW-5 Pandharinath, accused No.2 could be connected with crime, as the said diary has been recovered from the spot of offence as per the spot panchanama.

After considering evidence of PW-16 Deepak (Assistant State Examiner of Documents) in paragraphs 47 and 48, the learned Judge formed an opinion that the disputed handwriting (entry in the diary regarding credit purchase by PW-5 of Rs.85/-) to be that of accused No.2 Suresh, on the basis of comparison with specimen handwriting (S-1 to S-6 i.e. Exhs.118 to 123) and N-1 (application collected from the school), as cent percent correct and hence, acceptable.

In paragraphs 49 to 53, learned Judge discussed the evidence of PW-10 Chandrakant, handler of sniffer dog and his report at Exh.78 and found the evidence of dog tracking to be reliable and since the chappals, after smelling of which the dog identified accused No.2 Suresh, were found on the spot, learned Judge felt that dog tracking evidence further confirms presence of accused No.2 Suresh on the spot.

In this matter, prosecution has come with somewhat 'funny' evidence. PW-8 Satish is the panch witness in whose presence single Lakhani chappal found on the spot, was tried on right foot of accused No.2. Similarly, the pair of chappals recovered on the spot, was tried on the acquitted accused No.4 Ranjit. For confirmation that the chappals fit on the feet of the respective accused persons, services of an 'expert' i.e. cobbler Vikas Vitthal Parihar were secured. The said cobbler orally certified that the chappals fit on the respective accused persons. We have referred to this collection of evidence as 'funny' because we believe that even a common man would be able to say whether footwear fits in an individual, upon asking the individual to wear and try it. Services of the cobbler as 'expert' were not necessary. Our learned Judge has refused to rely upon evidence of PW-8 Satish and panchanamas (Exhs.70 and 71) for equally 'good' reasons i.e. the prosecution has not examined the cobbler as a witness. (We may compare the evidence of dog tracking, as also attempt to identify accused No.2, by fitness of chappals. This aspect seems to have been totally lost sight of by the learned Judge. In dog tracking, dog has identified accused No.2 on the basis of pair of chappals found on the spot, but as per the deposition of PW-8 Satish, the pair of chappals was fitted on the feet of accused No.4 Ranjit and single Lakhani chappal was fitted on the foot of accused No.2 Suresh.

Although PW-11 Ashok narrated that he handed over photographs of the snaps of the location taken on 30th March 2005, to the Investigating Officer on 31st March, 2005 and the Investigating Officer has said that he had received those only on 10th June 2005, the learned Judge found this contradiction not sufficient to disbelieve the fact that PW-11 had snapped the photographs on the night of 30th March, 2005 and that the photographs were reliable piece of evidence, since produced together with negatives.

Learned Judge has dealt with Chemical Analyser's reports (Exhibits 180 to 182) in paragraph 56 of his judgment, which show detection of human blood of group A on the clothes of accused No.1, also on the clothes of accused No.2 and on the tin sheet of the vehicle. It can be deduced from the C.A. report that blood group of victim Dr. Vijay was "A" and that of victim Abasaheb was "AB". Finding the investigating agency not having collected blood samples of accused persons, as a lapse on the part of the investigating agency not fatal to the prosecution case, the learned Judge has observed that the analyser's report was sufficient to support the inference of complicity of accused Nos. 1 and 2 with the offence. (Learned Judge appears to have lost sight of the fact that according to prosecution story, as narrated by sole eye-witness PW-3 Pramod, accused No.1 Arvind and 2 others were hitting Dr. Vijay (Victim-1 with blood group A) and accused No.2 Suresh and one another person were beating Abasaheb (Victim-2 with blood group AB) and as per the deposition of PI Deshmukh, two dead bodies were lying 35 ft. apart).

Learned Judge found evidence of complainant PW-1 Bhanudas and PW-2 Shantilal (PW-1 being father-in-law of deceased Dr. Vijay and PW-2 being his real cousin) to be convincing and reliable, on the point that few months prior to the alleged incident, accused Nos.1 and 2 had started according threats to Dr. Vijay that he should shift his dispensary or medical profession to some other place than Shiral and this was because their profession was getting affected adversely, due to flourishing practice of Dr. Vijay. Although learned Judge accepted the evidence of PWs-1 and 2 as sufficient to prove the motive, he has also recorded that in view of the fact that the prosecution case is supported by direct evidence of PW-3 Pramod, failure to establish motive would not adversely affect the prosecution case.

In concluding paragraphs 58 to 60, learned Judge has dealt with the investigation, generally. According to him, station diary entry No.39 (Exh.154) proved by PW-19 PI Deshmukh lent support to prosecution and ruled out possibility of accident. This station diary entry records that Police Head Constable Bhose from the out post, informs telephonically that in the precincts of jotibawadi, on Ahmednagar-Solapur highway, passengers from Sumo vehicle had killed two persons and had fled away by the said vehicle. The judge has also observed that it is not possible to procure blood for the purpose of fabricating blood stains on the clothes of the accused persons. According to him, complainant has lodged report within one hour since he collected information from the people in the vicinity and thus had no opportunity to concoct a false story. He has rejected the submission of the defence that the prosecution story can be doubted because the case diary produced at Exhibits 169 to 171 and 173, as also remand report at Exhs.172 and 174, did not mention PW-3 being eye-witness and also did not mention recovery of any articles on the spot. According to learned Judge, scope of such diaries and remand report is different. By taking into consideration the nature of the injury, learned Judge felt that probability of accident is ruled out because, skull fracture was possible, only by repeated blows and not by accidental fall on a stone. Learned Judge has also observed that the accused have not led any evidence to probablise possibility of accident.

Learned Judge concluded the judgment in paragraphs 61 to 64, by observing that the prosecution has no evidence to show that there was any criminal conspiracy; evidence of PW-3 was sufficient only to show that accused Nos.1 and 2 in furtherance of their common intention, committed the offence; there was no evidence for connecting accused Nos.3 and 4 with the alleged offence; neither they were named by the complainant nor there were blood stains on the clothes of accused Nos.3 and 4 nor sniffer dog identified any one of them, nor they were identified during test identification parade held by the Executive Magistrate.

6. The judgment to above effect was concluded on 21.10.2008 and acquittal for accused Nos. 3 and 4 was declared on the same day. However, the learned Judge, on 22.10.2008, heard both the sides on the point of quantum of sentence, so far as accused Nos.1 and 2 are concerned. The prosecution insisted for capital sentence. For the reasons separately recorded in paragraphs 65 to 75, the learned Judge has held that accused No.1, who is a life saver, has become a killer and, therefore, case is the rarest of the rare (so far as accused No.1 is concerned). Learned Judge has, therefore, ordered capital punishment for accused No.1, but only life sentence for accused No.2, although both are held guilty for offence punishable under Section 302 read with section 34 of IPC. (Even Accused No.1 and Accused No.2 are acquitted, so far as charge under Section 120-B of IPC is concerned.)

7. The impugned judgment can be summed up as under.

The learned Judge found eye-witness account of the incident, as given by PW-3 Pramod, to be acceptable. The 'motive' for the offence was proved by PW-1 Bhanudas and PW-2 Shantilal. PW-3 knew accused Nos.1 and 2 and, therefore, there was no possibility of mistaken identity. Presence of accused No.2 at the location stood proved and strengthened by the evidence of dog tracking, chappal testing, as also recovery of his diary from the spot of incident. The complicity of both the accused in the offence was also confirmed by stains of human blood of group "A" on their clothes, discovered at the instance of information given by them. There was no evidence of conspiracy, although common intention of accused Nos.1 and 2 could be gathered and there was also no evidence to link accused Nos.3 and 4 to the alleged offence.

8. Heard learned counsel for the respective parties. We do not intend to enlist points advanced by them, for the purpose of restricting the length of the judgment, but we shall deal with those during the course of discussion of our reasons for concurrence or otherwise with the findings of the trial judge. We may only say that the appellants did not restrict their arguments to saying that the prosecution has failed to prove the case, but they have alleged that the matter is investigated in a manner to frame them. According to learned APP, the matter calls for no interference.

We are required to consider the impugned judgment in the light of evidence on record for answering following issues.

(i). Whether the prosecution proves that the deceased Dr. Vijay and Abasaheb were subjected to homicidal death ? (Defence has suggested that a possibility of accident cannot be ruled out).

(ii). Whether accused Nos.1 and 2 have dealt the victims, by stones and thus inflicted fatal injuries to them ?

(iii). Whether the case is rarest of the rare, inviting capital sentence against only one accused ?

For the result of the case, we believe; the second issue is the most important issue. Unless the complicity of the two appellants-accused is established, the issues either death to be homicidal or case being rarest of the rare, do not assume any importance. It may be said that the two accused persons have not very seriously challenged the death to be homicidal. In fact, on reference to statement of accused No.1 under Section 313 of Cr.P.C., it is evident that the main emphasis is upon disclaimer. It is the contention of the accused persons that they are not responsible for the death of Dr. Vijay and Abasaheb. The defence suggests that they might have suffered vehicular accident since the two were travelling home on a motorcycle and at the same time they suggest possibility that if the death is homicidal, somebody else may be the author of the injuries. Basically, the defence of the accused persons is of total denial i.e. they did not inflict fatal injuries upon the victims.

We are always required to bear in mind the difference between the nature of onus of proof upon the prosecution and that upon the accused. While observing that the opinion of Dr. Nagargoje examined as defence witness is not acceptable; the learned judge, apart from observing that Dr. Nagargoje did not have the benefit of observing injuries himself, also observed that the defence has not examined any witness to prove the accident, as done by the prosecution by examining PW-3 Pramod for proof of homicidal death (para 60). We are afraid, such an approach cannot be approved, as correct approach. It must always be remembered that in a criminal trial, the defence can succeed, by creating a preponderance of probability compatible with innocence of the accused. The defence is not required to prove its theory beyond all reasonable doubts, as the prosecution is required to prove its case. Failure of prosecution can be success of defence, but vice-a-versa is not a permissible proposition.

Such an approach that the defence has not proved its case is recorded by learned Judge on one more occassion, while considering evidence regarding Chemical Analyser's report (para 56).

In paragraph 58, learned Judge has observed that accused Nos.1 and 2 have not laid any evidence to show that really on that day, the complainant, or any other person on his behalf had purchased bottles of blood from the blood bank and they also sprinkled the same on the clothes of the deceased, as also of accused Nos.1 and 2, before lodging the report. Even if to glorify the arguments, learned defence counsel has advanced any submission to this effect, it must be borne in mind that the defence can relax, by demonstrating that the evidence gathered in the form of C.A. reports, regarding blood stains on the clothes of the accused, is not reliable. If at all we are to speak something on that aspect here itself, we must take a note of the fact that the C.A. reports show clothes of both accused stained with human blood of group A, whereas the case of the prosecution is that accused No.1 was beating the victim Dr. Ajay (person with blood group A) and accused No.2 was beating the victim Abasaheb (blood group AB). It is for the prosecution to explain as to why Accused No.2 Suresh has blood stains on his clothes, of human blood group A, although he was in contact with a person having blood group AB and not with a person having human blood group A.

