The learned Judges discussed in great detail the statements made by Haliman and Mahabir under Section 164 and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under Section 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 is true.
13. The Apex Court in the decision ) in
paragraph 8 has observed that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.
Bombay High Court
Audumbar Digambar Jagdane And ... vs State Of Maharashtra on 14 August, 1998
1. The Appellants, original Accused Nos. 1 and 2, were charged and tried for offences under Sections 302 and 201 read with 34 of Indian Penal Code in the Court of Additional Sessions Judge at Solapur in Sessions Case No. 13 of 1994.
2. Prosecution case in brief is that deceased Nalsaheb was brother of complainant PW 12 Moula. Deceased was selling Shindi. Prior to the marriage deceased Nalsaheb was the wrestler. Sadashiv Mhadkar, Gundiba Bandagar, Bhalchandra Sarfale and others were also attending the gymkhana along with deceased Nalsaheb. Deceased Nalsaheb had a quarrel with Bhalchandra Sarfale. PW 12 Moula intervened. Since that quarrel Bhalchandra and deceased Nalsaheb were not on talking terms. On 12th November, 1993, Sadashiv Mhadkar, Bhalchandra Sarfale, Anna Sarfale and Vikas Sontakke had a quarrel during which Nalsaheb being friend of Sadashiv intervened. At that time Bhalchandra Sarfale and Vikas Sontakke gave threat to Nalsaheb that they will finish him within 8 days. Complainant PW 12 Moula, Dadarao Mhadkar and Bhaskar Vanamane were present at that time. On 19th November, 1993 at about 7.30 a.m. Nalsaheb carried Shindi on bicycle from village Watvate. Nalsaheb did not return to his house till next morning i.e. 20th November, 1993 which made PW 12 Moula, brother of deceased Nalsaheb, to start a search for the deceased. In the process, PW 12 Moula went to the police outpost to inquire about Nalsaheb where Police Patil of village Kurul had also come to the police outpost to inform that a dead body of one Shindiwala was lying near the tank near Devicha Mala in Shivar of village Kurul. PW 12 went on the spot and found the dead body of his brother Nalsaheb lying with several injuries on his person on different parts. PW 12 Moula suspected Bhalchandra Sarfale and Vikas Sontakke might have committed the murder of his brother as per the threat given by them to Nalsaheb. He, therefore, lodged his report against Bhalchandra Dhondiba Sarfale, Anna Dhondiba Sarfale of village Watvate as also Vikas Sontakke of Solapur and upon such report being filed, offence was registered as Crime No. 146 of 1993 for offence under Section 302 read with 34 of the Indian Penal Code at the out-post at Kamati and it was then sent to police station at Mohol, whereupon Crime No. 162 of 1993 came to be registered in the police station at Mohol at 3.15 p.m. on 20th November, 1993. The police, in fact, arrested three named persons. On 21st November, 1993 PW 12 Moula again came to the police station, Mohol, after the funeral of his deceased brother Nalsaheb and reported that one Kondi Madake and Narayan Madake told him that it is these two accused who have assaulted Nalsaheb. There was some quarrel between accused No. 1 Audumbar and Nalsaheb about a year prior to the incident. Accused No. 1 Audumbar with the help of his younger brother accused No. 2 Eknath committed murder of Nalsaheb due to the quarrel between Nalsaheb and Bhalchandra which took place on 12th November, 1993 and at that time Bhalchandra gave threat to Nalsaheb. PW 14 API Shejal recorded the additional statement of PW 12 Moula. He arrested accused No. 2 Eknath at about 11 p.m. On 22nd November, 1993. On the very day the Investigating Officer got the statement of PW 2 Narayan recorded by Special Judicial Magistrate, PW 11, Mane. On 24th of November, 1993 the accused No. 2 Eknath made a statement leading to discovery and accordingly he prepared memorandum of statement at Exhibit- 18 and also further memorandum of seizure of ash (Art. 15) of the burnt clothes as also sickle (Art. 13) and knife (Art. 14) which were blood stained under the very memorandum (Exhibit-18). The Investigating Officer also seized two bicycles (Art. 17) and (Art. 18) from the accused No. 2 Eknath. Accused No. 1 was arrested on 25th November, 1993. Usual investigation was further carried out and ultimately both the accused were charged and tried as mentioned above.
