Devendra @ Bittya Bhausaheb Padale vs. The State Of Maharashtra

Order - Status 4: hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL (ST) NO. 574 OF 2011 Devendra @ Bittya Bhausaheb Padale and Ors... Applicants Versus State of Maharashtra ... Respondents Mr. Abhaykumar Apte i/by Mr. Avinash Kamkhedkar for the appellants. Mr. P.S. Hingorani, A.P.P. for State. CORAM : NARESH H.PATIL & K.U. CHANDIWAL,JJ. DATED : JULY 18, 2011 P.C. Heard. Admit. Notice of admission waived on behalf of State. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.)

Order - Status 9: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.782 OF 2011 1.Devendra @ Bittya Bhausaheb Padale & Anr. .. Appellants v/s. The State of Maharashtra (Through Haweli Police Station, Pune) .. Respondent Mr.Daulat G.Khamkar, for the Appellants. Mr. H.J. Dedhia, APP for the Respondent – State. --- CORAM : P. V. HARDAS & G.S. KULKARNI, JJ. DATED : 17th NOVEMBER, 2014. P.C.: This appeal be added to the final hearing board from 1st December,2014 at its appropriate place on the board. ( G.S. KULKARNI, J.) ( P. V. HARDAS, J.)

Order - Status 13: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.782 OF 2011 (By Accused against conviction) 1. Devendra @ Bittya Bhausaheb Padale Age 27 years, Occu:Rickshaw Driver } R/at Vikasnagar,College Road, } Vadgaon Bk, Pune 2.Sunil Gulabrao Yadav Age 24 years, Ococu: Rickshaw Driver } R/at Gosavi Vasti,Vadgaon Bk, Pune (Now in Yerwada Central Jail, Pune) } Appellants vs The State of Maharashtra } (Thr.Haweli Police Station, Pune) Respondents Mr.D.G.Khamkar for Appellants Mrs.S.D.Shinde APP for State --- CORAM: P.V.HARDAS & G.S.KULKARNI,JJ DATED: DECEMBER 2, 2014 ---- JUDGMENT : (Per G.S.Kulkarni, J) The appellants-original accused nos. 1 and 2 who stand convicted for offence punishable under section 302 read with section 34 of the Indian Penal Code and who are sentenced to undergo imprisonment for life and to pay fine of Rs.1000/- each and in default of payment of fine suffer R.I. for 1 year by the Additional Sessions Judge, Pune in Sessions Case No.337 of 2008, by this appeal question the correctness of their conviction and sentence. Facts as necessary for decision of this appeal may briefly be stated thus : PW 16-Satish Shankarrao Patil, Police Inspector, attached to the Haveli Police Station was on duty on 17th January 2008. PI -Satish was informed by Head Constable Modak on telephone that there was a murder opposite Dnyanganga Society, Vadgaon-Budruk, Near Khandoba Mandir in the field of one Balasaheb Jadhav. PI- Satish therefore, went to the spot and noticed a dead body which was identified by the brother of the deceased who was present at the spot to be of Vijay Suryavanshi. An inquest panchanama at Exhibit 97 was recorded in the presence of panchas. The dead body was thereafter sent for post mortem. A spot panchanama at Exhibit 71 was recorded in the presence of the panchas. Samples of simple mud, blood stained mud, hairs and a piece of tile were seized from the spot. After the post mortem, clothes of the deceased were seized as per panchanama at Exhibit 98. PW 16-Satish Shankarrao Patil thereafter undertook the investigation. Statements of PW 3-Kantiram alias Chandrakant Vithoba Jadhav at Exhibit 99, that of PW 4-Prakash Gulab Pawar at Exhibit 100 came to be recorded. On 18.1.2008 statements of other witnesses were recorded. Statement of one Ananta Subhash Shigwan came to be recorded by PI-Satish who disclosed names of the accused to have committed the crime. This witness expired before he could be examined. On 19.1.2008 statement of PW 13-Ashok Baburao Shewale who was an eye witness came to be recorded. The seized articles were sent for Chemical Analysis along with constable Surdikar under cover of letter dated 21.1.2008 which is at Exhibit 102. On 21.1.2008 in pursuance of the report of PSI Bajirao Patil producing the accused which is at Exhibit 103, the accused came to be arrested vide arrest panchanama at Exhibit 104 to 108. On 23.1.2008 accused no.1 was interrogated and thereafter on 26.1.2008 statement of accused no.1 was recorded in presence of the panchas. Accused no.1 agreed to show the place where the chopper being one of the articles in crime, was hidden. A statement to this effect was recorded at Exhibit 79. Accordingly, PW 16- PI. Satish along with panchas went towards Sinhagad College at the spot where the chopper was kept underneath a shrub by accused no.1 which came to be seized vide panchanama at Exhibit 80. On 26.1.2008 accused no.2 agreed