P.V. Hardas, J.�The appellants/Original Accused Nos. 1 - Satyawan @ Sachin Vishnu Kamble, Accused No. 2 -- Manoj Dnyaneshwar Ghule, Accused No. 3 - Pappu @ Vasudeo Shivaji Chavan, Accused No. 4 - Dipak @ Pintu Vijay Chavan, Accused No. 5 - Babu @ Rahul Vishnu Bansode, Accused No. 6 -- Raju Sidram Malgai, Accused No. 7 - Madan Dnyandev Surwase, Accused No. 8 - Pintu @ Pravin Prakash Irakshetti, Accused No. 10 - Rafiq Abbas Inamdar @ Shaikh, have challenged the impugned judgment dated 27/03/2006 passed by the 1st Ad-hoc Additional Sessions Judge, Solapur, in Sessions Case No. 158 of 2004, whereby they have been convicted and sentenced as under :--
"(i) The Accused Nos. 1 to 10 are convicted for offence punishable under Section 147 r/w 149 of the IPC and are sentenced to undergo Rigorous Imprisonment for one year and pay fine of Rs. 1,000/- each in default to undergo RI for three months.
(ii) The Accused Nos. 1 to 10 are convicted for offence punishable under Sections 148 r/w 149 of the IPC and are sentenced to undergo Rigorous Imprisonment for one year and pay fine of Rs. 1,000/- each in default to undergo RI for three months.
(iii) The Accused Nos. 1 to 10 are further convicted for offence punishable under Section 364 r/w 149 of the IPC and are sentenced to undergo Rigorous Imprisonment for Seven years and to pay fine of Rs. 3,000/- each in default to suffer R.I. for one year.
(iv) The Accused Nos. 1 to 10 are convicted for offence punishable under Section 302 r/w 149 of the IPC and are sentenced to suffer Life Imprisonment and to pay fine of Rs. 5,000/- each in default to suffer R.I. for two year.
(v) The Accused Nos. 1 to 6 and 8 are convicted for offence punishable under Section 201 r/w 149 of the IPC and are sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs. 1,000/- each in default to suffer R.I. for three years.
(vi) The Accused Nos. 1 to 4 and 7 and 10 are convicted for offence punishable under Section 25(3) of Arms Act and sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs. 500/- each in default to suffer R.I. for two months."
Original Accused No. 9 Avinash Raghunath Shinde had filed Criminal Appeal No. 520 of 2006. which was disposed of as abated by order of the Court dated 24/9/2010 as Accused No. 9 Avinash had expired during the pendency of the appeal. Since these appeals have been filed by the accused, who have been convicted in the same Sessions trial, these appeals are being decided by this common judgment.
Facts as are necessary for the decision of these appeals may briefly be stated thus:--
"PW 27 - API Prabhakar Gopale, who, on 17/4/2004, was attached to the Bale Police Chowky, was informed by one Jayprakash Ramlal Tapadia at 9 a.m. that a dead body was lying near the Kalke vasti. Accordingly, the said information was reduced into writing at Exh. 127. On the basis of the said information. accidental death was registered. PW 27 - API Gopale then proceeded to the scene of the incident along with the police staff. On reaching the scene of the incident, he noticed that a crowd had collected at the scene of the incident and a dead body was noticed by the side of the road. The dead body was then removed in an ambulance to the Civil Hospital at Solapur and an inquest panchanama of the dead body was drawn at Civil Hospital in the presence of panchas at Exh. 28. The dead body was subsequently identified by PW 15 - Sanjay Shinde to be the dead body of his brother Ruturaj. The dead body was thereafter referred for postmortem examination and PW 27 -API Gopale then returned back to the police station. PW 15 Sanjay Shinde followed him to the police station where the statement of PW 15 -Sanjay Shinde was recorded at Exh. 80. On the basis of the statement of PW 15 - Sanjay, an offence vide Crime No. 79 of 2004 was registered.
PW 29 - PI Rashid Shaikh, who was attached to the Foujdar Chawadi Police Station, was entrusted with the investigation of Crime No. 79 of 2004. PW 29 - PI Shaikh, accompanied by PW 15 - Sanjay and staff. visited the scene of the incident and drew the scene of the incident panchanama in the presence of panchas at Exh. 123. From the scene of the incident, sample of blood mixed mud, sword stained with blood and a pair of dark glasses, which were stained with blood, were seized. A photographer was called and accordingly photographs were taken and video shooting was done. The clothes of the deceased, which were produced by the police constable after the postmortem, were seized under panchanama at Exh. 29. On 17/4/2004 at about 3.15 p.m. PW 29 - PI Shaikh along with the staff had gone to the Charmakar Samaj Sabhagruha and with the help of the key, which was provided by one Dnyneshwar Ghule, the said hall was opened. On the first floor of the Sabhagruha, three beddings were noticed on the floor. Eatables and playing cards were lying in the said hall. Panchanama at Exh. 134 was accordingly drawn in the presence of panchas. Statements of the witnesses were recorded. On 18/4/2004, the photographer had handed over the video cassette to PW 29 - PI Shaikh, which was seized under seizure memo at Exh. 135. Article 18 is the video cassette. On the same day, statements of four witnesses were recorded and accused Sachin, accused - Manoj, accused - Pinto and accused Pappu were arrested under arrest panchanama at Exh. 30. On the next day i.e. on 19/4/2004 the statement of driver of a six seater auto-rickshaw was recorded. The said driver was Sidharam Ramgonda Koli. On the same day, the said Sidharam had produced an auto-rickshaw bearing Registration No. MH-05-7773 which was seized under seizure memo at Exh. 41. A pair of chappals belonging to accused - Sachin were seized on 21/4/2004 under seizure memo at Exh. 45."
On 22/4/2004, accused Babu and accused Raju were arrested under arrest panchanama at Exhs. 31 and 32. Their clothes were also seized and the footwear worn by these accused were also seized under seizure memo at Exh. 46. On 23/4/2004 accused Madan was arrested under arrest panchanama at Exh. 33. On 23/4/2004 accused Satyawan @ Sachin. during custodial interrogation, expressed his willingness to point out the place where the sword and knife had been concealed. Accordingly, a memorandum was drawn in the presence of panchas at Exh. 50. Thereafter accused Manoj also expressed his willingness to point out the place where the sword and knife had been concealed. A memorandum at Exh. 51 was drawn. The accused Vasudeo also expressed his willingness to point out the place where the sword and knife had been concealed. A memorandum was accordingly drawn at Exh. 52. Memorandum of accused Dipak @ Pintu was also drawn at Exh. 53. Thereafter all the accused were made to sit in a jeep and the accused led the police and the panchas near a water lank and accused No. 1 - Sachin produced one sword from the water tank. Accused No. 2 Manoj thereafter produced one knife and similarly accused No. 3 - Pappu and accused Dipak produced swords from the water tank. The weapons produced by the accused were seized under a seizure panchanama at Exh. 54. During custodial interrogation, it transpired that the accused had burnt their blood stained clothes and accordingly the accused pointed out the place where the clothes had been burnt and heap of ash and burnt buttons of the shirt, hooks of trousers were noticed. The ash, buttons and hooks were seized under seizure memo at Exh. 43.
A disclosure memorandum of accused Madan was drawn in the presence of panchas at Exh. 55. Accused Madan produced a sword which had been concealed in the grass, which was seized under seizure memo at Exh. 56. On 24/4/2004 accused No. 10 Rafiq was arrested under arrest panchanama at Exh. 34. On the next day accused No. 8 was arrested under arrest panchanama at Exh. 35. The footwear of the accused was seized under seizure memo at Exh. 138. The accused were referred to the Civil Hospital, Solapur for medical examination and for obtaining their nail clippings. On 30/4/2004 the seized property was referred to the Chemical Analyzer under requisition at Exh. 82. The seized property was sent through Police Constable Rathod. 164 statement of the witnesses were recorded and on 25/6/2004 original accused No. 9 Avinash was arrested and was referred for medical examination. The blood sample of accused No. 9 Avinash was forwarded to the Chemical Analyzer on 27/6/2004 under requisition at Exh. 83. PW 29 - PI Shaikh was accordingly transferred and the investigation was then taken over by PI Wandekar, who filed the charge-sheet against the accused.