3. Accused pleaded not guilty to the charge and claimed to be tried. They claimed that they are falsely implicated in the case. They further contended that deceased Nalsaheb was having many enemies. His father had committed murders of Gulab, Ganpat and Santram and, therefore, the relatives of these three persons were also annoyed with deceased Nalsaheb and other family members. The deceased Nalsaheb is also alleged to have beaten several other persons. Quarrel with Bhalchandra Sarfale on 12th November, 1993 was also mentioned. According to the accused there were several enemies to deceased Nalsaheb and, in fact, Bhalchandra Sarfale and Vikas Sontakke had given threat of life to deceased just a week prior to the date of incident. Accused contended that the original story given by PW 12 Moula against Bhalchandra Sarfale and Vikas Sontakke and others is the correct story. However, these persons brought political pressure and financial pressure on the police which resulted into false involvement of the accused by creating false evidence. It is alleged that panch Gundiba Bandagar is a friend of deceased Nalsaheb. Witnesses Balasaheb Salgar and Lingeshwar are tutored by the police. PW 13 Bhaskar Vanamane is also friend of deceased Nalsaheb.
4. During the trial prosecution adduced evidence of PW 1 Narayan, PW 3 Balasaheb Salgar, PW 5 Lingeshwar Bhalerao as the eyewitnesses. Prosecution also examined PW 13 Bhaskar Honmane who deposes of having met Nalsaheb on the road and who had seen accused No. 1 Audumbar on his cycle going towards village Wagholi. Accused No. 2 was also seen behind Nalsaheb. Accused No. 2 was on bicycle. He saw both the accused and Nalsaheb from Wadi. There was a distance of 200 ft. between accused No. 1 and deceased Nalsaheb and about 150 ft. distance between Nalsaheb and accused No. 2.
5. Prosecution also examined PW 12 Moula, Complainant. PW 11 Dayanand Mane, Special Judicial Magistrate, who recorded statement of PW 2 Narayan under Section 164. PW 6 Mahadev was examined to show that accused No. 2 Eknath had taken his bicycle on the date of the incident. Prosecution also examined PW 4 Nivrutti to show seizure of two cycles from accused No. 2 on 24th November, 1993. PW 1 Gundiba Bandagar was also examined as a panch for recovery of burnt ash as well as knife and sickle. PW 9 Dr. Deshpande was examined to prove the postmortem notes. Lastly, prosecution examined PW 14 API Shejal who was the Investigating Officer.
6. On the basis of material on record, the learned Judge held that looking to the injuries and evidence of doctor, Nalsaheb died a homicidal death. The learned Judge accepted the evidence of the prosecution witnesses and ultimately considering the rival contentions concluded in paragraph 33 that evidence of PW 3 Balasaheb and PW 5 Lingeshwar clearly indicate that the accused persons with knife and sickle assaulted deceased Nalsaheb due to which Nalsaheb died on the spot. The learned Judge further stated that accused No. 2 Eknath produced ash of burnt clothes, sickle and knife from the hidden place which shows accused persons in furtherance of their common intention committed murder of deceased Nalsaheb by sickle and knife and thereafter accused No. 2 Eknath set blood stained clothes on fire to make the evidence of murder disappear with intention to screen themselves from legal punishment. As such accused No. 2 has committed the offence punishable under Section 201 of IPC. Accordingly, by his Judgment and Order dated 6th July 1994 the learned Additional Sessions Judge, Solapur was pleased to convict both the accused for offence punishable under Section 302 read with 34 of IPC and sentence each of them to suffer life imprisonment and to pay a fine of Rs. 100/- in default further RI for 15 days. Accused No. 2 was further convicted for offence punishable under Section 201 of IPC and was sentenced to suffer RI for one year and to pay a fine of Rs. 100/- in default further RI for 15 days.. Both the sentences of accused No. 2 were directed to run concurrently.
7. Being aggrieved by the said Judgment and order of conviction and sentence, both the accused have preferred this appeal.
