2014 ALL MR (Cri) 4437
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.V. HARDAS AND R.M. DERE, JJ.

Kalpesh Amrut Sorthi & Ors. Vs. The State of Maharashtra & Anr.

Criminal Appeal No.933 of 2011

12th August, 2013

Petitioner Counsel: Mr. A.H.H. PONDA, Ms. DEEPA BAJAJ
Respondent Counsel: Ms. USHA KEJRIWAL

Penal Code (1860), Ss.300, 149 - Murder and unlawful assembly - Evidence and proof - Prosecution case that accused persons forming unlawful assembly and armed with wooden logs assaulted deceased and others - Incident of assault allegedly took place at three different places i.e. at marriage place, at house of complainant and near tamarind tree where deceased was assaulted - Material contradictions in evidence of eye-witnesses with respect to assault on deceased and injured persons - Evidence on record showing that electricity was gone off at time of assault thereby witnesses had little opportunity to see assailants - No evidence to show motive for accused persons to assault deceased - Failure on part of prosecution to prove that accused persons were responsible for injuries caused to injured and deceased - Accused persons entitled to benefit of doubt. (Paras 23, 24, 25)

JUDGMENT

REVATI MOHITE DERE, J. :- The Appellants stand convicted for the offences punishable; under Section 302 r/w 149 of the Indian Penal Code ('IPC') and sentenced to suffer RI for life and to pay fine of Rs.10,000/- each, in default, to suffer SI for one month; under Section 148 of the IPC and sentenced to suffer RI for one year and to pay a fine of Rs.1,000/-, in default, to suffer SI for three months; under Section 323 r/w 149 of the IPC and sentenced to suffer RI for one year and to pay a fine of Rs.1,000/-, in default, to suffer SI for three months; under Section 452 r/w 149 of the IPC and sentenced to suffer RI for one year and to pay a fine of Rs.1,000/- each, in default, to suffer SI for three months, by the Additional Sessions Judge, Palghar, by Judgment and Order dated 5th July, 2011, in Sessions Case No.55/2009. By this Appeal, the Appellants question the correctness of their conviction and sentence.

2. The prosecution case in brief can be stated as under :

PW 22 - PSI Pawar was attached to the Gholwad Police Station. He has stated, that on 18th May, 2009, he received the papers of investigation from PI Wadke. Accordingly, he visited the Dahanu Government Hospital at Vapi, prepared the inquest panchanama in the presence of panchas, which is at Exhibit 78, and sent the dead body of Raju for post-mortem examination. He thereafter prepared the spot panchanama which is at Exhibit 52. From the spot, he collected blood stained soil, simple soil, pieces of brick having blood stains, one hockey stick and a wooden log. He prepared a map of the scene of incident which is at Exhibit 79. The clothes of the deceased came to be seized under a panchanama at Exhibit 47. PW 22 - Pawar has stated that he recorded the statements of the witnesses and thereafter arrested the accused.

PW 22 - Pawar has stated, that on 21st May, 2009, Appellant No.3 Nimesh made a statement which was reduced into writing in the presence of panchas. The said disclosure memorandum is marked at Exhibit 80. He has stated, that the Appellant No.3 took them to Sorati Pada, pursuant to which clothes, shoes, fuel wood came to be recovered at his instance. Accordingly, a panchanama was prepared, which is marked as Exhibit 88. On 21st May, 2009, Appellant No.5 Anil is alleged to have made a statement in the presence of panch witnesses and the said disclosure memorandum is at Exhibit 44. He has stated that Appellant No.5 took them to Sorati Pada, at his residence, from where clothes and one fuel wood came to be recovered. The said panchanama is at Exhibit 44-A.

