Criminal Appeal No.201 of 2010,Criminal Appeal No.463 of 2010,Criminal Appeal No.413 of 2010

1st August, 2014

Petitioner Counsel: Shri ANIL MARDIKAR, Sr. Adv. with Shri S. JOSHI
Respondent Counsel: Shri R.M. DAGA, Shri V.R. MUNDRA, Shri D.B. PATEL

Cases Cited:
State of Maharashtra Vs. Manoharsingh s/o Raghuvirsingh Thakur, 2003 ALL MR (Cri) 2463 [Para 5,84]
Anil Diwakar Tekade and others Vs. State of Maharashtra, Cri.Appl./565/2006, Dt.12.1.2012 [Para 13]
Namdeo Babarao Pachpor and another Vs. State of Maharashtra, Cri.Appl./698/2006, Dt.14.3.2012 [Para 13]
Shyam Udhamdas Dhankani and others Vs. State of Maharashtra, Cri.Appl./708/2006, Dt. 19.04.2012 [Para 13]
Surajit Sarkar Vs. State of West Bengal, 2013 ALL SCR 523=(2013) 2 SCC 146 [Para 13,60,75]
Gade Lakshmi Mangaraji Vs. State of A.P., 2001 ALL MR (Cri) 2199 (S.C.)=2001 (6) SCC 205 [Para 15,72]
Pulukuri Kottaya and others Vs. Emperor, AIR (34) 1947 Privy Council 67 [Para 17,67,68]
Chandrappa and others Vs. State of Karnataka, 2007 ALL SCR 961=(2007) 4 SCC 415 [Para 20,26]
Namdeo Vs. State of Maharashtra, 2007 ALL MR (Cri) 1132 (S.C.)=2007 (4) SCALE 337 [Para 24]
Mustkeem @ Sirajudeen Vs. State of Rajasthan, 2011 ALL SCR 2662=(2011) 11 SCC 724 [Para 25,69]
Bishan Singh Vs. State of Punjab, (1974) 3 SCC 288 [Para 59]
State of Uttar Pradesh Vs. Devendra Singh, 2004 ALL MR (Cri) 2554 (S.C.)=AIR 2004 SC 3690 [Para 59]
Alagarsamy and Ors. Vs. State by Deputy Superintendent of Police, 2010 ALL MR (Cri) 291 (S.C.)=2010 Cri.L.J 29 SC [Para 55]
State (NCT) Delhi Vs. Navjot Sandhu, 2005 ALL MR (Cri) 2805 (S.C.)=2005 Cr.L.J. 3950 SC [Para 67,69]
Harivadan Babubhai Patel Vs. State of Gujarat, 2013 ALL SCR 2524=(2013) 7 SCC 45 [Para 67]
Rumi Bora Dutta Vs. State of Assam, 2013 ALL SCR 2459=(2013) 7 SCC 417 [Para 68]
Jitender Kumar Vs. State of Haryana, 2012 ALL SCR 1890=(2012) 6 SCC 204 [Para 68]
Yakub Abdul Razak Memon Vs. State of Maharashtra, (2013) 13 SCC 1 [Para 69]
State of Maharashtra Vs. Dr. Arvind, 2009 ALL MR (Cri) 1281 [Para 72]
Ashraf Hussain Shah Vs. State of Maharashtra, 1996 Cr.L.J. 3147 [Para 73]
Zindar Ali Sk. Vs. State of West Bengal and Anr., 2009 ALL MR (Cri) 896 (S.C.)=AIR 2009 SC 1467 [Para 75]
State of Maharashtra Vs. Bharat Fakira Dhiwar, 2002 ALL MR (Cri) 715 (S.C.)=(2002) 1 SCC 622 [Para 78]
Tarun Bora Vs. State of Assam, (2002) 7 SCC 39 [Para 79]
State of Rajasthan Vs. Om Prakash, 2007 ALL MR (Cri) 2080 (S.C.)=(2007) 12 SCC 381 : AIR 2007 SC 2257 [Para 79,81]

JUDGMENT

B. P. DHARMADHIKARI, J. :- Criminal Appeal No. 201/2010 is filed by the accused nos. 1 to 4 in Sessions Trial No. 199/2007. There were total 19 accused in that Session Trial. State Government has filed Criminal Appeal No.463/2010 challenging acquittal of accused nos. 5 to 19. Criminal Appeal No.413/2010 is filed by the widow of deceased challenging acquittal of accused nos. 5 to 19.

2. Shri Anil Mardikar, learned Senior Advocate with Shri S. Joshi, learned Counsel has argued for the convicted accused, while Shri R.M. Daga, learned Counsel represented the acquitted accused. Shri D.B. Patel, learned A.P.P. argued the case on behalf of State Government, while Shri V.R. Mundra, learned Counsel argued the case of the widow of the deceased and assisted APP to advance the cause of complainant Prakash.

3. According to the prosecution, there are two political groups in the village Mahakal, Tahsil and District Wardha. Victim Makrand Tonpe led one such group and that group was in power for few years. Accused represent another rival group. Because of intense rivalry, members of both the groups had lodged complaints with the police against each other. On 31.08.2007, Makrand Tonpe was found dead with several injuries on his person in a field at village Satoda, opposite SatodaMahakal road, between 6.30 to 7.30 a.m. Prakash Mohite (complainant) P.W.8, informed the police station and police came to the spot. Complainant was then sent to the police station for lodging complaint in detail and on its basis, crime came to be registered. Spot panchnama was drawn and various articles were seized from the spot. Statements of two eye witnesses were recorded by the investigating officer on same day and he also arrested most of the accused persons on that day itself. During investigation, accused nos. 1 to 4 gave separate statements in respect of swords which were thrown by them in a nearby well, and one of them pointed out the same. 4 swords were then taken out of that Well. One of the accused pointed out the place where he burnt some blood stained clothes. Investigating officer also seized clothes on person of some of the accused, which were found stained with blood. The investigating officer gathered evidence which connected the accused nos. 1 to 4 with sword blows inflicted on the victim, while accused nos. 5 to 8 to beating him with fists and kicks while accused nos. 9 to 19, to instigating others to kill victim Makrand. Prosecution alleges that Makrand was thus murdered after hatching criminal conspiracy in prosecution of their common object by an unlawful assembly. Charge sheet under Sections 143, 147, 148, 148, 302 and 201 read with Sections 202 and 149 and Section 120(B) of the Indian Penal Code was then filed. The Trial Court then proceeded with the trial. It had as per Section 228 of the Criminal Procedure Code after framing charges altered it for offences punishable under Sections 143, 147, 148, 149, 302 and 201 read with Sections 202 and 149 and Section 120B of Indian Penal Code. It convicted accused nos. 1 to 4 i.e. the appellants in Criminal Appeal No. 201/2010 for offence punishable under Sections 302, 341, 201 read with Section 120B of Indian Penal Code and sentenced them to suffer life imprisonment and to pay fine of Rs. 2000/- each, in default, to under go simple imprisonment for one year each. They were sentenced to suffer R.I. for three years and to pay fine of Rs. 1000/- in default to under go simple imprisonment for 6 months each, for the offence punishable under Section 120B of Indian Penal Code. For offence punishable under Section 341, the accused nos. 1 to 4 have been sentenced to undergo simple imprisonment for one month. No separate sentence was imposed for offence punishable under Section 201 and said sentence was deemed to have been included in sentence for offence punishable under Section 302. Sentence under section 120B was directed to commence first, and thereafter, sentence for offence punishable under Section 302 was to begin. Other punishments were ordered to run concurrently with sentence imposed for offence punishable under Section 302 of Indian Penal Code.

4. Accused nos. 1 to 4 were however, acquitted for offences punishable under Sections 143, 147, 148, 149 and 109 of Indian Penal Code. Accused nos. 5 to 19 have been acquitted for the offences punishable under Sections 302, 143, 147, 148, 149, 109, 201, 341 and 120B of Indian Penal Code. Suitable orders have been passed in relation to two seized motor cycles. Motor cycle bearing no. MH-31/ F-391 has been directed to be returned to the widow of the victim Makrand; while the other motor cycle with registration no. MH32/ H-6189 is to be returned to the accused no.18 Dnyaneshwar Kachode. Directions to auction Motor cycle bearing No. MH-31/ BH-5265 and to credit its sale proceeds to the State Government have been issued. Similarly, appropriate orders have been passed for disposal of seized weapons and property.

5. Shri Anil Mardikar, learned Senior Advocate, opening the arguments, has pointed out that rivalry, and therefore, history of previous complaints filed by both the groups against each other needs to be kept in mind while evaluating the conduct of the alleged two eye witnesses and one Amit (P.W.5) who also acted as Panch. He submits that the two eye witnessesP. W.6 Nilesh and P.W.9Nitin belong to the political group of deceased Makrand, who himself was Sarpanch and Director on the Board of Agricultural Produce Market Committee, Wardha. He contends that P.W.8 - complainant, who has lodged the report again belongs to the same party. P.W.5 Amit tried to suppress his political affinities. He submits that proper appreciation of evidence of these witness shows that the so called eye witness have been planted later on by the prosecution and accused persons have been falsely implicated. He contends that the Trial Court has not kept this background in mind while appreciating the deposition of these witnesses and therefore, has reached to a wrong finding. Full Bench judgment of this High Court reported in 2003 ALL MR (Cri) 2463 (State of Maharashtra Vs. Manoharsingh s/o Raghuvirsingh Thakur) is relied upon by him to challenge the testimony of these eyewitnesses.

6. Before inviting attention of the Court to the material evidence on record, learned Senior Advocate has submitted that the Trial Court has erroneously given an undue importance to the suggestions given to these witnesses by the counsel for accused while crossexamining them and suggestions have been construed as admission of facts suggested. He argues that when accused have totally denied their participation in the crime and come up with a case of false implication, some suggestions made by the advocate in an effort to demonstrate that the eye witnesses or P.W.5 Amit have been planted later on or to expose their bias and falsehood, could not have been treated as admission to derogate from the total denial. He has invited attention to the judgment of the Trial Court, particularly paragraph no.4 where in the Trial Court itself has mentioned the various defences attempted to be raised before it. Those defences are that Makrand died due to heavy consumption of alcohol or in an accident due to fall from motor cycle, or was killed by the complainant P.W.8 Prakash Mohite, or that Makrand was killed by unknown person from Nagpur whose motor cycle was seized by the police or then was killed at the instance of one Sahebrao Shinde, whose wife was Deputy Sarpanch of village Mahakal. In the background of these defences, he submits that suggestions were made only to bring on record doubtful nature of the deposition of the witnesses.

7. Drawing attention to deposition of P.W.8 Prakash Mohite, Shri Mardikar, learned Senior Advocate argues that phone call allegedly received by Prakash Mohite at 7 a.m. on his mobile has not been verified though it was first intimation to him about attack on Makrand. Stand of Prakash that after getting that phone call, he went to his friends Raju Goho, Ankush, Shailesh Karamore, Ashish and, they together then went to the field of Prakash Manikkule in which Makrand was lying, is also not verified by the police authorities. Statements of these friends of Makrand have also not been recorded. He further points out that after noticing dead body of Makrand and injuries upon his person, Prakash made a phone call at 7.30 a.m. to Sewagram Police Station by his mobile. Police reached there in about 15 minutes. Prakash has stated that he went to the police station at about 8.45 a.m. along with PSI Junarkar. He claimed that in this backdrop, question whether Prakash received phone calls about attack on Makrand at 7 a.m. was important. Prakash has claimed that before lodging complaint, he met P.W.6 Nilesh Karamore and P.W.9 Nitin Shinde at the spot and they told him the names of person who attacked Makrand. Accordingly in his report at police station, he stated those names. Those 19 names are orally narrated by Prakash before the Trial Court. Shri Mardikar, learned Senior Counsel submits that P.W.6 and P.W.8 do not speak about any such communication to P.W.8 and FIR lodged by P.W.8 at Exh.206, is also silent on any such source of knowledge.

8. This oral report dated 31.08.2007 mentions only 15 names. Printed FIR (Exh.207) again mentions those 15 names only. He contends that the appellant recorded statement of P.W.8 on 07.09.2007 i.e. almost after 6-7 days of the incidence and there is no justification for such delayed recording. He has also invited our attention to paragraph nos. 7 and 8 of the deposition of P.W.8 to urge that there are material omissions in the same. Learned Senior Advocate expressed surprise as to why the police authorities did not find any independent and uninterested person as witness. He points out that the statement of P.W.8 could have been recorded at the earliest i.e. on 31.08.2007 or thereafter on 05.09.2007, when he returned back, but the police authorities did not take that opportunity. He contends that from narrations in report Exhs.206 and printed FIR 207, it is apparent that names of accused are disclosed by P.W.8 who is not an eye witness, therefore, he or said report are not at all creditworthy.

9. He submits that Section 161 Cr.P.C. statement of P.W.6 Nilesh and P.W.9 Nitin, is recorded by the police authorities on same day i.e. 31.08.2007 itself. Their statement under Section 164 Cr.P.C. is also recorded on the same day i.e. 16.11.2007. Inviting attention to Exh.254 i.e. communication by the prosecution to learned J.M.F.C. seeking PCR of accused, Shri Mardikar, learned Senior Advocate informs that there 16 accused are mentioned. In similar document at Exh.255, PCR was sought till 12.09.2007 and total 17 accused have been disclosed. He contends that in both these communications placed before the learned J.M.F.C., availability of 2 or 3 eye witnesses or their names are not disclosed. By Exh.254, PCR sought is from 01.09.2007 to 07.09.2007 and names of accused persons still to be arrested or absconding are not disclosed. In Exh.255, one more accused was shown to be arrested, thereby police authorities sought remand of total 17 persons, however, this communication mentions that accused Ranjit Shende and Nana @ Dnyaneshwar Kachore were absconding. He invites attention to cross examination of investigating officer in this connection to submit that he could not explain as to why the eye witnesses were not pointed out to the learned J.M.F.C. He contends that thus, there is no trustworthy material before the learned Trial Court to show that total 19 accused persons have participated in the assault on Makrand Tonpe on 31.08.2007.

10. P.W.6 Nilesh does not speak of meeting Prakash at spot. Omissions in his deposition in paragraph no.11 are pointed out to urge that if name of Ranjit Shinde, was pointed out by him to police authorities on 31.08.2007 itself, police would have mentioned it in Exh.254 as a ground of seeking P.C.R. He further states that this witness did not tell to police that after watching incident, after ½ hour he returned to his home. This witness in paragraph no.12 has stated that after some time of his returning from his field, there was discussion in entire village about attack on Makrand Tonpe and, therefore, he went to the field of Shyamrao Manikkule, who happens to be father of Prabhakar Manikkule. This witness in paragraph no.15 stated that he was frightened for 23 days and therefore, did not approach the police on his own, and did not request the police authorities to record his additional statement. Witness has stated that at the time of incidence, he was in frightened state of mind and may not have stated some facts and he was not in that state of mind on 16.11.2007. Shri Mardikar, learned Senior Counsel also points out how suggestion given to this witness during his cross-examination, have been misconstrued by the Trial Court.