to produce the sickle. A statement to that effect was recorded to that which is at Exhibit 85. Accordingly, the sickle was recovered in presence of panchas from the backside of Sinhagad College and the 3. Dr Ajay Aniruddha Taware - PW 15 Medical Officer attached to the Sasoon Hospital, Pune on 17.1.2008 conducted post mortem on the dead body of deceased Vijay. Dr.Ajay noticed the following seven external injuries: "Chop wound over left forehead vertically oblique 7x 2 cm x bone deep with fracture. Multiple intermingled chop wounds from vertically left fronto parieto occipital region upto angle of left mandible, 4 cm below left ear, antero posteriorly from nose and left angle of mouth upto left occipital region, in area of 23 x 15 cm x bone muscle brain deep involving left ear, left eye which are sharply cut,margins clean cut. Incised wound over left shoulder, superiorly horizontal 6 x 2 cm x muscle deep. Chop wound over right ring finger over first digit with partial traumatic amputation of finger. Chop wound of over left index finger, vertical, dorsally 4 x 2 cm x bone deep with fracture of underlying bones. Chop wound in the web of left little and ring finger 4 x 2 cm x bone deep with fracture of underlying bones. Abrasion over right side of back, 7 cm, away from midline and 25 cm, below shoulder, 6 x 2 cm." Dr.Ajay Taware recorded that the injuries were ante mortem and were fresh. He noticed haemotoma under scalp of left side which was red in colour, displaced comminuated fractures of left fronto parietal occipital temporal bones, left facial bones and bones of left side of base of skull infiltration of blood was also noticed at the fracture site. PW 15- Dr.Ajay noticed laceration of meninges on left side and brain matter was also lacerated and found in pieces. Dr.Ajay Taware opined that death was due to chop injuries over the head and that above external injuries with corresponding internal injuries were sufficient in the ordinary course of nature to cause death. PW 16 - PI Satish Shankarrao Patil thereafter recorded statements of some more witnesses as also statement of some witness under Section 164 of Cr.P.C. came to be recorded on 12.2.2008. After receipt of the post mortem notes on 3.3.2008 and Chemical Analyser's reports which are at Exhibits 113 to 119, a final report came to be filed in the Court of J.M.F.C.at Pune. The offences being exclusively triable by the Court of Sessions the case was committed to the Sessions Court. The learned Sessions Judge vide Exhibit 22 framed charge against the accused under section 302 read with section 34 of Indian Penal Code and under section 4 read with section 25 of the Arms Act, 1959. The appellants pleaded not guilty to the charges and claimed to be tried. The prosecution to bring home the guilt of the accused examined 16 witnesses. PW 11-Nitin Madukar Darwade and PW 13-Ashok Baburao Shewale were eye-witnesses. PW 13-Ashok Baburao Shewale was declared to be hostile. The main plank of the prosecution' case is the evidence of the sole eye-witness PW 11-Nitin Madhukar Darwade and the medical evidence. The trial Court upon appreciation of the evidence convicted and sentenced the appellants as aforestated. We have heard learned counsel for the appellants and learned APP for the State. In order to effectively deal with the submissions advanced before us by the learned counsel for the parties, we consider it appropriate to first refer to the prosecution witnesses. PW 1-Narayan Bhimrao Suryawanshi younger brother of the deceased Vijay, deposed that deceased Vijay was residing with his wife and minor kids adjacent to his house. He deposed that the deceased was working as a driver with PW 3-Kantiram Jadhav. That in the morning of 16.1.2008 he had gone to attend his usual work and returned at about 4.30 p.m. On his return he made inquiry about his deceased brother Vijay with his wife who informed him that at about 4 p.m. PW 3-Kantiram Jadhav had come to their house and had taken Vijay along with him. He deposed that thereafter he made inquiry in the night and was informed that deceased Vijay had not returned home. PW 1- Narayan deposed that on the next day at about 9 a.m. he had gone to Jadhav Nagar in search of a plumber and noticed that in front of Lahan Khandoba temple there was a mob of persons and on approaching the spot, he found that his brother Vijay was lying on the ground and was having injuries on the head, hands and face and blood was oozing from the injuries. PW 1-Narayan Survawanshi immediately informed his