8. We have heard Shri Mundargi, the learned counsel appearing for the appellants in support of this appeal and Smt. Joshi, the learned Additional Public Prosecutor on behalf of the State. Shri Mundargi contended that evidence of PW 2 Narayan does not help the prosecution at all as he has completely turned hostile. He contended, in view of this, evidence of PW 11, Special Judicial Magistrate, who recorded the statement of PW 2 Narayan under Section 164 and the statement under Section 164 loses its significance and cannot be read as substantive evidence at all. He further states that even evidence of PW 12 Moula, so far as it pertains to what Narayan stated to him, would become hearsay evidence. Shri Mundargi emphasised that as per the initial statement which was recorded as FIR, four totally different persons with whom Nalsaheb had a serious quarrel, just a week prior, were specifically mentioned. Shri Mundargi also pointed out that incident had taken place on 19th November, 1993, FIR implicating four totally different persons was filed by the brother of the deceased on 20th November, 1993. On 21st November, 1993 the names of the present appellants transpired for the first time. Accused No. 2 was arrested on 22nd November 1993 and accused No. 2 is alleged to have made a statement leading to discovery on 24th November, 1993, Shri Mundargi contended that there is a distinct attempt on the part of the prosecution to create evidence. He contended that if the accused had burnt the clothes they could have also washed and wiped the weapons. The panchanama of seizure of weapons as well as the C.A. report shows that both the weapons are blood stained. Shri Mundargi also submitted that unless and until blood group of the deceased and the blood found on the weapons is shown to be the same, it is not an incriminating circumstance because the C.A. report merely shows that the blood found on the weapons was human. Shri Mundargi submitted that in any case this evidence of alleged discovery etc. cannot be used as against accused No. 1. Shri Mundargi submitted that the alleged motive tried to be projected by the prosecution is too weak motive for provoking these appellants to commit murder of Nalsaheb. No immediate provocation is shown. Even it is not indicated that there was any continued enmity or group rivalry between deceased on one hand and accused Nos. 1 and 2 on the other. Shri Mundargi very severely criticised the evidence of PW 3 and PW 5 who were the alleged eyewitnesses. Shri Mundargi contended that both are strangers, that is, there were not knowing accused Nos. 1 and 2 previously. Then Shri Mundargi pointed out several contradictions in the evidence of these witnesses inter se. Shri Mundargi stated in a sense both are chance witnesses. Shri Mundargi contended that both these witnesses though allegedly witnessed a gruesome murder they did not tell about it to anyone till the police recorded their statements on 21st November, 1993 i.e. on the third day from the date of the incident. Shri Mundargi emphasised the fact that when assailants were unknown to the witnesses, it was absolutely essential that the identification parade ought to have been held immediately after the arrest of the accused. He points out that the evidence is recorded after about five and half moths from the date of the incident and no identification parade at all is held. Shri Mundargi, therefore, submitted that the evidence of these two alleged eyewitnesses cannot be accepted for the involvement of accused in such a serious crime. Shri Mundargi in that behalf relied upon Division Bench ruling of this Court reported in 1982 Cri LJ 2056 as also on the Supreme Court Judgments. Shri Mundargi, therefore, submitted that the evidence on record is not reliable and it must be held that the prosecution has failed to prove the case against the appellants beyond reasonable doubt and accused were wrongly convicted by the learned Sessions Judge. He therefore, urges that appeal be allowed and accused be acquitted.
9. Smt. Joshi, the learned Addl. Public Prosecutor, on the other hand contended that evidence of PW 3 and PW 5, who according to her are most natural witnesses, is clinching. She stated may be that they did not disclose the incident to anyone immediately but it is dependent on the perception of an individual and that by itself should not be sufficient to discard their evidence. She stated that learned Judge was justified in accepting the evidence of these two eyewitnesses as also corroborative evidence of the discovery at the instance of accused No.
2. Smt. Joshi, therefore, urged that the appeal has no merits and the conviction and sentence deserve to be confirmed.
10. With the assistance of the learned counsel we have perused the entire oral and documentary evidence on record in the context of rival submissions.