On 22nd May, 2009, Appellant No.7, Suresh is alleged to have made a disclosure statement in the presence of panchas, which is at Exhibit 81. PW 2 - Pawar has stated, that Appellant No.7 Suresh took them to Vevji Sorati Pada, from where he produced his clothes. Accordingly, a panchanama was drawn, which is at Exhibit 81-A. On the same day, Appellant No.1 Kalpesh is alleged to have made a disclosure statement before the panchas, which is at Exhibit 82. He has stated, that Appellant No.1 Kalpesh took them to Vevji Sorati Pada and from his house, he produced clothes and a hockey stick. Accordingly, panchanama came to be drawn, which is at Exhibit 82-A. On 23rd May, 2009, Appellant No.6 Jignesh is alleged to have made a disclosure statement in the presence of panchas, which is at Exhibit 83. PW 22 - Pawar has stated, that Appellant No.6 took them to Vevji Sorati Pada from where clothes and fuel wood came to be recovered at his instance. Accordingly, panchanama was drawn, which is at Exhibit 83-A. On the same day, Appellant No.4 Jignesh is alleged to have made a disclosure statement in the presence of panchas which was reduced into writing and is at Exhibit 84. It is stated that Appellant No.4 took them to Vevji Sorati Pada, from where his clothes came to be recovered at his instance. Accordingly, panchanama was drawn, which is at Exhibit 84-A.

PW 22 - Pawar has further stated, that on 22nd June, 2009, after requisitioning the services of an Executive Magistrate, identification parade came to be held. He has stated that the seized articles were sent to the Chemical Analyser under a covering letter and the CA reports thereafter came to be collected. The DNA report and CA reports are at Exhibits 90 to 104. On completion of investigation, charge-sheet came to be submitted in the Court of District and Sessions Court, Thane.

3. On committal of the case to the Court of Sessions, charges came to be framed vide Exhibit 9, as against all the Appellants for the offences punishable under Sections 148, 302 r/w 149, 326 r/w 149 and 452 r/w 149, 504 and 506 of the IPC and under Section 4(27) of the Indian Arms Act. The Appellants pleaded not guilty and claimed to be tried.

4. The prosecution in support of its case, examined as many as 22 witnesses. The defence of the Appellants was that of denial and of false implication. The Trial Court, after considering the evidence adduced by the prosecution, convicted the Appellants for the offences as aforestated in para 1. All the sentences were directed to run concurrently. The Trial Court, however, acquitted original accused No.8 Kantu of all the offences.

5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the Appellants, Ms. Deepa Bajaj and the learned APP Ms. Usha Kejriwal for the State, it would be useful to refer to the evidence of the prosecution witnesses.

6. PW 3 - Gulab Sorati has stated, that on 17th May, 2009, for the marriage of his cousin, Raju Sorati (deceased) had come from Valsad along with his wife and children at around 7.00 p.m. He has stated, that the marriage was performed at about 8.00 p.m. and that soon thereafter, a quarrel took place at the marriage house. He has stated that at the time of the quarrel, he along with Raju (deceased) were sitting at his house along with Raju's daughter Asmita (PW 2). He has further stated that Nimesh (Appellant No.3), Jignesh (Appellant No.6), Dharmesh (Appellant No.2), Anil (Appellant No.5), Jignesh (PW 4), Ganesh (Juvenile accused) and Kalpesh (Appellant No.1) came to his house. He has alleged, that they asked about whereabouts of Raju and on seeing Raju, started assaulting Raju with wooden logs. He has stated, that all the Appellants assaulted Raju, first with fist blows and thereafter with wooden logs on his head and back. As a result of the said assault, Raju sustained bleeding injuries and fell down. He has further stated that he and Asmita-daughter of Raju witnessed the assault. He has further stated, that Asmita, on seeing the assault, went to call her mother Hansaben (PW 1), who on coming to the spot, took Raju to the hospital, where he was declared dead. PW 3 -Gulab has identified the Appellants before the Court as being the same persons. He has further stated, that he was called for the identification parade, in which he had identified the Appellants.

