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Ramesh S/O Motilal Kale vs The State Of Maharashtra on 24 October, 2018

(Judgment) (1) Cri. Appeal No. 0854 of 2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.

Criminal Appeal No. 0854 of 2015

District : Ahmednagar

Ramesh s/o. Motilal Kale,
Age : 41 years,
Occupation : Agriculture,
R/o. Moharwadi, Kolgaon, .. Appellant
Taluka Shrigonda,
District Ahmednagar.

versus

The State of Maharashtra. .. Respondent

………..

Mr. Anil M. Gaikwad, Advocate, for the appellant.

Mrs. P.V. Diggikar, Additional Public Prosecutor,
for the respondent.
………..

CORAM : T.V. NALAWADE
SMT. VIBHA KANKANWADI,JJ.

Date of reserving
the judgment : 03rd October 2018.

Date of pronouncing
the judgment : 24th October 2018.

JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :

01. Present appeal has been filed by the
original accused no.01, challenging his conviction
for the offences punishable under Section 302 and 394
of the Indian Penal Code, in Sessions Case No. 65 of

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2013, by District Judge-4 Additional Sessions
Judge, Ahmednagar, dated 21.10.2015.

02. The prosecution has come with a case, that
informant Kusum Dattatraya Vethekar (PW 02) is
resident of Ghargaon Khomne, Taluka Shrigonda,
District Ahmednagar. She used to reside with her
husband, parents-in-law, one son and one daughter.
Her husband was serving as driver with M.I.D.C.,
Ranjangaon Ganpati. He used to visit the house on
every Saturday and Sunday. Their house is situated
in the field. All of them including her husband had
taken dinner around 08.00 p.m. and watched T.V. till
11.30 p.m. on 11.11.2012. Thereafter, she and her
husband went to sleep in one room. Her son went to
sleep in the middle room. Her parents-in-law and
daughter slept in the third room. While going for
sleeping, they had locked the gate to the veranda
(Padvi) of the house. But the three doors of the
house were open. Around 01.00 a.m. of 12.11.2012,
she heard shouts of her father-in-law and, therefore,
she woke her husband up and they came out. At that
time, three thieves came near her, who were holding
iron rods. Till then, she saw that her husband was
laying down on a cot in the veranda in injured
condition. There were blood stains on his clothes.
One of the thieves asked her to give her ornament
from the neck and then he himself snatched her
Mangalsutra and also silver anklets. Two thieves

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were standing near gate. One of them went in the
room where she was sleeping. He had opened the iron
cupboard, took the things from the cupboard out.
Another thief told her that she should open another
cupboard, otherwise she should be assaulted by iron
rod. But then, he gave blow of the iron rod on her
leg. Out of fear, she went to the room where her
inlaws were sleeping. At that time, her mother-in-
law was in the veranda but father-in-law was found
unconscious in injured condition on the cot. His
clothes were also soaked in blood. She, therefore,
shouted from the window towards the neighbouring
house. After her shouts were heard, the thieves ran
away. Her son and neighbour Anna Khomne took her
husband and father-in-law in jeep for treatment.
Thereafter, she searched for the articles and found
that gold and other ornaments, mobile, etc worth Rs.
72,800/- were stolen by those three thieves. Those
thieves were talking in Marathi and were between the
age group 20 to 22. Out of them, one was heighted
and thin. All of them were wearing black colour
clothes and half pant. One of them had covered his
mouth. Other two were short in height as compared
and were thin. Her father-in-law and husband were
admitted in Dr. Kalamkar’s hospital but her father-
in-law was declared dead. She went to Police Station
and then lodged the first information report. On the
basis of her first information report, offence vide
C.R. No. I-139/2012 came to be registered and

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investigation was undertaken.

