Sukhdeo Mahadu Ghumare Vs. State of Maharashtra - Court Judgment

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indian penal code, 1860 section 302 r/w section 34 - murder - evidence of eye witnesses not supported by medical evidence--other circumstantial evidence proving witnesses to be unreliable--conviction set aside.;from the evidence of the eye-witnesses, it is noticed that accused was standing opposite to deceased. they were face to face. so, if any blow had been given by accused to deceased, it would have caused injury on the front portion of body and not on the back portion. the medical evidence clearly indicates that the injury was caused from behind and not from front side. the medical evidence does not support the ocular testimony.;both these eye-witnesses were the accused in the case coming up on the basis of the first information report filed by the mother of the accused. the contradictions from their statements before the police recorded by p.s.i., in connection with the present crime, are brought on record which indicate that the reason for the quarrel and the nature of the incident which took place were quite different than what the witnesses are now stating in the present case. to wriggle out of the difficult situation, they are flatly denying that their statements were recorded by the police. but then their whole evidence becomes unreliable. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 7. the learned additional sessions judge recorded evidence of the prosecution witnesses, statements of the accused, and after hearing arguments of both sides, came to the conclusion that the prosecution has failed to prove case against accused ashok and he was acquitted for the offence punishable under section 302 read with section 34 of indian penal code. the evidence of doctor also indicates that the injury was caused by sharp long weapon like gupti. 2. thus, this evidence clearly indicates that the death was caused due to stab injury caused by weapon like gupti 11. the other important part of the evidence of doctor is that, in the cross-examination the doctor has stated that the injury was caused when the deceased was in standing position and it was caused from back side. the medical evidence clearly indicates that the injury was caused from behind and not from front side. these statements of these eye-witnesses clearly show that they are not stating the truth, it is not at all believable that in a murder case, when the names of the eye-witnesses are given in the first information report, the investigating officer would fail to record the statements of the eye-witnesses. but then their whole evidence becomes unreliable. the prosecution has failed to do so. while considering the evidence of the prosecution witnesses, the entire story brought on record by the prosecution witnesses as well as by the defence has to be considered to find out where the truth lies and also to find out whether the accused has given probable explanation regarding the alleged incident. 37. considering all these circumstances, we hold that the prosecution has failed to prove that the accused -appellant committed murder of madhukar s/o.v.k. barde, j.1. the appellant who is convicted and sentenced for the offence punishable under section 302 of indian penal code, in sessions case no. 47/1990, by the additional sessions judge, beed, has preferred this appeal against the conviction and sentence.2. the case of the prosecution is that the accused sukhdeo and his brother ashok are resident of village ghatpimpri (taluka : ashti, district: beed). on 19.6.1989, at about 8.00 p.m., madhukar gangaram talekar, also resident of village ghatpimpri, was called by the accused appellant sukhdeo and his brother ashok at their house to settle the account about the amounts advanced by the accused to madhukar. a quarrel took place between them and the accused appellant sukhdeo stabbed madhukar with gupti. murlidhar zanje (pw 4) and uttam talekar (pw 5) who were passing from near the house of the accused, saw this quarrel and they were proceeding to the spot of the quarrel, but before that, the stabbing took place. gangaram (pw 2), father of deceased madhukar, also reached at the place immediately after the incident. both the accused had ran away from the place of incident. madhukar was bleeding profusely. he was given water and then he was taken to primary health centre at dhamangaon by bullockcart for medical treatment. the doctor there declared that madhukar was dead.3. gangaram (pw 2) then lodged a written report at police station at ambhora (taluka : ashti, district : beed) at about 12.30 a.m.. crime no. 63/89 was registered and p.s.i. more (pw 6) went to the place of incident at village ghatpimpri, for investigation. the accused sukhdeo was lying at the place of incident in injured condition and he was unconscious. so, the accused sukhdeo was sent to primary health centre at dhamangaon for medical treatment by the p.s.i. the accused ashok was arrested on 20.6.1989. while the accused sukhdeo was arrested on 10.7.1989. during the course of investigation, the p.s.i. recovered gupti from uttam yadav zanje. he has also collected sample of blood