PW 3 - Gulab was cross-examined at length. It was elicited in his cross-examination, that, about half an hour after the marriage, electricity had gone off and there was shouting going on in the pandal. He has admitted, that the marriage pandal was about 700 to 800 feet away from his house and that there were seven to eight houses between the pandal and his house and that the pandal was not visible from his house. He has stated that the banjo was going on, though the electricity had gone off. He has further stated, that Manoj (PW 7) went towards the pandal, to see what had happened and found that persons from the marriage pandal were leaving, as a quarrel had taken place. An admission is elicited in his cross-examination, that due to darkness, he could not identify the persons who entered his house to assault Raju. PW 3 - Gulab has stated, that there were 25 to 30 persons. He has further admitted that he had not asked the assailants, as to why they were assaulting Raju nor did he shout or run away from the spot. PW 3 - Gulab has stated, that, by the time Hansaben (PW 1) came to the spot with her daughter Asmita (PW 2), the assailants had run away. He has stated, that he cannot tell definite number of assailants who had come to his house to assault Raju.

PW 3 - Gulab has admitted that all the Appellants were related and known to him, yet, he was taken for the identification parade. He has admitted that there were no blood stains around the chair where Raju was sitting. It is elicited in his cross-examination, that, 15 to 20 persons had come to his house; dragged Raju (deceased) out of his house; taken him near a tamarind tree near his house; where Raju was assaulted behind the tamarind tree. He has stated that he had not seen the assailants assaulting Raju with the alleged weapons. He has also stated that there was a sura lying under the tamarind tree.

On being questioned, by the Court -

"Court Question : Evidence given by you yesterday was true or false?

Answer : Yesterday, I deposed false."

PW 3 - Gulab has further stated, that his statement was recorded by the police two days after the incident and that during the two days, he had not disclosed the said incident to anybody, as he was afraid that he would be involved in the said case. He has categorically stated, that Raju was assaulted near the tamarind tree and that he disclosed the names of the Appellants, as he was afraid, that he may be falsely implicated. He has admitted in his cross-examination, that, he had asked the other witnesses to disclose the names of the Appellants to the police. He has also admitted that there was no electricity till 10.00 p.m. and that it was dark when the assailants came to the room. The said witness was again questioned by the Court;

Court : Yesterday you deposed that there was electricity when 25-30 persons came in your room, today you are saying that there was no electricity, which deposition is correct?

Answer : My today's answer that there was no light, is correct.

It is further elicited in the cross-examination of PW 3 - Gulab, that the Appellants had not come there to assault Raju and that Raju was not assaulted at his house and that the Appellants did not assault Raju.

7. PW 2 - Asmita, daughter of Raju, aged 11 years, has stated that she had been to Sorati Pada to attend a marriage along with her parents and brother. She has stated, that when she was sitting in the house of Gulab (PW 3), her father Raju was assaulted. She has stated, that her mother Hansaben was at the marriage pandal at that time. She has further stated that Bhadresh, Punit, Dharmesh, Manish were assaulted by the Appellants by a sura, sticks, iron bar, and that her father Raju was assaulted on his shoulder and stomach. She has further stated that she ran towards her mother and narrated the incident to her and returned back to the house with her mother. She has stated, that the assailants of her father Raju were present in Court.

In her cross-examination, PW 2 - Asmita has stated, that soon after the marriage, the electricity went off. She has stated, that she was called for identification of the Appellants in jail and that prior to the identification parade, she was shown the photographs of the assailants and was, therefore, able to identify the assailants. She has stated that 20 to 25 persons had entered the house of Gulab (PW 3), and that her father was lying in the pool of blood when she returned with her mother. She has stated that when she returned with her mother, all the assailants had left.

8. PW 1 - Hansaben, wife of deceased Raju has stated, that they had come to Sorati Pada from Valsad to attend the marriage. She has stated that soon after the marriage, electricity went off and that somebody assaulted Bhadresh, as a result of which, Bhadresh sustained an injury on his ear. She has stated that at that time, her husband Raju was sitting in the house of Gulab and that her daughter Asmita came to inform her about the assault on Raju, pursuant to which, she went to the house of Gulab. She has further stated, that she along with others, took Raju to the hospital and as his condition was serious, he was taken to the Dahanu Government Hospital at Vapi. She has identified Kalpesh, Jignesh, Dharmesh, Anil and Suresh as persons assaulted in the marriage pandal. In her cross-examination, PW 1 - Hansaben has stated that as soon as the dance started, electricity went off and there was darkness in the marriage pandal. She has stated that she heard "Marle-Marle" but could not see the assailants due to darkness. It is pertinent to note, that when she was asked to identify the Appellants, she identified the wrong persons.