Postmortem on the dead body of deceased Ruturaj was performed by PW 11 - Dr. Jagdish Kale, who was attached to the Civil Hospital. Solapur. PW 11 - Dr. Kale noticed the following external injuries:--
"(1) Chop wound right parietal eminence 5 1/2 x 1 cm x bone deep margins are contused external direction is oblique bone underneath cut 1/2 cm long.
(2) Chop wound occipital region in the middle line 8 x 2 cm bone deep, confused, vertical, bone underneath, one cm long.
(3) Chop wounds left parieto occipital region, 7 x 12 cm. 4 x 1 cm and 5 x 1 cm x bone deep, contused oblique, bone underneath cut 1/2 cm long.
(4) Incised wound right side of neck 4 cm above mid clavicular line 5 x 2 cm muscle deep, contused, tailing at medially horizontal.
(5) Linear abrasion left side of neck in supra clavicular region 3 cm oblique.
(6) Incised wound left shoulder upper side 6 x 1/2 cm skin deep inner margin contused tailing at lower and vertical.
(7) Through and through stab injury, wound of entry left upper arm 3 cm above elbow joint on front side 3 x 2 cm between 8 cm. wound of exist 14 cm above elbow joint on back of upper arm 1.5 x.5 cm, triangular, contused lateral end blunt anteriopost upwards, muscles.
(8) Linear abrasion, 3 cm above injury No. 7, 2 cm horizontal in direction.
(9) Linear abrasion back of elbow 4 cm. long horizontal.
(10) Contused abrasion 1 cm below injury No. 9 2 x 1/2 cm.
(11) Contused abrasion left forearm back below elbow joint 3 x 2 cm.
(12) Stab wound left forearm back middle 3rd region 4 x 2 x 5 cm elliptical, contused upper margin over-line right end is clear, left is blunt vertical, back to front below upwards left to right, muscles.
(13) Chop wound left forearm 2.5 x 2 cm muscle deep contused lower end tailing oblique.
(14) Incised would left forearm 2 cm in front of injury No. 13, 1.5 x.5 cm skin deep, contused, tailing at upper and vertical.
(15) Linear abrasion, left forearm middle cut 6 cm long oblique.
(16) Incised wound left wrist back 1 x 1/2 x 1/2 cm contused tailing at lower end vertical.
(17) Incised wound 2 cm below injury No. 16 2 x 1/2 x 1/2 cm contused tailing at lower end vertical.
(18) Incised wound 1 cm below injury No. 17 x.5 x 1/2 x 1/2 cm contused tailing at lower end vertical.
(19) Incised wound left palm at a junction of little finger 3 x 5 cm muscle deep contused tailing at lateral end oblique.
(20) Contused abrasion right shoulder outer aspect 6 x.5 cm. horizontal.
(21) Incised wound back of right shoulder 2 x.5 cm skin deep tailing at posteriorly horizontal.
(22) 3 contused abrasions in middle 3rd region right upper arm 3 cm long by.5 cm each.
(23) 9 contused abrasions over right forearm upper half 5 x 5 cm to 2.5 cm.
(24) Through and through stab injury wound of entry right forearm back 4 cm. a breast joint 2 x 5 cm distance between 3 cm wedge shaped contused upper and blunt lower end clean cut, vertical wound of exist right forearm front size 5 cm above wrist 1.5 x.5 cm.
(25) Stab injury left second intercostal space 4 cm left of midline wedge contused lateral end clean cut horizontal, internal direction front to back muscle.
(26) 7 stab injuries, front of chest in the region between 3rd to 6th inter-coastal space, one under the other, 3 x 5 cm, 2 x.5 cm 2 x.5 cm, 1.5 x 1.5 x.5 cm, 2 x.5 cm, 1.5 x.5 cm and 1.5 x 1 cm deep cavity, wedge shape, margins are contused, lateral end clean cut, horizontal, front to back, heart and left lung.
(27) Stab injury right second inter-coastal space. 1 cm right of mid-line. 2 x 1 cm and cavity deep, wedge, contused, medical end clean cut, horizontal, front to back.
(28) Stab injury, right intra clavicular region 5 cm right of midline 2 x ! cm cavity deep, wedge, contused at medial end 1 x 1.5 cm. oblique front to back.
(29) Stab injury 4 cm right of injury No. 28. 2 x 1 cm cavity deep, wedge, contused, oblique front to back.
(30) 5 stab injuries right front of chest 3rd to 6th inter coastal space 1/2 x 1 cm cavity deep, wedge shape, margin contused, medial end clean cut, horizontal direction front to back, right lung.
(31) 4 stab injuries right side of chest 5th to 7th inter coastal space, 2 x 1 cm cavity deep, wedge, contused medial end, front to back.
(32) 5 stab injuries epigatric region 2 x 1 cm deep cavity wedge, contused, medial end, clean cut oblique front to back, liver.
(33) Incised wound left iliac region 4 cm below iliac spine 2 x 1 cm muscle deep, contused, muscles.
(34) Incised wound left groin region 2 x 1 cm muscle deep contused, muscles.
(35) Linear abrasions middle 3rd right thigh 4 x 1/4th cm.
(36) 3 linear abrasions lower 3rd left thigh anterior aspect 3 x 1/2 cm. each.
(37) Linear abrasion left knee joint 6 cm long.
(38) Linear abrasion left upper 3rd lower limb 6 cm long.
(39) 2 stab injuries right lower 3rd thigh 3 x 2 x 14 cms. wedge contused, lower end, clan cut, vertical below upper wards, right to left, muscles.
(40) Linear abrasion right lower 3rd thigh lateral aspect 6 cms long, vertical.
(41) Stab wound right lumbar region 3 cm away from midline 5 x 2 cm cavity deep, wedge shape, contused medial clean cut, outer blunt, horizontal, back to front. liver.
(42) 11 contused abrasions on back in interscapular and infrascapular region 3 x 5 to 1 x.5 cm.
(43) Incised wound right lower 3rd thigh posterior aspect 1.5 x.5 cm muscle deep, contused.
He opined that all the injuries were ante-mortem. On internal examination, he noticed the following internal injuries:--
(1) Skull - right side 2 x 1 cm chop wound over parito occipital region over bone.
(2) Brain congested.
(3) Thorax: - Pleura - incised over corresponding injury over left and right sides.
Right lung stab wound 9 in number in various sizes about 1 x.5 x 3 cm. Left lung - Stab wound 3 in numbers in various sizes above 1 x 5 x 3 cm.
Heart - Stab wound 6 in numbers various sizes above 1 x 5 cm x deep cavity.
(4) Abdomen abdominal cavity contains about 255 cc of blood.
(5) Stomach - semi digested food its contents.
(6) Liver -- Stab wounds 6 in number various sizes about 6 x.5 cms by deep cavity.
(7) Spleen - congested.
(8) Kidney-congested."
He has further opined that the injuries were sufficient in ordinary course of nature to cause death. He, therefore, opined that deceased had died due to shock and hemorrhage caused by injury to vital organ caused by stab injury. The postmortem report is at Exh. 65, while the cause of death certificate is at Exh. 69.
2. On the case being committed to the Court of Sessions, trial court vide Exh. 4 framed charge against the accused for offence punishable under Sections 120-B read with Section 302, 364, 201 of IPC and under Section 25(3) of the Arms Act and under Section 135 of the Bombay Police Act. Charge was also framed under Sections 147, 148 read with 149, 364 read with 149, alternatively under Section 364 read with 34, 302 read with 149, 302 read with 34, 201 read with 149, 201 read with 34 of IPC and 25(3) of the Arms Act and 135 of the Bombay Police Act. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 29 witnesses. The defence of the accused was of denial. The trial court upon appreciation of the evidence, convicted and sentenced the appellants as afore-stated.