other brother Ramesh on phone about the incident. Police had come on the spot after sometime. PW 1- Narayan lodged a report about the incident with the police at Exhibit 44. PW1-Narayan Survawanshi identified clothes of the deceased as seized by the police and other articles of the deceased. He deposed that he was knowing the accused as they are belonging to the same village. In the cross examination, PW 1-Narayan that PW 3-Kantiram Jadhav owns land adjacent to the Lahan Khandoba Mandir. He admitted that there was one hand cart selling eatables adjacent to Khandoba Temple. He admitted that there was a approach road to Dnyanganga society from the side of Khandoba temple. PW 1-Narayan admitted that there was some dispute between one Pappu and PW 3-Kantiram Jadhav and this had happened three days prior to the incident when deceased Vijay was present. PW1-Narayan denied that there were offences registered against deceased Vijay. PW 1-Narayan admitted that deceased Vijay was working as a driver with PW 3-Kantiram Jadhav since about 4 to 5 years and that PW-1 knew Kantiram since his childhood. PW-1 admitted that PW 3-Kantiram Jadhav is the owner of an agricultural land at Vadgaon-Budruk. PW 1-Narayan admitted that relations between deceased Vijay and accused were good. PW 3-Kantiram Jadhav deposed that he owned a Scorpio vehicle and deceased Vijay was appointed as a driver. PW 3-Kantiram deposed that deceased Vijay was a resident of the same village. PW 3- Kantiram Jadhav deposed that on the day of the incident deceased Vijay had come for duty at 7 a.m. and had drove the vehicle up to 4 p.m. when PW.3 had accompanied him. PW.3 deposed that at about 7 to 7.30 p.m. deceased Vijay handed over keys of the vehicle to him when he was in his field. PW 3 deposed that thereafter he had personally driven the vehicle from his field to his home. PW 3-Kantiram deposed that he was not aware as to where the deceased went after handing over the keys. PW 3-Kantiram deposed that on the next day when he went to his field, he saw the body of the deceased Vijay in a pool of blood near Khandoba Mandir in his field and that he was having injuries on his person and hence he suspected that Vijay was murdered by somebody. In his cross-examination PW.3 admitted that deceased Vijay was his driver for last 4 to 5 years and also used to help him in agricultural operations. PW 3-Kantiram Jadhav denied to know Pappu Mate Rickshawalla. PW 3- Kantiram admitted that he knew Gulab Pawar who was operating a hand cart near the Khandoba Temple. PW 3 admitted that Vijay was not consuming liquor. PW 3- Kantiram Jadhav also admitted that deceased Vijay had left his field saying that he was not feeling well . PW.4 Prakash Gulab Pawar operated a handcart near the Khandoba temple selling edible items which was near the place of the incident. PW 4- Prakash deposed to know the deceased and that he was a driver of PW 3- Kantiram. He deposed that on the day of the incident his handcart was near the temple from 8.30 a.m. to 6 p.m. He deposed to have seen deceased Vijay along with PW 3-Kantiram Jadhav sitting in the Scorpio jeep in the field of PW 3. He deposed that after sometime PW 3-Kantiram Jadhav had himself taken the jeep and deceased Vijay went away after sometime. At this stage PW 4- Prakash was declared hostile and was cross-examined on behalf of the prosecution. In the cross-examination, PW.4 denied that he had seen some boys to have gone along with the deceased Vijay towards the canal for consuming liquor. He denied to have stated names of the boys Sonya and Ravya to the police. PW 4-Prakash denied his statement as given to the police. PW 4 Prakash admitted that he had seen accused no.2 Sunil and admitted that had stated the name of accused no.2 who was seen along with the deceased. PW 4-Prakash Pawar denied that he had identified accused no.1 Devendra and accused no.3 Ravi Gaddakhulu along with accused no.2 Sunil on the day of the incident and that they had accompanied the deceased Vijay. PW 5 - Ravindra Chinchkar was serving as a security guard with one Netra Security Agency at the relevant time. PW 5 deposed that he was a security guard in Damodar Nagar Sankul Society and that on 16.1.2008 he was on night duty. He deposed that at 8 p.m. he was going on feet to attend duty and that there was no electricity on the road. He deposed that he saw three -four persons running towards Tukai Nagar and some of them were shouting "run run". He deposed that he attended duty for whole of the night. PW 5 deposed that