9. PW 4 - Punit, an eye-witness, has lodged the first information report with Gholwad Police Station vide Exhibit 34. He has stated in his evidence, that, on 17th May, 2009, after the marriage, which was performed at 8.00 p.m., while they were dancing in the marriage pandal, Dharmesh pushed Manisha. He has stated, that he asked Dharmesh as to why he had pushed Manisha and as a result of which, Dharmesh started assaulting him. Thereafter, it is alleged that Dharmesh (Appellant No.2), Jignesh (Appellant No.4), Lala (Appellant No.3), other Jigar @ Jignesh (Appellant No.6) and Kalpesh (Appellant No.1) assaulted him and Manish. He has stated that Kalpesh (Appellant No.1) assaulted Manish with a hockey stick and that Lala (Appellant No.3) assaulted Bhadresh by a sura on his ear. He has further stated, that all of them were asking about Raju and thereafter, the assailants went to the house of Gulab (PW 3). He has stated, that all of them followed and witnessed the assailants, assaulting Raju with hockey sticks and wooden logs. He has stated, that after the assault, the assailants ran away and thereafter, he along with Manoj, Hansaben and her children took Raju to the hospital, where he was declared dead. It is elicited in his cross-examination, that 15 to 20 assailants came there and as a result of the confusion, people stopped dancing. He has stated that, there were 100 persons in the pandal and as a result of the assault, persons started running helter-skelter. He has denied that he had stated to the police, portion marked 'A' in his statement recorded under Section 161 of the Code of Criminal Procedure, which is 'that my relative took me to the house by the side of pandal after the incident'. Several omissions were elicited in the cross-examination of PW 4 - Punit with regard to the assault on Manish by Kalpesh with a hockey stick, assault on Raju by Anil with a wooden log, assault on Raju by Lala with a hockey stick, assault on Raju by Dharmesh, Kalpesh, Jignesh and Suresh by wooden logs and by Jignesh Dubala with a hockey stick. Similarly, omissions with respect to Dharmesh having pushed Manisha and Punit questioning Dharmesh and of Dharmesh assaulting him are also brought on record. He has further stated that although he had received injury on his head, he was taken to the Cottage Hospital, Dahanu on the next day. Although it was suggested, that he was not assaulted and that he fell down and sustained the injury, the same has been denied by him.

10. PW 5 - Manish has stated, that after the marriage, which was performed on 17th May, 2009 at 8.00 p.m., Banjo had started and they were dancing. He has stated that Dharmesh pushed Manisha and that on Punit questioning him, Dharmesh slapped Punit. He has stated that Punit asked Dharmesh as to why he slapped him, resulting in Lala (Appellant No.3), Kalpesh (Appellant No.1), Jignesh (Appellant No.4), Suresh (Appellant No.2), Jignesh (Appellant No.6), Anil (Appellant No.5), Dharmesh (Appellant No.2) and Ganesh assaulting Bhadresh, Punit, Jaideep and him. Kalpesh (Appellant No.1) is alleged to have assaulted him with a hockey stick on his head and Suresh (Appellant No.7) is alleged to have given fist blows on his cheek. He has further stated, that Lala (Appellant No.3) assaulted Bhadresh by a sura on his ear and that Jaideep received injury on his head during the assault. He has further stated, that thereafter, all the Appellant/accused went to the house of Gulab (PW 3) to assault Raju and therefore, they too followed the Appellants/accused. He has stated, that Raju was sitting on the chair, when Lala (Appellant No.3) gave a blow with a wooden log on the head of Raju and thereafter all the Appellants assaulted Raju with hockey sticks, wooden logs and a sura. Due to the assault, Raju sustained injuries and fell down. He has further stated, that he was called for the identification parade of the accused and that he had identified the accused. It is elicited in the cross-examination of the said witness, that he knew all the Appellant/accused prior to the identification parade and that he had told the Officer about the same. Several omissions have been elicited in the cross-examination of this witness, with regard to assault by the Appellants, on the injured and on deceased Raju. Similarly, there are certain contradictions which have been brought on record and the said portions, have been marked as 'A', 'B' and 'C' in his statement.