03. During the course of investigation,
panchanama of the spot was carried out. The inquest
panchanama of the dead body of the father-in-law was
also carried out and then dead body was sent for post
mortem. Statements of witnesses were recorded. Dog
squad was called. Around 24.12.2012, secret
information was received regarding the names of the
accused by the Investigation Officer PW 19 Vishwas
Nimbalkar. Earlier to that, by way of statement, son
of the informant had produced guarantee card of his
wrist watch which was seized by executing panchanama.
Accused no.01 was in custody in another offence and
on memorandum statement, he discovered the stolen
wrist watch and mobile from Falsundar Mala at
Ahmednagar. The test identification parade was held.
On the basis of statement of accused no.01, other
accused persons were arrested. Further statements of
witnesses were recorded. The third accused
transpired to be a juvenile and, therefore, a
separate charge-sheet was filed against them before
Juvenile Justice Board. The property, which was
seized at the time of panchanama, was sent for
chemical analysis. After completion of
investigation, charge-sheet was filed against two
accused.

04. After committal of the case, both the

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accused were produced before the learned trial court.
Charge was framed. Contents of the charge were read
over and explained to the accused. They pleaded not
guilty and claimed to be tried. Trial was conducted.
The prosecution has examined as many as 20 witnesses
in order to bring home guilt of the accused. Taking
into consideration the evidence on record and hearing
both sides, the learned trial court has held accused
no.01 i.e. present appellant guilty of committing
offences punishable under Section 302 and 394 of the
Indian Penal Code and has been sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine, to suffer
rigorous imprisonment for one year. Accused no.01
was acquitted of the offence under Section 342 read
with Section 34 of the IPC. Accused no.02 has been
acquitted of all the offences. Hence, this appeal by
original accused no.01.

05. Heard learned Advocate Mr. A.M. Gaikwad for
the appellant and learned Additional Public
Prosecutor Mrs. P.V. Diggikar for the respondent –
State. Perused the record and proceedings.

06. It has been vehemently argued on behalf of
the appellant, that for convicting accused no.01, the
learned trial court has relied on the alleged
confessional statement i.e. memorandum, discovery and
the test identification parade. However, the learned

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trial court has not appreciated the evidence
properly. If the first information report is
perused, it does not disclose stealing of watch which
is alleged to be belonging to the son of the
informant. PW 05 Vignesh is the son of the
informant. He has also stated that he had not stated
regarding stealing of his wrist watch when earlier
statement was recorded. His statement came to be
recorded regarding stealing of his wrist watch after
it was allegedly recovered under Section 27 of the
Indian Evidence Act. None of the other articles have
been recovered by the Investigation Officer. As
regards the test identification parade is concerned,
it can be, in fact, used only for corroborative
purpose. The test identification parade, in this
case, has not been held as per the guidelines given
in the criminal manual. The incident had taken place
in the intervening night of 11.11.2012 and
12.11.2012, whereas test identification parade has
been held on 09.12.2012. PW 02 Kusum has not
specifically identified accused no.01 though in
substantial evidence she says that the accused before
the court are same thieves. As per the prosecution
story, accused no.01 was arrested on 17.11.2012 in
another case, but was arrested in the present case on
24.11.2012. The alleged confessional statement does
not make any statement as to what has been done with
the stolen articles. PW 18 Ramesh Ghodke is the
panch to the test identification parade and the

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panchanama is at Exhibit 64. The educational
qualification of the said panch is only 5th standard
and according to him, the Tahsildar had conducted
test identification parade. The test identification
parade is, in fact, carried out by Executive
Magistrate. Further, he has many admissions in the
cross conducted on behalf of respondent no.01. PW 20
Prakash Tade is another panch to the test
identification parade and PW 14 Bhaskar Bhos is
Special Judicial Magistrate. He has stated that the
place of test identification parade is just near to
the lockup in the police station. Therefore, place
where test identification parade was conducted is
also required to be considered. As per PW 05
Vignesh, his mobile and wrist watch was kept in the
window and it has been stolen. As per the FIR and
the substantial evidence of PW 02 Kusum, it has not
been stated that any of the thieves had gone to the
room of PW 05 Vignesh. Even the test identification
of wrist watch has been done on 04.12.2012. But
then, supplementary statement of PW 05 Vignesh had
been taken on 20.12.2012. He has stated that the
fact of theft of wrist watch was not disclosed due to
fear. But then in cross, he admits that during the
period of investigation from 12.11.2012 to
20.12.2012, police were visiting his house many
times. Therefore, there is no substance in the say,
that due to fear till 20.12.2012, he had not
disclosed the fact of missing his mobile and wrist