stained soil from the place of incident at the time of preparing panchanama. the blood stained clothes worn by the deceased madhukar were also attached. all these attached articles were sent to chemical analyser at aurangabad, for examination and report. after completion of investigation, charge-sheet was submitted against both the accused for the offence punishable under section 302 read with section 34 of indian penal code, before judicial magistrate (f.c.), asthi.4. the judicial magistrate (f.c.), ashti, committed the case to the court of sessions at beed, for trial.5. the learned additional sessions judge framed charge against both the accused for the offence punishable under section 302 read with section 34 of india penal code, and against accused sukhdeo for the offence punishable under section 302 of indian penal code, simplicitor.6. both the accused pleaded not guilty. the defence of the accused is that on the date and time of the incident, about 25 villagers had come to their house to demand the explanation of the accused, as to why they had written anonymous letter to police alleging that nababai d/o. ramji ghumare was having illicit relations with some persons from the village. at that time, the villagers assaulted sukhdeo. he was seriously injured. his mother, kamalabai; mangalabai w/o. sukhdeo and suman w/o ashok also received injuries at the hands of the villagers when they tried to rescue sukhdeo. somebody from that mob stabbed madhukar with gupti and not the accused sukhdeo. it is also contended by the accused that kamalabai lodged a report against those villagers at police station at ambhora. crime no. 64/89 was registered against those villagers. so, they are falsely implicated in this case.7. the learned additional sessions judge recorded evidence of the prosecution witnesses, statements of the accused, and after hearing arguments of both sides, came to the conclusion that the prosecution has failed to prove case against accused ashok and he was acquitted for the offence punishable under section 302 read with section 34 of indian penal code. however, the learned additional sessions judge held that the prosecution has proved that the accused sukhdeo committed offence punishable under section 302 of indian penal code and after hearing the accused on the point of sentence, sentenced him to suffer imprisonment for life and to pay a fine of rs. 2,500/-, in default of payment of fine, further rigorous imprisonment for 6 months.8. heard shri b.b. jadhav, learned counsel appearing on behalf of the accused - appellant, and shri s.b. bhapkar, learned additional public prosecutor appearing on behalf of the respondent - state.9. the prosecution case is based on the evidence of eye - witnesses, namely, murlidhar zanje (pw 4) and uttam talekar (pw 5). the learned additional sessions judge has relied on the evidence of these two witnesses.10. there is no doubt that the deceased madhukar had received stab injury which turned to be fatal. the evidence of the medical officer, dr. kumbhar (pw 3) is at exhibit 49. he first examined madhukar on 19.6.1989 at about 9.45 p.m. when he was brought to primary health centre at dhamangaon. he found that madhukar was dead. he then sent a report to ambhora police station. on 20.6.1989, at the request of police, he performed autopsy. the doctor has stated in his deposition, that there was one external injury, an incised wound having sharp margin 2 cm. at the level of post axillary fold on left side between 10th and 11th rib of left side. this injury has caused two internal injuries. the doctor has stated that, on internal examination, he found injury to pleura posteriorly left, injury to left lung lower lobe (eliptical), injury to pericardium, injury to right and left (sic), injury to inter ventricular septum and injury to left diaphram. the second injury was to upper and posterior part of stomach. the doctor has stated that the external injury was caused by single blow which caused the first internal injury to lung and heart, etc. while the second injury to stomach was possible while withdrawing the weapon. the doctor has stated that the injury was sufficient in ordinary course of nature to cause death. there was profuse bleeding and madhukar might have died within 10 minutes on receiving the injury. the evidence of doctor also indicates that the injury was caused by sharp long weapon like gupti. the doctor has stated before the court, that the injury could have been caused by gupti - article no. 2. thus, this evidence clearly indicates that the death was caused due to stab injury caused by weapon like gupti 11. the other important part of the evidence of doctor is that, in the cross-examination the doctor has stated that the injury was caused when the deceased was in standing position and it was caused from back side. considering the description of the injury given by the doctor in his deposition and in the post mortem examination report exhibit 52, it is very clear that the injury was caused from back side.12. gangaram (pw 2), father of madhukar, lodged the first information report. his deposition is at exhibit 47. he has stated that he was at the maroti temple which is