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TMI Blog2007 (5) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... on 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and to pay a fine of ₹ 1,000/-, in default, to suffer further imprisonment for a period of three months. 2. At the threshold we may notice that all the four accused including the two appellants herein are brothers. The deceased Bhimashankar Madolappa Kapse was the brother of Kashappa Kapse (PW-5) who is the informant in this case the accused are the sons of their sister. It would thus appear that the parties are related to each other. 3. The case of the prosecution is that on 26th June, 1994 at about 8.30 P.M. an occurrence took place in which the deceased was assaulted by the appellants resulting in his death. The first information report was lodged by the informant, PW-5 who, as noticed earlier, is the brother of the deceased. The case of the prosecution is that on the date of occurrence the informant, PW-5 along with PW-8 Mallikarjun Kapse and PW-12 Babling Patil was sitting on the katta in front of the Gram Panchayat. While they were sitting and chatting they noticed the deceased passing that way. Sometime later they noticed the appellants herein armed with sword and knife and two of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence one Ashok Palve informed the police Patil Suresh Patil at about 8.40 P.M. who, in turn, informed the Karajgi Police outpost at 11.45 P.M. The information was then sent to PW-16 Dattaraya Jadhav at about 8.45 A.M. PW-16 was the officer incharge of the police outpost. Three constables were sent to the village and at the same time PW-14 Head Constable Ingle at Akkalkot Police Station was informed. PW-16 thereafter proceeded to the place of occurrence reaching there at about 1.30 A.M. He found the dead body of the deceased as also the witnesses present on the spot. PW-5 Kashappa lodged his report when he and PW-16 came to Karajgi outpost. Thereafter PW-16 prepared the occurrence report and they both then proceeded to Akkalkot Police Station and handed over the relevant papers to Ingle PW-14. At 5.10 A.M. a case was registered under Section 302/34 IPC. 7. It is the case of the prosecution that on the following day that is, on 27 June, 1994 at about 11.00 A.M. the appellants herein appeared with their blood stained weapons and narrated the incident to the police in the presence of PW-15 Head Constable. 8. The prosecution examined PW-5, PW-8, PW-12 and PW-13 as eye-witnesses a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by him, PW-5 in reply to a question as to whether Kalawati had resorted, to judicial proceeding against the deceased, his answer was that he had no knowledge about it. Similarly, when he was questioned as to whether he knew that appellant No. 1 Mahadeo had a brick kiln business in Degaon and was residing there along with his family members and that appellant No. 2 Raju was working at MIDC Solapur, he replied that he had no knowledge of these facts. The Trial Court, therefore, held that since the witness showed ignorance about facts which he must have known, he was not a witness speaking the truth and his veracity was doubtful. He need not refer to so many other questions unrelated to the incident which were put to this witness in response to which he pleaded ignorance. 12. The Trial Court further disbelieved the eye-witnesses on the ground that when they saw the occurrence they did not raise hue and cry. PW-5 had stated that he got so frightened that he could not do so. The Court inferred that the silence on the part of these witnesses was not natural and contrary to ordinary human nature. That they would have remained silent even after witnessing the occurrence was something ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he flour mill and the temple, she may not have heard the noise and commotion if the pump of the flour mill was functioning, because the flour mill created considerable noise which would have disabled the witnesses from hearing the noise outside. The Trial Court also went on to observe that the father of PW-13 was the real brother of the deceased and therefore, being a near relative of the deceased her evidence has to be appreciated with caution. 15. It noticed that PW-13 had mentioned only about the presence of the appellants and not their two brothers who were said to have accompanied them. It therefore, concluded that if she had not seen accused Nos. 3 and 4 (since acquitted) then she could have seen nothing. The Trial Court further observed that none of the other witnesses mentioned about her presence at the time of occurrence. 16. In this manner the Trial Court disbelieved all the witnesses and observed that all of them were related to the deceased and independent witnesses such as Tarbhai whose name was mentioned in the FIR (Exhibit 29) were not examined. Another point which the Trial Court held in favour of the accused was that though the eye-witnesses stated that a few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence merely because their houses were not near the place of occurrence, though they are the residents of the same village. It further commented adversely on their conduct in not raising a hue and cry when they saw the assault, though they rushed to the place of occurrence. It further observed that Tarbhai mentioned in the FIR was not examined and since large number of persons had assembled they could have been examined by the prosecution. For failure to examine such witnesses the Trial Court concluded that the case of the prosecution could not be believed. 20. The Trial Court made an erroneous approach in assuming that the witnesses were inimical to the accused. There is no evidence on record to suggest that the eye-witnesses were inimical to the accused. It is, no doubt, true that they were related to the deceased. As noticed earlier, the accused were also related to the eye-witnesses. The accused were the sons of the sister of the deceased and PW-5. In a case of this nature where there is no evidence to establish that the witnesses were inimical to the accused, it would be erroneous to proceed on the assumption that they are inimical witnesses and therefore, their evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... testimony of the eye-witnesses and therefore, sought corroboration. In that context, it was observed that if independent witnesses had been examined, they would have corroborated the testimony of the eye-witnesses. This was for the reason that the court was not prepared to act on the testimony of the eye-witnesses without corroboration. In the Judgment in 2002CriLJ3751 this Court has reiterated the settled legal position. On an appreciation of the evidence on record, this Court held in the facts of that case that non examination of independent witnesses was a fact which was in favour of the defence. Each case must be decided on its own facts. As early as in 1955CriLJ572 Pandurang and Ors. v. State of Hyderabad this Court observed that however similar the circumstances, the facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. Moreover., in the instant case the fact that PW-17 the Investigating Officer who reached the place of occurrence at 12.15 A.M. found a group of villagers having assembled near the dead body is not itself sufficient to establish that all of them or many of them were eye-witnesses. The occurrence had taken place at ..... 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