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watch. That is the only piece of evidence which is
connecting the appellant to the crime. Otherwise,
there is nothing on record. As per PW 07 Bansi
Pawar, the recovery panch, the watch and the mobile
has been discovered on 24.11.2012 from open space.
The panch to the seizure of guarantee card i.e. PW 04
Mahesh Jagtap has turned hostile. PW 10 Kisan Jagtap
was another panch to the same panchanama. But he has
also not supported the prosecution. PW 08 Munir
Jamadar, PW 15 Anil Dhaunde and PW 17 Bandu Nilankar
have been examined in order to prove the
identification of the wrist watch. PW 05 Vignesh has
not produced the receipt on record which would have
clarified the model of the wrist watch which he had
purchased. It is also surprising that the mother was
not having any knowledge about the purchase of the
wrist watch by the son. The guarantee card does not
bear the name of PW 05 Vignesh. Therefore, there is
no cogent evidence to connect the recovery of the
wrist watch to the ownership of PW 05 Vignesh. It
has been further submitted that the evidence in the
form of Chemical Analyser’s report is not supporting
the prosecution. There is also recovery of iron bar
by accused no.01 which is said to be two feet long.
Blood stains were found on the same but they did not
match. With such shaky evidence, the learned trial
court ought not to have convicted accused no.01. On
the basis of same evidence, accused no.02 has been
acquitted.

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07. Learned Advocate appearing for the appellant
has relied on decision of this Court in The State of
Maharashtra Vs. Rajesh alias Kaka Madanlal Soni others [1998 Bom.C.R.
(Cri.) 245]. In this case, it has been held that, to
secure evidence of an identification to be fair and
beyond reproach, it is expected that the suspect
should not be shown to the identifying witnesses.
The identification parade should be held in the
manner stipulated by the criminal manual issued by
the High Court of Judicature, Appellate Side, Bombay.
It provides that the guidelines are illustrative and
not exhaustive. When it is admitted that there are
lapses in holding the test identification parade,
then such identification cannot be relied upon. He
further relied on the decision of this Court in Vilas
Vasantrao Patil Vs. The State of Maharashtra Through Bhandup Police
Station [1996 Cri.L.J. 1854]. In this case also, insistence
has been given on adhering to the guidelines given in
the criminal manual regarding holding of
identification parade.

08. Per contra, the learned Additional Public
Prosecutor has submitted that in State of Maharashtra Vs.
Suresh [2000(1) SCC 471], it has been held that “the
object of conducting test identification parade is
twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is
really the one who was seen by them in connection
with the commission of the crime. Second is to

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satisfy the investigating authorities that the
subject is the real person whom the witnesses had
seen in connection with the said occurrence. So, the
officer conducting test identification parade should
ensure that the said object of the parade is
achieved.” It has been further observed, “if
potholes were to be ferreted out from the proceedings
of the magistrates holding such parades possibly no
test identification parade can escape from one or two
lapses. If a scrutiny is made from that angle alone
and the result of the parade is treated as vitiated
every test identification parade would become
unusable.” Relying upon this pronouncement by the
Hon’ble Apex Court, this Court in Kalyan s/o. Bansidharrao
Renge Vs. The State of Maharashtra others [2018(1) Bom.C.R.(Cri.) 559]
held that though there are lapses in holding test
identification parade, the evidence in that respect
cannot be discarded. Therefore, she submitted that
the guidelines issued in criminal manual are not
mandatory. The evidence of the prosecution, in this
case, was direct evidence coupled with circumstantial
evidence. It has been proved by the prosecution that
death of father-in-law of the prosecutrix, namely,
Shankar Vethekar was homicidal in nature. The post
mortem report gives probable cause of death as head
injury. Those three persons had come with an
intention to stealing the property and, therefore,
there was assault by means of iron rod on Shankar.
The said iron rod has been discovered by accused

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no.01. Further, he has also discovered the wrist
watch which was stolen at the same time belonging to
PW 05 Vignesh. This evidence was sufficient to
connect accused no.01 to the crime. She, therefore,
supported the reasons given by the learned trial
court while convicting accused no.01.