near to the house of the accused. he heard the shout 'melo'. he recognised the voice as that of madhukar, his son. so, he immediately went towards the flour mill of the accused from where the noise had come. he saw that murlidhar (pw 4) and uttam talekar (pw 5) were running ahead of him towards the flour mill. when he went there, he saw that madhukar was lying on the ground in pool of blood in injured condition. thus, this witness has nowhere stated that he saw either of the accused quarrelling with madhukar, or stabbing madhukar, or running away from the spot.13. the first information report filed by gangaram (pw 2) is at exhibit 48. in the first information report, he has alleged that the accused sukhdeo and ashok picked up quarrel with his son madhukar and then accused sukhdeo stabbed madhukar with gupti in stomach. obviously, this part of the first information report cannot be relied upon because he had not seen the quarrel or the assault. it appears that, on the basis of information received from somebody else, he has filed the first information report. but in the first information report, he has mentioned that murlidhar (pw 4) and uttam talekar (pw 5) had seen the assault. so, to this extent, the first information report corroborates oral testimony of gangaram (pw 2). but his evidence does not connect accused sukhdeo with the alleged crime.14. devidas pund (pw 1) is the panch witness for the panchanama of the place of incident and in his deposition at exhibit 43, he has proved the panchanama of place of incident which is at exhibit 44.15. devidas (pw 1) is also witness regarding attachment of gupti. he had acted as panch witness when the gupti was seized by p.s.i. more (pw 6). however, he has not supported the prosecution case regarding seizure of gupti. he has stated in his deposition, that police were having gupti and the panchanama was written and he signed the panchanama. he has denied that the gupti was with uttam zanje and from him gupti was attached. the relevant panchanama is at exhibit 45.16. this gupti was sent to chemical anlyser at aurangabad and the chemical analyser's report (exhibit 40) shows that there was human blood of 'ab' group on gupti. the report of the chemical analyser also indicates that the clothes from the person of deceased madhukar were also having blood stains of human blood of 'ab' group. on the basis of this evidence, it may be concluded that the gupti - article no. 2 before the court, was used as weapon.17. however, the prosecution has no evidence to show that the gupti was attached from accused sukhdeo or ashok. the prosecution has no evidence to show that gupti belonged to the accused. the only evidence on record is that of eyewitnesses, murlidhar zanje (pw 4) and uttam talekar (pw 5) who say that the accused sukhdeo was having gupti. we will come to the evidence of these witnesses at later stage. here, it has to be noted that the prosecution has not established that the gupti - article no. 2 belonged to the accused.18. p.s.i. more (pw 6) in his deposition at exhibit 57, has stated that when he went to village ghatpimpri in the small hours of 20.6.1989, uttam zanje met him behind maroti temple and he produced gupti and gupti was attached as per panchanama exhibit 45. so, even this witness has not stated that gupti was in possession of accused sukhdeo. the evidence shows that the gupti was attached from uttam zanje. p.s.i. more has further stated that the gupti belonged to uttam zanje.19. the prosecution has not explained how and when accused got the gupti. it is alleged that after the stabbing. gupti was thrown at the place of incident and uttam zanje had collected it from that place. but the gupti was not attached from the place of incident and it was attached from uttam zanje. so, it becomes necessary for the prosecution to prove that in a particular way, the accused obtained the gupti from uttam zanje and then he used gupti to commit assault. unless the prosecution shows that the gupti belonging to uttam zanje was in possession of the accused, the prosecution cannot establish the vital link to connect the accused. the learned additional sessions judge has altogether ignored this aspect of the case.20. when this evidence was being recorded before the learned additional sessions judge, uttam zanje was not alive. devidas (pw 1) has stated in his deposition, that uttam zanje died two months prior to the date of hearing of the matter. p.s.i. more (pw 6) has stated that he did not record statement of uttam zanje. so, the prosecution cannot establish that gupti was lying at the spot of the incident, uttam zanje picked it up from the spot of incident after stabbing and then uttam zanje produced it before the police. merely because murlidhar (pw 4) and uttam talekar (pw 5) state that the accused sukhdeo stabbed madhukar with gupti, threw the gupti and ran away, it cannot be concluded that gupti - article no. 2 was in the hands of accused sukhdeo and it was used by accused sukhdeo to stab madhukar. there are other circumstances which indicate that the statement of prosecution witnesses, murlidhar zanje (pw 4) and uttam talekar (pw 5) are not worth relying.21. murlidhar zanje (pw 