11. Inviting attention to the deposition of P.W.9 - Nitin, Shri Mardikar, learned Senior Advocate has advanced somewhat similar contentions. Shri Mardikar, states that mother of this witness belongs to the group of deceased and just a day prior to the incident i.e. on 30.08.2007, his duty was from 2 p.m. to 10 p.m. He also accepted that on 31.08.2007 and 01.09.2007 his duty hours were similar and volunteered that on 31.08.2007, he did not join duty. This witness deposed that he had disclosed names of Nana Kachode, Sandeep Mahakalkar, Yeshwant Mahakalkar, Bhaskar Bhakre and Vilas Pahune as persons present in the field of Shyamrao Manikkule. He could not assign reason as to why police could not mention those 5 names. Attention is also invited to certain other omissions in paragraph no.8 of his deposition. Shri Mardikar, learned Senior Advocate submits that this witness had returned back from duty after 10.52 p.m., and accepted that on 31.08.2007, he did not forward any application for leave, although he remained on leave on that day. He further states that according to this witness, the Magistrate recording his 164 statement, asked him to speak only about the incident and, therefore, he restricted his statement to the incident only. Learned Senior Advocate submits that P.W.9 resides at Wardha and his agricultural lands are at village Kitki. In this situation, police ought to have brought on record his duty hours to inspire confidence in the story that on 31.08.2007 in the early morning he had occasion to travel by Wardha-Satoda-Mahakal road. He invites attention to deposition of the Investigating Officer to urge that the investigating officer did not even bother to contact "Ms. Lloyd", the employer of P.W.9.

12. Paragraph nos. 51 and 52 of the judgment delivered by the Trial Court are read out to urge that the Trial Court has sought corroboration to deposition of these eye witnesses through the evidence of P.W.5 - Amit.

13. According to the learned Senior Advocate, evidence of P.W.5 Amit shows that he also has political affiliation and therefore, made improvements. His evidence is faulty and suffers from omissions. He has been planted only to give support to the evidence of P.W.6 and 9. Shri Mardikar, learned Senior Advocate submits that this witness in the morning sees deceased proceeding on motor cycle from Wardha to Mahakal. Then he saw P.W.9 Nitin Shinde proceeding in the same direction on motor cycle. After 5 to 7 minutes of passing of P.W.9, this witness saw two motor cycles coming from Mahakal side and going towards Wardha side. Accused no. 2 Vinod Bhakre, accused no.1 Vijay Mahakalkar as also accused no.3 Devanand Mahakalkar, were sitting on one motor cycle, while on the second motor cycle, accused no.4 Shankar Landge was traveling. Amit claimed that both these motor cycles traveled in high speed. Shri Mardikar, learned Senior Advocate submits that at this crucial stage, a leading question was put to this witness by the Spl.P.P. and taking hint, this witness has stated that before these accused persons passed, Nitin Shinde (P.W.9) came back from Mahakal side and proceeded to Wardha side. He gave call to Nitin Shinde, but as Nitin was driving in high speed, he could not hear said call. 5 - 7 minutes of passing of two motor cycles of accused persons, one Niranjan Bobade met him. Niranjan Bobde informed him that some one had killed Makrand Tonpe in field. He states that when he went to the spot on his motor cycle, many people were present there. He also points out that one pair of chappal, one handle of sword was found at the spot. Shri Mardikar, learned Senior Advocate points out paragraph no.7 of his cross examination to show strong political connections of this person. He contends that he had no occasion to know the deceased, but then, both belong to same caste and were active in politics. He has further stated that spot of incidence was only 1 km. from his house and time of about 5 to 7 minutes was required to reach it by motor cycle. PW 5 has explained that his statement was not recorded immediately as mob had gathered and it was uncontrollable. He has stated that between 31.08.2007 to 02.09.2007, he was at village Satoda, and police frequently used to pass by road for the purpose of investigation. He denied that between these dates, he met Nitin Shinde or family members of the deceased. Shri Mardikar, learned Senior Advocate points out that statement of this witness was recorded on 03.09.2007. This witness was ready at 6 a.m. on 31.08.2007 and standing outside his house after getting ready for work in the field. This witness could not explain omissions and asserted that he had disclosed 4 names as accused to the police authorities. Attention is also invited to paragraph nos. 12, 13 and 15 of deposition to urge that he did not disclose vital facts to police. His evidence is also relied upon to show that the police could have procured several independent persons to find out what really transpired and what was true incident. This person (P.W.5 - Amit) was member of Panchayat Samiti, and before that Sarpanch of village Satoda for 5 years. He admitted that a cattle shed existed in the western side of his house, and therefore, frontage of his house is not visible. Attention is invited to paragraph no.19 of his cross examination to contend that witness could not have watched movements on road from his house as the view of road was blocked. Paragraph no.23 is pressed into service to show the knowledge of witness that Makrand Tonpe was member of Gram Panchayat, Mahakal and this witness was also elected to A.P.M.C. from Panchayat Samiti category. Shri Mardikar, learned Senior Advocate submits that if this witness was available on spot and his 18 to 20 signatures were obtained, prosecution has failed to explain why his statement could not be recorded till 03.09.2007. He relies upon unreported judgments dated 12.01.2012 in Criminal Appeal No. 565/2006 (Anil Diwakar Tekade and others .vrs. State of Maharashtra), judgment dated 14.03.2012 in Criminal Appeal No. 698/2006 (Namdeo Babarao Pachpor and another .vrs. State of Maharashtra), to urge that deposition of this witness cannot be accepted. To point out how conduct of witness in not disclosing the relevant material is to be appreciated, he relies upon a judgment dated 19.04.2012 in Criminal Appeal No.708/2006 (Shyam Udhamdas Dhankani and others .vrs. State of Maharashtra). Judgment reported at (2013) 2 SCC 146 : [2013 ALL SCR 523] (Surajit Sarkar .vrs. State of West Bengal) is also relied upon to buttress his submissions on effect of defective investigation and delayed recording of statement of eyewitness.

14. Shri Mardikar, learned Senior Advocate then invites attention to judgment of Trial Court particularly, how suggestions given during a thorough and extensive cross examination to P.W.5 have been misconstrued as admissions or used to the prejudice of the accused.

15. Evidence led by P.W.3 on sniffer dog is assailed on the ground that detection does not carry the cause of prosecution further and dog had detected one Vinay, while name of accused no. 1 is Vijay. Shri Mardikar, learned Senior Advocate submits that as per the police records dog pointed out a person by name Vinay. He contends that even while appreciating this evidence, there is nonapplication of mind by the Trial Court in as much as the Trial Court has again looked into the suggestions and held against the accused no.1 Vijay @ Guddu on that account. The prosecution has not maintained proper records of dog detection proceedings and names of dummies do not find any mention in Exh. 189. He is relying upon a judgment reported at 2001 (6) SCC 205 : [2001 ALL MR (Cri) 2199 (S.C.)] (Gade Lakshmi Mangaraji .vrs. State of A.P.), particularly paragraph nos. 12 and 13 to 18 therein.

16. Discovery of swords is, also assailed on the ground that no blood was found on it or on clothes of accused in C.A. Report. He points out that though the accused were arrested on 31.08.2007, prosecution states that blood stained clothes were seized on 06.09.2007. He further contends that those clothes were not sealed. These vital defects have been ignored by the Trial Court. He points out that as per the evidence of P.W.10 Shriram Dhengare, memorandum of disclosure has been recorded by showing it as at the instance of accused nos. 1 to 4. But, then recovery is only at the instance of one accused i.e. accused no.2 Vinod. There is no recovery at the instance of other accused, and other accused were also not taken to the Well in question. He submits that thus, the said disclosure and recovery is bad in law, and cannot be used against the accused nos.1 to 4. He contends that the prosecution has planted the swords.

17. Evidence of investigating officer P.W.11, is also commented upon to show that swords were rusted and bent. From evidence of P.W.1, he points out that swords were neither labeled nor sealed. The circumstantial evidence as looked into by the Trial Court from paragraph no. 64 onwards, therefore does not exist in the eye of law. Adverse inference drawn by the Trial Court is also stated to be unsustainable. According to the learned Senior Advocate, judgment of Privy Council reported at AIR (34) 1947 Privy Council 67 (Pulukuri Kottaya and others .vrs. Emperor), squarely covers the situation and swords cannot be used against any of the accused or against accused nos. 1, 3 and 4; in any case.

18. Shri R.M. Daga, learned Counsel appearing for accused no.4 Shankar has submitted that eye witnesses Nitin Shine and Nilesh Karamore do not mention presence of each other and do not ascribe any specific role in assault to any of the accused. No evidence of conspiracy to attract Section 120B of Indian Penal Code is produced on record. Parents of P.W.6 or P.W.9 are not examined to counter check whether the eye witnesses have correctly deposed and disclosed names of accused and to their parents only. Eye witnesses have not spoken of any blood stains on clothes of accused.

19. Written statement filed by accused no.4 under Section 313 of Criminal Procedure Code is pressed into service to show that there was attack on his house earlier on account of political rivalry and he had lodged report because of that attack. The complainant and some other persons were against him and, therefore, he has been falsely implicated.

20. He relied upon judgment of Trial Court to support the acquittal of accused nos. 5 to 19. He places strong reliance upon omissions in evidence of P.W.6 and P.W.9. He contends that when two views are possible, the view in favour of the accused needs to be taken. He relies upon a judgment reported at (2007) 4 SCC 415 : [2007 ALL SCR 961] (Chandrappa and others .vrs. State of Karnataka). He states that there is no evidence against accused nos. 5 to 19 and he further states that at Exh.217, accused no.4 has no where stated that he was ready and willing to produce any weapon or to show the place where it was hidden. Accused no.2 at Exh.218 has only agreed to show the well. He further contends that actual seizure panchnama (Exh.219) carries no reference to accused no.1, 3 and 4, and hence, they were not taken to the well in dispute from which the swords are allegedly taken out. .

21. Shri D.B. Patel, learned A.P.P. appearing on behalf of State Government submits that total 14 witnesses are examined. Homicidal death has come on record. Spot panchnama is not in dispute and Trial Court has correctly accepted the evidence of eye witnesses P.W.6 and P.W.9. The version as narrated by them finds support in evidence of P.W.5 Amit.

22. He contends that words "marun taka" in deposition of witness Nilesh Karamore (P.W.6), is not a material omission and the Trial Court ought to have used his deposition against other accused persons as well. Beating of deceased simultaneously with fists, blows and kicks by other accused persons was possible. He has invited attention to the evidence of P.W.1, P.W.8 and P.W.9 to urge that there is evidence and suggestion given to them clearly establish link between all the accused and the crime.

23. Paragraph no.13 of the judgment of Trial Court is read out to show motive and genesis of crime. Evidence of P.W.4 Purushottam is also pressed into service to show the motive. He contends that cross examination is part of evidence and adverse inference as drawn by the Trial Court in paragraph no.35 of its judgment or use of presumptions therein, therefore, cannot be faulted with. He has read out important paragraphs from the judgment of Trial Court to urge that the conduct of the eye witnesses has been rightly appreciated and proper view has been taken. He contends that use of words "marun taka" is correctly found to be not an omission by the Trial Court in paragraph no.44 of its judgment. Paragraph no.100 is also pressed into service by him to submit that conspiracy and unlawful assembly has also been established on record, in this situation; he states that this line and application of mind should have been carried further and necessitated conviction of accused nos. 5 to 19 also.

24. Shri V.R. Mundra, learned counsel appearing for appellant in Criminal Appeal No. 413/2010 (wife of deceased) has mostly reiterated the argument advanced by learned A.P.P. Shri Patel. He contends that if Prakash (PW8) wanted to go to police station first, it was not proper for him to stop at the house of brother of the deceased, and therefore, his conduct in not stopping there is not sufficient to discard his testimony. He further contends that recording of supplementary statement of Prakash on 07.09.2007 does not mean that it has been recorded after undue delay. Similarly, naming of eye witnesses in remand papers is not necessary. He comments upon the evidence of P.W.6 Nilesh and submits that he had every reason to hide and to proceed to his house clandestinely. He further submits that evidence of P.W.5 Amit is also natural and no leading question was put to him. He further contends that the Trial Court erred in observing that the motor cycles could not be linked with the crime. According to him, it was not necessary to show existence of any blood stains on motor cycles, as motor cycles were on road and not at the place of attack on Maktand. He invites attention to the seizure documents of these two motor cycles. He submits that the motor cycle of accused no.18 Dnyaneshwar @ Nana was used by the accused no.1 and eye witness have seen accused no.18 on the spot. Similarly, discovery of swords from Well or then recording of separate statement before such recovery has been a procedure established by Section 27 of the Evidence Act. It is not breached here by joint nature of exercise. He further contends that at Exh.244 there is reference of call made by Prakash to police station and it finds mention in paragraph no.20 of the judgment of Trial Court. There are two maps available on record. He submits that thus topography of the area is established. Discussion undertaken by the Trial Court about the oral report and written report or FIR in paragraph nos. 16 to 22 and paragraph no.26 is also relied upon by him to show that there was no inconsistency in the deposition of the witnesses and hence, the Trial Court has correctly found the accused nos. 1 to 4 guilty. The suggestions given by the accused persons or their conduct was sufficient and Trial Court should have used evidence of P.W.9 against all. He contends that the reasons for ignoring "delay" recorded by the Trial Court in paragraph no.15 and 29 of the impugned judgment must be accepted. He adds that the prosecution need not examine all the witnesses. He submits that the Trial Court has considered each and every angle, including the lacunae in investigation. Discussion in paragraph nos. 103 and 104 in so far as it relates to accused nos. 5 to 19 are concerned, is stated to be based on conjectures only. He contends that there are eye witnesses and also circumstantial evidence. Chaff should have been and must be separated from grain and all accused need to be punished. He also points out that there are two fields of Amit Gawande (P.W.5), and therefore, it was possible for him to see movement of witness P.W.9 Nitin, victim Makrand and two motorcycles used by the accused. He derives support from judgment reported at 2007 (4) SCALE 337 : [2007 ALL MR (Cri) 1132 (S.C.)] (Namdeo .vrs. State of Maharashtra) to urge that it is not quantity but quality of evidence that matters. All precedents looked into by the Trial Court are also used by him to support his contentions.

25. In his brief reply, Shri Mardikar, learned Senior Advocate invites attention to a map at Exh.333 to show the location of various fields and area, and material borne on record to show how Sugarcane was planted or grass was grown infront of sugarcane crop. He submits that thus, it was impossible for P.W.6 Nilesh to witness the incident from his field. He further states that while describing spot, rainy season is mentioned but while the investigating officer has stated the soil was not wet, he saw blood on chappal. He again invites attention to the location of field of P.W.9 Amit in Exh.333 to urge that he could not have seen the road or incidence. Omission in evidence of P.W.9 Nitin and location as disclosed by him in paragraph no.17 of his cross examination, is compared with the map. He states that it was impossible for both the eye witnesses either to hear shouts or to witness the incidence. He concludes by urging that in any case benefit of doubt needs to be given to the accused. Support is being taken from a judgment reported at (2011) 11 SCC 724 : [2011 ALL SCR 2662] (Mustkeem @ Sirajudeen .vrs. State of Rajasthan).