3. In order to effectively deal with the submissions advanced before us by the learned counsel for the appellants and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.
4. Prosecution has examined PW 4-Sachin Shingade, a friend of deceased Ruturaj, who deposes that in February, 2004, one Tarun Mandal had celebrated birth anniversary of Lord Shivaji. During festivities of the celebration, a procession was arranged in the city by the Tarun Mandal on 17/2/2004. According to Sachin, he along with Ruturaj, Suresh, Gama Pailwan, Abhilesh Shinde and Sanjay Shinde had participated in the procession. When the procession had reached Panjarpol Chowk near the statute of Lord Shivaji, the participants in the procession were dancing and were smearing each other with red coloured powder. Inadvertently, the powder was thrown at one Nana Kale and Bharat Banne. Nana Kale and Bharat Banne were the office bearers of another Mandal which was known as Madhyawarli Mandal. On account of the throwing of the red coloured powder, there was altercation between Nana Kale -Accused No. 11 and Bharat Banne -- Accused No. 12 and the other persons of the Tarun Mandal. On 16/4/2004 in the evening, Sachin had returned home from his work and thereafter he, along with Ruturaj, had gone for a walk. At about 11.30 p.m. he and Ruturaj had returned to the STD Booth and were sitting there. Ruturaj had told him that there was a fair at village Sonari in Paranda Taluka and, therefore, Ruturaj intended to go for attending the fair and consequently asked Sachin also to come along with him. Sachin and Ruturaj thus waited at the STD Booth till about 1.45 a.m. and thereafter both of them went to Vijapur and ate some eatables from the handcart of one hawker and thereafter returned home. While returning home, Ruturaj informed Sachin that he should be ready by 4 a.m. in order to go to Sonari village. At about 3.30 in the morning, Ruturaj came to the house of Sachin on a motorcycle. Sachin, accordingly sat on the motorcycle and both of them came near the STD Booth. The shutter of the STD Booth was opened and all the electric lights were switched on. Ruturaj was performing pooja inside the STD Booth. While Ruturaj was performing the pooja, one autorickshaw came there from the side of the Laxmi Market and parked in front of the STD Booth. Three persons alighted from the said auto-rickshaw. Said persons were, accused -- Sachin Kamble, Manoj Ghule and Avinash Shinde. Two other persons were sitting inside the auto-rickshaw. One of the accused who was sitting inside the auto-rickshaw was accused No. 3 - Pappu Chavan. The auto-rickshaw was being driven by some unknown person. Accused - Sachin Kamble, Manoj Ghule and accused Avinash Shinde requested Ruturaj to come along with them for a cup of tea as they wanted to talk with him personally. Ruturaj was residing on the first floor, while the STD Booth was situated on the ground floor. While the three accused were thus talking with Ruturaj, Abhiraj Shinde also arrived there. Abhiraj is the younger brother of deceased Ruturaj. Abhiraj had come to the STD Booth for certain offerings to be made at the fair. Abhiraj, therefore, asked Sachin as to where Ruturaj was and then handed over the offerings to Sachin and went home. Thereafter accused Sachin Kamble, Manoj Ghule. accused Avinash Shinde and deceased Ruturaj sat in the auto-rickshaw and proceeded towards Datta Chowk. The other accused, who were sitting in the auto-rickshaw also accompanied them in the autorickshaw. Sachin was waiting for Ruturaj to return back to the STD Booth. After some time, he called Abhiraj and thereafter he and Abhiraj were both waiting in the STD Booth for Ruturaj to return. After some time, father of Ruturaj i.e. Gama Pailwan and Sanjay also came from the first floor. Sachin informed them that some boys had taken Ruturaj along with them and had disclosed the names of the persons who had taken Ruturaj along with them. Thereafter, Sachin. father of Ruturaj, Sanjay and one Sidhu Paradkar proceeded on motorcycle for tracing the whereabouts of Ruturaj. The whereabouts of Ruturaj, however, could not be traced. They made enquiry about Nana Kale, but were informed that he was not present. Thereafter they tried to contact accused Nana Kale on his mobile and were informed that Nana Kale was at Hotel Tripursundari and that they should come there. Sachin along with others, therefore, went to the said hotel and met Nana Kale and informed him that Ruturaj had been taken by some boys from his Mandal. The names of those persons were disclosed. Nana Kale, therefore, telephoned and contacted one Bhojrangi and informed them that if at all Ruturaj had been taken, he may be set free. Nana Kale thereafter went away for canvassing for the election. Sachin and others then went to the house of accused Sachin, accused Manoj, Accused Avinash and accused - Pappu Chavan, but accused were not available at their houses. Sachin and others, therefore, returned back to the STD Booth and by the time they returned, it was 8 a.m. They continued to wait for Ruturaj to return home and waited there till about 10.30 a.m. At about 10.30 a.m. one Raju Paradkar came there and informed them that Ruturaj had been killed and his dead body was lying at Karamba Naka, Kalke Vasti. Thereafter Sachin and others immediately went to that place and noticed the dead body of Ruturaj placed in an ambulance and also noticed the police present there. Since father of Ruturaj was disturbed, on seeing the dead body of Ruturaj, they all returned home. Sachin deposes that the relations between the accused and Ruturaj i.e. gymnasium known as Patra Talim were strained. Sachin also deposes that the accused had declared that unless someone from the gymnasium of Ruturaj was killed, they would walk bare feet.
5. In cross-examination, he has admitted that he could not tell with certainty if seven persons were sitting in the auto-rickshaw. He has admitted that before Ruturaj sat in the auto-rickshaw, 7 to 8 persons were already sitting in the auto-rickshaw. He has admitted that Ruturaj had informed accused Sachin, Manoj and Avinash that since he was performing pooja in the STD Booth, he was unable to accompany them. He has admitted that Ruturaj had not refused to accompany the accused. He has also admitted that he did not persuade Ruturaj not to accompany the accused in the auto-rickshaw. He has also admitted that even Abhiraj had not persuaded Ruturaj not to accompany the accused. Sachin has admitted that he had not suspected any foul play. He has also admitted that he did not feel that Ruturaj should not accompany the others because of the earlier threats which were informed to him by Ruturaj. He has admitted that he did not feel it necessary to accompany Ruturaj in the autorickshaw. Sachin has admitted that he was sitting in the STD Booth when Ruturaj left along with the accused. He has also admitted that he did not feel it necessary to follow the autorickshaw on a motorcycle along with Abhiraj. He has admitted that after Ruturaj went in the auto-rickshaw, Abhiraj went up-stair and he was alone waiting for Ruturaj at the STD Booth. He has admitted that after about one hour, he had called Abhiraj to the STD Booth and even thereafter did not feel it necessary to go in search of Ruturaj. He has then admitted, "Till 7 a.m. of next morning I did not tell anything to Gama Pailwan (father of Ruturaj) and Sanjay Shinde about Ruturaj". He has admitted that from 4 a.m. to 7 a.m. neither he nor Abhiraj had informed anything to police regarding abduction of Ruturaj. He has admitted that even after arrival of Gama Pailwan and Sanjay Shinde, neither he not Abhiraj had informed the police.
An omission has been elicited that he had not stated in his previous statement that he was sitting outside the STD Booth when the auto-rickshaw arrived. Omission has also been elicited that he had not stated in his previous statement that accused Pappu Chavan was also travelling in the auto-rickshaw and had accompanied deceased Ruturaj. Omission has also been elicited that he had not stated that accused Pappu had also abducted Ruturaj. Omission is also elicited that he was not stated about the strain relations between the members of the two gymnasiums. He has admitted that he was not personally present at the time of giving of the threats by accused to one Subhash Pawar, Raju Qureshi and Bajrang Mate.