9. We may state that the record is burdened with some evidence which was not at all necessary and some evidence which is of minimal value for the purpose of proving guilt, by linking accused persons with the offence. We may refer, in brief; to these pieces of evidence at this stage.

The prosecution has examined PW-14 Vasudeo Bhapkar, Naib Tahsildar, who conducted test identification parade. Without going into the merits of the procedure followed by him, it must be said that simultaneous test identification parade of all four accused was conducted, by making them stand with 16 dummies in a row. PW-3 Pramod, an eye witness, has deposed;

"During the said light of our Motor Cycle we had seen Dr. Arvind Ajbe and two unknown persons while beating to Dr. Vijay Ajabe. Dr. Vijay Ajabe was lying in the Nala. He was beaten on his head by means of stone. We had also seen that Suresh Ajabe and one unknown person while beating Abasaheb on the upper portion of the Nali. They were beating on his head, by means of stones."

It is evident that PW-3 Pramod knows accused Nos.1 and 2 since before the incident, as he identifies them by their names in contra distinction with identification of other three assailants as "unknown persons". If the eye-witness knew accused Nos.1 and 2, the test identification parade for them was not necessary. In the test identification parade, witness Pramod and his brother-in-law Kundalik, have not identified accused Nos.3 and 4. If that be so, evidence of PW-14 Vasudeo Bhapkar, Naib Tahsildar, is unnecessary burden on the record.

PW-9 Ramesh is examined to prove seizure of video cassette from Zee news. We are informed that a confessional interview of accused No.2 is recorded in the said cassette. The trial judge in his entire judgment, has not referred to this video cassette and rightly so. The interview must have been recorded while the accused was in police custody and such confessional statements are not admissible in evidence, by virtue of bar created by Section 25 of the Indian Evidence Act.

10. Although we cannot say that their evidence was not necessary, evidence of following two witnesses is of formal nature. PW-17 Police Constable Mahesh is a carrier, who carried the muddemal articles to Forensic Science Laboratory and also the documents to the Assistant State Examiner of Documents. PW-11 Ashok Pote is a photographer, who has taken photographs of the location on the same night, at about 9.00 p.m. soon after the incident and the photographs are filed on record at Exhibits 80 to 89. This was even before removal of dead bodies from the location. (Eventually, we may record here itself that there is no photograph wherein the diary of accused No.2 Suresh can be seen, although the photographs together show the two victims, motorcycle, four chappals, helmet and invitation cards near the helmet.

PI Deshmukh in his deposition paragraph 4 has spoken about recovery of a diary bearing name "Suresh Ghanasham Ajabe" on its first page, at the location when he drew spot panchanama (Exh.57). Eventually, when we refer to Exh.57, although it refers to recovery of the diary, it does not give detailed description of the diary as bearing the name of accused No.2 and if the diary recovered at the location did bear the name of accused No.2, then the moot question that we may pose ourselves is whether the following pieces of evidence/material were necessary.

(i). Collection of specimen handwriting (S-1 to S-6 i.e. Exhibits-118 to 123) and evidence of panch witness PW-7 Machindra and panchanama Exh.68 about the same.

(ii). Collection of handwriting of accused No.2 in the form of an application tendered by him to the Head Master of the school (Exh.124), panchanama regarding seizure of the same (Exh.163) and the evidence of PW-5 Pandharinath Ajabe to that extent, as also evidence of PW-18 ASI Pandharinath Bhos.

(iii). Examination of handwriting of accused No.2 from the diary (Exh.Q.1) and comparison of it with the specimen handwriting (Exhibits 118 to 123) and application at N-1 (Exh.124) and if the diary bore the name of accused No.2, thereby establishing that it was his diary, whether all other things were necessary.

11. As summed up in paragraph 57 of his judgment, learned trial judge has found an eye-witness account, as provided by PW-3 Pramod to be convincing and duly corroborated by the medical evidence. According to him, PW-1 Bhanudas and PW-2 Shantilal proved 'motive'.

The trial court has also drawn support from some circumstantial evidence placed before it by the prosecution which it found to be convincing. Visit and presence of accused No.2 to the spot of incident is held strengthened by dog tracking, chappal fitting and recovery of his diary at the spot of incident. Other pieces of circumstantial evidence relied upon by the trial court for holding that accused Nos.1 and 2 were the culprits, who indulged into violence with two victims and killed them, are the reports of the Chemical Analyser. We intend to examine the credibility of these pieces of circumstantial evidence, one by one.

If the photographs are true, if those present correct picture, and ordinarily those cannot lie. There are four chappals lying at the location. It can be seen with naked eyes that one is a pair of black coloured chappals and remaining two are single chappals, one being of kolhapuri make with red strip and another of Lakhani make (as described in the panchanama). Both these single chappals are of right foot. The pair of chappals is lying in reverse order i.e. right foot chappal to the left side. One strap of this left foot chappal from the pair is broken. (Chappal photographs at Exh.82 and 82-A).

Some other things in connection with these chappals are required to be taken into consideration, to which the learned trial judge has paid no attention at all. Photographs of one of the victims (Exh.88 and 88-A) show the said victim to be bare footed and can we not consider the probability that pair of chappals may be of that victim. Photographs at Exhs.86 and 86-A confirm that the two victims are lying at a considerable distance (about 35 feet, as narrated by PI Deshmukh). Chappals are not within sight in the photographs of victims at Exhibits-84, 85, 85-A, 86, 86-A, 87, 88 and 88-A.

This brings us to consider the evidence of dog tracking with the assistance of chappals, as also chappal fitting to accused in the presence of panch witness PW-8 Satish. According to PW-10, dog handler Chandrakant, as also his report (Exh.78), the sniffer dog was given smell of pair of chappals, whereafter the dog jumped and barked at the person standing at serial No.5 in a row of 8 persons. He was accused No.2. This identification parade held on 31.3.2005 at 6.20 to 6.30 hours at Karjat Police Station was, of accused Nos.1 and 2 only. (It can be so inferred because, accused Nos.3 and 4 were not arrested by that time). The same report further states that again the sniffer dog was given smell of leather chappal (in all probability, this is a description of single chappal of Kolhapuri make of right foot) and the dog again barked and jumped on the same person i.e. accused No. 2 Suresh. It is evident that the report (Exh.78) itself sows seeds of suspicion against reliability of the same. The dog has identified accused No.2, after sniffing pair of chappals and also after sniffing single chappal and all three chappals cannot be of accused No.2. We have already referred to attempt on the part of the Investigating Officer to identify accused No.2 Suresh to have visited the spot, on the basis of "Chappal fitting experiment." in the presence of PW-8 Satish. However, on reference to evidence of PW-8 Satish and panchanama (Exh.71), it is evident that the slipper of Lakhani make is said to have perfectly fitted in the right foot of Suresh. Thus, if the evidence of dog tracking, as also chappal fitting is accepted, all four chappals recovered from the spot of occurrence are said to have fitted on the foot of Suresh. The dog identified accused Suresh after sniffing pair of chappals as well as Kolhapuri Chappal. We believe, this much material is sufficient to look to this identification of accused No.2 Suresh, as the person having visited the spot, on the basis of chappals, as unreliable.

For the sake of hypothesis, we accept the evidence of PW-3 Pramod. According to him, while he and Kundalik were watching the incident in the headlight of the motorcycle, two unknown assailants rushed at them and, therefore, being scared of the situation, they left the spot. By the time Pramod & Kundalik reached the location, the victims were lying on the ground. Thus, there is no story of the prosecution that the assailants were required to face so much resistance or that so many people had gathered at the location that the assailants were required to resort to hurried escape. At the most, the prosecution narrates that the people in the vicinity informed that soon after the incident, the assailants went away by Tata Sumo vehicle.If the assailant was not required to withdraw himself in a hurried manner, there is no reason why he should lose his footwear at the location.

Presuming it for the sake of hypothesis that either right foot Kolhapuri chappal, by sniffing which the dog identified accused No.2, or Lakhani slipper, which fitted perfectly on the right foot of accused No.2, was/were the footwears of accused No.2, yet the prosecution has not been able to recover the other pair of these chappals, at the instance of accused No.2. If accused voluntarily discloses the location of blood stained clothes, the investigating officer should also have been successful in taking out other missing chappal from either of these two single, on the basis of which the visit of accused No.2 to the location, is tried to be confirmed.

About this exercise of identifying accused No.2 Suresh as the person having visited the spot of occurrence, on the basis of chappal, we can consider the same at further depth. It is not the case of the prosecution that the sniffer dog was made to smell the chappals while lying on the location and then the sniffer dog traced out accused No.2. Prosecution has an explanation for not undertaking such an exercise. It can say that, because it was already known that the assailants went away by Tata sumo vehicle, the dog could not have traced the culprit beyond the locations where the assailants boarded the vehicle. But, in that case, if accused No. 1 could be identified with the help of sniffer dog, by giving it smell of chappals, the stones used as weapons were lying on the location and it was possible to use the services of sniffer dog to identify either of the four accused persons, by giving the dog, smell of stones used as weapon i.e. the stones, which were near the heads of the victims and blood stained. As many as four stones stained with human blood were forwarded to forensic science laboratory. However, Investigating Officer has not carried out such an exercise. In fact, identification of any of the accused persons on the basis of stones used as weapon, by the sniffer dog would have been a stronger piece of evidence, regarding involvement of accused persons in the violence.

Exercise of identification of the accused was done at Karjat Police Station, on 31.3.2005 between 6.20 to 6.30 a.m., whereas panchanama of spot (Exh.57) is drawn on 31.3.2005 between 7.30 to 9.30 hours, which was an hour after identification exercise at Karjat Police Station. Karjat Police Station is at a distance of at least 35 kilometers from the location of incident. Naturally, Investigating Officer was required to explain as to how chappals were at the location when the spot panchanama was drawn, although those were at Karjat Police Station, an hour earlier. PI Shri. Deshmukh has explained it thus;

"PSI Bokil has taken identification parade of suspects with the help of dog squad and thereafter I took the custody of those chappals from him and thereafter, we came on the spot and I kept those chappals on the spot and I have seized those chappals on the spot."

Thus, the chappals were collected from the spot by PSI Bokil, the dog handler and were replaced on the spot by PI Deshmukh for the purpose of drawing spot panchanama.

We must, therefore, say that attempt on the part of prosecution to identify Accused No.2 Suresh as the person having visited the spot, on the basis of footwear, is intrinsically unreliable and therefore futile.