in the morning when he was returning home, he found people gathered near Khandoba Mandir which is opposite Dnyanganga society. He noticed dead body of deceased Vijay lying in a pool of blood near Khandoba mandir.In the cross examination nothing of relevance is elicited. PW 11- Nitin Darwade is examined by the prosecution as an eyewitness. PW 11 deposed that he was residing in Tukai Nagar since childhood and knew the accused since then. He deposed that he also knew the deceased from childhood. PW 11 deposed that he last met deceased Vijay on the date of the incident at about 8.15 to 8.30 p.m. near the field of PW 3-Kantiram Jadhav. PW 3 deposed that one Ashok Shewale was with him at that time. He deposed that they had chitchatting and while chitchatting all the accused came there and they had altercations with the deceased Vijay. Ashok Shewale left the place. PW 11 deposed that he stopped behind the sugarcane crop of PW 3-Kantiram and saw appellant no.1 assaulting the deceased with a chopper. That appellant no.1 assaulted deceased Vijay with a chopper on the back side on the neck. He saw accused no.2 Sunil assaulting the deceased with a sickle and remaining three accused assaulted him with stones. PW 11 deposed that deceased Vijay fell down. He deposed that he thereafter left for his house through the sugarcane crop. He deposed that police had interrogated him and recorded his statement and also he had narrated the incident before the Magistrate. In his cross-examination PW 11 admitted that he had gone to the place of the incident in the morning and saw the police and public were present at the spot. He admitted that he had stated to the police that he had seen the incident of assault. He admitted that the police did not interrogate him for one month after the incident. He admitted that there was a liquor shop near to the place of incident. He also admitted that he consumed liquor. In his cross-examination, on behalf of appellant no.2 PW 11 admitted that the walking distance of 10 minutes between Vadgaon-Budruk and Tukainagar. PW 11 admitted that the field of PW 3-Kantiram Jadhav was adjacent to the road which was having traffic. PW 3 denied that he was not under the influence of liquor on the day of the incident. He denied the suggestion that he had not noticed accused persons assaulting the deceased. In his cross-examination, on behalf of accused no.5, PW 11 admitted his statement as made before the Learned Magistrate. He admitted that when he reached the spot the deceased Vijay and Ashok Shewale were together. He denied that he was at home on the day of the incident between 8.15 p.m. to 8.30 p.m. PW 13-Ashok Shewale was being examined as an eye-witness. However, in his examination-in-chief, he denied to know the accused persons or meeting the deceased on the day of the incident and denied to know anything about the incident. He was therefore, declared hostile and was cross-examined on behalf of the prosecution. In cross-examination PW 13 denied that his statement was recorded by the Magistrate and denied that he had stated before the Magistrate and that he had met the deceased Vijay in the field of PW 3-Kantiram Jadhav. PW 13 denied to have stated before the Magistrate that accused persons had come and had chit-chat with him and that there was any altercation between the accused persons and deceased Vijay. He denied his statement as recorded by the police. PW 2-Dhananjay Gholap is the panch witness and was examined in the context of spot panchanama. PW 6-Suresh Tekwade is also panch witness examined by the prosecution in the context of seizure of clothes of the accused vide panchanama at Exhibit 77. PW 8 Sandip Balasram is shop owner from whose shop article of crime namely chopper was purchased by accused no.1. PW 9 and PW 12 are examined as panch witnesses in regard to seizure of mobile phone vide panchanama at Exhibit 83. PW 10-Sandip Charwad is the panch witness in the context of recovery of weapon vide panchanama at Exhibit 85 and 86. PW 16-Satish Shankarrao Patil is the Investigation Officer who had undertaken investigation. Learned counsel for the appellants has urged before us that the prosecution which has principally relied on the sole testimony of PW.11 has failed to prove that the appellants are guilty of committing murder of deceased Vijay. He submits that credibility cannot be attributed to the evidence of the sole eye-witness PW 11-Nitin Darwade as his evidence is rendered wholly unreliable. It is submitted that PW.11 has stated that the incident