26. Powers of this Court in such matters can be gathered from Chandrappa v. State of Karnataka (2007) 4 SCC 415 : [2007 ALL SCR 961], at page 432, where the Hon'ble Apex Court has laid down that :-

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by Trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court."

27. Perusal of evidence of P.W.11 Bhaiyyaji Junarkar shows to us that he was at the relevant time working as P.S.I. His duty hours were from 8 o'clock in the night of 30.08.2007 till 8 a.m. of next day. At 7.35 a.m. on 31.08.2007 on phone call Prakash Mohite (Pw8) informed that Makrand Tonpe was murdered. Entry was accordingly taken by one Subhash Mehkare, Station Diary Incharge who brought fact to the notice of P.W.11. He proceeded to spot immediately. He found that at Satoda outer in field of Prakhakar Manikkule, dead body of Makrand Tonpe was lying. One motor cycle was also lying there. Many persons had gathered there. Police Inspector Shri Thakare soon arrived there. He brought Prakash Mohite to police station along with a constable and recorded complaint at Exh.206. Crime No.194/2007 under Sections 302, 143, 147 and 149 of the Indian Penal Code read with Sections 4 and 25 of the Indian Arms Act was then registered and printed FIR came to be issued at Exh.207. Crime was registered at 9 a.m. P.I. Thakare, prepared spot panchnama and as per instructions of said officer, P.W. 11 prepared inquest panchnama. Written summons was issued to Amit Gawande and Suraj Goho, and then panchnama was drawn. In the evening dog squad came from Amravati and it was taken to the spot of incidence. He carried seized handle of sword and one chappal which was in sealed condition to the spot. At the spot, he opened seal of chappal and dog handler gave its smell to the dog. Dog Goldy moved here and there, but could not give any clue. Chappal was sealed back and he came to Wardha Police Station along with the dog squad. He arranged an identification parade with 4 accused and 4 dummies. Seal of handle of sword was opened and its smell was given to the dog. Dog barked and placed his legs on the chest of accused no.1 Vijay. Dog repeated this act. Dog handler then prepared panchnama at Exh.189.

28. On 01.09.2007, he obtained P.C.R. of accused nos. 1 to 16 from Court. On 02.09.2007 he brought accused nos. 1 to 4 to Sewagram Police Station and panchas Shivram Thengade and Pradhnanand Waghmare were called. He made enquiries from accused no.1 Vijay in presence of these two panchas. Accused Vijay, in presence of panchas, made statement that he threw one sword in the well situated in the field of Prabhakar Gawande. Accordingly he scribed the statement of Vijay, obtained Vijay's signature, put his own signature and got signatures of panchas. Exh.215 is that statement. Similar statement made by accused no.3 is Exh.216, statement of accused no.4 is at Exh.217 and accused no.2 is at Exh.218. He has then described how along with the accused nos. 1 to 4 panchas and other police staff, he proceeded to Well and how with the help of magnets and rope, 4 swords were taken out of the said Well, one by one. Accused no.2 Vinod first showed the Well and then other accused stated that Well was same in which they dropped sword.

29. His cross examination reveals that dog is to be called when accused is not known. He stated that at that time accused were in lockup of Wardha Police Station and proper log book entries were taken. He further stated that he did not record names and addresses of dummies who participated in the identification parade along with 4 accused. He accepted that he did not prepare any panchnama of breaking of seal. In memorandum of identification parade he did not mention position of either accused or dummies, except position of accused no.1. He further admitted that station diary brought by him in court did not contain any entry about phone call made by Nilesh Karamore and Nitin Shinde on the date of incident. He accepted that in the memorandum statements of accused nos. 1 to 4, there is no remark that the statement was read over to them and they accepted it to be correct. Initially accused were reluctant to disclose anything, but once they started speaking, he recorded it promptly. He accepted that Panchnama Exh.219, does not mention that accused nos.1 to 4 were taken together to the spot of incidence, and does not show there presence at Well. Carrying of magnet and rope from police station is also not mentioned in the panchnama. He denied that accused nos. 1, 3 and 4 were not with him. He accepted that he did not obtain their signatures on panchnama Exh.219. He accepted that he did not match the blade of sword which came out of the Well without handle, with the handle seized from the spot. He accepted that he did not seize the mobile phone of Prakash Mohite. He also accepted that the said mobile would have revealed telephone number of person who gave call to Prakash Mohite. He stated that while lodging report, Prakash Mohite did not mention names of accused no.14 to 17 at all. He made no attempts to find out who made phone call to Prakash Mohite in the morning. He accepted that as there was tension and commotion at the spot of incident, therefore, he could not answer whether accused Shankar Landge, Radhesham Mahakalkar and Jangluji Bhakare were brought to the spot while beating them. He accepted that on the date of incident one Indira Mahakalkar lodged a complaint and he investigated that crime. He also submitted charge sheet which revealed that 33 offenders have beaten 10 - 12 victims. Eye witness PW 6 Nilesh Karamore and complainant Prakash Mohite (PW8) are also accused in that crime. One Balya who happens to be brother of the deceased Makrand, is also one of the accused. Investigation in that crime was completed by 02.09.2007. He accepted that he did not arrest the offenders in that crime and all of them got anticipatory bail. He further stated that charge sheet was filed in the court on 10.01.2009. He volunteered that some accused involved in that crime were at spot of incident of murder of Makrand Tonpe, and therefore, he was in doubt whether allegations against them by Indira Mahakalkar were true or not. Witness stated that therefore, he took about 1 ½ year to file that charge sheet. At the end of his cross examination, he has stated that 4 swords produced before the court were rusted and two of them were bent in such a manner that those cannot be handled. We have called for and perused those swords during hearing and found that not only two but one more sword is bent. Respective Counsel stated that third sword might have been bent during transit of property to this Court and while its handling in property room. However, we find that the swords though bent could have been used as weapons.

30. Exh. 244 is copy of the station diary of police station, Sewagram dated 31.08.2007. Entry at Sr.no.10 is at about 7.35 in the morning and it shows intimation of murder of Makrand, by Prakash Mohite. Next entry at sr.no.11 is made at 7.40 am. and it is about inviting dog squad from Nagpur, informing photographer and sending of police staff including P.S.I. Junarkar to the spot. At Exh.245, there is a entry having sr.no.16 taken at 9 a.m. It records crime no.194/2007 on complaint of Prakash Mohite against 15 persons. Next entry at Sr.no.12 is at 10.30 a.,m. This entry shows that 10 to 20 ladies had assembled and were abusing by entering house of deceased at Mahakal. Police Inspector was contacted on mobile and he informed that staff was sent to Mahakal village. Entry at Exh.247, Sr.no.35 is about sending of dog squad to the spot. It is taken at 18.10 hours. Entry at sr.no.43 is Exh.331, which shows that ladies belonging to group of accused were sent through police jeep to the house of their relative Nilesh Petkar at Wardha. Entry at sr.no.33 (Exh.252) is taken at 16.30 hours, which shows that police inspector Thakare arrested 16 accused and its intimation was given to their relatives. Entry at Exh.330 is taken at 14.15 hours and it mentions that 3 men and some women had been to the police station to protect themselves from other group. They were medically examined. 3 male persons then returned to Mahakal at their own risk. From all these entries, one can comprehend the tension then prevailing in the area and what police force was required to care for on that day. It is not in dispute that two temporary police outposts were then provided at Mahakal to preserve the law and order situation.

31. P.W.13 is Police Inspector - Marotrao Ramaji Thakre. He has stated that on 31.08.2007 at about 7.30 a.m. he was at his home and on phone, he got knowledge about murder of Makrand Tonpe. He went to the spot. Informer Prakash Mohite was present there. Due to crowd, he asked P.W. 11 Junarkar to take Prakash Mohite to police station and record his complaint. Accordingly, Junarkar took Prakash Mohite to police station which was then 56 kms. away. Both of them returned back after about 1 ½ hours. In the meanwhile, he controlled the mob at the spot and through police station informed the incident to his superiors and also called for photographer, dog squad, finger print expert. He himself investigated the crime. He prepared spot Panchnama in presence of panch Amit Gawande (PW-5) and Suraj Goho. Photographer obtained various photographs. Finger print expert examined motor cycle and various articles seized from the spot. On 31.08.2007 he arrested some accused from Mahakal village and he sent them to the police station by another road, as there was tension in the village. He also prepared 16 arrest forms of accused persons. Dilip was arrested on 06.09.2007. He has stated that on 02.09.2007 he got knowledge of injury on finger of hand of the accused no. 2 Vinod Bhakre and therefore, Vinod was sent for medical examination.

32. He has pointed out that on 05.09.2007, accused 3 Devanand made a statement in presence of panchas about burning of his clothes and clothes of accused Vinod and Vijay near Ghodoba Hill. He has pointed out how that statement was recorded in presence of panchas, signatures were obtained and then how along with the accused they proceeded to Ghodaba Hill. Accused Devanand then had shown the place where the clothes were burnt; and partly burnt clothes, ash, button and one iron clip were seized in presence of panchas. He has then stated that on 06.09.2007, accused Vijay made a statement before the panchas about keeping of one motor cycle at the house of his maternal uncle Shri Rewatkar at village Paloti. Accordingly after drawing proper panchnama, motor cycle bearing registration No. MH 32/H-6189 was seized. R.T.O. later on informed that the said motor cycle was owned by Dnyaneshwar Kachode. On 06.09.2007, accused no.4 Shankar made a statement before the panchas that he would produce one motor cycle kept in the house of Shri Khunne at village Karla. Accordingly motor cycle no. MH-31/ BH-5265 was recovered. R.T.O. Authorities informed that the said motor cycle was owned by one Abhishekh Kene, but then chassis number, engine number were different than the one in the seizure panchnama. On 06.09.2007, he seized clothes from the person of 17 accused persons. He has stated that accused no.18 Dnyaneshwar Kachode and accused no.19 Ranjit Shinde got anticipatory bail from the Court. He arrested accused no. 19 Nana @ Dnyaneshwar Kachode on 03.01.2008 and Ranjit Shinde on 24.02.2008. He further stated that he got knowledge that accused Dnyaneshwar was admitted in the hospital of Dr. Jain at Wardha and therefore, he recorded statement of Dr. Jain and obtained medical record of Dnyaneshwar Kachode. He found that Dnyaneshwar Kachode was not in the hospital between 5 a.m. to 11 a.m. on the date of incident. This question put to him and answer thereto was objected to by the defence counsel Shri Taksande, and Shri Choube, but the Trial Court rejected it. Trial Court found that the witness disclosed result of investigation and question of admissibility may be gone into at the time of judgment.

33. In cross examination, P.I. Thakare has stated that after he assumed charge of police station, head constable Bhalavi took a meeting of Tanta Mukti Samiti at Mahakal village. Before the incident he had visited the village twice, as there were some disputes in the villages. He stated that he also took two meetings regarding the said village in the police station and he tried to pacify both the groups to ensure peace in the village. He accepted that in said meetings Narsingh Mahakal, Suresh Tonpe and Makrand Tonpe were present. He denied that all of them gave assurance of keeping peace. He accepted that on 29.07.2007 Shailesh Karamore and 10 other persons committed rioting and regarding it, charge sheet came to be filed. Devanand Mahakalkar is stated to be complainant in that matter. He accepted that in that incident, motor cycle of Vijay Mahakalkar was damaged and his cow was also killed. One Auto rickshaw was also damaged. Certified copy of the charge sheet in the matter was exhibited as Exh.327. He could not explain why I.O. in that case could not submit charge sheet for 1 ½ years. He accepted that on the date of incident i.e. 29.07.2007 and also on the next day, he did not visit village Mahakal.

34. He accepted that on the basis of report of Manohar Ganpat Bhakre dated 26.02.2001 a charge sheet was filed against Ankush Wanjari, Munna Shinde, Purushottam Tonpe and deceased Makrand Tonpe. He accepted that in that offence Vijay Bhakare was given blows of sword and sticks. After this incidence, a guard was placed on duty and provided in that village. He was not aware whether Zilla Parishad Members and Gram Panchayat Members were then asked to establish peace in the village. He stated that he was not knowing Suhasini Shinde, Deputy Sarpanch of village Mahakal.

35. His deposition shows that on 31.08.2007, he got information about the incident at about 7.30 a.m., from head constable Kishore Thakare, then he also got phone call from police station. He directly reached the spot. Staff of police station had come to his place and therefore, he went to the spot of incidence. He reached the spot between 7.30 to 7.45 a.m. 200 to 250 persons had already gathered there and there was tension in the atmosphere.

36. Nilesh Karamore, Prakash Mohite and Nana Shinde were also present in that mob. He accepted that these three persons were not to be seen in any of the photographs taken by the photographer at the spot. Motor cycle was lying about 75 feet away from the dead body of Makrand. Dead body was about 25 feet away of electric pole. He could not say whether the distance between the electric pole and road was about 175 ft. He stated that the deceased had put on shoes. A pair of chappal was found on the spot. Left chappal was stained with mud and blood. He stated that soil at the place of incidence was not wet. He accepted that if such chappal comes in contact with blood soaked soil, then such soil can stick to it. He admitted that there was such soil stuck with the chappals. Cotton plants in the fields were about 2 feet in height. He accepted that he did not obtain report whether it had rained in the area. His cross examination in paragraph no.28 shows admission that if clothes of accused have blood stains, same need to be seized at the earliest. He accepted that clothes of accused were seized on 06.09.2007, though they were arrested on 31.08.2007. He further stated that seizure panchnamas at Exhs. 226 to 242 do not show that clothes seized were sealed. He has explained that though clothes were sealed in fact, it was not so reflected in panchnama. He was not aware whether Jangloo Bhakre used to go for work at Selu Forest since two years prior to the incident. He was not aware whether the accused Shankar Landge had established Shiv Sena Office at village Mahakal. He has denied that Shankar Landge, used to reside at village Karla. He stated that he did not obtain statement of Abhishekh Kene in whose name motor cycle No. MH 31/BH 5265 was found registered. He denied that said motor cycle was seized from one Jaisingh Bhosle at Sewagram square.