12. About identification of Accused No.2 Suresh, as the person having visited the spot on the basis of contention that his pocket diary was recovered from the spot, PW-4 Dattatraya has supported recovery of the diary from the spot of occurrence. In fact, he has supported the panchanama of scene of occurrence drawn on 31.3.2005 between 7.30 to 9.30 hours (Exh.57). PW-5 Pandharinath has identified an entry at page 3 of the diary, regarding credit purchase of Rs.85/- by him from accused No. 2 Suresh, by saying that he has witnessed accused No.2 making that entry. According to deposition of PI Deshmukh, first page of the diary bears name of accused No.2 i.e. Suresh Ghanashma Ajbe. If evidence of these three witnesses together is to be believed, as already observed, exercise of collecting specimen handwriting (Exh.118 to 123) and application (Exh.124) tendered by Accused No.2 to the Head Master of the school, comparison of those handwritings with entry at page 3 of Rs.85/- in the said diary and deposition of expert, were not necessary. If entry at page 3 is witnessed by PW-5 Pandharinath Ajbe, when Accused No.2 effected that entry, that was the best possible evidence and other evidence, i.e. collection of handwriting of Accused No.2 and its comparison with entry in the diary by expert, therefore, was not necessary. However, in order to link accused No.2 with the crime, prosecution must establish with firmness, recovery of the diary from the spot of incident.

Although diary is said to have been recovered at the time of spot panchanama, PW-5 Pandharinath was called for confirmation of entry regarding credit purchase of Rs.85/-, only on 5.4.2005. In this context, chief-examination of PI Deshmukh reads thus;

"On that day at 21.05 hours (30.3.2005) we went on the spot. The spot of offence was found on Nagar-Solkapur Highway in the vicinity of village Kokangaon towards eastern side of guard stone No.46. We found one Bajaj Calibar bearing No.MH-23/Q-7019 lying in nali, which was at a distance of 13 feet towards northern side of the road. One dead body was lying at the distance of 50 ft. from motorcycle towards western side and another dead body was lying at a distance of 85 ft. towards western side from the motorcycle. We found other articles, like (as) chappals, helmets."

Thus, PI Deshmukh does not seem to have noticed existence of diary at the location, although he had noticed motorcycle, chappals, helmet and dead bodies at the time of his visit, soon after the incident. However, in further part of the chief examination, while deposing about drawing of spot panchanama, PI Deshmukh has stated about this diary in para 4, thus;

"I have seized Bajaj Calibar motorcycle No.MH-23-Q-7019, one Helmet of rani colour, five pieces of stones having blood stains thereon, one pair of chappals, one single chappal of Lakhani Co. and another chappal of Kolhapuri (type), four invitation cards, Dr. Vijay Ramkrishna Ajabe was Preshak as shown in those invitation cards, one diary containing the name of Suresh Ghanashyam Ajabe at first page, simple soil and soil mixed with blood."

From the narration in the panchanama of scene of occurrence, it can be judged that the diary is lying at a distance of about 50 ft. to the south of the motorcycle, where there were signs of blood on the ground. Dattaraya (PW-4) in his chief-examination states;

"One stone having sharp point and another stone having rough surface were lying towards southern side of the motorcycle there. One diary was lying there."

Thus, diary is lying towards south of the motorcycle. Although we have scanned all the photographs, we are unable to find any photograph reflecting existence of the diary. Prosecution can conveniently say that the diary was not noticed by Police Inspector at night hours and, therefore, it was not snapped in the photographs as those were taken on the night of 30.3.2005. However, panch witness Dattatraya states in paragraph 8 to following effect;

"The police had already come on the spot before my arrival. I went on the spot at 7.15 a.m. Some photographs were taken in my presence there."

In paragraph 9, he further confirms presence of photographer, by saying;

"The photographer had halted for the period of one hour at the spot. The police had brought the said photographer with them."

Eventually, prosecution has not produced any photograph taken in the morning, showing existence of diary at some location near or around the motorcycle, or the dead bodies. In the panchanama, diary is not described with any further details and especially the crucial details that it was bearing name of accused No.2 Suresh, on the front page. In fact, by the time the diary was noticed and recovered on 31st March morning, PI Shri. Deshmukh was aware of the complaint lodged by PW-1 Bhanudas, wherein he has named Suresh Ajabe as the suspect, yet detailed discussion about diary that it bears name of accused No.2 does not appear in the panchanama, although PI Deshmukh so deposes.

For the reasons, it must be said that the claim of the prosecution that the diary bearing name and handwriting of accused No.2 was recovered from the spot of incident, is not free from doubt and convincing.

13. The prosecution has claimed discovery of clothes worn by accused Nos.1 and 2 (appellants), under Section 27 of the Indian Evidence Act i.e. at the instance of information given by them. PW-13 Arif Khan is the panch witness to these proceedings. In the sweep of investigation, on that day i.e. 31.3.2005 between 19.35 to 20.05 hours, police have also seized motorcycle of Yamaha make, bearing No.MH-16/2622 under panchanama (Exh.97), which is the motorcycle of accused No.2 Suresh. Memoranda of statements of accused Nos.1 and 2 are at Exhibits-98/95 respectively and discovery panchanamas at Exhibits-99 and 96 respectively. All four clothes are said to be stained with human blood of group A.

So far as seizure of motorcycle of accused No.2 is concerned, prosecution has not been able to make any use of the same, in order to advance the cause of prosecution. Although it has come in the evidence of sole eye-witness Pramod that apart from vehicle of the victim, there was Tata sumo and a motorcycle, there is nothing on record indicating that the vehicle seized under panchanama (Exh.97) on 31.3.2005, was the motorcycle seen by Pramod, at the time when he witnessed the alleged incident.

We have already referred to the aspect which brings this evidence, regarding discovery under clouds of doubt. On reference to reports from forensic science laboratory (Exhs. 180, 181 and 182), it is evident that the clothes of the victim Dr. Vijay are stained with human blood of group A (articles 9 and 10 in Exh.180), whereas clothes of victim Abasaheb are stained with human blood of group AB (articles 13 to 16). As against this, clothes of accused No.2 Suresh (articles 17 and 18) and also that of accused No.1 Arvind (articles 19 and 20) all are stained with human blood of group A. If eye-witness account of incident, as given by Pramod, is accepted as true, accused No.2 had assaulted victim Abasaheb and accused No.1 had assaulted victim Vijay. Analysis report Exh.180 indicating blood group of victim Vijay to be A and that of victim Abasaheb to be AB, stands confirmed by further reports at Exhibits-181 and 182. If accused No.2 Suresh had assaulted victim with blood group AB, there is no reason why his clothes should be stained with blood group A which was the blood group of victim Dr. Vijay. This itself makes the support that is tried to be drawn from the discovery evidence by the prosecution, quite doubtful.

So far as evidentiary value of the reports of analysis is concerned, it must be said that negative finding of the same is acceptable cent per cent. The reason is that, negative finding rules out involvement of the accused-appellants. For example, in this case only, since the blood group of victim Abasaheb is AB and no blood stains of that group are detected on the clothes of accused No.2 Suresh, it can positively be said that Suresh had not come in contact with victim Abasaheb. However, positive report is always acceptable, creating a probability. Finding of blood stains of group A on the clothes of accused No.1 Arvind may create a possibility that he might have come into contact with victim Vijay, but that is not the only possibility, because there are many persons with blood group A and it can be even accused No.1 himself, who is a person of blood group A. No doubt, accused persons have not claimed to have suffered injuries for any other reasons. But, in order to make the inference cent percent acceptable that accused No. 1 had come in contact with victim Vijay, it is necessary to ascertain blood group of accused No. 1 and only if his blood group is different than that of the victim, the support rendered by analysis report becomes stronger. Even in that case, we can never rule out a possibility of blood stains of human blood group A being of some other individual of group A than victim Vijay. The positive results of analysis have, therefore, low evidentiary value.

Mess regarding existence of blood stains of group A on the person of accused No.2, although it is the prosecution story that he assaulted victim of blood group AB (Abasaheb), is not the only region that creates doubts about the discovery evidence and its value for the purpose of prosecution. Reading Exhibits-95/96 together on one hand and 98/99 on the other, by specific reference to timings, makes an interesting reading. Memorandum (Exh.95) appears to have been drawn between 17.00 to 17.15 hours and Exhibit 96 between 17.20 to 19.30 hours. Exhibit 95 is drawn at Karjat Police Station and discovery is at village Shiral. Karjat-Shiral via Mirajgaon, is informed to be a distance of 35 kilometers. It cannot be believed that this distance of 35 kilometers was covered within five minutes i.e. 17.15 to 17.20 hours. Because of tenor of the language in the panchanama, it may be possible for the prosecution to say that the panchanama (Exh.96) shows 17.20 hours as starting time, which is the time of investigating party departing from Karjat Police Station and 19.30 hours being the time of conclusion of the panchanama at Shiral. This is because at 19.35 hours, another panchanama is drawn at the residence of accused No.2, of seizure of his motorcycle. Therefore, 19.30 hours is certainly not a time when the party reached back to Karjat Police Station. If 17.20 to 19.30 hours cover only journey of the party from police station to Shiral (residence of accused No.2) and seizure of the clothes at his residence, then 2 hours 10 minutes appear to be much more than requisite time for journey of about 35 kilometers and immediately taking out clothes and rope which were kept in the house of accused No.2.

If we refer to Exhibits-98/99, memorandum is drawn between 23.05 to 23.20 hours, but the investigating party has left Karjat police station at 00.00 hours of 1.4.2005 and panchanama (Exh.99) is concluded at 02.30 hours. Thus, this panchanama has taken 2-1/2 hours, which time is also excessive, if 02.30 are not the hours of investigating party reaching back to Karjat police station. And reading Exh.97, in relation to Exhibits-95/96, the time of termination of panchanama is certainly not the time of party reaching back to the police station.

The case diaries of the investigation dated 30.3.2005, 31.3.2005 and 1.4.2005, are brought on record at Exhibits-169, 170 and 171 respectively. At exhibit 172, is a copy of remand report dated 1.4.2005. Some of the details are required to be noted from these case diaries. It is pertinent to note that in case diary dated 30.3.2005 (Exh.169), which records details of investigation between 22.45 to 24.00 hours, in the column for 'weapon used', only two things are recorded i.e. Sumo vehicle bearing No.MH-23/E-2419 and stones. Any reference to the motorcycle used by the accused, is conspicuously absent. It can, therefore, be said that immediately after the incident, investigating agency had not learnt about involvement of one more motorcycle, along with Tata Sumo vehicle, used as vehicle for the purpose of commission of offence.

Case diary dated 31.3.2005 records the events of investigation between 19.00 to 20.00 hours or it can be said that this case diary is written at that time. (There is overwriting, by which earlier time is converted to 19.00 hours). According to the spot panchanama (Exh.57), the same was drawn on 31.3.2005 between 7.30 to 9.30 hours and this case diary written at 19.00 to 20.00 hours, refers to the spot panchanama. The details narrated can be translated as under;

"Today, a panchanama is drawn at the location where the offence has taken place. The blood stained soil, simple (unstained) soil, motorcycle and blood stained stones and other things are seized during the course of investigation."

It must be said that although, by saying "other things", a room is made to cover the things not described, it does not specifically refer to seizure of the diary, as also chappals. In fact, the diary was an important piece of evidence, according to the prosecution, bearing name of accused No.2 and, therefore, the Investigating Officer was capable of knowing importance. We are unable to appreciate non reference to the said diary and the chappals, which articles were used for identifying accused No.2 as the person having participated in the violence. Be that as it may.