11. So far as the homicidal nature of the death of Nalsaheb is concerned, it was not disputed before us at all and rightly so. Evidence of FW 12 Moula shows that deceased Nalsaheb went out in the morning on the date of the incident. He brought Shindi from his master, took his breakfast and tiffin box and went out on a bicycle to sell Shindi. As deceased Nalsaheb did not return home till night, on the next day morning PW 12 Moula went out for his search. When he went to police out-post at Kamati, Police Palil of Kurul came to Kamati and intimated about the dead body lying near the temple of goddess at Kurul. He went to the spot and found that the dead body was that of his brother Nalsaheb. It had several injuries. Evidence of Dr. Deshpande, PW 9, clearly shows that when she conducted autopsy on the dead body of deceased Nalsaheb at about 7 p.m. on 20th November, 1993, she found as many as 19 wounds, most of them incised and few of them punctured. The wounds were almost on all parts of the body. There was tramatic amputation on left wrist joint. On internal examination, there was linear fracture of frontal bone at midline 5 cm x 1 cm x brain deep. Great vessels of left side of neck are cut. Larynx and trachea was cut. Arch of avota is cut. This evidence along with the post-mortem notes in no manner of doubt shows that deceased Nalsaheb was hacked to death.
12. Coming to the eyewitnesses, the first witness is PW 2 Narayan Madake. He has stated that he is having his agricultural land on the Shivar of village Jamgaon and village Watvate. He knows accused persons as well as deceased Nalsaheb. However, he states that he docs not know what happened between Nalsaheb and accused persons. He completely denied that he saw the accused persons coming from the side of Kakada Mala by footway and that their clothes and sickle were having blood stains. The learned APP requested for permission to declare the witness hostile. In cross-examination the witness denied that his statement was recorded on 21st November, 1993. His entire statement was put to him in the cross-examination. The witness denied each and every statements made therein. The witness also denied the statement made by him to Special Judicial Magistrate which was recorded on 22nd November, 1993 and which was produced at Exhibit-20. The said statement also was put to the witness in its entirety and the witness denied every sentence therein. In cross-examination on behalf of the accused, the witness stated that two policemen brought him to Solapur and threatened him and asked him to sign on a paper. Police asked him to wait outside a house and went inside the house and after about half an hour he was called inside and made to sign statement at Exhibit-20. In answer to the Court, the witness stated that he did not make any complaint to anyone about threat: given to him by the police to sign Exhibit-20. Prosecution has. also examined PW 11 Dayanand Mane, Special Judicial Magistrate, who recorded the statement of Narayan under Section 164. Said Mane deposed that he recorded the statement of PW 2 Narayan under Section 164 after administering oath to Narayan and then he recorded the statement as per the say of PW 2 Narayan Madake. He prepared the statement of Narayan Madake in triplicate. He obtained the signature of Narayan Madake, put his signature, endorsed the certificate below the statement. One copy was given in sealed cover to police and he placed another copy in one envelope with himself for the Court. The copy given to the police was Exhibit-20. The witness in the cross-examination had denied all suggestions that he is giving false evidence etc. Though evidence of Narayan before the Court is to the effect that he does not know anything his statement under 164 appears to have been proved through the Magistrate PW 11. Smt. Joshi contended that though Narayan has turned hostile his statement given on oath under Section 164 which is proved by the prosecution cannot be totally ignored. We are afraid we cannot accept this submission of the learned Addl. Public Prosecutor. In our opinion once Narayan has not supported the prosecution, the statement given under 164, even if proved, can never be accepted as substantive evidence. In that behalf reference to the decision of the Privy Council reported in AIR i 946 PC 38 :(1946 (47) Cri LJ 336) is extremely fruitful. The Committee of the Privy Council speaking through Sir John Beaumont, J. in the aforesaid decision on page 41 (of AIR): (at p. 338 of Cri LJ) of the report has observed as under :
...The learned Judges discussed in great detail the statements made by Haliman and Mahabir under Section 164 and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in Court, which in no way helped the prosecution. This was an improper use of such statements. A statement under Section 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated out of Court under Section 164 is true.
13. The Apex Court in the decision ) in
paragraph 8 has observed that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. Decision of the learned single Judge of Patna High Court relying on the aforesaid decision of the
Privy Council observed as under :
...In the present case there are two inconsistent statements of Badamia, one under Section 164 and the other before the Sessions Court. When there was such a conflict of evidence, the testimony has to be rejected outright in absence of any independent corroboration.