37. His cross examination in paragraph no.31 reveals that on the date of filing of complaint, he had obtained mobile hand set from Prakash Mohite and read the phone numbers of calls received in that handset. He could not tell the time at which he collected said information. He also deposed that he was not aware that on every mobile, details of such calls received are automatically saved. He accepted that he has one mobile handset. He stated that he was not aware whether a person who made phone call in the morning to Prakash Mohite was the eye witness or not. He stated that he made efforts to trace out that person but, could not find him. He further stated that he was not acquainted with the pancha witness Amit Gawande prior to the incidence and he was not aware whether Amit belongs to any particular party. Amit Gawande was present with him since the time of drawing of spot panchnama, till its completion. He stated that on that day he did not make any enquiry from Amit Gawande about the incident. He further stated that he recoded statement of Amit Gawande on 03.09.2007 at police station. He felt that Amit Gawande was resident of village Mahakal, but he did not go to his house. He further stated that before recording statement of Amit Gawande, none of the witnesses had informed him that motorcycle used by the assailants was seen moving towards and away from the spot of incidence. He accepted that it was not necessary to name eye witness while seeking remand from the Court vide Exh.254 and 255. In paragraph no.36, this witness has accepted that P.W.6 Nilesh Karamore did not inform him that accused No. 12 Vilas Mahakalkar, accused no. 19 Ranjit Shinde and accused no. 13 Rudaynath Sontakke were present at the spot of incidence and they were shouting "mara mara marun taka". He further stated that Nilesh Karamore did not inform him that the distance between accused nos. 9 to 19 and the spot of incident was 15 feet. He further stated that Nilesh Karamore did not tell him specifically that accused nos. 9 to 19 were instigating accused nos. 1 to 4 to inflict sword blows.

38. His cross further reveals the fact that Prakash Mohite never informed this officer that on mobile, he received a phone informing him about the incident. He further stated that P.W.9 Nitin Shinde did not tell him that accused no. 19 Nana Kachde, accused no. 9 Sandip Mahakalkar, accused no. 16 Yashwant Mahakalkar, accused no. 17 Bhaksar Bhakre and accused no. 15 Vilas Pahune were present in the field of Shyamrao Manikkule. He accepted that P.W.9 Nitin Shende did not tell him about phone call made to Sewagram Police Station. However, they informed this P.W.13 that he proceeded to Mahakal from Wardha by Wardha-Satoda-Mahakal road. He denied that till 06.09.2007, he did not have statement of Nilesh Karamore and Nitin Shinde, and therefore, he did not add offence punishable under Section 109 of Indian Penal Code. He could not point out whether distance between the house of Makrand Tonpe and place of incident was about 12 kms.

39. In paragraph no. 38 question was put to him - Whether in his investigation it transpired that Makrand Tonpe had left his house at 6.30 a.m. at Ramnagar, Wardha ? Witness has answered this question in affirmative. After this answer, in record, there is a bracket in which the Trial Court has recorded that it heard the counsel for both the sides. It has observed that question put was not pertaining to any witness examined by the prosecution, what I.O. heard from others would he hearsay for the court, unless that witness is examined by the parties. The Trial Court has observed that unless I.O. directly sees and pursues or hears such matter, it cannot be added as evidence in the name of investigation. It therefore, disallowed the question and answer both, holding that it would not be read in evidence. This question was put to this witness in the background of his earlier answer that there were many turnings on Wardha-Satoda-Mahakal road and it was not in good condition at the time of incident. He had stated that there were many turns, some of which were blind. He stated that he has seen Ramnagar area of Wardha, but could not state whether one requires 20 to 25 minutes to reach the spot of incident from Ramnagar, Wardha. In paragraph no.40 he has stated that he could not find any witness seeing accused persons approaching the spot of incidence from Mahakal village. He accepted that there were no houses near the place of incident. He further accepted that Nilesh Karamore and Nitin Shinde did not inform him about any motorcycles at the spot of incidence. He accepted that he did not conduct exercise of identification of seized articles through eye witnesses. In paragraph no.43, he accepted that from report of Prakash Mohite, he came to know that Prakash was not an eye witness. He submitted that before 07.09.2007, he could not get any cogent evidence and hence, in remand papers had sought custody to collect further evidence. He further stated that he did not obtain any documentary evidence from Lyods Factory about the duty hours of Nitin Shende between 30.08.2007 to 01.09.2007. He accepted that as case diary shows fact that Amit Gawande knew about the incident, he could not remember whether any other person gave him information about Amit Gawande. He further denied that he deliberately gave time to Amit Gawande to become a witness in the matter. Witness has further stated that after receipt of phone call, he did not order to register F.I.R. as information was not containing details. He denied that as he wanted to rope in innocent persons as accused, he did not order registering of an offence. He accepted that he did not mention in police diary, absence of Prakash Mohite from village upto 06.09.2007. He further stated that no arrest panchnama mentions that any accused was wearing clothes with blood stains. In paragraph no.56, he accepted that there was no entry in outward register regarding sending of case diary of this crime to S.D.P.O. He also accepted that there was no such mention in the station diary. He further accepted that he did not produce on record any evidence to show that on 01.09.2007, he forwarded some envelopes to S.D.P.O. He accepted that accused no.18 Dnyaneshwar and accused no.1 Vijay are maternal cousin brothers. He could not state whether Dnyaneshwar sold motorcycle no. MH 32/H 6189 to accused no.1 Vijay. He also stated that it never came to his notice that duty hours of accused no. 19 Ranjit Shinde were from 9 a.m. onwards.

40. It is in the background of this evidence of two investigating officers, which reveal long standing enmity between two groups, village politics and police complaints against each other, that we have to scrutinize the evidence of eye witnesses.

41. The time at which the incident took place on 31.08.2007 has been roughly determined by the Sessions Court in paragraph no.14 of the judgment. Consideration of material on record shows that P.W.8Prakash has received a phone call on his mobile at about 7 a.m. about attack on Makrand Tonpe and Makrand Tonpe being found injured. We will consider the impact of the depositions of the eye witnesses P.W.6 Nilesh and P.W.9 Nitin little later. But, P.W.5 Amit has deposed that he saw Makrand Tonpe proceeding towards Wardha side on motor cycle after 6 a.m. P.W. 13 Investigating Officer Shri Thakare, has in cross examination accepted that during investigation it transpired that Makrand Tonpe had left his house at Wardha at 6.30 a.m. Trial Court has not allowed this question and answer to be used in evidence on the ground that it is introduction of hearsay material on record. Suggestion by accused was that a person takes time of about 2025 minutes to reach the spot of incidence from Ramnagar, Wardha. P.W.13 could not say anything about it. However, his answer that during investigation it transpired that Makrand Tonpe left his house at 6.30 a.m. clearly indicated that he came across some material which led him to such conclusion. Non mention of that material or non production of such witness by the investigating officer does not mean that his conclusion is hearsay.

42. P.W.8 got message on his mobile phone at about 7 a,m. However, this fact has not been corroborated by producing necessary material and has not been verified by P.W.13. P.W.8 has then stated that after receipt of that call, he went to his friends Raju, Ankush, Shailesh and Ashish, then all of them went to the field of Prabhakar Manikkule on motorcycle. Accused no. 3 Devanand Mahakalkar has lodged complaint against Prakash, these 4 persons and Suresh Goho, Ananda Karamore, Nilesh Salunke, Prakash Bade, Raju Karamore and Vishal Karamore. PW8 makes phone call to Sewagram Police Station by using his mobile at 7.30 a.m. and informed police authorities about murder of Makrand Tonpe. Thus, P.W.8, after getting knowledge of attack on Makrand, collected his 4 friends and then went to the spot. He has stated that when he visited the spot for the first time, 5 to 7 persons were there and he did not speak with them. Some of them were from Satoda, while some of them were from Mahakal. He does not say that P.W.5 Amit, was present at the spot when he reached there. Prosecution also did not attempt to locate or identify these 5 to 7 persons seen at spot by PW8 Prakash.

43. P.W.5 states that first he saw deceased Makrand proceeding towards Mahakal side and then P.W.9 Nitin Shinde going on motor cycle from Wardha side to Mahakal side. 5 to 7 minutes thereafter, two motor cycles came from Mahakal side to Wardha side. Accused no.2 Vinod and Accused no.1 Vijay and accused no. 3 Devanand were on one motor cycle, while accused 4 Shankar was on the other motor cycle. According to learned Counsel for Appellant/accused, Amit gave correct sequence but this went against the design of prosecution and hence, a leading question became necessary. On a hint from Spl.P.P., Amit has stated that before arrival of these two motor cycles, Nitin Shinde had come from Mahakal side and proceeded towards Wardha side in high speed. 5 to 7 minutes after passing of the two motor cycles of the above mentioned accused, one Niranjan Bobade met him and informed that some one had killed Makrand Tonpe and he was lying in the field of Manikkule. He returned to his house, took motor cycle and went to the place of incident. According to him, by motor cycle 5 to 7 minutes are required to reach the spot of incidence from his house. His cross examination shows that he was acquainted with Raju, Ankush, Shailesh and Ashish. When he went to the spot of incident, these persons were present there, but he did not speak to them.

44. Thus from material on record, Niranjan Bobade appears to be the first person who learnt about the death of Makrand and informed it to P.W.5 Police authorities however, have not cited him as witness and have not recorded his statement.

45. Actual grievance of accused is about prosecution shielding or suppressing the real culprits. They have submitted that pair of chappals found on the spot could not be linked with any of the 19 accused, and no steps have been taken to find out who was using it. They add that person who allegedly made call to P.W.8 - Prakash and informed him about the attack, has not been traced out and correctness of this assertion by P.W.8 has not been established. Similarly, person who gave information of murder to P.W 5 namely Niranjan Bobde, is also not examined and questioned by them. They point out that according to this witness colleagues of P.W.8 namely Shailesh Karamore, Raju Goho, Ankush Vanjari and Ashish Ambhore were already on the spot when he reached there. They also seek assistance from the fact that instead of parading all accused in their custody before dog, only 4 accused are claimed to have been paraded with 4 dummies, and there is no record of such parade. Prosecution also did not attempt to identify the 5 to 7 persons seen allegedly at spot by PW8 Prakash when he first reached there. Submission is, prosecution is biased and investigation was conducted with a view to victimize the accused.

46. P.W.8 Prakash has studied upto 12th standard and in cross, he has accepted that Manohar was servant of Makrand Tonpe. Later on said Manohar joined employment of his (Prakash) family on "Gudipadwa" i.e., a festival of Hindu new year, before the incident and therefore, deceased Makrand had grudge against Mohite Family. He has accepted that Manohar thereafter did not work with them and joined employment of one Vasudeo Pahune. This witness has also stated that Manohar had joined back Makrand Tonpe. He has denied that he was active member of Tonpe group. He accepted that he did not lodge any complaint to police against Mahakalkar group during the period between 05.07.2007 to 29.07.2007. He accepted his friendship with Ashish Ambhore, Ankush Vanjari, Shaikesh Karamore and Raju Goho. He denied knowledge of the fact that members of Mahakalkar group had lodged any report to police against him complaining harassment between 05.07.2007 to 29.07.2007. He accepted that one complaint was lodged on 29.07.2007 alleging that he himself viz. Prakash and his associates, mentioned supra, attempted to kill accused Vijay Mahakalkar, accused Devanand Mahakalkar, accused Shankar Landge, Sanjay Mahakalkar and Manda Landge by going to their house. He did not know whether Motor Cycle No. MH 32/ H 6189 was completely destroyed or not. He was not knowing whether the said motor cycle was standing at residence of accused Vijay Mahakalkar. He accepted that "those persons" separately lodged complaints against them and others. He denied knowledge of fact whether shoulder of Yeshwant Mahakalkar was dislocated in that incident. He accepted that the police came to his village for enuqiry regarding the incident. He was not aware whether police then had seized two handles of sword from two different places, and also seized one sword without handle. He denied that police then seized any bamboo stick from him. He accepted that police arrested 1012 persons for that incident. He accepted that on the date of incident i.e. 31.08.2007, after 8 a.m. many policeman came to his village in their vehicles. He could not state whether police took custody of Narsinghrao Mahakalkar, Vilas Mahakalkar, Suresh Thode, Sandeep Mahakalkar, Bhaksarrao Bhakre, Yashwantrao Mahakalkar, Janrao Dhande and Vilasrao Pahune in between 8.15 a.m. to 8.20 am. on that day.

47. Evidence of P.W.9 / eye witness Nitin Shinde also throws some light on rivalry between two groups. His father, a social worker at Wardha in Mahakal area belongs to Nationalist Congress and worked under leader Suresh Deshmukh. According to him Suresh Thote, remained Sarpanch of Mahakal for two terms. He could not state the political party to which Suresh Thote belongs. He claimed that he was not aware of the political equation in said area. His mother was Deputy Sarpanch of Mahakal village and she belongs to Makrand Tonpe group. He accepted that Arvind Manikkule was then a Sarpanch and he does not belong to any political party. He stated that the post of Sarpanch was reserved for Scheduled Caste person and therefore, it was given to Arvind Manikkule. He could not tell how many persons belonging to caste of Arvind Manikkule were elected. He accepted that Vijay Majarkhede, Prakash Mohite, Nilesh Karamore, Shailesh Karamore, Raju Goho, Ankush Vanjari and Ashish Ambhore were residents of Mahakal village. He stated that he was not interested in politics and he was not aware whether those persons worked with Makrand Tonpe. He also stated that he never canvassed for his mother, but his father did that job. His mother was Deputy Sarpanch since last 4 ½ years. He stated that he was not acquainted with Tarabai Pandharinath Mahakalkar and whether she contested election against his mother. He denied that said Tarabai lodged complaint that P.W.9 as polling agent of his mother, forwarded bogus voters to cast vote. He denied knowledge of fact whether any police came there during said election. He denied knowledge of fact whether Vishwasrao Mahakalkar after getting elected to Gram Panchayat, contested against his mother for the post of Deputy Sarpanch. He denied knowledge of fact that Vishwasrao Mahakalkar belonged to the group opposing his mother in politics. He accepted that one accused no. 16 Yeshwant Mahakalkar has lodged a complaint against Makrand Tonpe, and his brother i.e. brother of P.W.9 that they beat him. He volunteered that both of them were acquitted, but he denied knowledge of fact that accused no. 2 Vinod Bhakre lodged similar complaint and police registered crime no. 32/2001 against Makrand Tonpe and his brother. He denied knowledge of fact that his brother is facing trial for offence punishable under Section 420 of Indian Penal Code.

48. Purushottam Pandharinath TonpePW14 is the younger brother of deceased Makarand Tonpe. Prosecution has examined him to bring on record the political rivalry and motive. His deposition shows that deceased Makrand used to leave house everyday at 6.00 A.M. for field and bodyguard Maroti Khunne had stopped accompanying him from 26.8.2007. He has mentioned that in the year 2001 Janglu Bhakare (accused no.6), Bhaksar Bhakare(accused no. 17), Vinod Bhakare(accused no.2) and one Manohar Bhakare had assaulted him with swords and sticks. Makarand had lodged report about it and after trial, they were sentenced to an imprisonment for a year each. All these accused formed a group. In elections held before the incident, persons of group of Makrand were elected as members of Gram Panchayat, Mahakal. He deposed that thereafter Makrand apprehended danger to his life. In cross-examination, he could not remember whether Manohar Bhakare had lodged report against him, Makrand Tonpe, Ankush Wanjari, Munna Shende. He denied that a crime was then registered for injuring Vinod Bhakare with swords and sticks. He denied that he was prosecuted in case no. 344 of 2001 in the court of J.M.F.C., Wardha. Thus, through this witness old feuds for power have been brought on record as the motive.