The diary dated 1.4.2005 (Exh.171) is important. It is written between 9.30 to 11.30 hours and it records that, on interrogation, the accused persons are giving evasive replies and, therefore, it is necessary to enquire them, if there is any other co-accused involved with them, in commission of the offence, why they have committed the offence and it is necessary to seize clothes worn by them at the time of commission of offence. It is indicated that, for these purposes, police custody remand of the accused persons is necessary and request report to that effect is being submitted to the J.M.F.C., Karjat. This case diary is followed by remand report (Exh.172 and the remand report specifies reasons/purpose for which police custody remand is necessary and the first reason is that the clothes worn by accused persons at the time of commission of offence are yet to be attached. We may remind ourselves that on reference to Exhibits 95/96 and 98/99, prosecution seems to have claimed seizure of clothes from accused No. 2 on 31.3.2005 between 17.00 to 19.30 hours and that of accused No.1 Arvind between 23.05 hours of 31.3.2005 to 02.30 hours of 1.4.2005. If the case diary and remand report dated 1.4.2005 are accepted as truthful, the memoranda of the statements of the two accused persons and discovery of blood stained clothes at the instance of information given by them, on 31.3.2005 stand falsified.

It must, therefore, be said that the discovery panchanamas, together with analyser's reports do not provide reliable and convincing evidence, free from all doubts, to confirm involvement of accused Nos.1 and 2 in the alleged violence.

14. The prosecution has relied upon evidence of PW-1 Bhanudas (father-in-law of deceased Vijay) and PW-2 Shantilal (cousin brother of Vijay) for the purpose of bringing on record, the 'motive'. It is the contention of both these witnesses that since deceased Vijay started running his dispensary, accused No.1 suffered loss in his practice and accused No.2 lost his business. Hence, as they learnt intentions of deceased Vijay to construct a hospital, they threatened him that he should not practice at village Shiral and should shift elsewhere. It is also alleged that 3-4 months prior to alleged incident, accused No.1 had hired few boys from Asthi, for the purpose of threatening doctor Vijay.

So far as PW-1 Bhanudas is concerned, it must be said that he has not faced cross-examination by answering all the questions in a plain manner. He was clearly evasive many a times on crucial points. We intend to quote few instances from his deposition and it will be evident from his replies that the questions were not such, which he could not have clearly answered.

"I am not acquainted with maternal uncle of Dr. Vijay Ajabe."

Daughter of PW-1 Bhanudas is married to Dr. Vijay Ajabe and we can take a judicial note of the fact that maternal uncle of bride as well as groom has a prominent role to play at the time of solemnization of marriage and religious rites in the marriage. But, Bhanudas claims to be not acquainted with maternal uncle of his son-in-law.

"I cannot say in which year Dr. Vijay had completed his education and obtained medical degree."

Father must have made enquires before solemnization of marriage of his daughter, with doctor Vijay.

"I cannot state whether father of Dr. Vijay Ajabe had met me on the spot or not."

Bhanudas has not claimed that he is not acquainted with father of his son-in-law and answer to the question, whether father of the victim was present at the spot when PW-1 visited the location, can only be 'yes' or 'No'.

"I cannot tell as to whether there is population of 5000 to 6000 at village Shiral."

"I cannot say whether villages, namely, Hanumangaon, Dirdi, Wadgaon, Imangaon and Doithan, are at some distance from village Shiral."

"I cannot state as to whether medical shop of accused No. 2 is situated at western side of the village. The house of my son-in-law is towards eastern side of the village. I had no occasion to receive information about the location of medical shop and hospital of accused No.1, by which I can state their location exactly. I cannot state as to whether Dr. Arvind is having hospital, having facility of 5 to 6 beds therein. I cannot state as to whether accused No.2 is keeping domestic articles in his medical shop."

"I cannot state as to whether the patients of my son-in-law used to come in the shop of accused No. 2 Suresh for taking medicines."

It is evident that, witness has avoided answers to all the questions, which were aimed at demonstrating, through his admission, that medical practice of Dr. Arvind (accused no.1) and medical shop of Suresh (accused no.2) were not adversely affected by medical practice of Dr. Vijay (victim). Witness, who boldly states that practice of accused No.1 was adversely affected and shop of accused No.2 was closed down 7 to 8 months prior to alleged incident and for which assertion, he has no other evidence except his words, cannot say that he does not know any other details about the hospital of the said Dr. Arvind (accused No.1) and medical shop of Suresh (accused No.2). It is evident from all answers quoted hereinabove that the questions were aimed at pointing out that there is no possibility of either practice of accused No.1 or medical shop of accused No.2 being adversely affected because of medical practice of deceased Dr. Vijay. If the population of village Shiral and adjoining villages is sufficient to provide patients for two doctors, if the two dispensaries are at two different ends of village Shiral, there is minimal likelihood of adverse effect on the practice of accused No.1 or medical shop of accused No.2. It can certainly be said that witness Bhanudas has avoided replies to those questions, answers to which would be against his contention that medical practice of Dr. Vijay had caused adverse effect on medical practice of accused No.1 and medical shop of accused No.2. In this context, we may quote an admission in paragraph 15 of deposition of PW-1 Bhanudas.

"I know that there are only two dispensaries including my son-in-law and accused Arvind and one medical shop belonging to accused No.2 at Shiral."

If that be so, if there is only one pharmacy in the village, business of accused No.2 was most unlikely to be adversely affected. Patients were bound to approach his pharmacy for purchasing medicines, irrespective of the fact as to which of the two doctors had prescribed those. Evasive replies on the part of Bhanudas not only demonstrate that he is a bad witness, but also leads to possible inference that his assertion that medical practice of accused No.1 and medical shop of accused No.2 were adversely affected due to medical practice of deceased Dr. Vijay, is not true and acceptable.

On reference to cross-examination of PW-1 Bhanudas (paras 7 and 14), it is evident that the lawyers representing accused Nos.1 and 2 have brought on record, the same two omissions on the part of Bhanudas. In para 14, he has answered;

"I have stated before police that the persons gathered on the spot have stated to me that they have seen one Sumo of white colour and one motorcycle while passing spot and the accused have killed deceased, by means of giving several strokes of stones. I have also stated to police that those persons have told me that accused Nos.1 and 2 were in the said Sumo. The above facts are not mentioned in my report."

On reference to Exhibit-47, the report lodged by Bhanudas, it appears that he has only said that people from village Ingawale informed that after the incident, a white coloured Sumo vehicle was seen departing towards Mirajgaon. Then it clicked him that Dr. Arvind Ajabe owns a white Sumo. It is evident that "accused No.1 must be the culprit" is an inference drawn by Bhanudas himself, only on the basis of small information that white Tata Sumo departed from the location soon after the incident and because accused No.1 owns white Tata Sumo to the knowledge of Bhanudas. FIR states that it was learnt that the victims were repeatedly struck by the stones. But even in this information received, accused Nos.1 and 2 do not seem to have been named by the unknown informant to Bhanudas. The omission, or rather improvement during deposition of Bhanudas, is about informant naming accused Nos.1 and 2, existence of motorcycle in addition to Sumo vehicle and there being 4-5 persons. The omissions are material omissions and, therefore, are required to be deemed as contradictions. It must, therefore, be said that in the information received by Bhanudas, he had not learnt that accused Nos.1 and 2 together with 2-3 others, were the persons who fled away in Tata Sumo and that there was also a motorcycle used by the assailants.

We may quote some more portion from paragraph 14 of deposition of PW-1 Bhanudas.

"It is not correct to say that my son-in-law had met with a motorcycle accident before one year prior to the incident. I cannot state as to whether my son-in-law had sustained head injuries in that accident. I cannot state as to whether my son-in-law had sustained grivous injuries in the said accident and persons from the village had brought my son-in-law at Sudrik hospital, Ahmednagar."

In fact, Bhanudas denied son-in-law having suffered motorcycle accident a year prior to alleged incident. The answers to subsequent questions also ought to have been formal denial and not evasive as "I cannot say".

"I do not know anything about degree of my son-in-law. It is not correct to say that my son-in-law had obtained a degree B.A.M.S."

It is difficult to swallow that father-in-law does not know the qualification of son-in-law, although he firmly knows that medical practice of his son-in-law had adversely affected medical practice of accused No.1.

Some of the details, disclosure of which was avoided by PW-1 Bhanudas, have come on record through the deposition of PW-2 Shantilal.

Shantilal, in his chief examination, states that himself, his cousin Shahaji, uncle Ramkrishna (father of deceased Dr. Vijay), his relatives and other persons from the village, went to the spot and they reached the spot at about 9.15 p.m. According to them, they were on the spot for about half an hour. It is the claim of Bhanudas that he had reached the spot at about 9.30. Thus, it is evident that relatives of deceased Dr. Vijay, including his father, had also reached the spot. Therefore, there is no reason why Bhanudas should not know about visit and presence of father of the victim to the location. On the contrary, his natural reaction should have been, giving a message to father of deceased Dr. Vijay, before proceeding to the spot. Naturally, we are posed with a big question as to why Bhanudas tried to avoid knowledge of visit and presence of Ramkrishna, the father of deceased Dr. Vijay at the spot of the incident. In fact, the two should have proceeded together to the police station. The two, once they were at the spot, should have been all the while together thereafter. Father of deceased Dr. Vijay is not given any role in the present prosecution and although cited as witness No.18 in the list, he has not been examined when the trial proceeded. Is it because, in spite of visit to the location, father of Vijay did not believe the theory of culpable homicide ?.

PW-1 Bhanudas, in his cross-examination on behalf of accused No.1, has admitted that Vijay had started his dispensary since 2-3 years prior to the incident (para 3). In his further cross-examination by Advocate for accused No. 2 (para 12), he has admitted that marriage of his daughter with Dr. Vijay was solemnised seven years prior to the incident and that time Vijay was running his dispensary. Thus, Dr. Vijay was practicing medicine at Shiral, seven years prior to the incident. Shantilal admits (para 4) that accused No.1 Dr. Arvind had started his medical practice 2-3 years before Dr. Vijay (victim). Bhanudas (PW-1) pleaded ignorance whether Dr. Vijay and accused No.2 Suresh were classmates. Shantilal admits (para 9) that himself, Dr. Arvind, Dr. Vijay and accused Suresh are of the same age group; that himself, accused No.2 and Dr. Vijay had stayed in the same village for the purpose of education. Probably, he has also admitted that all shared common residence. Learned trial judge has recorded;

"I myself, accused No. 2 and Dr. Vijay had resided in the same village for taking education, including our residence."

PW-1 Bhanudas pleaded ignorance whether Dr. Vijay is B.A.M.S. (para 15), whereas Shantilal admits Dr. Vijay to be B.H.M.S. (para 13). PW-1 Bhanudas pleaded ignorance whether population of village Shiral is 5000 to 6000 (para 12). Shantilal narrates population of village Shiral about 8000-10,000 (para 4).