6. Prosecution has examined PW 12 Abhiraj who deposes that deceased Ruturaj was his brother. According to him the family was running a STD Booth in the shop which was situated on the ground floor at 16 South Kasba Panivas, Solapur. Abhiraj and his other relatives were residing on the first floor of the same premises. He deposes that there is a Mandal called as Panivas Tarun Mandal and Abhiraj and his father are members of that Mandal. In the month of February, 2004, the Mandal had celebrated Shiv Jayanti on 19/2/2004 and a procession was arranged on that occasion. In the said procession, Abhiraj and his three brothers, including Ruturaj, his father, Subhash Pawar, Sachin Relekar, Umesh Pawar and others had participated. When the procession had reached at the Panjarpol Chowk at about 11.30 p.m., the participants in the procession were smearing each other with red coloured powder. Inadvertently, some of the red coloured powder was sprinkled on Bharat Banne and Nana Kale. Due to the sprinkling of the powder, there was an altercation between Bharat Banne and Nana Kale on one hand and the members of the procession on the other hand. Others had intervened and thereafter the tension was defused.
On 22/3/2004 there was a quarrel between Sachin Kamble and accused No. 2 -Manoj Ghule on one hand and Sunil Harsure and Shekhar Kamble on the other hand. In the said quarrel, the thumb of accused No. 2 - Manoj Ghule was cut. According to Abhiraj. on account of that incident, the relations between the accused and the members of the Panivas Tarun Mandal were strained and the accused had given threat to the members of the Mandal that they were going to kill someone from the Mandal. The threat given by the accused was brought to the notice of the members of the Mandal.
In respect of the incident, he deposes that on 16/4/2004, he was present in the house and had learnt that deceased Ruturaj and his friend PW 4 - Sachin were going to attend the fair at village Sonari. On the next day at about 4 a.m. Ruturaj went from the first floor to the ground floor. Abhiraj had also awakened and mother of Abhiraj had requested to hand over the offerings for the deity to Ruturaj. Abhiraj, therefore, also went to the ground floor. Meanwhile, one auto-rickshaw had halted in front of the STD Booth and from the auto-rickshaw, accused Sachin. Manoj Ghule and accused Avinash alighted, 3 to 4 other persons were sitting in the autorickshaw. PW 4 - Sachin was sitting on the chair in front of the STD Booth. The electric lights in the shop had been switched on. Ruturaj came out of the shop and Abhiraj noticed that accused Sachin was insisting that Ruturaj should accompany them as accused Sachin wanted to talk to Ruturaj. Ruturaj informed Sachin that he was proceeding to attend the fair at village Sonari. Ruturaj, however, then went along with accused Sachin, accused Manoj and accused Avinash in the said auto-rickshaw towards Datta Chowk. After Ruturaj had left in the auto-rickshaw, Abiraj. after a talk with PW 4 - Sachin, returned home. One hour thereafter. PW 4 -Sachin gave a telephone call and requested him to come to the shop. Sachin had informed him that Ruturaj had not yet returned. Abhiraj and Sachin, therefore, tried to contact Ruturaj on his mobile. The telephone was ringing, however, no one had answered the telephone. Accordingly, Abhiraj went in search of Ruturaj, but could not locate him. Abhiraj and PW 4 - Sachin waited at the STD Booth till about 7 a.m. Thereafter father of Abhiraj also came to the STD Booth. Father of Abhiraj was followed by another brother Sanjay. Abhiraj, therefore, informed his father and his brother Sanjay as to what had happened. Father of Abhiraj, Sanjay. Sachin and one Sidhu Paradkar went in search of Ruturaj. All of them returned at about 9.30 a.m. as they could not trace out Ruturaj. One Raju Paradkar came there and informed them that dead body of Ruturaj was lying near the Kalke Vasti. Abhiraj, his father and all others, therefore, proceeded to the Kalke Vasti and noticed the dead body of deceased Ruturaj lying in the shrub. They also noticed the police as well as an ambulance present at the spot. Dead body of Ruturaj had taken in the ambulance. Seeing the dead body of Ruturaj, father of Ruturaj broke down and, therefore. was required to be taken home.
7. In cross-examination, an omission has been elicited that he had not stated that there was an altercation between Bharat Banne. Nana Kale on one hand and participants of the procession on the other hand. He has admitted as true that he was not present when the quarrel took place between Sachin Kamble, Manoj Ghule on one hand and Sunil Harsure and Shekhar Kamble on the other. He has admitted as correct that accused No. 2 - Manoj Ghule had lodged a complaint about the incident. He has admitted that he had not learnt that Ruturaj and PW 4 - Sachin were going to attend the fair at village Sonari when he was present in the house. He was confronted with portion marked "C" from his statement to the effect that while he and his family members were present in the house, they had learnt about Ruturaj and PW 4 - Sachin going on the next day to village Sonari for attending the fair. He has admitted that when he had seen Ruturaj accompanying accused, he did not feel any apprehension about safety of Ruturaj. He has admitted that Ruturaj was not habituated to drinking tea. He has also admitted that he did not feel it necessary to follow Ruturaj on the motorcycle along with PW 4 - Sachin. He has admitted that despite the threats given by accused Sachin and others, he had not apprehended any danger to Ruturaj. He has admitted that when he returned home, he had not informed his parents or brother that Ruturaj had gone along with accused Sachin and others. He has admitted that after one hour when he had come to the STD Booth in response to the telephone call of PW 4 - Sachin, he did not feel it necessary to go and inform the police station. He has admitted that neither he nor Sachin had gone on the first floor to inform father of Ruturaj. He has admitted that even after arrival of father of Ruturaj, they did not feel it necessary to inform the police. An omission has been elicited that he had not stated in his previous statement about noticing PW 4 - Sachin sitting in front of the STD Booth on the chair when Ruturaj had accompanied the accused. Omission has also been elicited that he had not stated that accused - Sachin had told Ruturaj that he wanted to talk to him and Ruturaj had informed him that he wanted to attend the fair at village Sonari. Omission is elicited that he had not stated that he and PW 4 - Sachin attempted to contact Ruturaj on his mobile, but no one had answered the call.
8. Prosecution has examined PW 15 - Sanjay, brother of deceased Ruturaj and PW 12 - Abhiraj. PW 15 - Sanjay deposes about residing on the first floor of the building where the STD shop was located on the ground floor. He then deposes about accidental sprinkling of the red coloured powder on Nana Kale and Bharat Banne and about an altercation on account of that. He then deposes that on 20/2/2004 his father had received a telephone call from Nana Kale who had informed father of Sanjay that the dispute between them would be patched up and, therefore, Nana Kale called the father of Sanjay at the office of the Corporation building. Father of Sanjay accompanied by Chandu Wankar and Ramesh Gaikwad had gone to the office of Nana Kale at the Corporation building and on their return, had informed Sanjay that the dispute between them was patched up. Sanjay further deposes that thereafter one Vishwanath Kamble had come to his residence and had informed father of Sanjay that Bharat Banne had informed him that unless two persons from either side were finished, the quarrel would not be patched up. Sanjay deposes that he had learnt that the accused had threatened the members of the Panivas Tarun Mandal and the accused vowed that they would not wear any footwear till at least one person from the Panivas Tarun Mandal had been killed.
He further deposes that on 17/4/2004, deceased Ruturaj and PW 4 - Sachin had decided to attend the fair at village Sonari. The entire family was awake early in the morning on 17/4/2004. Abhiraj had gone to the STD Booth with the offerings for the deity. Sanjay was awakened from his sleep at about 7 a.m. and on going to the STD Booth noticed that his father was already present and was talking with PW 4 - Sachin and Abhiraj. PW 4 - Sachin had informed father of Sanjay that at about 4 a.m. the accused and 3 to 4 other persons had taken Ruturaj in an auto-rickshaw on the pretext of drinking tea and on the pretext that they wanted to talk to Ruturaj. On hearing this, PW 15 -Sanjay and others started searching for Ruturaj from about 8 a.m. However, no trace of Ruturaj could be found. They obtained the mobile phone number of accused Nana Kale and on telephoning him, Nana Kale informed them that he was at Hotel Tripursundari and requested them to come at the hotel. Thereafter all of them went to Hotel Tripursundari and informed Nana Kale as to what had happened in the morning. Nana Kale contacted some person by name Bhojrangi and informed him that in case Ruturaj had been abducted he should be set free immediately. Thereafter, along with Bhojrangi, PW 15 - Sanjay and others went in search of Ruturaj. No trace of Ruturaj, however, was found. On going to the house of accused -Sachin, Manoj and Avinash, they noticed that the accused were not present in their house. Thereafter, they had contacted Nana Kale, who informed that they should lodge a complaint with the police.