49. P.W.6 - Nilesh Karamore is also claimed to be an eye witness. He has given names of all 19 accused, as seen by him from a place where he hid himself and watched the assault on the deceased. His political history and political affiliations also need to be noted. He has denied knowledge of Crime No.111/2007, registered against Shankar Landge, Raju Mahakalkar, Rahul Mahakalkar, Vinod Thakare, Vijay Mahakalkar, Dewanand, Radheshyam, Sandeep, Dilip Mahakalkar, Sanjay Mahakalkar. He also did not remember whether police recorded his statement as eye witness in respect of incident pertaining to Nilesh Salunke and he did not remember whether he saw that incident. He knew Lahanu Narayan Muley and stated that many incidents might have taken place regarding him. He knew about one incident between Lahanu and some accused. He denied that he was shown as eye witness by police regarding that incident or that his statement was recorded by police. He did not know whether police have shown him as witness in that case. He accepted that on 31.08.2007, Devanand Mahakalkar lodged one complaint against him and police registered crime accordingly. He volunteered that Devanand might have lodged false complaint as he may have come to know about his statement to police given as an eye witness to murder of Makrand Tonpe. He did not know whether Indira Govindrao Mahakalkar lodged complaint against him on 31.08.2007. He however, volunteered that on that day police registered crime against him. He did not know whether said Indirabai happens to be grandmother of accused Raju, Sandeep and Vijay. He does not know whether Prakash Bhanudas Mohite (P.W.8), was accused with him in a complaint lodged by Devanand Mahakalkar. He accepted that Shailesh Karamore is his brother. He further stated that police never contacted him, he could not say whether Radheshyam Mahakalkar lodged complaint against him and his brother on 17.05.2007. He did not know whether son of the accused lodged complaint on 15.05.2007 against his brother and some others. He accepted that there are 1012 Karamore families in the village Mahakal. He accepted that accused Suresh Thode, Vinod Bhakre, Janglu Bhakre and Bhaskar Bhakre belong to Dhangar caste and Suresh Thote was exSarpanch of the village. He accepted that there were different political groups and one Vijay Majarkhede was exVicechairman of the Panchayat Samiti. He did not remember name of mother of Nitin Shinde, but, he knew that she was Deputy Sarpanch. He accepted that in village there were two groups and one group was of Mahakalkar while another group was of Tonpe. He accepted that Shinde and Tonpe group is one and same, and there is political rivalry between Tonpe group and Mahakalkar group. He accepted that house of Kotwal and Police Patil were at a distance of 5-7 minutes on foot, and on the date of incident of murder of Makrand Tonpe, he did not go to their houses after returning from the field. He accepted that his aunt was member of the Panchayat Samiti and he did not have good relations with his uncle and aunt. He could not tell whether Mahakalkar group supported candidature and canvased for his aunt in the election. He denied that because of the same, they had enmity with the accused. He accepted that some of the accused used to go to the house of his uncle. He, however, denied that because of that he had enmity with the accused. He also denied that on complaint of the person belonging to group of accused, his license as Trader of A.P.M.C. was canceled. He knew Nitin Shinde and he denied that Nitin Shinde, deceased Makrand were of same caste. He accepted that father of Nitin Shinde namely Babasaheb Shinde is an influential leader in the village. He denied that Sarpanch of village is son of Shamrao Manikkule. He accepted that Arvind Manikkule is that Sarpanch. He does not know father of Arvind.

50. P.W.6 - Nilesh Karamore accepted that Narsingh Mahakalkar, is a retired teacher but he did not know whether Narsingh's leg was fractured in an accident 5-6 years ago. He accepted that Narsingh was member of Peace Committee. He accepted that he was made an accused in relation to the incident dated 30.07.2007, and prosecution was going on. He does not know whether Devanand Mahakalkar, lodged complaint in that respect. He stated that as he was not involved in that crime, he was not aware of the details. He accepted that Shailesh Karamore, Ashish Ambhore, Suresh Goho, Raju Goho, Ananda Karamore, Nilesh Salunke, Prakash Mohite, Ankush Vanjari, Prakash Bade, Raju Karamore and Vishal Karamore are accused in that case. He did not know whether on 30.07.2007 Mini Matador of Devanand Mahakalkar was damaged and household articles of Vijay Mahakalkar were destroyed. He did not know that on that day one motor cycle of Vijay Mahakalkar was damaged and also his one cow was killed. He stated that on 30.07.2007, one Peace Committee was formed by Tanta Mukti Samiti. He accepted that on 01.01.2009, he along with others applied for anticipatory bail in relation to the incident alleged to have taken place on 31.08.2007. He did not know whether there were 33 accused in that case. He accepted that in said matter, Ananta Karamore, Vishal Karamore, Raju Karamore, Shridhar Karamore, Krushnaji Karamore, Smt. Ramabai Karamore and Nandatai Karamore are shown as accused. He accepted that Ananta, Raju and Shridhar Karamore are his uncles and Krushnaji and Ramabai Karamore are his parents, while Nanda Karamore is his aunt. He denied that on the date of incident, he along with others, brought family members of accused to the spot of incident while beating them.

51. P.W.5 Amit, is the other witness whose political affiliations also need perusal. He accepted that he is member of Wardha Panchayat Samiti. He belongs to Indira Congress Party. He accepted that Makrand Tonpe and he belonged to Kunbi caste. He also accepted that he as also Makrand Tonpe were active in politics. He however, denied that Makrand Tonpe belonged to his party. He did not know party to which Makrand Tonpe belonged and he had no occasion to meet Makrand Tonpe for political purposes. He stated that his place of politics and of Makrand were different. It is also stated that being Panchayat Samiti Member, he went to police station on many occasions. He also accepted that before becoming Member of Panchayat Samiti he was Sarpanch of village Satoda for 5 years. He did not know whether accused belong to group of Pramod Shende, M.L.A. Pappu Lala Jaiswal was the President of Zilla Parishad and he claimed that he did not belong to Pramod's Group. He has no knowledge that there was rivalry between Pramod Shende and Pappu Jaiswal. He accepted that Makrand Tonpe was member of Gram Panchayat, Mahakal. He did not know whether Makrand was Sarpanch for about 10 years. He knew that Makrand Tonpe got elected as Director of Jamni Sugar Factory. He denied that he helped Makrand Tonpe in that election. He denied that Makrand Tonpe was elected on A.P.M.C. Wardha. He accepted that he himself was a director of A.P.M.C. elected from Panchayat Samiti Constituency

52. Apart from two eye witnesses i.e. P.W.6 and P.W.9, prosecution has sought corroboration from statement of P.W.5Amit who claims that he first saw the deceased proceeding from Wardha side towards Mahakal, and he was followed by P.W.9 Nitin Shinde. He then mentions that within short time P.W.9 rushed back towards Wardha side and then he was followed by accused nos. 1 to 4 on two motor cycles. This story according to the prosecution gives credence to the deposition of P.W.9, who stated that he watched the incident from road, did not proceed further and returned back. Prosecution has also relied upon the recovery of 4 swords under Section 27 of the Evidence Act from these accused, identification of accused no.1 Vijay as person who used sword without handle and finding that handle of sword lying on spot; discovery of said sword without handle along with three swords in well, seizure of two motor cycles at the instance of accused no.1 and accused no.4, burning of his blood stained shirt by accused no.3 at Ghodoba Hill. The chronology in which these things transpire need to be briefly mentioned. Evidence of investigating officer Shri Thakre, shows that most of the arrests were made on the date of incident itself. Only accused no.18 Dnyaneshwar Kachode was arrested on 08.01.2008 and accused no.19 Ranjit Shinde came to be arrested on 24.02.2008. Seizure of clothes from other accused is on 06.09.2007 i.e. almost 7 days after the incidence. No blood stains are found on these clothes. Statement of Amit who has corroborated version of P.W.9 Nitin, has been recorded by police on 03.09.2007, memorandum of 4 accused leading to discovery of swords are drawn on 02.09.2007. Burnt clothes are recovered at the instance of accused no.2 Vinod on 02.09.2007. The statement of accused persons leading to seizure of two motor cycles are recorded on 06.09.2007. First such statement at Exh.222 is made by accused no.1 Vijay which led to recovery of motor cycle MH32/ H-6189; Second such statement is made by accused no.4 Shankar, which led to recovery of motor cycle no. MH-31/ BH-5265. P.W.5 has stated that accused no.1 Vijay, accused no.3 Devanand and accused no.2 Vinod were traveling on one motor cycle, while accused no.4 Shankar was using another motor cycle.

53. Use of suggestions given by the counsel for the accused to prosecution witnesses to reach a finding against the accused persons by Sessions Court, has also been criticized by respective counsel appearing for appellants/accused. Respective counsel appearing for State Government and Victim in their respective appeals have supported use of these suggestions. We find it convenient to refer to these suggestions in the course of our comment upon the application of mind by the Trial Court so as to understand how the suggestions have been used of by it.

54. The learned Sessions Court at Wardha has in the impugned judgment dated 16.02.2010, briefly noted the prosecution story and thereafter has considered from paragraph no. 13 onwards the facts available, and applied its mind to those facts. The motive or genesis of crime noted by it in paragraph no.13 or then effort to work out time of attack on the deceased Makrand Tonpe in paragraph no.14 or topography of crime scene as seen in paragraph no.15 is not very seriously in dispute. We have also mentioned supra, the enmity between two political rivals at Village Mahakal, complaints and counter complaints lodged by them against each other.

55. In paragraph no.16 the Trial Court has held that first telephonic message given by P.W.8 Prakash Mohite recorded at Exh.244 is FIR. It has then also considered the effect of not treating the telephonic message as FIR. In paragraph no.23, it has considered the question of delay in filing FIR. In paragraph no.25 it has then looked into the investigation in Second FIR. It has found that Prakash after proceeding to the spot made a phone call and informed commission of a cognizable offence namely murder of Makrand Tonpe. The police then visited the spot. In the meanwhile Prakash got knowledge about accused persons and his report was then recorded at police station. It has found that this second report lodged by Prakash is in quick succession of first one. It found that when he made telephone to police, he did not have any knowledge about the details of incident in second report at Exh.206. He mentioned names of some offenders. These offenders named were obviously suspects. Names of accused nos. 14 to 17 did not figure in Exh.206. It has also considered some precedents in this respect and concluded that Exh.244 being FIR, omission of certain names at Exh.206 is not very serious. We find that P.W.8 Prakash who lodged this report is not an eye witness. He has narrated names only after collecting them from the alleged eye witnesses, like P.W.6, hence mention of some names or then omission to mention certain names by him in such a report is of no consequence. After Exh.244 it is for the police machinery to investigate and find out the real culprits. In 2010 Cri.L.J 29 (SC) : [2010 ALL MR (Cri) 291 (S.C.)] - (Alagarsamy and Ors. v. State by Deputy Superintendent of Police), the Hon'ble Apex Court has held that prosecution case not be thrown because of discrepancies in FIR.

56. In paragraph no.29, while considering the fact that the police authorities recorded statement of P.W.8 Prakash Mohite after 5 days of the incident, the learned Trial Court has considered the fact that Prakash had gone to Hyderabad. It has also stated that this fact was admitted by defence, as defence gave suggestion that Prakash proceeded to Hyderabad to avoid arrest. Second use of suggestion in relation to Prakash is in paragraph no.30. Prakash claimed that he has received a call on his mobile in the morning which informed him about attack on Makrand Tonpe. The defence gave suggestion that said phone call or caller blamed him of killing Makrand and hence he did not disclose name of that caller to the police. Defence also brought on record the dispute between Prakash and Makrand over employment of one person. Trial Court has observed that such fishing enquiry cannot always fetch desired result, but, does not draw any conclusion by observing that Prakash was not an eye witness.

57. In paragraph no.31 of the judgment, the Trial Court has noted routine affairs of victim, apprehension of Makrand Tonpe about danger to his life, keeping one Maroti Khunne as bodyguard by Makrand Tonpe etc. It noted that 5 to 7 days before the incident, there was a meeting of Tanta Mukti Samiti i.e. Association for resolving dispute at Mahakal, where compromise took place between two groups and hence, Makrand had discontinued Maroti Khunne. Thus, it has demonstrated that an opportunity was available and within knowledge of accused persons.

58. From paragraph no.32 till paragraph no.45, it has considered evidence of eye witness P.W.6 Nilesh. It has noted that his evidence needed to be scrutinized carefully. In paragraph no.35 it has found that presence of P.W.6 Nilesh at the scene of incidence was virtually admitted by the defence by giving suggestion to him. It has also reproduced those suggestion, the same are as under :

"It is true to say that after seeing the incident, I went to my field. (para 11PW-6).

It is not true to say that at the time of incident, I was cutting grass from the western boundary of that field. (para 16 P.W6).

It is not true to say that at the time of incident labourers were working in the adjoining fields. Witness volunteers that I did not see anyone working there. (Para 16 PW.6)

It is not true to say that I returned to the spot of incident between 7.15 am to 7.30 am (para 18 PW 6) (emphasis on underlined word)."

In paragraph no.36 it has considered some precedents on the point of presumption to support its finding that presumptive fact of presence of P.W.6 has already come on record. It concluded that defence cannot have cake and eat it too. In paragraphs 38 and 39, it has considered the place of observation used by P.W.6 Nilesh and his conduct after watching incidence.

59. Considering the previous enmity between two groups, and fact that P.W.6 Nilesh or his brother Shailesh Karamore belong to group of Makrand Tonpe, we find conduct on the part of Nilesh unnatural. Even if one presumes that he has witnessed the attack, in the light of findings, the natural conduct would be to rush to the group leader in the village or call group of people in the village having allegiance to Makarand and inform them about the attack. Other possible conduct would be to hide at some secret place, if he (Nilesh) apprehended similar attack on his person and he would not have gone back to his house, in that case. If he thought of going back to house, intention behind such a decision should be to caution his brother Shailesh Karamore who also belonged to Makrand's group. But, he hides himself in the field itself and then returns to his house and informs the attack only to his parents. We can not comprehend what must have passed through his mind and he may also have felt it safe to hide in field only. In several judgments, the Hon'ble Apex Court has made observations about conduct of such witnesses. In Bishan Singh v. State of Punjab, [(1974) 3 SCC 288], at page 294, Hon'ble Apex Court has observed :-

"20. The conduct of Mohan Singh, as brought out in his evidence has been criticized before us and it is argued that there were something unnatural about it. Mohan Singh, even though he is father of Surat Singh, it is pointed out, did not go with Surat Singh from Jandiala Health Center to Jullundur hospital. We find nothing unnatural in the above conduct of Mohan Singh because Mohan Singh after taking Surat Singh to the Health Center must have been anxious to make a report about this occurrence at the police station. Reference was made by the Trial Court to the statement of Mohan Singh that he had changed his clothes which had got bloodstains before he went with Surat Singh to Jandiala Health Center and thereafter to the police station. In this respect we find that different individuals often react differently in a given situation. It may be that some others in the situation in which Mohan Singh was might not have changed their clothes before going to the Health Center and the police station. The fact that Mohan Singh acted differently and changed his clothes would not go to show that his account of the actual occurrence is not trustworthy."