14. Especially in view of aforesaid decisions of the Privy Council and the Supreme Court we are of the clear opinion that statement of PW 2 Narayan recorded under Section 164 of the Code of Criminal Procedure cannot be accepted as the substantive evidence. Narayan's evidence before the Court does not help the prosecution in any way. As such evidence of Narayan, evidence of PW 11, the Special Judicial Magistrate and Exhibit-20, the statement of Narayan recorded under Section 164 does not help the prosecution case.
15. This brings us to evidence of PW 3 Balasaheb and evidence of PW 5 Lingeshwar who are the alleged eyewitnesses. PW 3 Balasaheb was working in Samajik Vanikaran Department and at the relevant time he was working near Devicha Mala. He deposed that the day of the incident was Friday. He attended the work at 8.30 a.m. He took a round and thereafter went to some labourers who were then digging soil on a tractor from mouth of water channel to take a tobacco. It was about 10 a.m. He took tobacco and again went to take a round. At that time he saw one person sitting in the plants of sunflower and one person coming from the side of village Watvate. He was Shindiwala. One more person was following Shindiwala from village Watvate. The person who was sitting near the sunflower plants was wearing blue colour pants and white colour banian. The person who was sitting near the . sunflower plants then obstructed Shindiwala and the person who came from the backside of Shindiwala, with some weapon in his hand assaulted and the person who was sitting near sunflower plants then assaulted with his sickle on Shindiwala. They did not talk at that time. Then witness stated that at the time of attack Shindiwala was saying "Mi Kaya Kelaya, Paya Padato Maru Naka. Audya Paya Padato Maru Nako". Thereafter, Shindiwala fell down and the assailants went away. The witness went near Shindiwala and saw that he was dead. Then witness went home. He has stated that he saw the assaulters from a distance of about 15 ft. Accused No. 1 before the Court was the same person who was sitting near sunflower plants. Accused No. 2 was the same person who was following Shindiwala at that time. Accused No. 2 was then wearing white shirt and white pyjama. The incident of assault took place for about 15 to 20 minutes. Sunflower plants were standing in the field of Jadhav. In the cross-examination the witness admitted that he resides at village Kurul which is on Pandharpur-Solapur road having a very heavy traffic. He also admitted that there is city bus facility available from his village to Solapur. He further admitted that Kamati village is on the way and there is a police out-post. He also admitted that at village Kamati there is a phone facility and one road from Kurul goes to Mohol and there is traffic on that road. The witness has further admitted that while he was witnessing the assault he did not shout or did not try to intervene. He did not inform anyone when assault was going on as at that time he was frightened. The witness further admitted that it is true that he neither reported the matter to the Police Patil or to the members of the family of Shindiwala or to the out-post or to the police station. The witness categorically admitted that he did not narrate the incident to anyone till police recorded his statement. The witness admitted that he did not state before the police that at the time of assault he was at the distance of 150 to 200 ft. from Shindiwala and assaulters. He further admitted that he did not state before the police that the incident was going on for 15 to 20 minutes. He admitted that he did not state before the police specifically that incident took place in the field of Hiralal Jadhav. He further stated that from the place of incident village Kurul is at a distance of 1 km. and on the way there are fields and residential houses of people. The witness denied all the suggestions put to him that he is giving a false evidence.