took place at about 8.to 8.15 pm and that he has seen the same hiding behind the sugar cane crop from the field of PW.3 Kantiram , he submits that there is no evidence on the illumination more particularly the scene of the offence was near to the field and the time of the offence is at about 8 to 8.15 pm. Learned counsel has submitted that statement of PW 11-Nitin Darwade under section 164 of the Cr.P.C. was recorded after one month from the date of the incident and on this count as well his evidence cannot be relied upon to record a finding of guilt against the accused. Learned counsel for the appellants submits that even otherwise there is no independent corroboration to the evidence of PW 11-Nitin Darwade. The other submission as urged before us on behalf of the appellants is that the articles of crime namely chopper and sickle alleged to be recovered at the behest of the accused were sealed before being sent for Chemical Analyst. It is urged that these weapons are also not shown to the Medical Officer who conducted the post-mortem examination so as to connect these weapons with the nature of the injuries caused to the deceased. Learned counsel for the appellants therefore has strenuously urged that the nature of the evidence as appearing on record cannot be considered to be of a category of being either wholly reliable or wholly unreliable. He submits that if such is the position then eminently the finding of guilt of the accused could not have been recorded by the trial Court. He has urged that hence the appellants are entitled to benefit of doubt by the application of well settled principles under the Criminal jurisprudence. In support of his submissions learned counsel for the appellants has relied on the decision of the Division Bench of this court in the case of Nemichand S/o Bakaram Patel Versus State of Maharashtra reported in 1999 (3) Mh.L.J. 752 to contend that the sole testimony of PW 11-Nitin Darwade cannot be relied upon. On behalf of the prosecution, the learned APP has supported the findings as recorded by the learned Sessions Judge. Learned APP submits that the testimony of PW 11-Nitin Darwade who is the sole eye witness has corroboration from the findings in the post mortem report of PW 15-Dr.Ajay Taware as also supported by his testimony. Learned APP submitted that the weapons were seized at the behest of the accused. He submits that even if the statement of PW 11-Nitin Darwade under section 164 of the Cr.P.C. had been belated recorded after one month, that does not in any manner affect the credibility of the evidence of PW 11. The learned APP has therefore, urged that the appeal deserves to be dismissed by confirming the conviction as recorded by the learned Sessions Judge. On a close scrutiny and appreciation of the evidence as brought on record on behalf of the prosecution, it is quite clear that the backbone of the case of the prosecution is the evidence of P.W.11-Nitin Madhukar Darwade who has been examined as eye witness. We are of the opinion that the evidence of P.W.11 cannot be held to be reliable so as to convict the appellants of the offence for which they are charged. This is for the reason that in the first instance, P.W.11 claims to have witnessed the incident which had happened at about 8 to 8.15 p.m. on 16.1.2008. P.W.11 claims to have witnessed the incident from behind the sugarcane crop to state that that the accused had participated in the murder the deceased with the help of chopper and sickle. There is no evidence as regard illumination when the distance between the sugarcane crop and the place of the incident is about 80 feet as seen from the map at page 123 of the paper book. Further what is significant is that the place of the incident is in the front of the Khandoba temple which if seen from the sugarcane field can be said to be behind the Khandoba temple as the spot would stand eclipsed from some position of the field. There is no identification of the place where PW-11 was standing to witness the incident. These are some grave uncertainties in the evidence of PW.11 making the testimony conjectural, hazy or inconclusive. What is most significant is that P.W.11 has come forward to give this account of the incident after about one month from the date of the incident i.e. on 16.2.2008 when his statement under Section 164 of Cr.P.C. came to be recorded by the learned Judicial Magistrate First Class. This itself, in our opinion, shakes the very credibility of the testimony of P.W.11. The other infirmity which we find