The Hon'ble Supreme Court has also pointed out that it would not be appropriate to discard the evidence of such witnesses on the ground that he did not act in a particular manner. This principle is reiterated in AIR 2004 SC 3690 : [2004 ALL MR (Cri) 2554 (S.C.)] (State of Uttar Pradesh vs. Devendra Singh). We have to keep in mind these observations of the Hon'ble Apex Court and note that the witness in such a situation, may have acted in unexplicable manner under pressure or in confused state of mind.

60. A precedent on conduct i.e. Surjit Sarkar vs. State of West Bengal (2013 (2) SCC 146) : [2013 ALL SCR 523] also needs to be looked into here. The Hon'ble Apex Court observes-

"51.We are now left only with the evidence of PW 8 Achintya Sarkar. In the case of this witness also the facts are a little odd inasmuch as when the crime took place he was about 12/13 years old. When he was chased away by Gopal Sarkar, Jamai Gopal Sarkar and Bhebesh Sarkar, he naturally feared for his life and went into hiding. It is not clear what his movements were thereafter.

52.In his deposition, PW 8 Achintya Sarkar stated that he came back to the place of occurrence and saw the dead body of his father. This could have been only around midnight on 21-3-1992 after the inquest proceedings were over and the seizure of some items at the place of occurrence was concluded by the police. Assuming this to be so, it is not clear where PW 8 Achintya Sarkar hid himself after that and why. In any event, he came back home only at 2.00 a.m. on 22-3-1992 when he told his brother PW 1 Susanta Sarkar about the incident and soon thereafter narrated the events to the investigating officer.

53.While the reaction of PW 8 Achintya Sarkar is understandable, what is not understandable is the conduct of his family. The members of his family seem to have not taken any action to find out the whereabouts of PW 8 Achintya Sarkar after they came to know about the murder of Gour Chandra Sarkar. We would imagine that on coming to know of the murder, the primary concern of the family would have been the safety of PW 8 Achintya Sarkar. However, no efforts appear to have been made to locate his whereabouts or to search for him or even to inform the police about his disappearance.

54.However, merely because PW 8 Achintya Sarkar and his family acted a little strangely would not necessarily lead to the conclusion that this witness should not be believed. There is nothing on record to suggest that he was not at the place of occurrence when his father Gour Chandra Sarkar was attacked. There is also nothing on record which could lead to any inference or conclusion that PW 8 Achintya Sarkar made up a story about the attack on his father by Surajit Sarkar.

55. It is true that there is some discrepancy or some gap in the whereabouts of PW 8 Achintya Sarkar between the time of the attack and his returning home at 2.00 a.m. on 22-3-1992 but that by itself is not enough to discredit this witness, more so when he was not asked any question on his whereabouts. Also, this discrepancy does not destroy the substratum of the case of the prosecution and therefore there is no reason to throw it out on this ground. What is a minor discrepancy has recently been dealt with in Syed Ahmed v. State of Karnataka (authored by one of us, Lokur, J.) and the view expressed therein need not be repeated.

56. We find that PW 8 Achintya Sarkar successfully withstood his cross-examination and we agree with the Trial Court and the High Court that he was a credible witness who ought to be believed when he says that he was at the place of occurrence and that he saw his father Gour Chandra Sarkar being attacked by Surajit Sarkar."

Thus, an abnormal conduct by itself is not always sufficient to disregard any witness all together. Hence, nondisclosure of attack on Makrand by PW-6 or PW-9 to anybody or then communicating the names of accused to PW-8 Prakash by itself can not prove fatal for the prosecution. These two witnesses have also given those names to police immediately i.e. on same day when their statements were recorded. Unreported judgments from which support is sought to be drawn by Shri Mardikar, learned senior counsel therefore need not be delved into.

61. From paragraph no.46 onwards till paragraph no.52, Trial Court has considered evidence of P.W.9 Nitin Shinde, another eye witness. Again we have found that this person belongs to the group of deceased Makrand. He after seeing the incidence, takes a "U" turn returns to his home but does not disclose attack to anybody. He wakes up his father after 1/2 hour and informs him about it. Thereafter he claims to have made a phone call to Sewagram police. But these assertions are found to be either improvement or omission. His explanation for absence of names of 5 accused in his statement that as he was frightened, he could not pay attention to details is unacceptable in as much as he was with police voluntarily. Fact that after hearing shouts near field of Gawande at Satoda outer, he went ahead and saw 15 to 20 persons is also an omission. He was having mobile all the while with him and then Sewagram police station was only 1/2 Km. from his house. Wardha police station was also not far away. Thus, this witness did not inform police though it was possible for him. Thus, whatever we have said above about P.W.6 Nilesh applies with same vigor even to this person.

62. The Trial Court has labeled deposition of P.W.5 Amit Gawande as a circumstantial evidence. We have found that Amit Gawande also had affinity with the group of Makrand Tonpe. While deposing before the court he could not very clearly give sequence of events in the morning of 31.08. 2007, though he has been examined only to put it on record to corroborate PW9. It is only after a hint from the Special P.P. that he pointed out about return of P.W.9 Nitin Shinde to Wardha side and thereafter watching accused nos. 1 to 4 proceeding towards Wardha side on a motor cycle. If his deposition is read, ignoring the answer given by him after hint from Special P.P., sequence appears to be Makrand Tonpe proceeding from Wardha side to Mahakal side and then Nilesh Shinde following him i.e. from Wardha side to Mahakal side on Motor cycle. 5 to 7 minutes thereafter, Amit states that two motor cycles proceeded from Mahakal to Wardha side. Accused nos. 1 to 3 were riding the one, while other was being driven by accused no.4 Shankar. This evidence, therefore, shows that Makrand Tonpe had gone from Wardha side to Mahakal side and thereafter, he saw P.W.9 Nitin Shinde proceeding in same direction i.e. from Wardha to Mahakal side. 4 Accused persons then proceeded from Mahakal side to Wardha side. Thus, these accused persons were proceeding in reverse direction. Makrand Tonpe was initially followed by Nitin Shinde and then he saw accused persons coming in the reverse direction. At this stage, learned Special Counsel intervened and question put by him as - Whether anything happened before passing of these two motor cycles of accused. This question was objected to by the accused, on the ground that it was presumptive. Special P.P. submitted that it was not so. Trial Court concluded that no presumption can be drawn from such a question and therefore, overruled the said objection. Answer then given by the witness is before these two motor cycles, that he saw Nitin Shinde coming on motor cycle from Mahakal side and heading back towards Wardha side. Thus, he tried to support statement that when P.W.9 Shinde saw incident, instead of proceeding further, he returned back towards Wardha side. The question put by Special P.P. definitely gave a hint to P.W.5 Amit and he could gather that he had forgotten something to narrate. Accordingly, he then corrected himself and gave the sequence of events mentioned supra as needed by the prosecution. We find that house of this witness is situated in the field only on Wardha-Satoda-Mahakal road and his house is about 50 feet away from the road. Map shows that his field is placed parallel and adjacent to Wardha - Mahakal road. He has stated that when he saw the deceased proceeding or Nitin Shinde proceeding and coming back, he was moving in the field and his field is about ¼ km. in length. In paragraph no.57, the Trial Court has considered omissions in his deposition pressed into service by the accused persons. However, considering the map at Exh.333, and situation of house about 50 feet away from said road, the Trial Court found issue whether witness stood outside his house or in his field, not decisive. We find that answers given by PW-5 in paragraph 19 of his cross-examination prove that public road on southwest corner of his field was visible to him.

63. Controversy whether eye witnesses state that accused nos. 9 to 19 were shouting 'mara mara" or "marun taka", is not decisive. Those words were uttered, allegedly, by accused nos. 9 to 19. It is not necessary and possible that all accused would use the same words while inciting and whether they or some of them shout "mara mara" or "marun taka", that does not make any material change in their deposition. These words, if used, show an instigation to eliminate Makaranda.

64. Suggestion given to P.W.5 Amit in cross examination are commented upon by the Trial Court in paragraph no.58. It noted that no express suggestion was given to this witness to bring on record the defence that he could not have seen public road from the place where he was standing. The Trial Court also found that version of this witness that he gave call to P.W.9, was not challenged in cross examination. It has relied upon this witness P.W.5 to support version of P.W.9.

65. In paragraph no.59, the Trial Court has considered the question of appreciation of evidence of interested witness. It noted that it has to be very cautious in appreciating and accepting such evidence of eye witnesses. It has therefore, looked for further corroboration. In paragraph no.61, it has considered the question of non-examination of some of the persons. It found that police did not get opportunity to find out the caller who made first call to Prakash in morning. As Prakash thereafter proceeded to Hyderabad and his mobile was not available, it also concluded that due to subsequent phone calls on mobile of Prakash, call details of that person might have been automatically deleted. It held that had investigating officer acted quickly, identity of that person could have been ascertained. It also inferred that person calling P.W.8 Prakash must not have seen the actual incidence of death of victim. Similar observations are made in relation to non-examination of one Niranjan Bobde, who informed P.W.5 Amit about murder of Makrand Tonpe. It has also inferred that said Niranjan Bobde must not have seen the actual incidence and must not be an eye witness. There is no material on record to show that said person calling Prakash in morning of 31.08.2007 was not an eye witness. Similarly, there is no material to show that Niranjan Bobde could have been an eye witness. These inferences are therefore unsustainable. But, then real question is -Whether nonexamination of this witness or non-examination of an independent person as witness has prejudiced the accused person in any way? In paragraph no.63, the Trial Court has considered possibility of having independent witness and noted the prevailing apathy in the mind of the general public to come forward to assist the police in such matters.

66. The Trial Court has rightly found that P.W.5 was not aware of accused persons when he acted as witness on panchnama. Importance of what he watched in the morning dawned upon him only after getting knowledge of the statements of the witnesses P.W.6 and P.W.9 recorded at a different place by the investigating officer. It is not in dispute that the investigating officer was required to take the eye-witnesses to village Mahakal because of tension prevailing there and their statements were then recorded at Mahakal. Thus, delay in recording statement of P.W.5 is found not fatal by the Trial Court. There is no evidence on record that before recording the statements of eyewitnesses PW-6 and PW9, anybody else was aware of the identity of accused.

67. From paragraph no.64 onwards the Trial Court has looked into the circumstantial evidence, like discovery of 4 swords under Section 27 of the Evidence Act. Accused persons, particularly accused nos. 1 to 4 have attacked this discovery only on the ground that all of them were not taken to the well and it is only accused no.2 Vinod who pointed out that Well. It is also stated that in statement made, these accused persons no where state that they can show the Well or take out the swords from the said Well. Statement at Exh.215 shows that it is signed by accused no.1 Vijay. He has stated that 4 swords were used to attack Makrand and then the same were thrown in the Well of Prabhakar ie in a well in field of Prabhakar Gawande. Exh.216 is same statement by accused no.3 Devanand. Exh.217 is similar statement by accused no.4 Shankar. Accused no.2 Vinod at Exh.218 has, however, in addition stated that he would show said Well if police force and witness accompanied him. All these statements are signed by the accused persons and it is not their defence that their signatures were obtained by force upon it. Contention that they did not agree to show the Well or to take out swords form that Well is, not very material. Trial Court has considered this aspect in the light of various precedents and noted ingredients of Section 27 in paragraph no.72. It held that Section 27 of Evidence Act does not require that the accused person should show eagerness to point out a place where the evidence was kept hidden. Judgment of Hon'ble Apex Court reported at 2005 Cr.L.J. 3950 (SC) : [2005 ALL MR (Cri) 2805 (S.C.)] (State (NCT) Delhi .vrs. Navjot Sandhu) pressed into service by Shri Mundra, learned counsel shows that on the basis of information furnished by such accused, the investigating officer may go to the place in the company of other witness and recover such object. By doing so, the investigating officer discovers a fact. In present matter, though the investigating officer states that all four accused were carried to the Well, the memorandum of seizure at Exh.219 shows that it was only accused no.2 who was taken to that Well. 4 swords were then taken out and seized from it. This seizure memo is again signed by accused no.2 Vinod. There is no signature of other accused persons on it. It is not the case of the prosecution that though other accused were carried to that place, they refused to sign upon the seizure panchnama. However, material on record establishes that accused persons gave knowledge to the investigating officer about the availability of murder weapons in the said Well below water. They stated that all 4 swords were thrown by them in one and the same Well. Accused no.2 has actually taken the witness and police to that Well and 4 swords were then seized. Thus this discovery is in consequence of information received from all the accused. We therefore, find the objection being raised by the accused persons unsustainable. Fact that handle of a sword found at spot of crime fits with the blade of sword ie one of the weapons recovered from Well is not in dispute.

AIR (34) 1947 Privy Council 67 (Pulukuri Kottaya and others .vrs. Emperor) relied upon by Shri Mardikar has been considered in Harivadan Babubhai Patel v. State of Gujarat, (2013) 7 SCC 45 : [2013 ALL SCR 2524], where at page 53, the Hon'ble Apex Court states that :-

"18. In State of Maharashtra v. Damu it has been held as follows: (SCC p. 283, para 35)

"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."

19. The same principle has been laid down in State of Maharashtra v. Suresh, State of Punjab v. Gurnam Kaur, Aftab Ahmad Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi), Manu Sharma v. State (NCT of Delhi) and Rumi Bora Dutta v. State of Assam.

20. In the case at hand, the factum of information related to the discovery of the dead body and other articles and the said information was within the special knowledge of the present appellant. Hence, the doctrine of confirmation by subsequent events is attracted and, therefore, we have no hesitation in holding that the recovery or discovery in the case at hand is a relevant fact or material which can be relied upon and has been correctly relied upon."

68. Hon'ble Apex Court in Rumi Bora Dutta v. State of Assam, ((2013) 7 SCC 417) : [2013 ALL SCR 2459], at page 424 also refers to Pulukuri Kottaya and others .vrs. Emperor, (supra) and holds :

"16. In this context, we may refer with profit to the ruling in State of Maharashtra v. Damu5 wherein it has been observed that: (SCC pp. 28283, para 35)

"35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum." Thereafter, the two learned Judges proceeded to state as follows: (SCC p. 283, para 35)

"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section [Section 27]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."

17. In State of Punjab v. Gurnam Kaur7 it has been laid down that: (SCC p. 228, para 14)

"14. If by reason of statements made by an accused some facts have been discovered, the same would be admissible against the person who had made the statement in terms of Section 27 of the Evidence Act."