11. PW 6- Prakash, the person in-charge of the Banjo Party, has stated, that on 17th May, 2009, after the marriage was performed, they started their Banjo and that people were dancing on the banjo. He has stated, that during the dance, Bhadresh, Punit, Manish, Jaideep were assaulted by wooden logs. He has stated, that he learnt about the assault on Raju and therefore went to the house and saw Raju lying in the house and five to six persons fleeing away. He has stated that they were holding koyata, hockey and sword. He has further stated that he was called for the identification parade and in the said parade, he had identified six of the Appellants, however, in the Court he was able to identify only three persons i.e. Appellant Nos.1, 3 and 4. It is elicited in the cross-examination of this witness, that there were 200 to 250 persons in the marriage and about 30 to 40% of those persons were drunk. He has admitted in his cross-examination, that the photographs of the assailants were shown to him in the Police Station and that his statement came to be recorded after four days of the incident, at the Gholwad Police Station. He has admitted, that fuel wood and the hockey stick are available in the market and there were no specific identification marks on the same. Certain omissions were also brought on record in the cross-examination of this witness with regard to the Appellants holding koyata and sword. He has further admitted that he had identified the accused only as he was shown their photographs.

12. PW 7-Manoj has stated, that on 17th May, 2009, after the marriage was performed at about 8.00 p.m. and the Banjo started, he went towards the marriage pandal and saw that Bhadresh, Punit, Jaideep and Manish were in a pool of blood and that Punit and Manish had sustained injuries. He has further stated that just then, Asmita (PW 2) came running and disclosed that her father was assaulted. Pursuant to which, he went to the house of Amrut and saw Raju lying in a pool of blood with injuries on his head. He has stated, that thereafter he along with Hansaben, her children and Punit went to the Umbergaon Maheshwari Hospital and thereafter to Dahanu Government Hospital, where Raju was declared dead.

13. As far as the evidence of recovery of weapons and clothes is concerned, all the witnesses i.e. PW 9 - Umesh, PW 12 - Masura, PW 13 - Deepak, PW 14 - Prakash, PW 15 - Naresh, PW 16 - Raut, PW 17 - Shirish and PW 18 - Suryahas, have turned hostile and not supported the prosecution with regard to discovery of clothes and weapons and as such we do not wish to advert to their evidence.

14. The prosecution has examined PW 19 Dr. Priti, Medical Officer, PHC at Gholwad who examined Manish and Jaideep on 19th May, 2009. On examination of Manish, she found one abrasion size 1 cm x 0.5 cm on the chin and a blunt trauma over left side of the mandible. Dr. Priti has stated that the injury, was a simple injury and accordingly issued an Injury Certificate which is at Exhibit 62. On examination of Jaideep, Dr. Priti found-

(1) Abrasion two in number, vertical in direction. 1) is 2 x 1 cm skin deep and 2) 1 cm x 0.5 cm. Superficial over right shoulder joint. It was simple.

(2) Imprint abrasion, horizontal, 5 cm x 2 cm over back at the level of T-11-T-12, vertebra. It was simple.

(3) Abrasion 1 cm x 0.5 cm. over right side of frontal region. It was simple.

Dr. Priti has stated that all injuries were caused by a hard and blunt object and accordingly issued an Injury Certificate. The said Injury Certificate is at Exhibit 63. It is elicited in the cross-examination of this witness that injury No.2 in Exhibit 63 is possible by impact on cement or a wooden pole of the pandal and that injury No.1 at Exhibit 62 can be self inflicted and 2nd injury in Exhibit 62 is possible by contact on a hard and blunt object.