4), in his deposition at exhibit 53, has stated that on the day of incident, at about 7.30 p. m. he was going to s.t. bus stand from his house. uttam talekar (pw 5) met him on the way. so, they were going together. when they were behind maroti temple, they saw the quarrel between accused sukhdeo, ashok and deceased madhukar which was going on in front of flour mill of accused. both of them ran towards the spot. but before they could reah, sukhdeo stabbed madhukar with gupti. accused sukhdeo threw the gupti and ran away. he has also stated that madhukar was standing facing towards east and sukhdeo was standing facing towards west. gupti was in right hand of sukhdeo. nearly in the same words, uttam talekar (pw 5) has stated about the incident in his deposition at exhibit 56.22. thus, from the evidence of the eye-witnesses, it is noticed that accused sukhdeo was standing opposite to deceased madhukar. they were face to face. so, if any blow had been given by accused sukhdeo to madhukar, it would have caused injury on the front portion of body of madhukar and not on the back portion. the medical evidence clearly indicates that the injury was caused from behind and not from front side. the medical evidence does not support the ocular testimony. the learned additional sessions judge has not scrutinised the evidence from this point of view and he has blindly relied on the testimony of these two so called eyewitnesses.23. it is already noted that gangaram (pw 2) father of deceased madhukar, in the first information report itself, mentioned the names of murlidhar zanje (pw 4) and uttam talekar (pw 5) as the eye-witnesses. when the police were knowing that these two persons were the eye-witnesses at the time of filing the first information report itself, then in all probabilities, the police must have recorded statements of both these eye-witnesses during the course of investigation. p.s.i. more (pw 6) has stated in his deposition at exhibit 57, that he did record the statements of both these eye-witnesses.24. however, both these eye-witnesses have stated in their respective depositions before the court, that the police did not record statements till the date they gave deposition in the court and they have further stated that for the first time they were stating about the incident, that too before the court. these statements of these eye-witnesses clearly show that they are not stating the truth, it is not at all believable that in a murder case, when the names of the eye-witnesses are given in the first information report, the investigating officer would fail to record the statements of the eye-witnesses. it is also not at all believable that the eye-witnesses who had seen such incident would keep quiet for more than three years and would not say anything about the incident to anybody.25. for certain reasons, these two eye-witnesses are stating that, their statements were not recorded by the police. it is not necessary to go far away to find out the reason. both these eye-witnesses were the accused in the case coming up on the basis of the first information report filed by kamalabai, mother of accused sukhdeo. the contradictions from their statements before the police recorded by p.s.i. more, in connection with the present crime, are brought on record which indicate that the reason for the quarrel and the nature of the incident which took place on that evening were quite different than what the witnesses are now stating in the present case. to wriggle out of the difficult situation, they are flatly denying that their statements were recorded by the police. but then their whole evidence becomes unreliable. the learned additional sessions judge ought to have taken into consideration this aspect of the case before placing reliance on the evidence of these witnesses.26. it is in the evidence of p.s.i. more (pw 6), that when he want to the spot at ghatpimpri at about 2.00 a.m., he found accused sukhdeo lying injured and in unconscious condition, outside the house of accused sukhdeo, very near from the alleged spot of stabbing madhukar. sukhdeo was immediately sent to primary health centre at dhamangon for medical treatment.27. dr. kumbhar (pw 3) in his deposition at exhibit 49, has stated that he examined sukhdeo on 20.6.1989 and he found 15 injuries on the person of sukhdeo. there was injury on head and doctor thought that sukhdeo was seriously injured. so, sukhdeo was referred to civil hospital at ahmednagar for further treatment. the certificate issued by the doctor regarding injuries on the person of sukhdeo is at exhibit 55.28. the prosecution has not at all explained how and when sukhdeo got these injuries. if the injuries had been minor, then it would not have become that much necessary for the prosecution to explain the injuries on the person of sukhdeo. but p.s.i more (pw 6) states that sukhdeo was found unconscious-and doctor states that the injuries on the person of sukhdeo were of serious nature. there was head injury and, therefore, he was required to be sent to civil hospital at ahmednagar. when there were 15 injuries on the person of accused and the accused was found lying just near the alleged spot of incident