An admission by Bhanudas that medical shop of accused No. 2 is the only medical shop in village Shiral, is sufficient to rule out any possibility of accused No.2 suffering in his business because of medical practice of Dr. Vijay. In fact, it may not be out of place to say that Dr. Vijay was also practicing since seven years prior to the incident. Division, if any, of patients and profession must have been crystalized during these seven years, although accused No.1 had started his medical practice earlier. Yet, population of about 8000-10,000 of village Shiral and other adjoining villages was sufficient to feed the two medical practitioners and, therefore, it is difficult to swallow that merely because deceased Dr. Vijay started constructing his own hospital/dispensary, accused could have desired that Dr. Vijay should shift elsewhere. In fact, the defence has suggested in so many terms that there was no professional rivalry but all these suggestions are turned down by Shantilal. However, he has admitted that tea stall of victim Abasaheb was in front of medical shop of accused Suresh and they were not on cross terms. Shantial has, however, denied suggestion to the effect that accused No.1 Arvind and Dr. Vijay used to share the vehicle for attending meetings of Medical Practitioners' Association (para 4). In fact, it was also suggested that one Kekan, primary teacher and Balu had brought accused Arvind for giving treatment to the injured on the spot. Needless to say that the suggestion was denied by Shantilal.

Having discussed evidence of PW-1 and PW-2, it is clear that except their bare words, there is no other concrete evidence to suggest that medical practice of accused No.1 or medical shop of accused No.2 had suffered any adverse effects since Dr. Vijay started his medical practice at village Shiral. In any case, since admittedly, shop of accused No.2 is the only pharmacy in the village, his business was most unlikely to suffer merely because second practitioner had started medical practice at village Shiral. Evasive attitude shown by witness Bhanudas, regarding any knowledge of the profession of the two doctors, clearly suggests that medical practice of accused No.1 having suffered adverse effect, is a plea for the sake of prosecution.

Both these witnesses Bhanudas and Shantial have claimed that, deceased Dr. Vijay had informed them, of accused No.1 having brought gundas from Beed to threaten him and thus persuade him to shift elsewhere. Shantilal went a step ahead and deposed that accused had spoken to him and suggested him to persuade Dr. Vijay to shift elsewhere. Yet, it is an admitted position that none of them lodged any report with the police. Accused No.1 having approached deceased Vijay with gundas, if true, was an event which could not have been lightly ignored. In fact, Shantilal admitted that if somebody had threaten him, he would have lodged report about the same (presumably, to the police). Thus, even the assertion that accused No.1, accompanied by gundas, had accorded threats to victim Dr. Vijay, by going to him, remains to be a matter of words by these two witnesses. During depositions, both these witnesses claimed that both the accused had brought gundas to threaten Dr. Vijay, as informed to them by Dr. Vijay. However, on reference to FIR (Exh.47), only accused No.1 is alleged to have brought gundas for threatening Dr. Vijay.

We are afraid, taking into consideration the quality of evidence rendered by these two witnesses and especially evasive manner in which Bhanudas responded during his cross-examination; that except their bare words there is no other evidence to show that medical practice of accused No. 1 or medical shop of accused No.2 had suffered adversely; that the factual details suggest that medical shop of accused No.2 Suresh could not have suffered any adverse effect as there was no other medical shop in the village; that the population of Shiral and adjoining villages was sufficient to feed practice of two doctors and also taking a note of the fact that although it is alleged that even gundas were hired for threatening Dr. Vijay no legal steps, such as, reporting the matter to police station were taken, it is difficult to accept versions of these two witnesses on these counts, as truthful and trustworthy. We must, therefore, record that the prosecution has failed to prove 'motive' by reliable and convincing evidence.

15. PW-3 Pramod Shide is the only eye-witness examined. Needless to say that, if the eye-witness account, as given by Pramod, is convincingly reliable, prosecution may not need support of any other evidence. However, defence has waged equally strong assault on the credibility of this witness. According to defence, Pramod is maternal cousin of deceased Dr. Vijay and thus an interested witness. Defence has gone to the extent of suggesting that he is a got up and bribed witness; that he is persuaded to depose as an eye-witness, by paying him price of new motorcycle worth Rs.36,000/- and second-hand goods truck worth Rs.7.50 lacs. Although Pramod denied the prosecution party to have paid price for the same to him, he has admitted to have purchased both the vehicles after the alleged incident. Therefore, evidence of Pramod Shinde is required to be subjected to close scrutiny, before arriving at a conclusion about his reliability or otherwise.

Unfortunately, it must be said that evidence of Pramod is not free from evasive attitude, which tendency was shown also by complainant Bhanudas (PW-1). There may be details, which witness cannot know. Only in case of questions of such details, witness can take liberty of answering "I do not know" or "I cannot say"; without being blamed as evasive and impliedly a liar. However, if the question is such that witness ought to know the answer, irrespective of the fact whether his answer is 'yes' or 'No', he must answer it. If a witness is evasive in answering about the details which he ought to know and feigns ignorance, court would be compelled to draw an inference that truthful answer to the question, which the witness has evaded, would be against the interest of the party which summoned the said witness.

We may quote instances of evasive attitude of PW-3 Pramod Shinde. We may state here itself that he is conscientiously avoiding replies to all the questions which were aimed at establishing that he is maternal cousin of deceased Dr. Vijay. Eventually, Pramod has admitted that Shahabai is his mother. Taking into consideration that Pramod is son of Bapurao Shinde, we can say that Shahabai w/o. Bapurao Shinde is Pramods mother (para 2). Pramod has admitted one more thing in para 19 that Belgaon is a village of his maternal uncle. Thus, Belgaon is a place of maternal grand father (mother's father) of witness Pramod. In following table, we give instances of the extent to which Pramod has replied regarding knowledge of relationship, and has also evaded knowledge of relationship.


I cannot say if Salubai and Bhimabai
are sisters of my mother ( para 2).
Manikrao Babar is my maternal uncle
(para 2)

I do not know, if wife of Kundlik is
sister of Bhairav Nivratti Borude (para 4).
(Note : Kundlik is other eye-witness and
brother-in-law of PW-3 Pramod.

I cannot state, if Bhairav Nivratti is
my relative. (para 4).
Bhairav Nivratti is not my relative
(para 4).

I do not know exact number of
brothers and sisters of my maternal
uncle (para 5).

I cannot state as to whether my
mother has three sisters, including
herself (para 20).
My aunt Deubai has died (para 20)


I cannot state whether my mother has
two sisters, namely, Salubai and
Bhimabai (para 20).

I do not know having brothers to
my wife (para 23)

Kundalik Ghalme and Pundalik Ghalme are
brothers. Praful is also their brother.
The sister of Praful is given to me in the
marriage (para 23).

It is evident that the witness has conscientiously dodged all the questions, answers to which tend to show that he is related to the victim.

No doubt, a witness need not be disbelieved, merely because he is related to the victim. Apathy of people to enter the witness box for someone else, is not rare, now a days. Conviction can also be based on evidence of sole trustworthy witness and, therefore, efforts taken by the witness to avoid any admission regarding relationship with the victim, makes him a witness required to be considered seriously, before accepting his version on the incident. Pramod has admitted in his cross-examination (para 20) that his marriage was solemnised 2-3 years prior to the incident. He admits that the relatives, including maternal aunts (sisters of mother) were invited for marriage. His village Thergaon is 7 to 8 kilometers from Belgaon, the place of his maternal grand father (parents of his mother). Pramod is M.A. with Economics and thus not an uneducated rustic village witness. Whether a particular lady is sister of his mother or not, must be known to him. However, when it is put up to him that Salubai Jaiwant Babar and Bhimabai Nivratti Borude are the sisters of his mother, the answer ought to have been either 'Yes' or 'No'. "I cannot state" is not the option available to him. In fact, Pramod showed clear tendency to go to any extent, in order to avoid any possible admission of relationship with the victim. In para 10 of his deposition, Pramod states;

"I am not (having) on visiting terms with my maternal uncle, by which I cannot state about his sisters, sons and daughters."

Pramod is a witness sternly tutored not to admit relationship. This is evident from his deposition in para 23. In spite of admitting that Kundalik, Pundalik and Praful are brothers and in spite of having begun his deposition by saying, " my brother-in-law namely Kundalik Gulabrao Ghalme", Pramod has said;

"I do not know about having brothers to my wife."

Pramod witnessed the incident, accompanied by his brother in law (brother of his wife) and yet he has an audacity to say that he does not know whether his wife has any brothers. It is a clear sign that Pramod has scant respect for the truth and he has come to depose, only as instructed. Same questions were repeated by learned counsel for accused No.2, as were put by learned counsel for accused No.1 and in para 20 Pramod again said;

"I cannot state as to whether my mother has three sisters, including herself. My mother never went at Belgaon on account of having Raksha festival. I cannot state as to whether my mother has two sisters namely Salubai and Bhimabai. I cannot state as to whether Salubai is the mother of Dr. Vijay Ajabe. I cannot state as to whether deceased Vijay was my real maternal brother."

(Note: We have borrowed the excerpts from the deposition as recorded by the learned trial judge in English and without making any attempt to rectify the wrong constructions, wherever those occurred.)

Place of parents and brother of Shahabai (mother of witness Pramod) is 7 to 8 kilometers from her place Thergaon. Yet, Pramod denies his mother having visited her brother at Belgaon any time, even for Rakshabandhan festival.

Since an highly educated witness aged more than 25 years must know his close relatives, especially sisters of his mother, ignorance feigned by Pramod compels us to draw an adverse inference that Salubai and Bhimabai are the sisters of his mother and deceased Dr. Vijay Ajabe is son of Salubai. In other words, witness Pramod is maternal cousin of deceased Dr. Vijay, which, of course, is no disqualification to accept his version, if reliable and trustworthy, but he has sown seeds of unreliability, by suppressing relationship.

In this context, our attention was drawn by learned counsel for the appellants-accused to printed paperbook page 86. This is a copy of mutation entry No.1587 produced by accused No.1 during the course of his statement under Section 313 of Cr.P.C. The mutation entry, being entry by revenue authorities, has presumptive value, by virtue of Section 157 of Maharashtra Land Revenue Code, 1956. The mutation entry shows that the account holder Jaiwant Mukinda Babar expired on 17.1.1984 and hence names of his legal heirs, three sons, four daughters and widow, are entered as joint owners to as many as eight pieces of lands and the legal heirs are:-

(a). Hausrao Jaiwant Babar son

(b). Manik Jaiwant Babar son

(c). Raghunath Jaiwant Babar son

(d). Deubai Vishvanath Shinde daughter

(e). Bhimabai Nivratti Borude daughter

(f). Salubai Ramkrishna Ajabe daughter

(f). Shahabai Bapurao Shinde daughter

(g). Godavari w/o Jaiwant Babar widow.