16. PW 5 Lingeshwar, the other eyewitness, has stated that he was working on the tractor of Ligade. The person who was a Muslim and whose murder took place used to sell Shindi. On the day of the incident at about 9 a.m. this witness along with other labourers were loading soil in the trolley of the tractor. Tanaji Gaikwad, Tukaram Bhalerao, Tanaji Ohol were other labourers. PW 3 Balu Salgar then came to them to take tobacco from them. Then the witness stated that he heard shouting "udya Mala Maru Nako, Audya Mala Maru Nako, Mi Tuza Kaya Gunha Kelaya, Mala to Maru Nako". Audya and one person were then assaulting on Shindiwala. Shindiwala then fell down. Audya was having some weapon either sickle or other weapon. He stated that they were at a distance of 200 to 250 cubits from the assailants. The accused persons before the Court are the same persons, who were assaulting on Shindiwala. Then they went to brick-kilns with their tractor and trailer. In the cross-examination the witness categorically admitted that he was not knowing the assailants. The witness has further stated that it has happened that after PW 3 Balu Salgar took tobacco they went to unload the tractor and it is true that the incident took place at the time of second trip. It is also true that the second trip of loading soil was going on at 9.30 a.m. or 10 a.m. He agreed that it is true that the trailer was half loaded when they heard the shout. He further admitted that he had stated before the police that they saw the assault from standing on the half loaded soil in the trailer. However, he cannot assign any reason as to why the police did not mention the same in his statement. He further admitted that he did not narrate the incident to police, police patil or Sarpanch at that time and it is true that he did not narrate the incident to anyone till police recorded his statement. The witness stated that he did that before the police that he saw the incident from 200 to 250 spaces but cannot assign any reason as to why the police did not mention the distance of 200 to 250 spaces in his statement. Before appreciating the evidence of the aforesaid two witnesses we find it relevant to refer to the evidence of PW 13 Bhaskar. Like deceased he was also selling Shindi. He was knowing deceased Nalsaheb. The day of the incident which was Friday Nalsaheb purchased Shindi in the presence of this witness. Nalsaheb was going to village Kurul to sell Shindi and this witness went to village Wagholi to sell Shindi. The cycle of Nalsaheb then punctured near the village Watvate. He met deceased Nalsaheb on the road and then this witness went ahead. He reached one place known as Wadi. Nalsaheb was on the road at that time. At that time accused No. 1 Audumbar on his cycle went towards village Wagholi. Nalsaheb with his cycle was coming on his foot hearing towards Kurul. Accused No. 2 Eknath was behind Nalsaheb and he was on his cycle. He saw both the accused persons and Nalsaheb from Wadi. There was about 200 ft. distance between accused No. 1 Audumbar and deceased Nalsaheb and about 150 ft. distance between Nalsaheb and accused No. 2 Eknath. The witness went to his sister's house at Pimpari on that date and returned to village Watvate on the next date and then learnt that there was murder of Nalsaheb from PW 2 Narayan. The witness has stated that accused No. 1 Audumbar gave threat to hotel boy by name Sidhu Bandagar. Sindhu Bandagar came to this witness and narrated the incident to this witness, Nalsaheb and Sada Mahadkar. This witness and Nalsaheb and said Mahadkar warned accused No. 1 Audumbar. At that time accused No. 1 Audumbar gave threat to them. The witness has further stated that about 2 or 3 years back the accused No. 1 put the cotton on fire belonging to Sada. Accused No. 1 Audumbar then quarrelled with Nalsaheb, Sada and this witness and thereafter the matter was settled. The accused persons before the Court are the same persons who were going on their cycles on the day of incident. The witness denied the suggestion that police recorded his statement on 20th November, 1993 and additional statement on 22nd November, 1993. The witness has stated that he did state before the police at the time of statement that the cycle of Nalsaheb was punctured and therefore he was going on his foot with punctured cycle towards village Kurul and at that time he saw accused No. 1 Audumbar heading about 200 ft. to Nalsaheb and accused No. 2 Eknath was behind of about 150 ft. toe Nalsaheb. The witness stated that he did state before the police that on the day of the incident he went to the house of his sister and returned to village Watvate on the next day. The witness further stated that he cannot assign any reason as to why police did not mention these things in his police statement. The witness further agreed that he did state before the police that he heard the cry from the house of Nalsaheb and then learnt the death of Nalsaheb. The witness has stated that police recorded his statement two days after the dead body of Nalsaheb was found. The witness also stated that he cannot assign any reason as to why police did not mention in his statement that 2-3 years before the incident accused No. 1 Audumbar set cotton belonging to Sada on fire though he stated so to the police.