15. PW 20 - Dr. Balaji Hengane, is the Medical Officer of Cottage Hospital, Dahanu, who performed the post-mortem examination of Raju and the said report, is at Exhibit 66. He has stated that on examination, he found the following injuries:

[i] CLW at Rt. Forehead obliquely 2 cm. above Rt. Eyebrow of size 7 cm. X 1 cm. X ½ cm. with blood clots red in colour.

[ii] CLW at Rt. frontal area vertical of size 5 cm. x 1 cm. x ½ cm. with blood clots red in colour.

[iii] CLW at Rt. frontal area 2 cm. lateral to injury No.2 of size 8 cm x 1 cm x ½ cm. with blood clots red in colour, slightly obliquely position.

[iv] CLW at Rt. Occipital area of size 5 x 1 x ½ cm. with blood clots.

[v] CLW at Rt. palm in between Index and Middle finger obliquely extending in web space of size 2 x ½ x ½ cm. with blood clots red in colour.

[vi] Laceration at Index finger proximal phalanx transversely of size 2 cm. x ½ x ½ cm. with blood clots red in colour.

Dr. Hengane also found [i] Depressed fracture Rt. side frontal bone with Haematoma under scalp at above injury.

[ii] Fracture occipital bone Rt. side.

He has stated that the injuries were ante-mortem and the cause of death was head injury with brain injury with hemorrhagic shock.

16. The prosecution has also examined PW 21 -Sandeep Thorat, Nayab Tahsildar, who conducted the identification parade on 22nd June, 2009. The memorandum of the said identification parade is exhibited vide Exhibit 72.

17. We have heard Ms. Deepa Bajaj for the Appellants. She has urged before us (i) that the occular evidence of PW 2 - Asmita, PW 3 - Gulab, PW 4 - Punit and PW 5 - Manish is not trustworthy and credible in the light of the evidence that has come on record; (ii) that the panch witness with regard to the alleged recovery of weapons and clothes at the instance of the Appellants had turned hostile and therefore, in the absence of other panchas having been examined, the said recoveries cannot be relied upon (iii) that there was no evidence to show that the Appellants had any motive to assault deceased Raju or the injured; and (iv) that in the light of the evidence which had come on record, there was absolutely no material to connect the Appellants with the alleged offence with which they have been charged and convicted and as such the Appellants ought to be acquitted.

18. The learned A.P.P. Ms. Kejriwal contended that the Judgment rendered by the Trial Court is legal and proper. She supported the findings of the Trial Court and has urged that the Judgment ought not be interfered with.

19. We have given our anxious consideration to the submissions advanced by the learned Counsel for the Appellants and the learned A.P.P. and after considering the evidence adduced by the prosecution, we are of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt and as such the Appellants ought to be given the benefit of doubt in the light of the evidence which has come on record.

20. At the outset, we may state that the prosecution has not proved recovery of weapons and clothes at the instance of any of the Appellants. All the panch witnesses examined by the prosecution, to prove the recoveries under Section 27 of the Evidence Act were declared hostile by the prosecution. It is pertinent to note that the evidence of PW 22 - PSI Pawar does not in anyway advance the prosecution case, for proving the recoveries at the instance of the Appellants, inasmuch as, there is nothing in his substantive evidence to indicate that; there was authorship of concealment, the articles were blood stained; and the articles were sealed. In the light of the evidence, we find that the recovery evidence has not been proved by the prosecution.

21. We have gone through the evidence of PW 3 -Gulab in whose house, deceased Raju is alleged to have been assaulted. We find that although in his cross-examination, he has resiled from his earlier statements made in the examination-in-chief, he has neither been re-examined nor declared hostile by the prosecution. It is elicited in the cross-examination of PW 3 - Gulab that there was complete darkness at the time of the assault on Raju and that he could not identify any of the assailants. He has further stated that Raju was assaulted near a tamarind tree, near his house and that he had not seen the assailants and that Raju was not assaulted in his house. We also find, that the statement of this witness has been recorded after two days of the incident and that during the two days, he had not disclosed the incident to anybody, despite the fact that the incident is alleged to have taken place in his house. Considering the nature of evidence that has come on record, we find it difficult to place any reliance, much less, implicit reliance on his evidence.