At about 10 a.m. one Raju Paradkar came to their STD Booth and informed them that dead body of Ruturaj was lying near the Kalke Vasti. PW 15 - Sanjay, along with others, therefore, immediately went towards Kalke Vasti and noticed the dead body of Ruturaj lying in a pool of blood. They had also noticed that the police had arrived at the scene of the incident. The dead body of Ruturaj was then taken in an ambulance to the Civil Hospital. Father of PW 15 - Sanjay broke down on seeing the dead body of Ruturaj and therefore was sent home. PW 15 - Sanjay went to the hospital where the inquest panchanama was drawn. His statement was scribed by the police at Exh. 80. He had accompanied the police to the scene of the incident, where the panchanama was drawn and sword, pair of dark glasses, sample of blood stains etc. were seized. Sanjay thereafter returned home. According to him Subhash Pawar, Raju Quershi and Bajrang Mate had disclosed to him that accused Nos. 1 to 5, 7 and 9 had come in an auto-rickshaw carrying swords and knife and were enquiring about Ruturaj and Sanjay. These accused had disclosed to them that they intend to kill at least one or two persons from the Panvivas area and that they would not wear any footwear till then. Those persons had also disclosed the registration number of the auto-rickshaw as MH-05/7773.
9. In cross-examination, he has admitted as true that Panivas Gymnasium is in front of his house and the area is known as Panivas area. He has also admitted as correct that there was a Panivas Tarun Mandal at a distance of 1000 ft. from his house. In cross-examination certain omissions have been elicited in respect of the inadvertent sprinkling of the red coloured powder on Nana Kale and Bharat Banne. Omission is also elicited that he had not stated that Vishwanath Ramble had informed his father that Bharat Banne had told him that unless two persons from either side were killed. the quarrel would not be patched up. Similarly omission is also elicited that he had not stated that accused Nos. 1 to 9 had threatened the members of the Panivas Tarun Mandal and had proclaimed that they would not wear any footwear unless one person from the Panivas Mandal was killed.
In further cross-examination, he was confronted with portion marked "F" and he has denied to have stated so before the police that during the night he. his mother, father, brothers i.e. Ruturaj, Abhiraj and Rajesh were present in the house. He has admitted that on the next day he awoke at about 7 a.m. and immediately followed his father and came to the STD shop and that PW - 4 Sachin had narrated the incident to him. He has further admitted as correct that as soon as PW 4 - Sachin had narrated the incident, father of PW 15 - Sanjay had suspected some foul play. Sanjay has admitted in the cross-examination that he did not feel it necessary to go to the police station and lodge complaint against Sachin Kamble, Manoj Ghule and Avinash Shinde about abduction of Ruturaj. He has. however, admitted that thereafter they had gone in search of deceased Ruturaj. He has admitted that even at 9.30 a.m. he did not feel it necessary to lodge a report at the police station about the abduction of deceased Ruturaj. He has admitted that till 10 a.m. they were searching for Ruturaj. He was confronted with portion marked "G" from his statement, which he denied to have stated. He has admitted that the dead body of Ruturaj was taken to the Civil Hospital and he immediately followed the ambulance. He has admitted that the police did not record his report at the Civil Hospital. Omission is elicited that he had not stated in his supplementary statement about Bharat Banne stating that unless one or two persons from the Panivas area were killed, the dispute would not be patched up. Omission is also elicited that accused Nos. 5, 6, 7 and 8 were seen moving in the Panivas area and giving threats. Omission is also elicited that he had not stated in his complaint as well as in his supplementary statement that PW 4 - Sachin had informed him that amongst the persons who had come in the autorickshaw and had taken Ruturaj, accused Nos. 3 to 4 and other persons along with accused Nos. 12 and 9 were present. Omission is also elicited that he had not stated that the accused had told Ruturaj that they wanted to talk to him personally.
10. Prosecution has examined PW 5 - Yuvraj, an auto-rickshaw driver, who deposes that he plies a six seater auto-rickshaw bearing Registration No. MH-13/G-3495 and usually parks his auto-rickshaw in front of the Ganesh Temple. He deposes that on 17/4/2004 at about 6.15 a.m. he was present in his autorickshaw which was parked as usual. He further deposes that about 5 to 6 persons arrived there and those boys asked the auto-rickshaw driver Sachin Gavade to accompany them. There was an altercation between Sachin Gavade and those boys. In the meantime, another autorickshaw arrived there. He has identified accused Nos. 4 - Pintu as the person who was present. While the altercation was going on between Sachin Gavade and those boys, PW 5 - Yuvraj went near Sachin Gavade and asked Sachin Gavade to go along with those boys if they were willing to pay the fare. Sachin Gavade, however, informed Yuvraj that he did not have money for filling the diesel and one of those boys gave Rs. 100/- to Sachin Gavade. Yuvraj deposes that thereafter he and Sachin Gavade went for filling the diesel in the autorickshaw of Sachin Gavade and thereafter those seven persons sat in the auto-rickshaw of Sachin Gavade. Yuvraj claims that he also sat besides Sachin Gavade who was driving the auto-rickshaw. As per the directions of those seven persons, the auto-rickshaw was taken by Sachin by the Hyderabad Road and they reached upto the Tulzapur Check Post. The passengers in the auto-rickshaw then requested Sachin Gavade to take the auto-rickshaw to the Tulzapur Road. While in the auto-rickshaw, there was a discussion amongst those seven persons and they were discussing by taking name of each other as to how each one of them participated in the assault. According to PW 5 Yuvraj, they were taking the names as. "Sachya, Manya, Pintya, Pappu". Those persons were saying how they have succeeded in their mission and as per their bet. they can now wear the chappals. According to Yuvraj, he turned around and saw that those persons were barefoot. Yuvraj became frightened and therefore, asked Sachin Gavade to stop the auto-rickshaw. Sachin attempted to stop the auto-rickshaw but one of the passengers asked Sachin Gavade to proceed ahead. Thereafter the auto-rickshaw proceeded towards Tamalwadi and was made to stop half kilometer away from Tamalwadi. One of the persons. who was sitting in the rear side of the auto-rickshaw, alighted from the auto-rickshaw and thereafter all the other persons also alighted from the auto-rickshaw. The clothes of six persons were blood stained. After about half an hour, the person who had gone to Tamalwadi, returned where the auto-rickshaw was parked along with two other persons. Those two other persons were holding a plastic-can and one plastic cany bag. Thereafter the three persons and those six. who were waiting near the auto-rickshaw, sat in the auto-rickshaw and all proceeded to a distance of 2 furlong near a well. According to Yuvraj, he and Sachin Gavade remained in the auto-rickshaw while other persons proceeded towards the well. After about five minutes, they saw smoke by the side of well and thereafter those persons returned back. They had changed their clothes and thereafter all of them sat in the auto-rickshaw and the autorickshaw was asked to be driven to another well situated near the Balaji Chemical Factory. The passengers in the auto-rickshaw bathed in the well and those persons then asked Sachin Gavade to take the auto-rickshaw to Tamalwadi where all of them alighted and paid Rs. 100/- to Sachin Gavade. PW 5 - Yuvraj has identified the seven persons who were travelling in the auto-rickshaw as accused Nos. 1 to 5 and 8. He has admitted that his statement was recorded after a lapse of two to three days. He has identified that thereafter he was called to the Sub Jail at Solapur where he had identified the accused.