it was necessary to explain the injuries on the person of 'the accused.29. no doubt, here the accused has not taken the stand of self-defence. the contention of the accused is that, he was attacked by villagers, he received injuries at the hands of the villagers and when this attack was going on, somebody from the villagers stabbed madhukar. in the light of this specific defence from the accused, it became necessary for the prosecution to explain the injuries on the person of accused sukhdeo. the prosecution has failed to do so.30. here, the circumstance that the attached gupti which was used to stab madhukar did not belong to accused and that the prosecution has no evidence that the accused sukhdeo had obtained gupti from uttam zanje prior to the incident, goes to show that the explanation given by the accused is more probable especially when the evidence of two eye-witnesses does not stand to the test of credibility 31. the learned additional sessions judge without scrutinising all the facts brought on record, has believed the words of two eye-witnesses and jumped to the conclusion that the accused committed murder of madhukar. while considering the evidence of the prosecution witnesses, the entire story brought on record by the prosecution witnesses as well as by the defence has to be considered to find out where the truth lies and also to find out whether the accused has given probable explanation regarding the alleged incident. the stand taken by the accused in his defence cannot be ignored just because a few prosecution witnesses narrate the story in the same words when the court can ascertain as; to why their narration is of that nature.32. the evidence of the two eye-witnesses, murliidhar zanje (pw 4) and uttam talekar (pw 5) is not at all supported by the medical evidence. they for their own reason, are making false statement before the court, that their statements were never recorded by the police. the other circumstances brought on record also show that their evidence cannot be relied upon and, therefore, no conviction can be based on the evidence of these two eye-witnesses and other evidence produced on record by the prosecution.33. here, it also may be stated that the prejudice is caused to the accused because the learned additional sessions judge did not try this case and the cross case filed on the basis of first information report lodged by kamalabai, mother of the accused, simultaneously. the sessions case no. 109/1990 arising out of first information report filed by kamalabai regarding the alleged incident which took place on 19.6.1989 at about 7.30 p.m. in front of the house of kamalabai and sukhdeo was heard by the learned additional sessions judge and was decided on 17th may 1993. while conducting that case, it was brought before the court, that sukhdeo and ashok were facing the charge of murder because of the first information report filed by gangaram.34. the two alleged incidents had taken place as per the allegations in the respective matters, at about the same time and at about the same place. the witnesses from one case are the accused in another cast. the cause as alleged by the police for the said incident was the same, that is, some anonymous letters were written to the police alleging illicit relations with reference to two girls and certain boys from the village, in such circumstances, it was necessary to try these two sessions cases simultaneously but independently and to decide these two cases by giving judgment at one and the same time. a useful reference can be made in this regard, to the decision of division bench of this court, in the case of banappa kallappa ajawan and ors. v. emperor air 1944 31 bom. 146. this court held that, in such circumstances, the cross cases or counter cases be tried by the same judge in quick succession, one after another, and the judge should pronounce judgment in the counter cases at one and the same time.35. the apex court, in the case of kewal krishan v. suraj bhan and anr. : 1980crilj1271 , has expressed the same view by making reference to the ruling of the bombay high court.36. the learned additional sessions judge ought to have conducted the sessions case no. 47/1990 and sessions case no. 109/1990 one after another another and ought to have delivered judgment simultaneously. however, he heard and decided sessions case no. 109/1990 on 17th may 1993. while he started recording of evidence in sessions case no. 47/1990, in july 1993 and decided it on 23rd july 1993. this has not only flouted the procedure laid down by the apex court, but has caused prejudice to the accused from the present case.37. considering all these circumstances, we hold that the prosecution has failed to prove that the accused - appellant committed murder of madhukar s/o. gangaram talekar.38. in the result, appeal is allowed. the order of conviction and sentence passed by the additional sessions judge, beed, in sessions case no. 47/1990, on 23rd july 1993, is set aside. the appellant is acquitted for the offence punishable under section 302 of indian penal code. appellant be released forthwith, if not required in any other case. fine, if paid, be refunded to the appellant.