22. A perusal of the evidence of PW 1 - Hansaben shows, that she was not present at the time of the assault. Her evidence shows that; (i) she had no opportunity to see the assailants due to darkness and (ii) she was unable to identify any of the assailants in the Court and had in fact wrongly identified the assailants by their names. Similarly, we find it difficult to accept the testimony of PW 2 - Asmita, aged 11 years that she witnessed the assault, in view of the answers elicited in her cross-examination. Although, she has identified the Appellants in the identification parade, she has categorically deposed, that the police had shown her the photographs of the assailants in the Police Station. It is pertinent to note that Asmita has also admitted that lights had gone off and that 20 - 25 persons had entered Gulab's house. We find that the evidence of PW 2 - Asmita, does not inspire confidence and ought to be excluded from consideration, as she could not have identified the Appellants in the darkness. In fact, her evidence is contrary to PW 3 - Gulab's evidence, with regard to Raju being assaulted near a tamarind tree and not in his house. As far as the evidence of PW 4 - Punit (complainant) is concerned, there are several material contradictions and omissions that have been brought on record in his evidence with regard to the assault on Raju. Similarly, there are several material omissions with regard to the manner in which the actual incident started i.e. geneses of the incident; of Dharmesh having pushed Manisha; Punit having questioned Dharmesh and Dharmesh having assaulted Punit, as a result of the same. The contradictions in his evidence have been proved through the Investigating Officer (PW 22). Similarly, the evidence of PW 5 - Manish also does not inspire confidence and is untrustworthy, inasmuch as, there are several material omissions that have come on record, which will show that in fact he had not witnessed the incident of assault on deceased Raju. We also find, that although he has identified the Appellants in the Identification Parade, the said identification will have no evidentiary value, inasmuch as, all the Appellants were known to him prior to the incident. As far as the evidence of PW 6 - Prakash and PW 7 - Manoj are concerned, they are not eye-witnesses to the incident of assault on Raju or the injured persons. In fact, PW 6 - Prakash has not even witnessed any of the Appellants assaulting Bhadresh, Punit, Jaideep and Manish. The medical evidence with regard to assault on Manish and Jaideep show that the injuries sustained by them were simple injuries and possible even by a fall. It is pertinent to note that the medical injuries of Punit and Bhadresh have not been brought on record.

23. We, find that it is extremely difficult, to accept the testimony of the eye-witnesses, considering several material omissions and contradictions in their evidence per se and inter se with respect to the incident and place of assault on deceased Raju and also with respect to the assault on Bhadresh, Punit, Jaideep and Manish. We find, that there are three places at which the incident of assault has taken place. One soon after the marriage at the pandal, thereafter at the house of Gulab and thereafter near the tamarind tree, where Raju is alleged to have been assaulted. We find, that the evidence on record shows, that admittedly the electricity had gone off at the time of the assault and that considering the evidence on record, the witnesses had little occasion or the opportunity to see the assailants. We also find that the prosecution has not adduced any evidence on record to show as to what was the motive for the Appellants to assault deceased Raju. From the evidence, it appears, that the incident started in a marriage pandal, where several persons were drunk and that some incident appears to have taken place, in a crowd of 200 to 250 people. Considering the nature of evidence that has come on record, it is difficult to separate the truth from the falsehood, as both are so intertwined and as such, the Appellants will have to be given the benefit of doubt.

24. Prosecution has proved that deceased Raju died a homicidal death and the same is also not seriously disputed by the defence, however, the prosecution has not proved that it was the Appellants who caused the same. We also find that the prosecution has failed to prove that the Appellants were responsible for the injuries caused to the injured.

25. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the Appellants is hereby quashed and set-aside and the Appellants are acquitted of the offences with which they were charged and convicted. Fine, if paid by the Appellants, be refunded to them. Since the Appellants are in jail, they be released forthwith, if not required in any other case.

Appeal allowed.