11. In cross-examination, he has admitted that when he had gone for identification parade, accused Nos. 1 to 6 and 8 were in the custody of police. He has admitted as true that the police had given them threats that they should disclose everything, otherwise they would be made accused. He has admitted that the police had written down the contents on one paper. He has admitted that he was not knowing accused Nos. 1 to 6 and 8 prior to the incident. He has admitted that when he first noticed Sachin Gavade, there was an altercation between him and the passengers. He has admitted that after some time, one autorickshaw had arrived there, in which accused Pintu had travelled and he alighted from the auto-rickshaw. He has admitted that he does not know the name of the driver. He has admitted as correct that the engine of a six seater auto-rickshaw makes noise. He has also admitted as true that in the six seater autorickshaw. in the rear, there are two seats facing each other and those persons were sitting on the rear seats. He has also admitted as correct that he and Sachin Gavade were conversing with each other. He has then admitted, "There was no reason for us to hear the conversation going on rear seat". He has admitted that he did not know as to which of the persons was talking with whom. He has admitted that there is a partition between the driver and the passenger seats. He has also admitted that the passengers who sits behind the driver of the auto-rickshaw has his back towards the driver. He has also admitted that when those seven persons had gone towards the well, he and Sachin Gavade felt that they could leave that place at once. He has admitted that, however, he did not go. He has admitted that he and Sachin Gavade were waiting in the auto-rickshaw for about half an hour when the passengers had gone for bathing. He has admitted that even after returning back to Solapur, they had not gone to the police station for reporting the matter. He has admitted that till that time, he had not disclosed anything to the police. He has admitted that he had not given the description of the clothes which were worn by those seven persons. He has admitted as true that he and Sachin Gavade were kept in the lock up. when their statements were recorded by the police. Omission has been elicited that he had not stated about the altercation between Sachin Gavade and those six persons. Omission is also elicited that he had not stated that as per the directions of those persons they had gone to the well and thereafter to Tamalwadi.
12. Prosecution has examined PW 8 Sachin Gavade, who was accompanied by PW 5 Yuvraj. PW 8 - Sachin Gavade deposes that on 17/4/2004 at about 5 a.m. he had parked his auto-rickshaw and then returned home to take his bath. At about 6.30 a.m. he returned to the auto rickshaw stop and noticed two persons had slept in his auto-rickshaw. After starting his auto-rickshaw, the persons, who were sleeping in his auto-rickshaw, woke up and two other persons, who were sleeping in the adjoining auto-rickshaw, also came there. One of the persons informed Sachin Gavade that the President of the Six Seater Auto-rickshaw Union had asked Sachin to accompany him. One of the persons, who was present there along with others, then caught the collar of the shirt of Sachin when PW 8 - Sachin declined to go with them. He states that meanwhile PW 5 - Yuvraj also arrived there and told PW 8 -Sachin to take those persons if they were willing to pay the fare. PW 8 - Sachin informed them that there was no diesel in the auto-rickshaw and, therefore, those persons gave him Rs. 100 -. Another person arrived and sat in the auto-rickshaw, whose name was Pintu. PW 8 -Sachin deposes further that he along with PW 5 - Yurvaj went to fill the diesel and after filling the diesel returned to the auto rickshaw stop. Those persons then boarded the auto-rickshaw and one of them asked Sachin to take the auto-rickshaw by the Hyderabad Road. Thereafter PW 8 Sachin was asked to take the auto-rickshaw towards Tulzapur Road. There was a discussion between those seven persons who were sitting in the auto-rickshaw and they were discussing the manner in which they had assaulted and how they had succeeded in their mission and thereafter could wear the footwear. According to PW 8 - Sachin, they were addressing each other by their name and the names which were uttered were "Sachya, Pintya, Manya, Babya, Papya". PW 5 - Yuvraj, therefore, indicated Sachin that there was something amiss and Sachin turned back and noticed that those seven persons were bare feet. The auto rickshaw was then taken towards the village Tamalwadi which was at a distance of half kilometer and Sachin was asked to take the auto-rickshaw towards the left side and parked the auto-rickshaw. Thereafter accused Pintya alighted from the auto-rickshaw and went towards Tamalwadi on foot. The other six persons were alighted from the auto-rickshaw and Sachin noticed that their clothes were blood stained. After about 15 to 20 minutes, Pintya returned back carrying a plastic can and the other person who had accompanied Pintya was holding a carry bag in his hand. PW 8 Sachin was asked to take the auto-rickshaw towards a well. Sachin took the auto-rickshaw towards the well and all the persons alighted from the auto-rickshaw and the other persons who were following on the motorcycle also came there. All of them went towards the well and after about 10 to 15 minutes Sachin noticed smoke from the well. Those persons returned back and Sachin noticed that they had changed their clothes and one of the accused had put a bandage on his hand. The auto-rickshaw was directed to be taken towards the Balaji Factory and then all the seven accused alighted from the auto-rickshaw and went towards a well and took their bath. The accused then sat in the auto-rickshaw and the auto-rickshaw was directed to be taken towards Tamalwadi. The accused alighted at Tamalwadi and paid Rs. 100/- to PW 8 - Sachin and threatened him not to disclose the incident to anyone. He states that in the evening he learnt about the murder of one person and thereafter had disclosed the incident to his family members. He states that his family members advised him to go to the police station. Therefore, he along with Yuvraj and his parents had gone to the police station on 18/4/2004 in the morning and informed the entire incident to the police at about 12 noon. He states about identifying the accused in the Test Identification Parade.
13. In the cross-examination, he has admitted that his auto-rickshaw and six other auto-rickshaws are normally parked at the place where he parks his auto-rickshaw. He has admitted that half kilometer from the place where he parks his auto-rickshaw, there is another auto-rickshaw stop of three seaters. He has admitted that when he returned after taking his bath, 2 to 3 auto-rickshaws had been parked there. He has admitted that he had no occasion to see the accused prior to the incident. He has admitted as correct that there was a small partition between the driver seat and the rear seat. He has also admitted as correct that because of the position of the engine at the rear side, there was a noise of the engine. He has also admitted as correct that he and Yuvraj were chit-chatting amongst themselves. He has admitted that while starting from the auto-rickshaw stand, he had noticed the blood stains on the clothes of the passengers. He has then admitted that for the first time he noticed blood stains on the clothes of the passengers at Tamalwadi and also noticed that one of the passengers had a bandage. He has admitted that on the next day he and Yuvraj had gone to the police station. He has also admitted as true that he had disclosed to the police that the persons who had travelled in his autorickshaw were strangers. He has also admitted that he could not give the description of the clothes worn by those persons. Omission is elicited that he had not stated in his previous statement that one person by name Sachin had told him that the President of the Six Seater Auto-rickshaw Union had asked PW 8 - Sachin Gavade to take those persons in the auto-rickshaw. The omission is in respect of "Sachin". Certain other omissions have been elicited about taking the auto-rickshaw by bullock-cart road and halting of the auto-rickshaw near one field. Omission has also been elicited that he had not stated that his family members had questioned him and he had not replied anything to them. Omission is also elicited that he had not stated that in the evening he had disclosed the entire incident to his family members. He has denied the suggestion that he and Yuvraj were kept in the lock up by the police.
14. The evidence of these two witnesses is unbelievable as the accused are alleged to have taken deceased Ruturaj in the auto-rickshaw and had killed him. We find it inexplicable that the accused thereafter take another auto-rickshaw and go to various places and proclaimed in loud tone as to how they had committed the murder. If the accused were already travelling in the auto-rickshaw, there is no earthly reason for them to then take another auto-rickshaw and go to destroy their blood stained clothes. On the face of it, the evidence of these two witnesses is unbelievable. Even the contention of PW 8 - Sachin Gavade that he had gone to the police station and had reported the incident is not supported by the evidence of PW 29 - PI Rashid Shaikh.