is that the Medical Officer namely P.W.15-Dr.Ajay Taware who has performed the postmortem examination, has not given the description of the weapons which could have been used by the appellants in the crime, by which injuries appeared on the body of the deceased could be caused. This was imperative so as to have a definite finding of P.W.15 - Medical Officer as to whether the injuries in question as sustained by the deceased were inflicted using the weapons which are seized by the police. Further there is no evidence to show that when these weapons were seized at the behest of the accused, they were sealed in the presence of panchas which is of an implicit necessity in connecting the weapons to the offence as committed by the accused. In view of these serious infirmities, we are not in a position to persuade ourselves to sustain the finding of conviction as recorded by the Trial Court. We may observe that these infirmities do not in any manner conclusively establish the guilt of the accused and that guilt can be said to be established beyond reasonable doubt. In the context of our aforesaid observations, we may usefully refer to the decision of the Supreme Court in the case of " State of Orissa V. Mr.Brahmananda Nanda, (AIR 1976 Supreme Court 2488) ". In this decision the Supreme Court was dealing with the prosecution case which entirely depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of the assailant for a day and half after the incident and the explanation offered for non-disclosure was unbelievable. The Supreme Court has held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness. Learned Counsel for the appellants has appropriately relied on the decision of the Division Bench of this Court in the case of " Nemichand s/o. Bakaram Patle & Ors. Vs. State of Maharashtra, (1999(3) Mh.L.J. 752) " to submit that in a case of lapse on the part of the witness to inform the police with utmost expedition the same would seriously affect the credibility of such witness. The Division Bench in considering the decision of the Supreme Court in the case of " Deendayal Vs. Rajkumar @ Raju and others, (AIR 1999 SC 537) " has observed as under:- "9. The facts almost identical to the present case were found in the case in Deendayal Vs. Rajkumar @ Raju and others reported in AIR 1999 SC 537. In that case, after seeing the incident, witnesses quietly went back to home. They had not accompanied the deceased to the hospital nor had taken any trouble of going and informing the police about what had happened and, therefore, the Apex Court finding their version improbable held that there evidence cannot be relied upon. In the case in hand also, P.W.1 Narendra though had witnessed the incident had either informed the villages who had assembled at the spot on that day at 4 P.M. nor took trouble of going and informing the police or Police Patil of the village about the same. So, in our view, the aforesaid decision of the Apex Court has full application to the facts of the present case. In this view of the matter, we find that no reliance can be placed upon the evidence of P.W.1 Narendra." (emphasis supplied) We may observe that though it is well settled that conviction can be based on the evidence of single eye witness, however, the evidence of such eye witness should be of such a nature and quality that such evidence is unimpeachable to prove the guilt of the accused. In this regard, we may refer to the ever guiding observations of Justice V. R. Krishna Iyer in the decision of the Supreme Court in the case of " Shivaji Sahebrao Bobade and Anr. Vs. State of Maharashtra, (AIR 1973 Supreme Court 2622) " which read thus:- " 19. Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Informing ourselves of these important principles we analyse the evidence found good by us. In our view, there is only one eye witness, P.W.5, Vilas. Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given on sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. We are persuaded that the P.W.5 is a witness for truth but in view of the circumstances that he is interested we would still want corroboration in this case to reassure ourselves. And that we have in this case." (emphasis supplied) In view of our aforesaid observations, we pass the following order:- ORDER Criminal Appeal is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if paid by them, be refunded to them. Since the appellants are in jail, they be released forthwith, if not required in any other case. (G. S. KULKARNI, J.) (P.V.HARDAS, J.)