09. The prosecution has examined PW 12 Dr.
Pravin Bothe, who had conducted post mortem of
deceased Shankar Vethekar. Probable cause of death
is head injury. He had noted one CLW over left ear,
size 3 X 2 X 1 cm. Internal examination showed
fracture of left parietal and temporal bone. In
clear terms, he has stated that it was homicidal
death. Such kind of head injury is possible due to
forceful blow of iron rod. This fact is not
seriously disputed by accused no.01. Therefore,
there is no hesitation in holding that death of
Shankar Vethekar was homicidal in nature.

10. PW 16 Dr. Rahul Pandit had examined
Dattatraya Vethekar, husband of the informant. He
had found fracture to skull bone depressed with head
injury and the said injury was grievous in nature.
At that time also, history of assault by unknown
thieves was given. That means, the injury had
connection with the incident.

11. The prosecution has come with a case, that

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the present appellant i.e. accused no.01 is one of
the author of the crime. In fact, as per PW 02
Kusum, there were three thieves. Accused no.02 has
been acquitted by the learned trial court and
prosecution has not preferred any appeal against the
acquittal. It is stated that the third accused was
held to be a juvenile and, therefore, he might have
been tried before the Juvenile Justice Board. Under
this circumstance, it is now required to be seen as
to whether accused no.01 can be said to be the author
of the crime.

12. PW 02 Kusum, PW 05 Vignesh and PW 06 Datta
are corroborating each other on the fact that they
went to sleep around 11.30 p.m. The informant and
husband woke up around 12.30 to 01.00 a.m. after
hearing shout of deceased Shankar. PW 06 Datta came
out of the room and later on when PW 02 Kusum came
out, she found PW 06 Datta laying on cot in injured
condition. PW 06 Datta says that when he came out,
he was assaulted from the backside and he is not
aware as to who had assaulted him. Immediately he
had become unconscious. Therefore, his testimony is
not at all helpful to connect accused no.01 to the
crime. At the cost of repetition, it is stated that
definitely crime has been committed but the only fact
that is required to be assessed as to whether accused
no.01 is the author of the crime.

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13. From the testimony of PW 02 Kusum, it can be
seen that she had opportunity to see the accused
persons. No doubt, none of these three witnesses
have stated that they have put on the lights of
either their respective rooms or from the veranda.
But then, in her examination in chief, PW 02 Kusum
has stated that her house is full of electricity
supply and the lights were on at the time of
incident. Even if it is taken as a true fact, she
had the opportunity to see the accused persons. Out
of the three thieves, one had concealed his face
under a scarf. It is stated that one accused had
height and other two were short (dwarf). It has not
been extracted from her that accused no.01 was not
the person who had covered his face and was not the
tall person. If we consider the arrest panchanama,
height of accused no.01 is stated to be 5 feet 4
inches. The most important fact is that according to
the first information report as well as substantial
evidence of PW 02 Kusum, the age group of thieves was
20 to 22 and 22 to 23, respectively. She has not
given further details like complexion. Interestingly,
in the identification parade panchanama, age of
accused no.01 is mentioned as 35 years. So also, the
arrest panchanama and the judgment of the trial court
shows that the age of accused no.01 is 38 years.
According to the prosecution, the informant had
identified accused no.01 at the time of test
identification parade. In order to prove the test

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identification parade, the prosecution has examined
PW 18 Ramesh Ghodke and PW 20 Prakash Tade. Both
were panchas and PW 14 Bhaskar Bhos is the Special
Judicial Magistrate. All these three persons are
supporting the prosecution. They have stated that PW
02 Kusum had identified accused no.01. The
Investigation Officer is not coming with a case that
he had held or requested to hold a separate test
identification parade for accused no.02. Why no such
identification parade was held in respect of accused
no.02, is a question which has been left unanswered.

14. As per PW 02 Kusum, she was called for
identification parade. She had identified only one
person as thief. The report of PW 14 Bhaskar Bhos
regarding test identification parade is at Exhibit

64. It can be seen that the said report is very much
cryptic. In all seven persons were made to stand in
a queue. The age of each one of them is given which
ranges from 21 to 40.