15. In respect of the evidence of PW 5 - Yuvraj and PW 8 - Sachin, we find that the evidence of these two witnesses really tasks human credulity for its acceptance. It is unbelievable that the accused who were travelling in the auto-rickshaw would in a loud voice audible to PW 5 - Yuvraj and PW 8 -Sachin Gavade proclaim the manner in which they had committed murder. Apart from that, we find the evidence of these two witnesses, in respect of the extrajudicial confession, to be wholly unbelievable as on account of the noise of the auto-rickshaw which was a diesel six seater with the engine towards the rear, any conversation, which the passengers had amongst themselves, would not be audible to the driver. Moreover, it is unbelievable that the passengers travelling in the autorickshaw would be shouting so as to be audible to the driver. PW - 8 Sachin Gavade claims that on the next day he had gone to the police station and had informed the police about the incident. He claims that he was accompanied by PW 5 -Yuvraj. Yuvraj doesn''t support PW 8 - Sachin Gavade in informing the police.
16. Prosecution has examined PW 7 -- Subhash in respect of the incident of earlier quarrel. PW 7 - Subhash also deposes that the relations between the accused and deceased Ruturaj and others were strained and accused Nos. 1 to 9 had given threats to the members of the Panivas Mandal. He further deposes that on 17/4/2004, at about 3.30 a.m., one autorickshaw had arrived there in which seven persons were sitting. Five persons were armed with swords and remaining persons were holding knives. He had identified accused Sachin Kamble, accused Manoj Ghule, accused Avinash Shinde, accused Madan, accused Babu. He has identified them as accused 1 to 5, 7 and 9. According to PW 7 - Subhash those persons had stated that unless they take revenge, they would not wear footwear. Those persons had rushed at Subhash and others. Subhash further deposes that they were traveling by an auto-rickshaw MH-05-7773. He has identified the auto-rickshaw driver as accused No. 10. He states that he thereafter woke up at about 6 to 6.30 a.m. and returned home and on a way, he had met PW 12 - Abhiraj, brother of deceased Ruturaj and Abhiraj had informed him that at about 4 a.m. in the morning accused Sachin and others had taken Ruturaj for a cup of tea and Ruturaj had still not returned home. He states that thereafter he went home and went to sleep. On 17/4/2004 he woke up at about 3.30 p.m. and learnt that someone had killed Ruturaj. He, therefore, went to the house of father of Ruturaj and according to him he disclosed to father of Ruturaj as to what had transpired on the preceding night.
17. In cross-examination, he has admitted as true that he was member of the Panivas Tarun Mandal which is a registered Trust. He has admitted that Abhiraj and Ruturaj are his friends. He was confronted with portion marked "A" from his statement, which he denied to have stated. He has admitted that he had not lodged any report in respect of the threats of accused 1 to 9 given at about 3 a.m. In respect of the incident, he has admitted in the cross-examination that he was present at the pendol of the Mandal when the accused had come there. He has admitted that no one had assaulted him with any weapons. He has admitted that he along with Raju Qureshi and Chand Shaikh then returned home at about 6 a.m. He has admitted that even after 6 a.m. they have not gone to the police station nor had they informed the father of deceased Ruturaj. He has admitted that he had not informed Abhiraj when he had met Abhiraj in the morning at 6 a.m. He has admitted that even after Abhiraj informed him that Ruturaj was taken by the accused at 4 a.m., he did not feel it necessary to inform him about the incident. He has admitted that till 3.30 p.m. he had not disclosed to anyone about the incident. He then states that till recording of his statement by the police, he had not informed anything to the police.
The evidence of this witness is completely falsified by the evidence of Abhiraj, who states that till 7 a.m. he and PW 4 -Sachin were waiting in the STD shop. PW 12 -Abhiraj makes no reference to meeting PW 7- Subhash at 6 a.m. and informing PW 7 Subhash that Ruturaj had been taken by the accused. Moreover, it is incredible that PW 7 - Subhash, who had been threatened by the accused just two and half hours prior to meeting Abhiraj, would not disclose to Abhiraj about the threats of the accused. PW 7 - Subhash also did not consider it necessary to disclose the incident to anyone till about 3.30 p.m. We, therefore. find that no reliance can be placed on the testimony of PW 7 - Subhash.
18. Prosecution has examined PW 9 - Riyaz Kureshi, who also deposes that on 16/4/2004 he along with Chand Shaikh was sitting in the Pendol. He states that he, Chand Shaikh and PW 7 - Subhash and one Bajrang were playing cards along with other 3 to 4 persons. At about 3 to 3.30 a.m. seven persons had alighted from an auto-rickshaw, whom he has identified as accused 1 to 5, 7. 9 and the auto-rickshaw driver as accused No. 10. Those seven persons were armed with swords and knives. He then states that the accused were questioning PW 7 - Subhash and Bajrang as to where Ruturaj and the other brothers of Ruturaj were. According to this witness, the accused had stated that they would kill one of them and would not wear footwear till then. While leaving, the accused again reiterated the threat. According to PW 9 - Riyaz Kureshi since they were frightened, they slept in the Pendol and in the morning at about 6 a.m. he along with Chand Shaikh returned home. He states that after returning home, he again slept in the house and woke up at 1.45 p.m. and had learnt that Ruturaj had been killed by someone. He thereafter went to the Civil Hospital, Solapur and then to the residence of Ruturaj. He states that PW 7 Subhash was also present there and they informed the father of Ruturaj as to what had transpired. He states about identifying the accused in the Test Identification Parade. He has admitted in the cross-examination that after the accused went, he did not lodge any complaint with the police. He has also admitted that neither Subhash nor Bajrang had lodged any complaint with the police. He has admitted that he did not consider it necessary to inform the father of Ruturaj, though he felt that there was danger to the life of Ruturaj and his brothers. He has admitted that the STD Booth of Ruturaj is on way to his house. He has then admitted that till 10.30 p.m. of 17/4/2004 he had not disclosed the incident to the police also. He has admitted that the funeral of Ruturaj was performed at 5 p.m. on 17/4/2004. Omission has been elicited that he had not stated about going to the Civil Hospital on learning death of Ruturaj.
PW 7 - Subhash does not depose about the accused enquiring about the whereabouts of Ruturaj and his other brothers and about threatening to kill them in particular. Even this witness, like PW 7 - Subhash, did not disclose about the threats of the accused to anyone.
19. Prosecution has examined PW 10 - Raju Paradkar, who also deposes about the previous incident about sprinkling of the red coloured powder and inadvertently falling on Nana Kale and Bharat Banne. He also deposes about an incident dated 23/2/2004 between the accused and one Sunil Harsure, in which the thumb of left hand of accused Manoj was cut. He further deposes that on 17/4/2004 at about 9 a.m. he was present at his house and his father, who had returned from the agricultural field, informed him that a dead body of one person was lying near Kalke Vasti. He further deposes that on 17/4/2004 at about 7 a.m. PW 4 - Sachin had come to his house and disclosed that some boys from the Patra Talim had taken Ruturaj under the pretext of drinking tea. He, therefore, immediately went to the Kalke Vasti and noticed the dead body of deceased Ruturaj. He, therefore, informed the father of deceased Ruturaj about the place where the dead body of Ruturaj was lying. He states that thereafter the dead body was taken to the Civil Hospital for postmortem. In cross-examination, he has admitted as correct that when he had reached the Kalke Vasti, the police had already reached there.
PW 4 - Sachin does not depose about going to the house of PW 10 - Raju and informing him that the accused had taken Ruturaj along with them under the pretext of offering tea. It is, therefore, quite clear to us that PW 10 - Raju has improved in his deposition about PW 4 - Sachin informing him about the accused taking deceased Ruturaj along with them. The evidence of PW 10 -Raju, therefore, is only to the extent of being informed about a dead body lying at the Kalke Vasti and about identifying the dead body and thereafter informing the father of Ruturaj as to the place where the dead body was lying.
