High Court
Legal Reasoning
APEAL-131-22.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 131 OF 2022WITHCRIMINAL APPLICATION NO. 29 OF 2020Nana @ Badrinath Dashrath BarelaAge: 30 years, Occu.: Labourer,R/o Kanhora, Tq. Bhatiyagad,Dist. Damu (M.P.)..APPELLANTVERSUS1. State of Maharashtra2. Ajay Santosh Patil (Deleted vide order dated 21st August, 2024)..RESPONDENTS....Mr. R.D. Biradar, Advocate for appellant (appointed through Legal Aid)Mr. S.D. Ghayal, Addl.P.P. for respondent no.1 - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJDATE : 12th SEPTEMBER, 2024ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The challenge in this appeal is to a judgment and order ofconviction and consequential sentence dated 16th September, 2015 passedby the Additional Sessions Judge, Amalner (‘trial Court’) in Sessions Case,No. 18 of 2013. Vide the impugned judgment and order, the appellant hasbeen convicted for the offence punishable under Section 302 of the IndianPenal Code (‘I.P.C.’), and therefore, sentenced to suffer life imprisonmentand to pay fine of Rs.5,000/-. In default of payment of fine amount, he isdirected to undergo rigorous imprisonment for two years.1 / 8 APEAL-131-22.odt2.The facts giving rise to the present appeal are as under :-The appellant had married PW 5 – Ekaribai about 10-12 yearsbefore the incident, dated 02nd July, 2012. The couple was blessed with fourchildren, two sons and two daughters. The appellant wanted to haveunnatural intercourse with his wife, to which she refused. She, thereafterstarted residing at the house of her father, PW 11 – Renja at villageGhodegaon. Her uncle – Kisan (deceased) would also reside thereat. Theappellant alongwith 10-12 persons had come to the house of his father-in-law. He quarreled with him and returned. After two days he again came. Hewas alone. It was midnight. He assaulted Kisan with an axe and then fled.3.PW 5 – Ekaribai, her father and others first approached theirlandlord, PW 2 - Ajay and informed about the incident, who in turn, lodgedthe F.I.R. (Exh.18) with Chopda Rural Police Station. Crime, vide C.R. No.29 of 2012 was registered against the appellant. Crime scene panchanama(Exh. 16) and inquest (Exh.15) were drawn. Mortal remains of Kisan wassubjected to autopsy. The appellant was arrested about eight months afterthe incident. Pursuant to the disclosure statement made by him, an axecame to be seized. All the seized articles were submitted to R.F.S.L., Nashikfor analysis and report. On completion of investigation, the appellant wasproceeded against by filing the charge-sheet.4.The trial Court framed the charge (Exh.8). The appellant pleadednot guilty. His defence was of false implication.2 / 8 APEAL-131-22.odt5.The prosecution examined thirteen witnesses and produced inevidence certain documents to establish the charge. The trial Court, onappreciation of the evidence in the case, convicted and consequentlysentenced the appellant as stated above.6.Learned counsel for the appellant would submit that there is noindependent eye witness to the incident. The incident took place at the deadof night. There was no electricity. It was dark. Had the appellant really beento the house of his father-in-law alongwith 10-12 persons two days before theincident, report to that effect would have been lodged with the concernedpolice station. The axe seized pursuant to the disclosure statement made bythe appellant did not bear blood stains. It would, therefore, not be adisclosure statement relevant under Section 27 of the Evidence Act.According to him, the criminal law was set in motion by the person, who didnot witness the incident. The wife of the appellant or her father should havelodged the report. They did not do so. The reason therefor would not inspireconfidence. He, therefore, urged for allowing the appeal.7.Learned Addl.P.P. would, on the other hand, submit that it is anopen and shut case. According to him, the wife had no reason to giveevidence against her own husband. The parties were tribals. It was,therefore, but natural on their part to first approach the landlord and then tothe concerned police station. When the case is based on the eye witnessaccount, the fact that there were no blood stains noticed on the axe, seized3 / 8 APEAL-131-22.odtpursuant to the disclosure statement made by the appellant, would be of littleconsequence. He, therefore, urged for dismissal of the appeal.8.Considered the submissions advanced. Perused the evidence onrecord and the judgment impugned herein. Let us now advert thereto andappreciate the same.9.The appellant had married PW 5 – Ekaribai about 10-12 yearsbefore June 2012. The couple was blessed with four children, two boys andtwo girls. As the appellant wanted to have unnatural intercourse with hiswife, she left the house and started residing at the house of her father atvillage Ghodegaon. Her uncle – Kisan and other family members would alsoreside thereat. Their houses were on the land of one Ajay Santosh Patil.10.PW 8 – Sanjay Jadhav was the Medical Officer on duty at Sub-district Hospital, Chopda. He conducted postmortem examination on themortal remains of deceased Kisan by 12:00 p.m. The postmortemexamination report under his signature is at Exhibit 37. He noticed a deepincised wound on the right side of neck just below mandible measuring 10 x5 x 3 cm. In his opinion, Kisan died of hypovolumic shock due tohaemorrhage due to deep incised wound over neck. Viscera was, howeverpreserved.11.PW 1 – Rahul is a witness to the inquest panchanama (Exh.15)and crime scene panchanama (Exh.16). The same is not in dispute before4 / 8 APEAL-131-22.odtus. PW 2 – Ajay had lodged the F.I.R. (Exh.18). He is not an eye witness tothe incident. According to him, Gajmal had come to him at 06:30 a.m. on02nd June, 2012 and informed his uncle Kisan to have been murdered. He,therefore, went to the spot and saw Kisan dead. Gajmal also told him theappellant to have killed Kisan. He, therefore, informed the Chopda RuralPolice Station. The report lodged by him reduced into writing. It finds placeat Exhibit 18.12.PW 2 – Ajay being not an eye witness, his evidence would only berelevant so as to set the criminal law in motion.13.PW 3 – Narayan was a photographer. He snapped the photos ofthe dead body. PW 4 – Jaising is a witness to the disclosure statementmade by the appellant on 19th February, 2013, pursuant to which an axecame to be seized. The disclosure statement and seizure memo find placeat Exhibits 25 and 26 respectively. Since the C.A. report (Exh.51) indicatesno blood was noticed on the seized axe, it could not be said that thedeceased was done to death with the assault therewith.14.PW 6 – Rashid did not stand by the prosecution. PW 7 – Itbarwas a Maintenance Surveyor, who drew the sketch of the crime scene. Thesketch is at Ehixbit 34. PW 9 – Pradip and PW 10 – Gulab were the PoliceHead Constables, who had carried the seized muddemal to R.F.S.L.,Nashik. PW 12 – Mushtaq, Assistant Police Inspector, drew the5 / 8 APEAL-131-22.odtpanchanama (Exh.48) of the clothes of the deceased. While PW 13 – Sunil,Deputy Superintendent of Police, did the investigation of the crime.15.The fate of the appeal is mainly based on the evidence of theappellant’s wife and his father-in-law, PW 5 – Ekaribai and PW 11 – Renja.Postmortem report (Exh.37), undoubtedly goes a long way to indicate thedeceased met with homicidal death. The evidence of PW 5 – Ekaribaiindicates that her marriage with the appellant took place 10-12 years prior toJune 2012. The couple was blessed with four children. The appellantcompelled her to submit to his lust for unnatural intercourse, to which sherefused and thereafter started residing at the house of her father at villageGhodegaon. Her uncle, Kisan (deceased) and other relations would alsoreside in the nearby of each other. Their residences were on the land of oneDilip Santosh, the landlord. It is further in his evidence that the appellant hadcome alongwith 10-12 persons just two days before the incident. Hequarreled with PW 11 – Renja, her father and returned. It appears that hehad come to get her back to her matrimonial home.16.The evidence of PW 5 – Ekaribai further indicates that after twodays the appellant again came. It was a midnight. The appellant was armedwith an axe. He assaulted her uncle – Kisan with the said axe. Her evidencegets reinforced by the evidence of her father, PW 11 – Renja. It is in hisevidence that his daughter, PW 5 – Ekaribai was not willing to go back to hermatrimonial home. He had, therefore, asked her to stay for two days. He6 / 8 APEAL-131-22.odthad persuaded the appellant and even expressed excuse. The appellantwent away. It is further in his evidence that the appellant came in the nighttime. He was armed with an axe. He assaulted Kisan with the said axe. Onhearing the shouts of Kisan, he woke up. He saw the appellant running awaywith the axe.17.Both, PW 5 and 11 were subjected to a searching cross-examination. Both of them are tribals. It was, therefore, but natural for themand their family members to first approach their landlord. No fault therewith,therefore, could be found. The appellant could be overpowered eight monthsafter the incident. The same indicates he was absconding. This conductwas inconsistent with his innocence. His wife and father-in-law have noreason to implicate him in the crime, sparing the real culprit by speakingagainst the appellant. PW 5 – Ekaribai put her matrimonial life at stake. Shewas categorical to deny that due to darkness she could not notice or identifythe assailant. Similar suggestion was denied by PW 11 – Renja.18.In our view, the evidence of PW 5 – Ekaribai (wife of theappellant) and PW 11 – Renja (father-in-law of the appellant) lead us toconclude that it was the appellant and none else, who has committed murderof his cousin father-in-law, Kisan. We, therefore, find no reason to interferewith the order of conviction.19.The offence took place on the ground that the appellant’s in-lawshad refused to send his wife back to her matrimonial house (appellant’s7 / 8
Legal Reasoning
APEAL-131-22.odtresidence). The trial Court, while imposing fine of Rs.5,000/-, has directedthe appellant to undergo rigorous imprisonment for two years, if he fails topay the fine. In the facts and circumstances of the case, we reduce thesentence of two years to two months imposed by the trial Court in case ofdefault of payment of fine amount. With this, the appeal stands disposed ofin terms of the following order :-ORDER(I)Conviction and sentence of the appellant imposed by theAdditional Sessions Judge, Amalner in Sessions Case No.18 of 2013 vide judgment and order dated 16th September,2015 is maintained.(II)The fine amount imposed also stands maintained only witha modification to the effect that if the appellant fails todeposit the fine amount, he shall undergo rigorousimprisonment for two months, instead of two years.(III)In view of disposal of criminal appeal, criminal applicationalso stands disposed of.(IV)Fees of Mr. R.D. Biradar, learned counsel appointedthrough Legal Aid for appellant is quantified to Rs.12,000/-(Rupees Twelve Thousand).( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD8 / 8