15. In view of the decision in State of Maharashtra
Vs. Suresh (supra) by Hon’ble Apex Court, we may not
consider the two citations given by the learned
Advocate for the appellant. Hon’ble Apex Court has
observed that “It is the responsibility of the
officer conducting the test identification parade to
ensure that the object of the parade is achieved. If
he permits dilution of the modality to be followed in

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a parade, he should see to it that such relaxation
would not impair the purpose for which the parade is
held.” After goving through the minutes of the test
identification parade, the Hon’ble Apex Court was
satisfied that the Executive Magistrate had taken
sufficient safeguards to hold the parade. However,
in this case, basic purpose can be said to have been
frustated when the other persons made to stand in
queue were not approximately of the same age.
Further, as aforesaid, as per the FIR, the thieves
who had come to the house of the informant were
between the age group of 20 to 22 years, whereas
accused no.01 is 35 years old person. Nobody says
that at that time, accused no.01 was looking like a
person in the age group of 20 to 22 years.
Therefore, conviction only on the basis of test
identification parade cannot be awarded, even if it
is taken for the sake of argument, that the said test
identification parade has been held properly with all
safeguards.

16. Another piece of evidence on which the
prosecution intends to rely is the discovery of wrist
watch. There is absolutely no mention of stealing of
wrist watch in the FIR. There is no supplementary
statement of the informant stating that at a later
point of time, her son had disclosed her about
missing of his wrist watch and mobile. No doubt, PW
02 Kusum says that golden articles were also stolen.

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PW 06 Datta, father of PW 05 Vignesh, is also silent
on that point. PW 05 Vignesh has identified the
wrist watch. He says that he had kept wrist watch
and mobile in the window and it was stolen.
Definitely, when he was sleeping in the middle room
and it has not come on record through PW 02 Kusum
that anybody had entered the room in which son was
sleeping, it is hard to believe that these two
articles were also stolen at the same time. He has
not given the model number or any such identification
of the wrist watch. According to him, he had
purchased the wrist watch from Matoshree Collection
of Ghargaon. He had produced the guarantee card but
his name is not mentioned on the same. He has not
explained as to why he did not get his name mentioned
in the guarantee card from the shop owner. He had
not disclosed about the theft of his wrist watch till
20.12.2012. The important point to be noted is that
the test identification of wrist watch was done at
Tahsil office, Shrigonda, on 04.12.2012 but his
supplementary statement has been taken on 20.12.2012.
This does not inspire any confidence. There is no
evidence to show that he can be said to be the owner
of said wrist watch.

17. At the same time, we are also required to
consider the discovery panchanamas Exhibit 35 and 36.
According to PW 07 Bansi Pawar, who was panch to the
said memorandum panchanama, accused no.01 gave

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statement that he had concealed the articles in a red
colour purse below a centering strip in tin-sheet
room below sand in the house belonging to his
relative Vishal Chavan. According to the substantial
evidence as well as contents of the memorandum
panchanama, accused no.01 had taken all these persons
to the said place and then he had removed the
centering strip, dug the sane and took out a red
colour purse in which the wrist watch was concealed.
The important point to be noted is that the
prosecution has not examined said Vishal Chavan. It
is not even the case of PW 07 Bansi Pawar, that when
they went to the said place, Vishal Chavan was
present. How accused could have directly gone into
the house of Vishal Chavan and dug the sand, is a
question. The same fact has been also deposed by the
Investigation Officer but he has also not answered
the fact that where Vilas Chavan was and how the
accused could have entered his house directly. The
statement of Vishal Chavan was necessary to show that
the accused was either residing with him or for some
time, he went to the house of Vishal Chavan and then
concealed the article. If we presume that the
article is taken out from the house of Vishal Chavan,
then he can be said to be in possession of the same.
Further, it is also to be noted that the said house
was under construction at that time. It is not the
case of the prosecution, that since the house was
under construction, it was amenable to anybody.

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Under such circumstance, such scanty evidence cannot
be believed. Another fact which has been left
unanswered by the Investigation Officer, which is
most important, is that he had interrogated accused
no.01. What transpired in respect of the gold
articles which were stolen from the house of the
informant. The prosecution has not come with a case,
that after the theft was committed, the accused
persons had distributed it amongst themselves and
then disposed them off. There is absolutely no
recovery of a single article which was listed in the
FIR.

