The prosecution must establish guilt beyond reasonable doubt, and the credibility of witness testimonies and the validity of the seizure process are crucial in determining the guilt of the accused.

JUDGMENT

AVINASH G.GHAROTE, J. - The matter was heard and admitted on 21/7/2020. The R and P was called which was received as per the Farad-sheet entry dtd. 13/08/2020 and the matter was kept thereafter for hearing on the application for suspension of sentence, which came to be rejected by order dtd. 25/8/2020. The matter, when listed on 8/6/2022, the learned Counsel for the appellant expressed his readiness for final arguments, to which the learned Additional Public Prosecutor Shri Chutke, agreed, as a result of which, the matter has been finally heard.

2. Heard Mr. Lingayat, learned counsel for the appellant and Mr. Chutke, learned APP for the respondent/State.

3. Mr. Lingayat learned counsel for the appellant submits as under:

(i) Even if the appellant was found on the spot of the incident, however his conduct would indicate that at no point of time he was member of any unlawful assembly.

(ii) The village Karka of which the appellant is resident is situated approximately 1 to 2 kms, from the spot of incident. The appellant was found in the jungle with an axe which is a natural circumstance for villagers to be. This position has been admitted by PW-5 Subhash Wadhai (Ex.33 page 70), in his cross- examination (para 3). The axe has also not been seized.

(iii) PW-3 - Rakesh Yengantiwar the panch to the seizure memo under Sec. 27 of the Evidence Act (Exh.25 page 53) claims that the seizure was effected from village Karka as against which PW-9 Arun Bhoyar the second panch to the seizure memo (Exh.47 page 81) claims that the seizure was effected at village Javeli which is approximately 9 kms, away from village Karka, and therefore, the seizure itself is doubtful.

(iv) The accused was detained at Gadchiroli Police Station, whereas the panch PW-3 and PW-9 are from village Jaravandi which is 90 kms, away from Gadchiroli which would indicate that interested witnesses were procured by the prosecution.

(v) PW-12 Nitin Mohite, Investigating Officer (Exh. 56 page 99), claims that the memorandum under Sec. 27 of the Evidence Act was recorded first and thereafter the spot panchnama was recorded which is contrary to the record, as the spot panchnama was recorded earlier and the memorandum under Sec. 27 of the Evidence Act was recorded in the later point of time, which shows that no memorandum was ever recorded.

(vi) The prosecution claims that the discovery was made from the field of the accused, however there is no document placed on record to show that the field from which the discovery was made belongs to the appellant/accused.

(vii) PW-2 and PW-5, the eyewitnesses do not attribute any overt act to the appellant but only say that the accused was hiding at the spot of the incident beneath the trunk of the tree holding an axe.

(viii) There is no injury to any person in spite of the fact that the prosecution claims 149 rounds were fired by the Police Party, apart from which, multiple rounds are claimed to have been fired by the naxalites during the said incident. Only one single empty cartridge has been seized from the spot after four days of the incident (Exh.26 page 56 spot panchnama).

(ix) No common object so as to invoke Sec. 149 of the Indian Penal Code has been proved on record.

It is therefore submitted, that the conviction rendered by the learned Sessions Court, is merely based upon conjecture and surmises, and therefore, cannot be sustained and is liable to be quashed and set aside and the appellant is entitled to an acquittal.

4. Mr. Chutke, learned APP for the respondent/State submits as under:

(i) The accused was apprehended on the spot.

(ii) One gun was recovered as per the disclosure statement made under Sec. 27 of the Evidence Act at the instance of the appellant (Exh.29 - Statement) as per the seizure panchnama Exh.30 (page 62), for which there is no explanation forthcoming, and thus indicates involvement of the appellant.

(iii) There is no cross-examination of PW-2 and PW-5 in respect of the presence of the appellant on the sp