Pramod has admitted Deubai to be his maternal aunt, who has expired. He has also admitted that Shahabai is his mother. He has further admitted that Manik Jaiwant Babar is his maternal uncle. These many details, together with the fact that mutation entry regarding lands from village Belgaon, Taluka Karjat, are sufficient to show that Jaiwant Mukinda Babar must be maternal grand father of PW-3 Pramod and Salubai Ramkrishna Ajabe is his maternal aunt. We are convinced that evasive replies, together with details in the mutation entry of revenue record of village Belgaon, clearly indicate that Salubai Ramkrishna Ajabe is maternal aunt of Pramod. Name of victim Dr. Vijay is "Vijay s/o. Ramkrishna Ajabae". It will, therefore, be a reasonable inference that Salubai Ramkrishna Ajabe is his mother. We are, therefore, inclined to confirm our finding that witness Pramod has left no effort to suppress his close relationship with victim Vijay, which exercise, at the cost of truth, was not necessary.

In paragraph 6, Pramod has admitted that he is M.A. (Economics). He has stated his birth date to be 1.6.1979 (para 20) and we quote;

"My birth date is 1st June, 1979. At present, my age is 28 years. The incident (was) occurred before more than one year and four months. I am shown statement recorded by the police in which my age is shown as 22 years. I have stated my age as 25 years before the court on (dated) 25.8.2006."

The incident took place on 30.3.2005 and the statement of Pramod is recorded on 31.3.2005. On that date, he was 25 years and 11 months old. This age can be described, either as 25 or as running 26th. It certainly cannot be described as 22. We may repeat, Pramod is M.A.with Economics and thus not a rustic village witness. He knows his birth date. The only inference that can be drawn from this gross error regarding age of Pramod stated in his police statement, is that he has not stated that age, which impliedly further means that he was not present when that police statement was recorded. (His deposition is recorded on 25th, 28th and 29th August, 2006). On that day, he was aged 27 years, 2 months and 25 days. He has narrated his age to be 25 years which he could have narrated as either 27 or running 28th. We may pose a question, "Has he quoted his age on lower side, even from witness box, so that it should match his age stated on lower side in the police statement.?"

On going through entire deposition of Pramod, it can be said that during his entire cross-examination, he has turned down all the suggestions put forth by the defence and the answers "I cannot state" are not far and few. He projects an image that he is a witness, who is to talk only about alleged incident and disclose nothing else. Naturally, in order to test his veracity and reliability, we are required to consider other material surrounding his claim of being an eye-witness. He claims to have visited the spot twice. First, when he claims to have witnessed the incident and on second occassion, he had returned to the location, after visiting home. According to him, the incident occurred at about 7.30 to 7.45 p.m. (para 1). About second occassion of visit to location, Pramod deposes;

"At about 8 to 8.30 p.m., we again reached on the spot from our house. I met (to) PSI Deshmukh in between period of 8 to 8.30 p.m. that day there. PSI Deshmukh had come to spot of offence before our arrival there."

We may also quote here as to what PW-19 Shri. Deshmukh has to say about it. (In fact, Shri. Deshmukh is PI and not PSI as described by Pramod).

"That on 30.3.2005 at about 20.35 hours I myself and police staff left police station for going towards the spot." (para 1).

"On that day at about 21.05 hours we went on the spot." (para 2)

On comparison of two depositions, it is evident that by the time witness Pramod claims to have reached the location, PI Deshmukh was about to start from Karjat Police Station. As per FIR (Exh.47), spot of occurrence is 27 kilometers from Karjat Police Station to its north. The time of half an hour claimed by PI Deshmukh to reach the location at about 21.05 hours, when he had left police station at about 20.35 hours, appears to be reasonably correct and acceptable. Yet, it is the claim of Pramod that PI Deshmukh had reached the location before his second visit to location, which was between 8 to 8.30 p.m. If this deposition of Pramod is to be accepted, PI Deshmukh would reach location even before registration of station diary entry No.39, which had taken a note of this incident at 20.30 hours.

In paragraph 6 of his deposition, Pramod has given details regarding distance between the spot of occurrence and his residence. Spot to Thergaon Phata is a distance of 5 to 7 kilometers. Village Thergaon is one kilometre from the diversion. Pramod's residence is further half kilometre from Thergaon. Thus, total distance between the spot of occurrence and residence of Pramod is 5-1/2 to 7-1/2 kilometers. To and fro journey would be about 11 to 15 kilometers. Pramod and his brother-in-law Kundalik were travelling by motorcycle and this distance of even 15 kilometers can certainly be covered, within half an hour. Pramod, in paragraph 8 of his deposition, states that one requires 20 to 25 minutes to reach the spot from his residence. He states that after reaching home, he halted for 5 to 10 minutes and then started return journey. If to and fro journey time is taken as 30 minutes with 10 minutes halt at residence, if Pramod had departed from the location at 7.45 p.m., he could have reached back at the location at 8.25 p.m. If one way journey time is 20 to 25 minutes as stated by Pramod in para 8 of his deposition, it would take 40 to 50 minutes for to and fro journey and including 10 minutes halt, Pramod could have reached the location back, at 8.45 p.m. Considering all statements of Pramod, it is impossible to accept his version that PI Deshmukh had reached the location before he (Pramod) reached the location for second visit. It is also impossible to accept that, he met PI Deshmukh between 8 to 8.30 p.m. No doubt, it can be said that witness is giving timings by approximation. However, this was an explanation available for a rustic villager, who does not wear a wrist watch. Pramod is a highly educated person and presumption that he must be using a wrist watch, would not be unreasonable.

Narration of the incident by Pramod to PI Deshmukh gets further shrouded by suspicion, when we take into account variance between the two witnesses as to when the statement was recorded. In paragraph 1 of his deposition, Pramod deposes;

"At relevant time, we narrated the entire incident to PSI Deshmukh of Karjat Police Station, there. We halted there for sometime. PSI Deshmukh stated to me that I should come to police station next day for recording my statement there. On next day I went at Karjat Police Station. My statement was recorded there."

We have already quoted portion from paragraph 8 of deposition of Pramod, indicating that he claims to have narrated incident to PI Deshmukh between 8 to 8.30 p.m. In paragraph 9, Pramod has made a conflicting statement.

"It did not happen that on the spot of offence, I have narrated incident to PI Deshmukh, but my report was not reduced into writing. by PI Deshmukh."

This denial during cross-examination by Advocate for accused No.1 can suggest two things. That, Pramod did not narrate the incident to PI Deshmukh and hence, it was not reduced into writing in the form of a report, or Pramod narrated the incident and the same was recorded. Eventually, it is the case of Pramod himself that he was summoned to Police Station Karjat on the next day and accordingly, he visited Karjat Police Station and then his statement was recorded. In the same paragraph 9, soon after above quoted denial, Pramod came back to support the prosecution, by saying;

"I tried to lodge report on the spot of offence. It is correct to say that I tried to lodge report there, but PIS Deshmukh asked me to come to lodge report on the next day."

On this aspect, couple of excerpts from the deposition of PI Deshmukh also need to be taken into consideration. In paragraph 3, PI Deshmukh states;

"That, on 31.3.2005 at about 00.30 hours I have recorded statement of Pramod Baburao Shinde and Kundalik Gulabrao Ghalme."

If this deposition of PI Deshmukh is true, of having recorded statements of both the eye-witnesses at midnight hours, we do not think, by describing "next day", Pramod desired to express that his statement was recorded technically on the next day, but in fact, at hours just after midnight.

In paragraph 27 of his deposition, PI Deshmukh has said;

"It did not happen on the spot of offence, witness Pramod Shinde tried to lodge report there, but I have not reduced to writing the same at relevant time. That, on 30.3.2005 I have left Karjat Police Station at about 20.35 hours and I again came at Karjat Police Station at about 5.45 a.m. on (dated) 31.3.2005."

If first sentence in the quotation hereinabove is to be taken into consideration, that would mean recording of statement of Pramod Shinde then and there only i.e. when he disclosed the details to PI Deshmukh, regarding the incident. Impliedly, it would mean that statement of Pramod Shinde was recorded at the location and not at Karjat Police Station. If the remaining portion from above quotation is taken into account, the same would mean that PI Deshmukh was not at Karjat Police Station between 20.35 hours of 30.3.2005 and 05.45 hours of 31.3.2005. If that be so, he could not have recorded statement of Pramod at Karjat Police Station at 00.30 hours of 31.3.2005, as stated in paragraph 3.

Unfortunately, it must be said that narrations of Pramod and PI Deshmukh, regarding recording of statement of Pramod, the star witness and sole eye-witness of the prosecution, are conflicting and to some extent;self contradictory as demonstrated hereinabove. In para.3 of his deposition, PI Deshmukh says;

"When I had been on the spot on 30.3.2005 at relevant time witness Pramod Shinde told me that Dr. Arvind Ghanashyam Ajabe is available in the mob on the spot. Accordingly, I have taken him in custody and I have sent him along with my staff."

In his entire deposition, Pramod has not claimed to have given this information to PI Deshmukh. In paragraph 10 of his deposition, Pramod admitted;

"I was called at the police station for two to three times after the incident. I cannot state how many documents I have signed there."

Pramod is not a confused witness. In chief-examination, he has clearly stated that for test identification parade, he was called before Tahsildar, 15 to 20 days after the incident. Thus, admission in paragraph 10 by Pramod, is not a matter of confusion. If the statement of Pramod was recorded on 31.3.2005 as an eye-witness, and he had supported the prosecution, there was no reason why he could have been summoned to police station on 2 to 3 occasions, much less there could have been any occasion for him to sign the documents.

Coming back to the claim of Pramod that he met PI Deshmukh and narrated him the incident at the location, when he visited it on second occassion, it must also be taken a note that according to Pramod, he returned to his residence at about 9.30 p.m., after second visit to the location. According to his own narration, it takes about 20 to 25 minutes for travelling between the spot and his residence, by a vehicle. Thus, if version of Pramod is correct, he must have left the spot at 9.05 p.m. so as to make it home by 9.30 p.m. Even this calculation, based on time table narrated by Pramod himself, indicates that he could not have come in contact of PI Deshmukh, to narrate him the incident or to tell him that he (Pramod) is an eye witness and to point out to PI Deshmukh that accused No.1 was present in the crowed.

We have already referred to case diaries dated 31.3.2005 and 1.4.2005 which are brought on record during cross-examination of PI Deshmukh (Exhs.170/171) In the account of investigation on both the days, there is no reference that the Investigating Officer has been able to record statements of two eye-witnesses. PI Deshmukh in his deposition para.35 admits;

"I have knowledge about the importance and object of the case diary. We used to make entries in case diary about happening of material events during the investigation."

There is no reference to recording of statements of two eye-witnesses on 31.3.2005, in the case diary of that day, or subsequent day. In the light of admission by PI Deshmukh quoted hereinabove, it must be said that, according to him, availability of two eye-witnesses was not a material event, or the only other inference is that the statements of two eye-witnesses were not recorded on 31.3.2005. We feel that, availability of eye-witnesses in an incident, which has occurred by the side of the road and at dusk hours, was a material event, unless the statements of many eye-witnesses from the residents of the vicinity were already recorded on 30.3.2005, when the Investigating Officer had visited the location.