20. Prosecution has examined PW 13 - Chandrakant Vankar, who deposes about the dispute in the procession and about sprinkling of the red coloured powder. He then deposes about the incident dated 20/2/2004 about his servant Sunil Swami being assaulted by the members of the Patra Talim area. He deposes about receiving a call from accused Nana Kale requesting him not to lodge any complaint with the police about the earlier two incidents. He then deposes about father of Ruturaj accompanying him to the office of Nana Kale regarding efforts to patch up the earlier quarrels. He then deposes about the quarrel being patched up. He then deposes about Vishwanath Kamble informing him that the members of the Patra Talim were keen to commit murder of someone from the Panivas Tarun Mandal and unless someone was killed. there was no possibility of the difference being settled. He further deposes that on 17/1/2004 at about 8 a.m. he learnt that Ruturaj had been taken by some boys of the Patra Talim under the pretext of taking tea and therefore, went to the house of Ruturaj and met father of Ruturaj and others. He states that he joined them in searching for Ruturaj. He states that thereafter they were informed by PW 10 - Raju Paradkar about noticing the dead body of Ruturaj at the Kalke Vasti.
21. Importantly, this witness was present at the house of Ruturaj since morning till the discovery of the dead body. Curiously, this witness does not claim that he had informed either by Abhiraj or PW 12 -Sanjay or by anyone the names of the accused as the persons who had taken Ruturaj along with them. The information, which he had received. was that some boys from the Patra Talim had taken Ruturaj along with them. He does not claim that while standing there, he learnt the names of the accused who had taken deceased Ruturaj along with them. He was confronted with portion marked "E''" from his previous statement that father of Ruturaj, his brother Sanjay Shinde, Sidhu and Sachin had informed Nana Kale that some boys from the Patra Talim had taken Ruturaj in an auto-rickshaw and had not returned home. He has denied to have stated portion marked "E" in his statement.
22. Prosecution has examined PW 14 - Vishwanath Kamble, who states that there was a quarrel between his son Shekhar and had met father of Ruturaj for settlement of the dispute. He then states that Bharat Banne had informed him that unless someone was killed, the dispute would not be settled. In cross-examination, he has admitted that he had not lodged any complaint against the utterances of Bharat Banne, accused No. 12. Omission has been elicited that he had not stated in his previous statement that Bharat Banne had told him that unless two persons from either sides were killed, the quarrel would not be settled.
23. Prosecution has examined PW 4 - Sachin and PW 12 - Abhiraj as witnesses that the accused had taken deceased Ruturaj along with them. We may briefly referred to what PW 4 -- Sachin has admitted in his cross-examination. PW 4 - Sachin has admitted in the cross-examination, "Till 7 a.m. of next morning I did not tell anything to Gama Pailwan and Sanjay Shinde about Ruturaj".
According to PW 4 - Sachin he was to accompany deceased Ruturaj on the day of the incident to village Sonari for attending a fair.
"(a) It is extremely strange that Ruturaj would go to the house of PW 4 - Sachin, bring him to the STD Shop and thereafter performed the pooja. It would have been most natural for Ruturaj to pick up PW 4 -Sachin from his residence after performing the pooja and while going towards the village Sonari for attending the fair.
(b) PW 4 - Sachin was aware about the dispute and claims that he was aware about the threats and yet according to him deceased Ruturaj without any demur sat in the autorickshaw in which the accused were travelling.
(c) The accused had asked him to accompany them for a cup of tea and according to Sachin, Ruturaj did not drink tea. If the threats were so potent, we find in inexplicable that Ruturaj would, without any demur, accompany the accused and even PW 4 - Sachin would not make any attempts at asking Ruturaj not to go.
(d) PW 4 - Sachin also did not make any efforts at following the auto-rickshaw.
(e) If PW 4 - Sachin is to be believed that he had informed father of deceased Ruturaj that the accused had taken Ruturaj along with them, it is extremely strange that no report was immediately lodged to the police but the family members of Ruturaj went searching of Ruturaj from one place to other.
(f) The offence was registered at 12.35 p.m. while the dead body of deceased Ruturaj was found somewhere at about 10 a.m. Till that time, no report was lodged that the accused had taken deceased Ruturaj along with them.
(g) Neither Sachin nor Abhiraj claimed that Ruturaj had resisted the offer of the accused to accompany them, but claimed that he had tamely sat in the auto-rickshaw along with the accused.
(h) If the witnesses were aware that the accused had taken Ruturaj along with them and there was a threat that the accused would be committing murder of deceased Ruturaj, we find it extremely strange that no report was lodged.
(i) The finding of the dead body was reported to PW 27 - API Gopale by one Mr. Tapadia. PW 27 -- API Gopale has admitted in the cross-examination, "It is true that Mr. Tapadia has also stated before me that the said dead body was lying since night time".
24. The evidence of PW 15 -Sanjay, brother of deceased Ruturaj that he was insisting for recording of the FIR, but the FIR was not recorded, appears to be a completely false statement as the FIR came to be lodged after drawing of the inquest panchanama and the offence was registered at 12.35 p.m. It is thus apparent that initially when the dead body was found at about 10 a.m., none of the prosecution witnesses were aware as to who the culprits were. The evidence of PW 27 API Gopale completely falsifies the eye witnesses as Gopale has admitted that Mr. Tapadia had informed him that the dead body was lying there since night. It is, therefore, clear to us that suspecting that on account of previous enmity, the accused may have taken the deceased along with them and committed his murder, a report came to be lodged.
25. The evidence of both PW 4 -Sachin and Abhiraj is extremely shaky as their conduct is most unnatural in not informing the police immediately and in not lodging a report immediately even after the dead body of deceased Ruturaj was noticed.
26. Even PW 13 -- Chandrakant states that he was present at the residence of deceased Ruturaj since 8 a.m. but was not informed by anyone about the names of the accused who had taken deceased Ruturaj along with them. In the examination-in-chief he states that he had learnt that Ruturaj had been taken by some boys of the Patra Talim under the pretext of offering tea. Even after the discovery of the dead body, this witness does not claim that he was informed by any of the witnesses the names of the accused who had taken deceased Ruturaj along with them.
27. Thus, on the basis of the previous enmity, it is apparent to us that it was suspected that it was the accused who had committed murder of deceased Ruturaj and, therefore, a report against the accused came to be lodged. As pointed out by us above, the evidence of PW 27 -API Gopale completely falsifies the witnesses who had last seen deceased in the company of the accused. PW 27 -API Gopale has admitted that Mr. Tapadia who had informed about the dead body lying in the Kalke Vasti had informed him that the dead body was lying there since night. If that be so, the very abduction of Rutruraj by the accused at 4 a.m. stands falsified.
For the aforesaid reasons, therefore, in our opinion, no reliance whatsoever can be placed on the testimony of these witnesses.
28. Prosecution has relied heavily on the discovery of the swords at the instance of accused Nos. 1 to 4. PW 29 - PI Rashid Shaikh has admitted in the cross-examination that in the panchanamas at Exhs. 54 to 56, there was no mention about sealing of the articles. He has also admitted that there was no mention in the panchanama that the ash was wrapped and sealed. He has admitted in the cross-examination as true that the procedure of sealing was required to be mentioned in the panchanama. He has further admitted that all the articles were lying in the police station. In the absence of satisfactory evidence regarding sealing of the articles immediately on their seizure, no reliance can be placed on the report of the Chemical Analyzer as the possibility of the articles being tampered with cannot be ruled out.
29. Moreover, PW 11 - Dr. Jagdish Kale who had performed the postmortem, has admitted that the weapons before the court had not been shown to him earlier for seeking his opinion. He has also admitted that he could not give the exact time of death.
30. In the light of the findings recorded by us, according to us, it is not necessary to dwell on the evidence of the Test Identification Parade. According to us, the appellants are entitled to be given the benefit of doubt. Accordingly, Criminal Appeals are allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since Original Accused No. 1 - Satyawan alias Sachin Vishnu Kamble, Original Accused No. 2 - Manoj Dnyneshwar Ghule and Original Accused No. 3 - Pappu alias Vasudeo Shivaji Chvan are in jail, they be released forthwith, if not required in any other case. Bail bonds of the other accused stand cancelled.
