Important Point – Evidence of seizure of weapons or recoveries by itself, is insufficient to implicate any accused.

B.P. DHARMADHIKARI, J.

The 1st Adhoc Additional Sessions Judge, Gondia has on 29.4.2004 while delivering judgment in Sessions Trial No.78 of 2002 acquitted Accused no. 1 Jaiprakash, no. 3 Govinda, no. 4 Mahendra, no. 5 Prabhudayal and no. 6 Dindayal of offences punishable under Sections 147, 148, 149 and 302 of Indian Penal Code. Accused no.2 Nilkanth alone is convicted of offence under Section 304 part one, and sentenced to suffer RI for 10 years, to pay fine of Rs. 5000/ or in default, to suffer SI of three months. All 6 accused have also been acquitted of offence under Section 135 of the Bombay Police Act. Criminal Appeal No. 268 of 2004 is directed against this acquittal, and all 6 accused are party respondents therein. Accused no. 2 Nilkanth assails his conviction under Section 304 part one, in Criminal Appeal No. 172 of 2004. According to prosecution, on 12.8.2002 at 2.30 PM at village Bhadrutola, Karanja; these accused constituted an unlawful assembly and in furtherance of their common object, murdered one Ganesh s/o Gosai Rahmatkar due to old pending land dispute.

2. We have heard APP Shri Thakare for the State and Advocate Shri Amol Mardikar for all accused in both these Appeals at length.

3. Shri Thakare, learned APP has argued that there are three eye witnesses to the crime and most of their testimony is consistent with each other. The trial Court has in fact accepted it to convict accused No. 2 – Nilkanth, but, not under Section 302 of Indian Penal Code. The same logic ought to have been extended and accused No. 5 – Prabhudayal also needed to be convicted, as Prabhudayal handed over the sword to Nilkanth. He adds that the material on record shows that all the 6 accused persons were waiting for the deceased Ganesh to arrive and they were armed with various weapons. Thus the murder has been committed with premeditation. The land dispute between two families is the root cause and as such, the trial Court ought not to have proceeded to acquit any accused of the offence punishable under Section 302 Indian Penal Code as charged. In any case, there is no material to enable it to invoke Section 304, Part II of Indian Penal Code. He has taken us through oral evidence of three eye witnesses.

4. He submits that contradictions or submissions being pressed into service are peripheral and do not affect the merits of, or substantive part of testimony of these eye witnesses. All these eye witnesses are eyewitnesses and merely because they are related to the deceased, their testimony cannot be disbelieved. PW2 – Ashok Lichade is an independent person who has witnessed the entire incidence and he is not related with the deceased.

5. He has produced before us a chart showing which eye witnesses has placed which accused in possession of a particular weapon. He explains consistency therein and draws support from the judgment of the Hon'ble Apex Court in the case of Krishna Mochi vs. State of Bihar – (2002) 6 SCC 81) and Inder Singh vs. State of Rajasthan (2015) 2 SCC 734). Both these judgments consider the impact of principle laid down in Masalti vs. State of U.P. (AIR1965 SC 202) .

6. He relies upon cross examination of eye witnesses by accused persons to contend that the accused persons indirectly admit their presence at the crime scene. Attention is invited to report of Chemical Analyser (C.A.) to show presence of human blood on the clothes of accused and on two weapons. Blood group 'B' is found on one weapon i.e. on iron rod. He argues that this report of C.A. is not in dispute and, therefore, the alleged nonsealing of weapons or clothes cannot be fatal to prosecution. It does not advance the case of accused persons at all.

7. He states that the accused persons were arrested immediately, except accused No. 6, who was in the hospital. Accused No. 6 was arrested later on when he reported in Police Station along with the weapon. He submits that in this situation, when all material facts are proved, advantage of technical violati