Even if we are to believe the version of both, Pramod and PI Deshmukh, that they had a meeting at the location, during which Pramod has narrated the incident, as witnessed by him, to PI Deshmukh, in that case the prosecution owes an explanation as to why PI Deshmukh deferred recording of statement of Pramod. We have already referred to FIR (Exh.47) based on report by Bhanudas, who had no personal knowledge of the incident. He had only learnt from people of the vicinity, who had gathered at the location, that a Tata Sumo vehicle departed from the location, soon after the incident. It was sheer guess-work on the part of Bhanudas that accused Nos.1 and 2 must be the culprits, because accused No.1 owns a white Tata Sumo. If we are to compare this report, on the basis of which an offence was registered; with the claim of Pramod, of having witnessed the incident; it must be said that narration by Pramod was certainly more weighty piece of evidence. In fact, what is narrated by Bhanudas is no evidence, at all. It is partly hearsay information and partly his own guess-work. Here was a witness, in the form of Pramod, and in fact, also his brother-in-law Kundalik, who had first-hand information of the incident. They had seen the incident and had heard shrieks of the victims.

PI Deshmukh, who has started his career as a reader to PSI and has reached the rank of PI, has experience of participating in investigation for last 35 years. Importance of availability of an eye-witness in the case in which initially police had limited information, that one white Tata Sumo departed from the location, could not have been ignored by such an experienced police officer. PI Deshmukh had not reached the spot, alone. He had come in a jeep from Karjat Police Station, accompanied by police staff as deposed to by him in paragraph 1 of his evidence and thus, it was not impossible for him to record the firsthand information about the alleged crime, in the form of a statement of an eye-witness, who was available and when the incident was fresh in his memory. If PI Deshmukh had asked Pramod to come to police station on the next day for recording his statement, the only inference that we are compelled to draw is that Pramod had not disclosed anything important and significant, to PI Deshmukh.

On reference to paragraph 8 of his evidence, it seems that Pramod was also tempted to deny that at the location, the road has an ascending slope towards Mirajgaon. He states;

"It is not correct that there is ascending road on the spot of offence while coming to Mirajgaon. There is ascending road at the distance of 700 to 800 ft. from the spot of offence while coming from Mirajgaon. It is not correct to say that I had seen and one motorcycle near the said ascending road."

(In fact, last sentence should be "Tata Sumo and one motorcycle" near the said ascending road.)

At this stage, Pramod was confronted with his police statement and was compelled to admit that his police statement is correct which, in fact, falsified his denial quoted hereinabove. Relevant portion from his police statement reads;

ukfk²eiexb ËÑebejel ¢{epb~ Sk hex{-Èe jxie¢r mgcf ie[r b Sk cfJjmeÈkn Dms be|vs mfnehtj pe²eejs jf[k[s lfx[ kzv TYr |flr.¿

i.e. "In konkangaon precincts at ascending slope, a white Sumo and a motorcycle were standing on the road, facing towards Solapur."

Last but not the least. We may only point out that even if conduct attributed by Pramod to himself is taken into account, he makes himself a unreliable witness. A man with M.A. (Economics) has not identified the vehicle i.e. white Tata Sumo and the motorcycle, by their registration numbers. According to him, Kundalik halted because they heard cries of the victims, ube¢be be¢be¿. Kundalik was bold enough to throw headlight of their motorcycle on the location where the victims were being thrashed. If at all the two were scared, when couple of assailants (unknown) charged at them and they quitely escaped, we are unable to appreciate why the two could not have noted the registration numbers of the vehicles. We have already arrived at a conclusion that Pramod is maternal cousin of the victim Vijay. Pramod has admitted in his cross-examination para 20 thus;

"It is correct to say that, if I would have seen assailants beating my brothers and cousin maternal brother, then I would have certainly tried to save them. It is also correct to say that, if really such type of incident has occurred to my relatives, then I would have obtained the help of truck drivers etc. I am a responsible citizen of India. It is our duty to inform to the police, by seeing the persons while beating to others. It is also one of the duty to provide medical aid to such persons."

A responsible Indian citizen has taken no such steps and in order to convince the court, of being an eye-witness, in spite of his aloof attitude at the time of incident, he has conscientiously taken efforts to suppress that he is cousin brother of victim Vijay Ajabe.

To sum up, the sole eye-witness Pramod is an educated witness. He is evasive in facing his cross-examination. By successfully evading answers to certain questions, he has suppressed the fact that he is maternal cousin of the victim Vijay. If his evidence is considered in the light of evidence of Investigating Officer, there is room to believe that they could not have talked to each other at the location, soon after the incident, as claimed by them. It is also doubtful as to when and where his statement was recorded and whether he was really present when his statement was prepared. His passive reaction to the incident, even of not noting registration numbers of the vehicles allegedly used as instruments for the crime (leave aside shouting for help, interfering in the violence or seeking medical assistance to his cousin), strongly suggests that he may not be the eye-witness. If Promod was not related to the victim, there was no reason for him to return to the spot of offence, from where he was scared away.

When we differ with the finding recorded by the trial court, we are expected to meet all the reasons assigned by the trial court for its conclusion. We have already indicated in paragraph 5 (sub-paras 2 and 5) hereinabove, as to how the trial court has dealt with evidence of Pramod. The learned Judge has dismissed the challenge of defence, by simply observing that variance regarding timings between Pramod and Investigating Officer, is unimportant and Pramod need not be disbelieved, merely because he did not go to the police station to report the incident. The Judge found evidence of Pramod to be convincing, because he was corroborated by medical evidence. Suffice it to say that none of the facets of Pramod's character as a witness, his evasions, suppressions and unnatural response to the fact-situation on the spot, are at all taken into consideration by the learned trial judge, although defence had raised a serious challenge to his claim of being an eye-witness and had even suggested that he is a bribed witness.

16. Defence has, apart from denial that the accused are assailants, also propounded a possibility of an accident. In this context, admissions by PW-18 Police Constable Bhos and photographer Ashok Pote (PW-11) may be quoted for ready reference. Police Constable Bhos in para 2 states;

"On that day, I made phone call to photographer, Ashok Shridhar Pote, informing him about an accident and in respect of taking photographs of the dead bodies."

This admission is confirmed by PW-11 Ashok Pote in his chief-examination itself. He deposes in the opening part of his chief-examination;

"I went to police station. I was informed on phone about the accident. Then we went on the spot i.e. in Kokangaon shivar."

When we refer to statements of accused Nos.2 and 1 at Exhibits-95 and 98 respectively, the prosecution seems to have developed a story that initially, motorcycle, on which the two victims were travelling, was knocked by a Sumo vehicle, on the backside of motorcycle. We can see motorcycle in photographs at Exhibits 80, 80-A and 81 and the backside of the motorcycle is visible in photograph at Exh.81. The number plate, the mudguard of the rear wheel, the break lamp on the left side and partially visible break lamp on the right side, seem to have suffered no damage. In photographs at Exhs.80 and 80-A, back side of the motorcycle is not visible, but there seems to be some damage to spare parts attached to the right side of steering handle. Even on reference to panchanama of the scene (Exh.57), damage to the motorcycle is not recorded, not even the damage, which is seen in the photographs at Exhibits-80 and 80-A. Photograph of white Tata Sumo is also available and front portion of the vehicle is visible, which seems to have suffered no damage. Panchanama (Exh.66) of seizure of Tata Sumo does not refer to any damage to its front portion, although the same is described in details in paragraphs 2 and 3. In fact, panchanama only takes a note of some blood stains near footmat of the back seat of vehicle.

Learned trial judge has ruled out possibility of an accident, by solely relying upon medical evidence of Dr. Ajay (PW-12). By the use of evidence of Dr. Ajay, trial court has rejected contra opinion provided by Dr. Nagargoje. Opinion evidence by Dr. Nagargoje, although based upon description of injuries as noted by Dr. Ajay, is rejected by the trial judge on the sole ground that Dr. Nagargoje had not personally seen injuries. We have already commented on this aspect, in sub paras 3 and 4 of paragraph 5 hereinabove, that the trial judge could not have said, "I have carefully scrutinised the evidence of PW-12 and DW-1" when he rejected evidence of defence witness Dr. Nagargoje, merely because Dr. Nagargoje did not observe injuries but opined by reading description in p.m. notes by Dr. Ajay. Dr. Ajay, in para.5 of his evidence, has opined;

"The injuries mentioned in post-mortem notes, Exh.92, could be possible by means of stones, by beating. According to my opinion, the injuries caused to the deceased mentioned in Exhs.91 and 92, are not possible in the road accident. According to my opinion, the injuries shown in post-mortem notes cannot be possible in road accident."

It must be taken a note here that learned APP has not brought on record the reasons why Dr. Ajay feels that these injuries are not possible in a road accident. (We have already demonstrated hereinabove that the motorcycle has suffered some damage to some of the parts attached to steering rod/handle and theory that the motorcycle was dashed on its back side, by Sumo is not sustainable). Dr. Nagargoje, after referring to the injuries mentioned in the p.m. notes pertaining to both the victims, has opined;

"I had read injuries mentioned in column No.17 of both post mortem notes, including internal injuries caused to the deceased. Injuries mentioned in clause No.17 in both the post-mortem notes, would be possible in road accident."

Dr. Nagargoje is a pensioner and has claimed to have performed post-mortems, on nearly 1200 bodies. Dr. Nagargoje has admitted in his cross-examination that multiple injuries are possible in a road accident. By further admission on his part, (in cross-examination of defence witness by learned APP), prosecution has ruled out the theory of Tata Sumo having knocked the motorcycle of the victims, from its backside. We quote;

"If two persons are travelling on motorcycle, which is at the speed of 70 kilometers and at relevant time back side vehicle gave dash to the said motorcycle, then the persons who were travelling on the motorcycle may sustain injuries to their pelvis, spine and neck and those two persons would be thrown by which those persons may or may not (be possible to) sustain leg injuries."

None of the victims suffered injuries either to pelvis or neck. If the possibility of dash to the motorcycle from backside is thus ruled out, that once again creates doubts about memorandum statements at Exhibits-95 and 98 of accused Nos.2 and 1 respectively, wherein this theory is introduced.

Learned trial judge, while adopting the approach that because Dr. Nagargoje had no benefit of watching injuries himself, his opinion is required to be ignored and, therefore, opinion of Dr. Ajay is unchallenged, has not considered admissions by Dr. Ajay during his cross-examination. Dr. Ajay admitted;

"Abrasion, CLW, incised wound and fracture injury and head injury may occur in case of accident, if the said person falls on rough surface." (para 7)

"If a person is driving his motorcycle in fast speed and at relevant time another vehicle gave dash to his vehicle from backside, if the said person has fallen on a pointed stone on the road, injury No.3, as mentioned in clause 17 of p.m.notes, Exh.92 could be possible in accident." [para 8].

The said injury is 'multiple abrasion on neck.'

We have already ruled out prosecution theory of motorcycle being knocked out from backside, by another vehicle. But, if, as opined by Dr. Ajay, injury is possible in an accident due to knock from back side, it requires no prophet to say that injury would be possible, as a result of fall from motorcycle in a fast speed, even without being knocked by other vehicle. We may not hesitate to say that we have our own reservations, if a pointed stone would cause abrasion or incision. In paragraph 19 of his deposition, Dr. Ajay admitted;

"The brain substances come out in accident cases also. In a case of accident, the person may die due to head injury and haemorrhagic shock. It is correct to say that, nobody will definitely say about the nature of injuries, on which part of the body, those injuries may occur and injuries may occur on any part of the body in accident case. There is possibility of bone pieces of head in road accident case. There is possibility to cause various nature of injuries to the person in road accident, including the size."