18. In Aftab Ahmad Anasari v. State of Uttaranchal, after referring to an earlier decision in Pulukuri Kotayya, a two-Judge Bench opined in the context of the said case that when the accused was ready to show the place where he had concealed the clothes of the deceased, the same was clearly admissible under Section 27 of the Evidence Act because the same related distinctly to the discovery of the clothes of the deceased from that very place.

19. In Bhagwan Dass v. State (NCT of Delhi), relying on the decisions in Aftab Ahmad Anasari and Manu Sharma v. State (NCT of Delhi), the Court opined that when the accused had given a statement that related to discovery of an electric wire by which the crime was committed, the said disclosure statement was admissible as evidence.

20. In the case at hand, both the accused have led to discovery of the knife and the skipping rope used in the crime. It was within their special knowledge. The medical evidence corroborates the fact that the deceased died because of strangulation and further there was a stab injury on his chest. Thus, the weapon and the other articles have direct nexus with the injuries found in the postmortem report."

It is important to note that in Jitender Kumar v. State of Haryana, [(2012) 6 SCC 204] : [2012 ALL SCR 1890], at page 215 , Hon'ble Apex Court has laid down that-

"28. This contention of the learned counsel for the appellant need not detain us any further as the law in this regard has been settled by various pronouncements of this Court. What has been recorded in Ext. P-43 cannot be taken to be confession of the accused in relation to commission of the crime, but the other part by which the motorcycle was recovered, would be the portion admissible in evidence. The admissible part can very safely be segregated from the inadmissible part in this statement."

We, therefore, find that Pulukuri Kottaya and others .vrs. Emperor, (supra) need not be separately looked into by us.

69. Observations of Hon'ble Apex Court in Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1, at page 1003 on joint disclosures or simultaneous disclosures are also important. There the Hon'ble Apex Court while holding joint discovery and statements legal, also cites State (NCT) Delhi .vrs. Navjot Sandhu, [2005 ALL MR (Cri) 2805 (S.C.)] (supra) with approval. Relevant observations are:-

"145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs.10 lakhs from the truck in which they were found at Srinagar is in issue. The learned Senior Advocate Mr Shanti Bhushan and Mr Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of Section 27, whereas it is the contention of Mr Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording 'a person' excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the court is really a matter of evaluation of evidence."

We, in this backdrop, do not find it necessary to refer to Mustkeem @ Sirajudeen .vrs. State of Rajasthan, [2011 ALL SCR 2662] (supra) which does not lay down any different proposition. It only stipulates that burden lies on prosecution to establish the close link between the discovery of such weapon and its use in the crime. The fact that swordhandle found at the spot of murder exactly fits on the swordblade recovered without handle along with three swords from same Well under Section 27 of Evidence Act, is not in dispute.

70. Some arguments were advanced about the Well from which swords were seized. Contention is revenue records i.e. 7/12 extract (Exh.332) of field survey no.142/A owned by Prabhakar Gawande does not show any Well in field. We find that Vinod had shown a Well which was about 45 feet from the road and 4 swords were seized from that Well. Accused has shown that field as belonging to Prabhakar Gawande. In seizure panchnama boundaries of said field are also given. All accused have stated that swords were thrown in the Well situated in the field of Prabhakar Gawande. The objection, therefore, is misconceived. Trial Court has also found that though field belongs to Ramchandra Gawande, Prabhakar Gawande being his son, he was mentioned as owner. Thus 4 swords are found/ discovered under Section 27 at the instance of accused nos. 1 to 4, and Trial Court has also drawn adverse inference against them for dropping all swords in the Well. In this situation, not expressly mentioning in memorandum that statement recorded under section 27 was not read over to the accused persons by itself cannot be held fatal. None of the accused has made any grievance about their signatures on memorandum drawn under Section 27 of Evidence Act.

71. PW1 Dr. Shailaja Kale has deposed that on 21.9.2007 she received requisition and after examining the swords, she recorded her opinion on its back. She has stated that she drew the sketch of those swords which were of metal and sharp edged with pointed end. She has also stated that there were multiple bloodstains on them. She has given measurement of each sword and distance at which it was found bent. Her cross-examination shows that the swords were not sealed when she received it. They were not labeled with signatures of investigating officer, pancha or accused. She also deposed that injuries on deceased seen in PM report could have been caused by said swords. She did not remove blood clots and put all swords together, sealed them and returned them to the duty constable.

72. In paragraph no.80 of its judgment, the Trial Court has considered detection by Sniffer Dog. It found that said dog identified accused no.1 Vijay, after he was given smell of sword handle. Accused have totally denied such identification. According to defence, in the report of P.W.3PSI Kar (Dog Handler) name of accused Vijay as written can be read as "Vinay". But then witness who wrote it has deposed that it was Vijay only. Guddu is pet name of accused no.1 Vijay only. The Trial Court again has found that the defence came to rescue of prosecution by giving suggestion to P.W.3, that dog Goldy identified person by name Vinay and not Vijay. Thereby the Trial Court inferred that accused admitted that dog pointed out a person and that person was having name Vijay. In respect of the irregularities in said parade, the Trial Court accepted the fact that dog pointed out Vijay @ Guddu and fortified prosecution case. In paragraphs 84 and 85 because of this admission, the Trial Court has turned down the objection of defence to the use of sniffer dog and held that dog has identified accused 1 Vijay and used authority State of Maharashtra .vrs. Dr. Arvind (2009 ALL MR (Cri) 1281), in favour of prosecution. We have already noted that there is no record of dummies who stood with the accused persons in the said parade. Question is, was there any person by name "Vinay" in those dummies ? Other question will be then whether said Vinay, if in existence, had any occasion to touch the handle of the sword ? Out of 4 swords taken out from the Well in field of Prabhakar Gawade, one was found without handle. The Trial Court has itself attempted and found that the handle seized from the scene of crime matched with and fits on that blade of sword. Hence, if such identification could be held to be legal and valid, it is established by prosecution that accused no.1 Vijay had touched that handle found at the spot. But, then identification was not carried out in presence of any independent panchas and no panchnama or record thereof has been maintained. As such, this identification by sniffer dog becomes redundant. In Gade Lakshmi Mangaraju v. State of A.P. [(2001) 6 SCC 205] : [2001 ALL MR (Cri) 2199 (S.C.)], at page 211 :Hon'ble Apex Court has observed :-

"17. We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.

18. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them."

73. In paragraph no.88, the Trial Court has considered the seizure of clothes of accused nos. 4 to 17 on 06.09.2007. It found that evidence of C.A. report was not of any use though it showed blood group of victim on some of the clothes. The Trial Court has relied upon a judgment reported at 1996 Cr.L.J. 3147 (Ashraf Hussain Shah .vrs. State of Maharashtra) to hold that in absence of seal on seized property, C.A. Report is of no use, and therefore, it has not used C.A. Report against any of the accused. We also find it difficult that after 31.08.2007 almost after 7 days, the blood stained clothes could have been seized from the accused persons. Equally surprising is the finding of C.A. that on said clothes on some of the accused seized on 6.9.2007, blood of victim on whom last rites were performed on 31.8.2007 itself, was detected. But as clothes were taken in custody belatedly though most of the accused were already arrested on 31.8.2007 and same were not sealed, we can not act upon such a finding. Finding of bloodstains, in this situation, is insufficient to connect accused 5 to 19 with offence. Trial Court has also in same paragraph found that the seizure of two motorcycles from accused no.1 Vijay and accused no.4 Shankar was of no help to prosecution in absence of any blood stains on these bikes. It found availability of blood stains essential to link the motor cycles with the crime.

74. In this respect, it is clear that the motorcycles belonging to accused no.18 Dnyaneshwar Kachode with number MH 32/H-6189 has been seized from a spot shown by the accused no.1. Similarly, motor cycle used by the accused no.4 with number MH-31/ BH-5265 was seized upon statement made by the accused no.4. Vijay stated that motor cycle was kept by him at the residence of his maternal uncle Subhash Rewatkar and it was accordingly seized from that place in presence of two witnesses. The documents under Section 27 are at Exh.222 and 223. Accused no.4 Shankar pointed out that he kept motorcycle in front of the residence of one Madhukar Shankarrao Khunne resident of Karla. Said motor cycle was accordingly seized from that place. It is important to note that nobody has come forward to claim that motor cycle MH-31/ BH-5265 and Trial Court has directed its disposal by auction. It is here that evidence of P.W.5 may be looked into. He stated that he saw these four accused on two motor cycles. Accused no.1 Vijay led police to a motor cycle belonging to accused no.18, but placed at residence of maternal uncle of accused no.1. Accused no.4 led police to other motor cycle, placed in a different village and that motor cycle has not been claimed by any body. In this situation, very fact that there were no blood stains on these motor cycles, is not sufficient to hold that motorcycles are not linked with the crime. Trial Court in paragraph no.89 of its judgment, considered the seizure of half burnt clothes, button of shirts, vide seizure panchnama Exh.221 from accused no.3 Devanand. Again this seizure is not very seriously objected to in arguments before us. Accused no.3 Devanand on 05.09.2007 made a statement under section 27 at Exh.220. He has stated that as clothes used while assaulting were blood stained, he burnt them on a Hill and agreed to show that place. Accordingly seizure has been effected vide Exh.221. This seizure panchnama is again signed by accused no.3 Devanand. Trial Court has found this circumstance can be used against accused no.3. We find that the place of burning of clothes was known to accused no.3 and he led police to that place. The fact that clothes were burnt at that place has been thus established. It connects burnt clothes with the crime and, therefore, accused no.3 also with the crime.

75. Delayed recording of statements of witnesses and defective investigation is also the bone of contention. Before appreciating the approach of the Trial Court, we find it appropriate to note the law as laid down by the Hon'ble Apex Court. In Surajit Sarkar v. State of W.B., [2013 ALL SCR 523] (supra), the law on the point of appreciation of impact of delayed recording of statement of witness and defects in investigation has been explained as under :-

"45. Finally, reference was made by the learned counsel for the State to Shyamal Ghosh v. State of W.B.17 to contend that the delayed examination of a witness will not vitiate the prosecution case. We agree that delay per se may not be a clinching factor but when there is a whole range of facts that need to be explained but cannot, then the cumulative effect of all the facts could have an impact on the case of the prosecution.

46. If the evidence on record is looked at in this perspective, namely, that PW 7 Sanatan Sarkar, an eyewitness to the incident did not bother to inform anybody in the family of Gour Chandra Sarkar about the assault on his neighbour; that this eyewitness was examined by the investigating officer more than a month-and-a-half after the occurrence; that the presence of this witness was not mentioned by PW 8 Achintya Sarkar, also an eyewitness to the incident, leads us to have some doubt about the presence of PW 7 Sanatan Sarkar at the place of occurrence.

47. The learned counsel for the State submitted while relying on Visveswaran v. State, C. Muniappan v. State of T.N. and Sheo Shankar Singh v. State of Jharkhand that a defective investigation need not necessarily result in the acquittal of an accused person.

48. In Visveswaran all that this Court observed was that: (SCC pp. 7879, para 12)

"12. ... In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved."

Similarly, in Muniappan this Court held: (SCC p. 589, para 55)

"55. ... The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth."

Finally in Sheo Shankar Singh it was held as follows: (SCC p. 674, para 54)

"54. ... Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case."

49. We are not prepared to accept as a broad proposition of law that in no case can defective or shoddy investigations lead to an acquittal. It would eventually depend on the defects pointed out. If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. In such a situation, it would not be correct for the prosecution to argue that the court should gloss over the gaps and find the accused person guilty. If this were permitted in law, the prosecution could have an innocent person put behind bars on trumped up charges. Clearly, this is impermissible and this is not what this Court has said.

50. It is clear from the record that the investigation has left unanswered several questions regarding PW 7 Sanatan Sarkar. Under the circumstances, it is difficult to accept that PW 7 Sanatan Sarkar was present at the place and at the time when Gour Chandra Sarkar was attacked."

This judgment therefore shows that faulty investigation and lacunae therein only enable accused to capitalize on it. In Zindar Ali Sk. vs. State of West Bengal and Anr. (AIR 2009 SC 1467) : [2009 ALL MR (Cri) 896 (S.C.)] cited by Shri Mundra, truthful version of prosecutrix was found to prevail over shabby investigation and discrepancies therein.

76. In later paragraphs, the Trial Court has considered the technical objections like not forwarding copy of FIR immediately, about not forwarding handle or swords to finger print expert or absence of finger print report. It has also considered the fact that the investigating officer did not submit any plan or site map showing the location of eyewitnesses from which they watched the incidence. In paragraph no.94 it has found that the investigating officer did not take trouble to verify the correctness of the statement made by the eyewitnesses. In paragraph no.95, it has also considered arguments about delayed recording of statement of eye witnesses, antedating it to match with prosecution case, not sending case diary to superior police officers. It is not in dispute that the police had reached the spot immediately on 31.08.2007 and investigation had started. It is not in dispute that report containing names of about 15 accused persons was lodged before 9 O'clock on that day by Prakash. In view of law and order threat, police authorities were required to record statements of eye witnesses in the village. In village Mahakal itself, two temporary police outpost were required to be provided. In this situation, we do not find any question of antedating any statement of eye witnesses. On the contrary, chronology in which the investigation proceeded and steps noted therein by us, clearly rule out antedating. Both the rival groups are influential and it was not possible for the police machinery to either ignore any piece of evidence or manipulate it. The Trial Court has also considered the effect of alleged lapses in investigation. In the light of discussion above, not taking steps to find out owner of chappal found on the spot, by itself cannot be held to be fatal. The said omissions can not in any way assist the accused 1to 4. We have perused the observations of the Trial Court on the subject of conspiracy or unlawful assembly and do not find anything wrong with the events noted by it. Those factors are :

"(a) The incident occurred at village Satoda, whereas accused are from nearby village Mahakal and yet some accused assembled there. (i.e., at the crime spot.)

(b) Their assembly was at odd hour i.e. at early morning, when accused are supposed to work in their fields at village Mahakal. It was not brought in evidence that any of the accused has field at village Satoda.

(c) They assembled at lonely place, where there was no houses at nearby places.

(d) Offenders assembled with swords.

(e) Circumstances show offenders were aware that as usual, victim would pass through there at such hour."

These factors as also conduct show an understanding or agreement reached before hand between accused nos. 1 to 4 to commit murder of political rival Makrand Tonpe and attract Section 120B, I.P.C.

77. In order to understand the implications of accepting suggestions given by defense counsel to prosecution witnesses, not only the precedents but the background in which the suggestion has been given also assume importance. When defense of accused is of total denial or false implication, like in this case before us, merely by giving some suggestion to prosecution witness in a roving attempt to demonstrate his lack of credit, the accused cannot be presumed to have waived or given up such a defense. If prosecution witness answers such question in favor of accused, accused may succeed and prosecution witness may be liable to be ignored. A hypothetical illustration may help to explain this situation. An accused may deny the presence of eyewitness at the place of alleged crime, like in present matter. While questioning him in that connection, his counsel may give him some suggestions which if accepted, may end up in showing that from the place where he claimed it to be present, the crime scene was not visible. This position also helps accused. But, if such or similar suggestion is not accepted by witness, that can not mean that accused had accepted presence of eyewitness at the site.