17. Now the evidence of these two alleged eyewitnesses PW 3 and PW 5 and also evidence of PW 13 that he saw two accused and the deceased on the road just prior to the incident, is difficult to be accepted as reliable evidence. PW 3, Balasaheb and PW 5 Lingeshwar admittedly did not know accused Nos. 1 and 2 previously. Though PW 13 specifically refers to both the accused having bicycles as also deceased walking along with the bicycle, there is a conspicuous absence in the evidence of PW 3 and PW 5 regarding any bicycle. The distance from which the witnesses PW 3 and PW 5 saw the incident is conspicuously absent in their police statements. Although PW 3 and PW 5, as contended by the learned Addl. Public Prosecutor, were the persons who had reason to be at the spot, the omissions in their statements proved on record makes their evidence not completely reliable. Even the version of the attack given by these two witnesses PW 3 and PW 5 is not identical. As stated earlier again evidence of PW 13 Bhaskar which is full of omissions on material particulars and especially regarding the alleged enmity also does not inspire confidence. Admittedly, the statements of PW 3 and PW 5 were recorded by the police on 21st November, 1993 and statement of PW 13 was recorded on 22nd November, 1993. Admittedly, these witnesses did not disclose the incident or what they had seen to anyone till police recorded their statements. PW 43 has admitted that he is resident of Kurul which is about 1 km. from the spot. He has further admitted that there are several people who are residing in between. He has further admitted that there is police outpost at Kamati. Under these circumstances we find it extremely difficult to accept the evidence of PW 3 and PW 5 as there is no explanation as to why the witnesses did not disclose anything to anybody. They were eyewitnesses to the brutal attack in the broad daylight. It is relevant to notice that accused were total strangers. As such we find it rather mysterious that these witnesses kept quiet till police recorded their statements on the third day. Evidence of PW 3 and PW 5, if read properly, does indicate that they saw the incident at about same time. However, evidence of PW 3 shows one of the accused sitting near the sunflower plants. Deceased coming from the village. Another accused following the deceased, the accused sitting near the sunflower plants obstructing the deceased, the person following the deceased attacking the deceased first, then person sitting on the ground attacking the deceased and at the time of attacking the deceased shouting "Mi Kaya Kelaya, Paya Padato Maru Naka. Audya Paya Padato Maru Nako." Whereas so far as PW 5 is concerned, he referred to the shouts of the deceased in almost identical terms and the assault on the deceased. Though the variation may not be very much, in the facts and circumstances of the case, even the small variation and especially glaring omissions in their police statements regarding the distance from which they witnessed the incident and their total silence without any explanation for two days makes their evidence such as cannot be completely relied upon. PW 5 mentions PW 3 Balasaheb by name which suggests that they were knowing each other. However, despite this PW 3 does not specifically refer to the presence of PW 5. However, what is really fatal to the prosecution is the fact that admittedly PW 3 and PW 5 were not knowing the accused previously. Despite this, admittedly, no identification parade was held by the police for reasons best know to them. As such, the identification of accused No. 1 and accused No. 2 by alleged eyewitnesses PW 3 and PW 5 is for the first time in the Court after a period of more than five and half months. In that behalf it is useful to refer to some cases cited by Shri Mundargi. The Division Bench of this Court in a decision reported in 1982 Cri LJ 2056, in paragraph 9, has observed that none of these witnesses, who claimed to identify the accused as the person who was seen in the company of Bhagwat on the day in question, had seen the accused any time before the date of the incident. The investigating officer has shown a marked degree of negligence in his duty in not holding an identification parade in such a case. All these witnesses, who claimed to have seen the accused last in the company of the deceased on 4th October 1975, have identified the accused for the first time in the open Court after the date of the incident. The learned Judges did not appreciate the competence of these witnesses to identify a person whom they say they had seen in the company of the deceased on the day in question. It was the duty of the investigating officer to see that a person who is to be identified by the prosecution witnesses who had not seen him before must be kept in such circumstance that he would not be exposed to the view of the persons who were going to identify him later in the trial. The absence of identification parade in the opinion of the Bench cuts at the very root of the testimonies of those witnesses. In , the
Apex Court in paragraph 23 has observed that identification by the witness for the first time in the Court without being tested by a prior Test Identification Parade was valueless. The Apex Court in the decision reported in 1994 SCC (Cri) 1751 has observed that the witness was at no personal acquaintance with the accused. After the arrest, no attempt was made to hold identification parade by the witnesses to identify the accused and accused was identified for the first time in Court and, therefore, it is difficult to place reliance on such evidence. In our opinion, this lacuna in the prosecution case or these infirmities in the evidence of PW 3 and PW 5 make their evidence unreliable.