18. There is another discovery at the behest of
accused no.01 upon his statement that he would
discover mobile and gold ornaments. Mobile was stated
to be concealed in muck heap in front of house of his
brother Santosh Kale. The said mobile is also said
to have been wrapped in a plastic bag and it was
discovered by digging part of muck heap. It is to be
noted that in the panchanama itself, it is stated
that though the digging was done, only plastic bag
was found and gold ornaments and mobile were not
found. The Investigation Officer does not say that
any further interrogation was made with accused no.01
in presence of panchas. PW 09 Pradip Kshetre, panch
to the said panchanama, has turned hostile.

19. It is to be noted that PW 05 Vignesh has not

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identified accused no.01. He was not taken at the
test identification parade wherein his mother had
allegedly identified accused no.01. With such
lacunas in the evidence of the prosecution, the
prosecution story has been made untrustworthy. No
doubt, one more piece of evidence is the discovery of
the iron rod at the behest of accused no.01. But it
is to be noted that the chemical analyzer’s report
Exhibit 14 says that the blood on the iron rod was of
“B” group, whereas report Exhibit 16 says that the
blood group of deceased Shankar Vethekar was “A”. The
test of blood of PW 06 Datta Vethekar, as per Exhibit
15, was inconclusive. Thus, Chemical Analyzer’s
report is not supporting the prosecution.

20. Taking into consideration the above said
reasons, it can be concluded that the learned trial
court has not appreciated the evidence properly. The
apparent test identification parade and discovery
memorandum panchanama have been believed. One more
fact which cast doubt over the role of the
Investigation Officer is that, according to him,
accused no.01 was in the custody of police in another
offence. It has come on record, that in that
offence, accused no.01 was arrested on 17-11-2012.
If we peruse register Exhibit 102, it is in respect
of prohibitory action taken against present accused
no.01. He was found on 17.11.2012 in suspicious
manner while searching for accused persons in present

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case. Earlier to that, an offence under Sectioin 379
of the IPC vide C.R. No. 173/2006 was pending against
him. However, if we consider the testimony of PW 19
Vishwas Nimbalkar, he had received information on
24.12.2012, that the accused is involved in the case.
In cross examination, he has stated that the accused
was arrested on 24.11.2012 in a chapter case under
Section 110 of the Bombay Police Act and then after
his release on bail, he was arrested in this case.
He denied the suggestion that accused was taken in
custody on 17.11.2012. However, when extract of the
register Exhibit 102 was shown to him, he has
admitted the same. Thus, it appears that there was a
highhanded act on the part of the Investigation
Officer to keep accused no.01 in custody without
being any allegations against him and then showing
his arrest belatedly in this case. With this
background, the discovery of the wrist watch and the
other panchanamas cast doubt. With such doubts, the
learned trial court ought not to have convicted
accused no.01.

21. For the aforesaid reasons, we proceed to
pass following order :-

(a) The appeal is hereby allowed.

(b) The conviction and sentence awarded to the
appellant – original accused no.01, in Sessions Case

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(Judgment) (21) Cri. Appeal No. 0854 of 2015

No. 65 of 2013, for offences punishable under Section
302 and 394 of the Indian Penal Code, by the District
Judge-4 Additional Sessions Judge, Ahmednagar, on
21.10.2015, are hereby quashed and set aside.
Present appellant – original accused no.01 is hereby
acquitted of the offences punishable under Section
302 and 394 of the Indian Penal Code. He be set at
liberty forthwith, if not required in any other case.
He be released on P.R. of Rs. 15,000/- [Rupees
fifteen thousand] with one surety of the like amount,
in compliance of Section 437A of the Code of Criminal
Procedure, 1973. The duration of the said bonds
would be for six months. Fine amount paid, if any,
be refunded to him.

(c) It is clarified that there is no change in the
order of disposal of Muddemal.

( Smt. Vibha Kankanwadi ) ( T.V. Nalawade )
JUDGE JUDGE

………..

puranik / resCRIAPEAL854.15

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