78. It is settled principle that an isolated observation or sentence in any judgment can not be read as laying down any proposition and if any principle is to be deduced, same must be sustainable by the earlier and later part of such a judgment. Judgment must be construed in its entirety before recording any such finding. In State of Maharashtra v. Bharat Fakira Dhiwar[(2002) 1 SCC 622] : [2002 ALL MR (Cri) 715 (S.C.)], at page 627, relied upon in 36 of impugned judgment, earlier and later observations of Hon'ble Apex Court show that the Trial Court's conclusion is incorrect. Entire paragraph 18 of the said ruling reads as under :-

"18. In our view, none of the aforesaid reasons, given by the High Court, is sufficient for purposes of discarding the evidence of these two child witnesses. To be remembered that the Trial Court which had the opportunity of watching the demeanor and conduct of these two child witnesses found them to be truthful. In our view it is entirely irrelevant that the locality was full of houses. The High Court has erred in coming to the conclusion that it was not shown that the two children stayed in the locality. During cross-examination of both these child witnesses, it has been put to them that they would have been lighting crackers near their house and that they could not have seen the respondent from near their house. This showed that even the defence accepted that they stayed in the locality. It is also in evidence that their house was merely 4/5 houses away from the house of PW 10 i.e. Shantabai. There is nothing strange in there being no other children bursting firecrackers at that time. On the contrary, it is highly unlikely that all the children in the locality would be lighting firecrackers at the same time and place. The High Court has also disbelieved them on the ground that it is impossible that they would not have divulged such information to their parents. But there is nothing on record to show that they did not divulge this incident to their parents. No questions have been put to them in this regard. Therefore the High Court was wrong in concluding that their conduct in not divulging the incident to their parents was difficult to believe. We also do not find any material contradictions between the deposition given in court and the statement given by them to the police. There may be some minor contradictions but those are not of a material nature. The further reason given by the High Court that the shirt had not been recovered could hardly be a reason for disbelieving these two child witnesses. It is quite possible that the respondent may have destroyed or hidden the shirt. Undoubtedly on 23-10-1995, the children would not know what was being carried in the jute bag. But on the next day when they heard about the little girl Nisha being missing, they would have put two and two together and known that blood was dripping from the bag because of the girl being carried in the bag."

Portion relied upon by the Trial Court is shown by us in "italics" above. Said part in the light of earlier and later part shows that while finding fault with the conclusions of High Court, Hon'ble Apex Court points out how non-existent controversy was raised and accepted by the High Court. Entire paragraph 18 of the Apex Court ruling and approach therein shows that there was enough other material on record to establish residence of children in said locality. Said finding is not based only on suggestion given to the witnesses during trial.

79. In impugned judgment in paragraph 37, Trial Court relies upon Tarun Bora v. State of Assam, [(2002) 7 SCC 39], to note that suggestion of the defence can act as admission of fact suggested. Paragraph 14 and 15 of the Apex Court ruling shows that the appellant had identified accused Tarun Bora and he stated in para 16 that "Accused Tarun Bora did not blind my eyes nor he assaulted me." Hon'ble Apex Court observed that said part of cross-examination is suggestive of the presence of accused Tarun Bora in the whole episode and it clearly suggest the presence of the accused Tarun Bora as admitted. The only denial was held to be that the accused did not participate in blindfolding the eyes of the witness nor assaulted him. Next judgment looked into by the Trial Court is State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381] : [2007 ALL MR (Cri) 2080 (S.C.)], in para 12 Hon'ble Apex Court notes the suggestion put in cross-examination which was - "Today I do not remember whether the accused had inflicted the said katari obliquely or straight". Hon'ble Apex Court states that the essence of the question appeared to be that though the accused had given the katariblow, the witness did not remember whether it was inflicted obliquely or straight. Hon'ble Court also holds that this by itself may not be sufficient to fasten the guilt on the accused, but was certainly a relevant factor.

80. Thus, none of these judgments lay down that due to such suggestion, the substantive defence of accused gets eclipsed. Such suggestions as also answers thereto call for an independent evaluation of its impact on whole defence, if it can be viewed as a relevant suggestion made with an intention to dilute or to relinquish the defense. We feel that roving cross-examination of prosecution witness by an advocate in an attempt to fish out whatever possible in favour of his client can not be always construed as an admission of the fact about which such suggestion was given.

81. Spot Panchnama at Exh. 193 drawn on 31.8.2007 is proved by examining PW-5 Amit Gawande. There are no arguments casting any doubt on it. Spot is shown by PW8 Praksh and panchnama is prepared between 9.40 AM to 10.45 AM by PI Thakre who is PW 13. Crime scene is adjacent to dhura i.e. boundary of field of Prabhakar Shamrao Manikule on Satoda Mahakal tar road. At that cotton crop was growing in it. It mentions the electric pole on northern side of said tar road at a distance of 22 feet from that road. On eastern side of this pole 25 feet away from it, body of Makarand Tonpe was lying with its head in south and legs in north direction. It was identified by complainant Prakash. There were injuries on the face of deceased. Fingers of both hand were cut and were lying there. Pool of blood is also stated to be seen in the vicinity. Blood is also seen on cotton plants at the place where body was found. Black motorcycle with number MH 32 F 391 belonging to deceased is found lying at a distance of 75 feet from the body on dhura in grass. At 15 feet from this motorcycle and on its northern side, a broken handle of sword is seen. Black plastic chappal (footwear) is seen 12 feet away from this handle on its northern side. On eastern side but not exactly at right angle of this chappal, another black plastic chappal is also found at a distance of 20 feet. 7 feet on east, a broken watch belt and near it a bunch of hair and broken pieces of watch are also seen. A spectacle stained with blood was also seen. Blood stains are also seen on cotton plants there. It is not the case that any of the accused was injured and therefore, it follows that attack may have started at the place where the cotton plants were stained with blood. Deceased was then killed at the place where his body was seen and pool of blood or broken fingers of deceased were lying. The fingers were broken obviously in an attempt to stop the blows of swords. A better spot panchnama with proper directions and indicating the manner in which assault proceeded could have been placed on record by PI Shri Thakre. But, for present purposes, it is enough to hold that Makrand after noticing the assailants, attempted to flee and shouted also for help. These shouts were heard by PW-6 Nilesh and PW-9 Nitin. These two persons are the eyewitnesses and in State of Rajasthan vs. Om Prakash (AIR 2007 SC 2257) : [2007 ALL MR (Cri) 2080 (S.C.)], Hon'ble Apex Court states a settled principle that improvement made by any witness about irrelevant details can not be viewed as omissions or contradictions.

82. PW-6 Nilesh Karamore was working in the field of his grandfather on 31.8.2007 when this attack took place. He stated that as usual he went to field at 6.00 AM and there is nothing in his cross-examination to disbelieve him. He heard shouts of some persons from field of Prabhakar Manikkule. He therefore went there and saw accused 1 to 4 attacking the deceased with swords, accused 5 to 8 beating him with fist and kick blows and accused 9 to 19 instigating them. He has given all 19 names before the Court. It has come on record that he was at work in the field of his grandfather who resides as part of his family. Shri Mardikar has pointed out sugarcane crop10 to 12 feet in height or tall grass in the field with well where Nilesh claimed to be cutting grass to urge that Nilesh could not have seen the incidence in field of Shamrao Manikkule. This argument overlooks the fact that Nilesh, after hearing shouts moved towards the field of Shamrao Manikkule to see what was going on. Thus he came out of sugarcane crop or tall grass and there is no effort to show that from the boundary of his field, he could not have seen field of Shamrao. Answers given by him in paragraph 27 of his cross-examination, support the conclusion that spot was visible to him. This witness is not a chance witness and we find that Trial Court has rightly relied upon him to the extent his deposition finds coroboration. Omission of fact that accused no. 12 Vilas Mahakalkar, accused no. 19 Ranjit Shinde and accused no. 13 Rudaynath Sontakke were present at the spot or they were shouting "Mara, Mara, Marun Taka" in his police statement, or of omission of time only of half an hour after which he came to his house after watching the incidence, that accused 9 to 19 were shouting "Mara, Mara, Marun Taka" are not sufficient to discredit him. The spot panchnama shows that after initial attempt or assault, Makrand ran some distance and appears to have been attacked again. He or assailants must have shouted before or after attack began and PW-6 may have heard this noise. By the time he reached the boundary of his field, the later or final phase of assault in which sword blows were given on Makrand may have commenced and watched by him.

83. PW9 Nitin Shinde has also stated that as usual, on 31.8.2007, while proceeding from Wardha to Mahakal at about 6.45 to 7.00 AM, near field of Gawande at Satoda outer, he heard shout. When he went further, he saw 15 to 20 persons in the field of Shamrao Manikkule. He has then named accused 1 to 4 as persons who were inflicting sword blows on Makarand Tonpe, accused who were beating him with fists and kicks and accused persons who were shouting to instigate them. Though in his cross-examination, his political allegiance is brought on record, his deposition is not shown to be false. The fact that this witness was proceeding to his field is not shown to be incorrect by the defence. His duty hours at workplace or not reporting for work on 31.8.2007 is therefore not very material. Omission of 5 names i.e. of accused no. 19 Nana Kachode, accused no. 9 Sandip Mahakalkar, accused no. 16 Yashwant Mahakalkar, accused no. 17 Bhaksar Bhakre and accused no. 15 Vilas Pahune as persons present in the field of Shyamrao Manikkule in his police statement, no mention that after he reached back house he asked his father to get up and narrated attack on Makrand to father, about his phone call to Sewagram Police Station or of message he claims he got form it, not mentioning 8.15 A.M. as the time he reached the crime scene again, indicating 200 to 400 as number of persons then present at said spot, or not specifically stating that in the morning he went by Wardha-Satoda-Mahakal road are rightly not given any importance by the Trial Court. He also could not explain why the two facts that is his proceeding further after he head shouts and about number of persons he saw attacking to be 15 to 20, did not appear in his police statement. In paragraph 9 of cross-examination, similar omissions in his Section 164 statement are put to him. He could not point out why the Magistrate did not record words "Mara Mara". He could not tell whether SatodaMahakal road was disclosed as his route to the Magistrate and also accepted that route Satoda-Mahakal did not figure in his Section 164 statement. He also could not tell whether said fact was disclosed by him to the Magistrate. He has denied that for going to his field at Itki there was no need to follow SatodaMahakal road. He accepted that Wardha-Satoda-Mahakal road was uneven but denied the level difference. Thus, there is nothing in his cross-examination to discredit him so far as his witnessing the attack is concerned. We endorse the Trial Court's reliance upon him to the extent of availability of corroboration to back his assertions.

84. In State of Maharashtra Vs. Manoharsingh Raghuvirsingh Thakur, (supra), Full Bench of this Court found that the statement of witness recorded by a Magistrate under Section 164(1) is evidence and has to be considered in proper perspective with necessary caution in view of the fact that the witness had no freedom when he made it if it has been got recorded during investigation and since a witness whose statement is recorded under Section 164 Cr.P.C. comes from the custody of the Police, he may feel tied to that previous statement, the Court must receive the evidence in Court of such witness with caution. It only means that the Court has to scrutinize such evidence little more closely and see whether other circumstances support it. The Court then goes to the other corroborative evidence led by the prosecution. Discovery of Chhanni (Article 13) from a well, at the instance of the appellantaccused which was established to be a murder weapon was found sufficient to convict accused therein .

85. We, here, find that the discovery of 4 swords by accused nos. 1 to 4, finding of one handle of sword blade at spot, discovery of two motorcycles from unrelated places, finding of burnt clothes at Ghadoba hills by accused no.3 are the events proved on record by the prosecution which link accused nos. 1 to 4 with the crime. Evidence of P.W.6 Nilesh and P.W.9 Nitin when read in this background can be accepted only to the extent of accused nos. 1 to 4. P.W. 5 Amit is not an eyewitness and he has been examined only to show presence of accused 1 to 4 on SatodaWardha road few minutes after PW-9 Nitin returned. He also speaks of two motorcycles used by these 4 accused. He only lends support to the material already on record. Evidence on record about mode or manner of assault itself militates with contention of Shri Daga about its general nature and about absence of accused-specific deposition. We find that separate description of individual part played by each of accused no. 1 to 4 in the attack on Makrand attributing a specific roll to each of them is not essential. Similarly, factors accepted by us above as sufficient manifestation of conspiracy also negate the objection of learned Counsel on nonapplication of Section 120-B of the Penal Code. As we have to tread the path with caution and accept only that part of deposition of interested and inimical eye-witnesses which finds corroboration, it is not necessary for us to consider various precedents cited by the respective Counsel about the correct perspective to be adopted in such matters. Trial Court has rightly noted apathy of common man to come forward to depose and looking to the whole background of present crime, it is clear that an uninterested third person may not dare to come forward and take risk to depose. Investigating agency will get clues or assistance only from group of victim and has to attempt to solve the crime.

86. In so far as the accused nos. 5 to 19 are concerned, there is no independent or corroborative evidence to connect them with the crime. It is not safe to rely upon the depositions of PW-6 Nilesh and PW-9 Nitin to hold them guilty. In absence of any such independent material against them, we are inclined to give these accused the benefit of doubt. We do not find any substance in the contention of learned APP as also learned advocate Shri Mundra for victim that when evidence of these eyewitnesses can be used against accused 1 to 4, it must also be extended to accused 5 to 19.

87. We have noted conduct of both the eye witnesses and we have found it not very natural also. However, their statements to the extent corroborated by other independent material on record, have been accepted by us. Therefore, only we are holding accused nos. 1 to 4 guilty of murder of Makrand Tonpe. In absence of any such material against other accused persons, their statements cannot be accepted. The information about accused persons is first received by P.W.8 Prakash, as per the prosecution version after he makes phone calls leading to registration of FIR. In his later detailed report at Exh.206, he has given names of 15 accused persons. Those names are communicated to him either by P.W.6 or P.W.9. Considering the political relationship of complainant with these witnesses and developments leading to crime, addition of certain names as accused persons cannot be ruled out. This may happen when eye witnesses and complainant speak about or discuss the accused persons actually seen in the act. We, in this situation, find nothing wrong with the judgment of Trial Court acquitting the accused nos. 5 to 19 by giving them benefit of doubt.

88. In this situation, we maintain the conviction and punishment of accused nos. 1 to 4 for the offence punishable under Sections 302, 341, 201 read with Section 120(B) of the Indian Penal Code. The operative order in Clauses (1) to (13) as delivered by the Trial Court, is therefore, maintained. All Criminal Appeals are accordingly dismissed.

Appeal dismissed.