18. This, we say, because in the facts of the case, admittedly, the brother of the deceased Moula had expressed suspicion and accused altogether different persons with definite names. Secondly, PW 2 Narayan, though known to Moula, PW 12, and though prosecution claimed that Narayan was the witness disclosing the names of the two accused as assailants of deceased, Narayan also does not disclose the same either to Moula or to anyone else till evening of 20th November, 1993. In this' background we find some force in the criticism of Shri Mundargi that in this case prosecution appears to have attempted to create evidence. Shri Mundargi in that behalf rightly brought to our notice the evidence of PW 4 Nivrutti, who is the panch witness, which shows that on 24th November, 1993 accused No. 2 Eknath who was present in police station showed his willingness to produce sickle and knife. Then they went in a jeep which was halted by accused No. 2 near Odha. Accused No. 2 then led them to Shindi plants. The witness further states that after the seizure of knife and sickle they went to village Watvate. The accused No. 2 took them to his house and produced two cycles before them. Accused No. 2 produced one cycle of green colour belonging to him and another cycle of black colour belonging to accused No. 1 Audumbar. The cycles are Articles 17 and 18 before the Court. We wonder for what purpose this evidence is adduced. But what is more important is that PW 6 Mahadev states that on the date of the incident deceased Nalsaheb came to him at about 7.30 a.m. Bhaskar and Lava also came to his house. Thereafter accused No. 2 Eknath also came to his house. Eknath represented that he wanted to go to the field, asked this witness to provide cycle. Witness asked accused No. 2 Eknath to drop him near Bande Navaz temple and take the cycle to the field. Accordingly accused Eknath dropped the witness near Bande Navaz temple and went ahead with his cycle. At about 1 p.m. accused returned the cycle to this witness in his house and then this witness also identified green colour cycle Article 17 before the Court as belonging to him. If the cycle was returned to this witness, we do not understand how it was obtained from the house of accused No. 2 on 24th November, 1993. It is also difficult to appreciate the significance of the same. But this supports the submission of Shri Mundargi that as PW 13 has mentioned cycles, prosecution has collected two cycles from" the house of accused No. 2 on 24th November, 1993 when prosecution's own witness PW 6 Mahadev identifies one of the cycles as belonging to him and also categorically admitting that the accused No. 2 had returned the cycle to him at 1 p.m. on the very day. It is also to be appreciated that it is the case of the prosecution that accused No. 2 burnt the blood stained clothes on their persons and, therefore, ash was collected which was recovered at the instance of accused No. 2. At the same time accused No. 2 also discovered sickle and knife which were allegedly hidden among the bushes. Shri Mundargi pointed out that panchanama of attachment of sickle and knife shows that they were blood stained. Chemical Analyser's report shows that both these weapons were blood stained though the blood group could not be deciphered, it was human blood. Shri Mundargi with some justification contended that if accused No. 2, or for that matter accused No. 1, had shown the intelligence of burning the blood stained clothes they would have certainly taken care to wipe the blood from the weapons as well. In this case the blood group of the deceased is not determined. The blood group of accused is "O". However, the blood found on the weapon, though human, the group thereof could not be determined.
19. After having found ourselves unable to accept evidence of PW 3 and PW 5, the alleged eye-witnesses, as completely reliable, in view of the various facts and circumstances which are peculiar to this case, we find it hazardous to accept this so called discovery evidence as well.
20 For the aforesaid reasons we are of the view that the prosecution has failed to discharge its burden of proving the case against the accused beyond reasonable doubt and we find it difficult to sustain the conviction of the accused on the basis of aforesaid evidence. Accordingly we allow the appeal. The order convicting both the appellants-accused for the offence under Section 302 read with Section 34 of IPC and order of sentencing both of them to suffer life imprisonment and a fine of Rs. 100/- in default further RI for 15 days as also order of conviction of accused No. 2 for the offence under Section 201 of IPC and sentence of RI for one year and a fine of Rs. 100/- in default further RI for 15 days passed by the learned Addl. Sessions Judge, Solapur, on 6th July 1994 in Sessions Case No. 13 of 1994 is hereby quashed and set aside. Both the appellants-accused are acquitted of all the charges against them and they are directed to be set free forthwith unless otherwise lawfully required in any other case.
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