We have quoted deposition as it is, as recorded by the trial judge. But, it can be seen that Dr. Ajay has admitted that nobody can accurately predict the number, nature and size of injuries those can be suffered in cases of road accidents. If that be so, opinion by Dr. Ajay that injuries as described in column 17 of p.m. notes (Exhs.91 and 92) are not possible in a road accident, is required to be rejected, by his own admissions quoted hereinabove. In fact, we must say that in the chief-examination of Dr. Ajay, prosecution has not procured an opinion that the injuries are result of repeated blows by stone at the same location, although it is said that the injuries are possible by muddemal articles (stones) before the court. Even Pramod has not specifically deposed that repeated blows of stones were dealt, although he has said that the victims were lying and assailants were dealing by stones, to the victim on their heads. We must say that these circumstances contradict imagination of PW-1 Bhanudas, to following effect;

uoi[evs [f'Èebj pyj cej|e²e kzv Ëpbs ¥ej cejns De|s Dms mcpns.¿

i.e. "It was learnt that the victims are killed by severe beating i.e. repeated blows of stones at the same location."

We must say that the trial judge was clearly at an error in ruling out possibility of an accident, by relying upon 'opinion' of Dr. Ajay, particularly when admissions by Dr. Ajay contradict his own opinion.

We have enlisted hereinabove, the circumstances which suggest possibility of an accident, in the form of an admission by police constable Bhos, photographer Ashok, damage to victims' motorcycle and absence of damage to Tata Sumo, as also medical opinion.

Presuming it for the sake of argument that it was not an accident. However, if the first impression gathered or felt by the persons who noticed the situation on the spot was that, a road accident has taken place; it certainly suggests that the persons, who got the first impression of the fact-situation on the spot, were not informed anything by anybody as to what incident took place and this suggests that nobody has seen the occurrence.

17. We must also place it on record that, taking into account overall evidence led before the trial court, it can be said that the prosecution has not placed on record, available firsthand information. There are three prominent instances of such an approach.

PW-1 Bhanudas says;

"That on 30.3.2005, my daughter Swati made a phone call to my elder brother Bapurao at Shrigonda, by contending that Dr. Vijay Ajabe had been to Nagar and while returning to Kokangaon, something had happened there."

It is evident that, Bhanudas got intimation about mishap through his brother Bapurao. Bapurao had learnt it from Swati (wife of victim Dr. Vijay). Prosecution does not disclose the source of information to Swati and in the information received by Bhanudas from Swati, through Bapurao, there is no indication of "culpable homicide". The investigating Officer ought to have tapped the source from which Swati learnt about mishap, and placed the same before the court.

Much reliance is placed upon station diary entry No.39 dated 30.3.2005, based on telephonic information by P.C. Bhos from outpost, recorded at Karjat Police Station, by PW-15 Gafar Shaikh, who then was acting as Police Station Officer. The station diary entry is to the effect that in jotibawadi precincts, on Ahmednagar - Solapur highway, passengers from a Sumo vehicle have killed two persons and assailants have fled away. Station diary entry has not recorded the colour "white" of Sumo vehicle. Police Constable Bhos is examined as PW-18. He is examined as a witness, who had collected specimen handwriting of accused No.2 (application at Exh.124). During his cross-examination, defence has obtained it on record that, he had invited photographer, by intimating him that photographs of accident victims were to be taken. The prosecution has neither explained the discrepancy between Exh.39 and admission by police constable Bhos, nor it has brought on record the source of information to Police Constable Bhos, through his deposition and thus the source is left unknown to the court.

All the while, it is contended that people from Ingawale Vasti (a locality nearby the spot of occurrence) had informed that a Sumo vehicle fled away from the location, soon after the incident. FIR (Exh.47) states;

uÓÈebs~r Fxisbe[r búlrbj je|²eejs nfkexvr mexËilns Ëk, IJve IJnsvxlj IJveúÙe~ebzv Sk hex{js jxie¢r mgcfie[r Ëcjpiexbek[s peleve heË|nr.¿

i.e. " At that time, people from Ingawale locality informed that after the occurrence, a white coloured Sumo vehicle was seen leaving the spot of incident towards Mirajgaon."

This can be a version of a person, who has witnessed at least some part of the incident, if not the entire incident from starting moment, and he has witnessed terminal part of the incident, including departure of the assailants. Neither complainant Bhanudas nor PI Deshmukh tried to enquire names of these persons, much less attempted to bring them to witness box.

18. The defence has suggested that if at all it is a homicide, it must be somebody else. This is a part of the plea of denial to the effect that accused Nos.1 and 2 are not the assailants. PW-2 Shantilal, in his cross-examination (para 3) admits thus;

"There was dispute between us and Pandhare family, including Bapurao, Sahebrao, Ananda and Gundiba. There were complaints against each other and there were court cases going on in between them."

We believe, Shantilal Ajabe, who is cousin brother of victim Vijay Ajbe, within "between us", includes all "Ajabes".

19. Before concluding the judgment, we intend to refer to some probabilities.

The prosecution appears to have come to the court with a case that accused Nos.1 and 2, because of professional rivalry, committed murders of the two victim, by hiring services of accused Nos.4 and 5. The point to be pondered is, if services of killers are hired, would the master personally participate in the killing.

According to the prosecution, there were five assailants. Whether five assailants required two vehicles i.e. motorcycle and a Tata Sumo, but we are not required, nor inclined to place much reliance on this imagination.

Prosecution, although claimed that there were blood stains inside the Sumo vehicle near footmat of back seat, has not explained how those stains possibly could have been found. There is no evidence to suggest some violence inside vehicle. Explanation by learned APP, during his argument, that blood stuck to the footwear of any of the assailants might have caused those stains, is too lame explanation to be acceptable.

20. The prosecution has relied upon, and the learned trial judge has accepted, the evidence of PW-3 Pramod, as reliable and acceptable eye-witness account for proving complicity of the appellants. The only corroboration to support him, was drawn from the medical evidence of PW-12 Dr. Ajay.

Death is held to be homicidal in the light of medical evidence by Dr. Ajay, supported by eye-witness account by PW-3. Trial Judge found the evidence of DW Dr. Nagargoje, to be unacceptable "opinion".

Trial Judge felt participation of appellants further confirmed by discovery of blood stained clothes at their instance, and in addition, so far as accused No.2 Suresh is concerned, also by dog tracking with the help of footwear and discovery of his diary at the location. According to the trial court, evidence of PW-1 Bhanudas and PW-2 Shantilal, was good enough to prove "motive" although support of the same was not necessary.

For the reasons at length discussed in para 15, we found PW-3 Pramod as unreliable witness, because he has strenuously suppressed his relationship with victim Dr. Vijay, and we find enough material on record to confirm that he is maternal cousin of Dr. Vijay. Once this aspect is taken into account, his totally passive response to fact-situation at the time of alleged incident, is most unnatural, in the light of his admissions, as to how he would have reacted, if victims were related to him. This creates doubts about his claim of being an eye-witness. On considering his evidence together with that of PI Deshmukh, calculation of time factor indicates a possibility that they did not meet at the location. The behaviour of the two, as also variance about the time when his statement was recorded, makes it difficult to believe that he had disclosed to be an eye-witness to the incident. In fact, we have also noticed a possibility that he was not present, when his statement was recorded (or prepared ?). There is room to believe that he is tailor-made witness. We may only say that the learned trial judge has found him reliable, without touching any of the aspects discussed by us, although those are very much part and parcel of evidence on record.

While considering probability of accident, for the reasons discussed in paragraph 16, we have indicated, by relying upon admissions by Dr. Ajay (PW-12) that his opinion that such injuries could not have been suffered in an accident, is contradicted by Dr. Ajay himself. Therefore, learned trial judge could not have relied upon the same as sufficient to hold the death of victims to be homicidal only, and for ruling out any possibility of road accident.

As discussed in paragraph 11, identification of accused No.2 by dog-tracking, with the help of footwear, is inherently defective and unreliable. Dog identified accused No.2 after smelling two different footwears, one the pair and another Kolhapuri chappal. In presence of PW-8, fourth footwear was found fitting on the foot of accused No.2. And trial judge totally lost sight of the fact that one of the victims, as indicated in the photographs, is barefoot.

We found the claim of discovery of diary of accused No.2 at the location, to be not trustworthy, for the reasons discussed in paragraph 12 ante. Further efforts taken to compare the specimen handwriting of accused with the handwriting in the diary, which was not necessary, if diary bearing name of accused No.2 was recovered on the spot, gave smell of artificiality to the discovery claim itself.

Evidentiary value, if any, of the evidence of discovery of blood stained clothes at the instance of information given by the accused, was blown away by C.A. reports (Exhs.180 to 182) and case diaries (Exhs.169 to 172).

In the admission of PW-2 Shantilal, we found a probability that, medical practice of victim Dr. Vijay may not and pharmacy of accused No. 2 certainly must not have suffered any loss, much less serious set back. Otherwise also, Bhanudas and Shantilal indicated ignorance about other details of the profession of the two accused, which made their claims about adverse effect of the practice of victim Dr. Vijay on the profession of two accused, unconvincing and hence unreliable.

The passive reaction by the two witnesses and even by deceased Dr. Vijay, as admitted by witnesses, made the story of threats to deceased Dr. Vijay, by either or both accused, doubtful.

In paragraph 17, we have discussed, as how prosecution has placed second-hand information before the court, by either not collecting or withholding the first-hand details.

For all these reasons, we are of the view that learned trial judge was at an error and prosecution has failed to prove that the two appellants have killed victims Dr. Vijay and Abasaheb. This is because, entire oral evidence placed before the court is unreliable and unconvincing, as well. We, therefore, record negative finding on point no.(ii) as framed in paragraph 8 ante. So far as point no.(i)-death to be homicidal-is concerned, may be a very faint, possibility of accident cannot be denied. But, otherwise, now it is not necessary to answer point nos. (i) and (iii) to determine the fate of the appellants, who are entitled to acquittal.

21. (i). Criminal Appeal No.667 of 2008 by appellants is allowed. Judgment and Order passed by 3rd Additional Sessions Judge, Ahmednagar, on 21st/23rd October 2008, at the conclusion of Sessions Case No.160 of 2005, are quashed and set aside. Consequently, finding of guilty recorded as against the appellants and punishments imposed upon them, are also quashed and set aside. Appellants-original accused No.1 and 2 (Dr. Arvind and Suresh) are acquitted of all the charges for which they were tried. Both of them shall be set to liberty forthwith, if not required in any other case. Fine amount, if any, deposited by them shall be refunded to them."

(ii). Reference under Section 366 of the Code of Criminal Procedure, 1973, is rejected.

Ordered accordingly.