High Court
Facts
Cri Appeal No.34 of 2020.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO.34 OF 2020 Rajendra @ Rajabhau Chhama Kale,Age : 42 years, Occ. Labour,r/o. Wadji Road, Terkheda, Tq. Washi,Dist. Osmanabad..AppellantVs.The State of Maharashtra,Through Anand Nagar Police Station, Osamanabad..Respondent----Mr.G.J.Kore, Advocate for appellantMrs.Uma Bhosale, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : MARCH 20, 2024 JUDGMENT (PER R.G.AVACHAT, J.) :- The challenge in this appeal is to the judgment and order ofconviction and consequential sentence passed by learned Addl.Sessions Judge, Bhoom (trial court), in Sessions Case No.21 of 2017.Vide the impugned judgment and order, the appellant has beenconvicted for the offences punishable under Sections 302 and 324 ofIndian Penal Code and sentenced to suffer imprisonment for life and topay fine of Rs.5,000/- and R.I. for two years and to pay fine ofRs.1,000/-, respectively, with default stipulations. The appellant is,therefore, before us in this appeal. 2Cri Appeal No.34 of 20202.PW 1 – Chhaya (informant) married Bappa Kale(deceased) long back. The couple was blessed with two children.The informant has two brothers-in-law, Rajendra @ Rajabhau(appellant) and Ramdas (PW 3). The parents-in-law of the informantare there. All the three brothers were married and blessed withchildren. All of them were residing in the neighbourhood of eachother at village Terkheda, Tq. Washi, Dist. Osmanabad.3.Bappa (deceased) had herd of 40 goats. He would rearthem. The appellant was addicted to alcohol. He (appellant) wasjealous of the progress and prosperity of his brother Bappa(deceased). On 08.04.2017, the appellant came drunk. Theinformant along with her children and husband (deceased) weretaking dinner in the court-yard of their house. The appellant pickedup quarrel with the deceased over money and property. Someargument and manhandling took place between the two. Theappellant went home and returned with a tommy (iron rod). Theappellant rushed towards the person of the deceased with tommy.The informant intervened and removed it from his hands. Theappellant, thereupon, fished out a long knife from his pocket andassaulted Bappa (deceased) on his chest. Ramdas (PW 3)intervened. The appellant too assaulted on his (Ramdas) left arm 3Cri Appeal No.34 of 2020with knife. The appellant, thereafter, fled away. The informantsecured an ambulance service and rushed her husband and brother-in-law to the Government Hospital, Osmanabad. Her husband wasdeclared dead on admission to the hospital. She, therefore, lodgedthe First Information Report (Exh.27). Crime vide C.R. No.62 of 2017,came to be registered with Yermala Police Station for the offencespunishable under Sections 302 and 324 of Indian Penal Code.Inquest panhnama (Exh 37) was conducted. Mortal remains of thedecease was subjected to post mortem examination. The scene ofoffence panchnama (Exh.40) was drawn. Clothes on the person ofthe deceased were taken charge of. Statements of the personsacquainted with the facts and circumstances of the case wererecorded. Upon completion of investigation, the appellant wasproceeded against by filing charge sheet before the learned JudicialMagistrate, First Class, Washi. Learned Magistrate committed thecase to the court of Additional Sessions Judge, Bhoom,Dist.Osmanabad.4.The trial Court framed Charge (Exh.13). The appellantpleaded not guilty. It is his defence that the informant had extra-marital relationship with her brother-in-law (PW 3 – Ramdas). Therewas, therefore, quarrel between the deceased and Ramdas. The 4Cri Appeal No.34 of 2020deceased died in the said quarrel. The informant and Ramdas tookdisadvantage thereof to falsely implicate the appellant in the crimein question with further motive to grab his property.5.To establish the charge, the prosecution examined eightwitnesses and produced in evidence certain documents. The trialcourt, on appreciation of the evidence in the case, convicted theappellant and consequentially sentenced, as stated above.6.Heard learned counsel for the parties.7.Learned counsel for the appellant would submit that thethe prosecution evidence is inconsistent. He first drawn ourattention to the oral evidence of the informant (PW 1 - Chhaya) andthe FIR, wherein, it has been stated that the appellant ran away withknife. He then invited our attention to the scene of offencepanchnama (Exh.40) to indicate that the knife was seized from thescene of offence. He would further submit that the informant beingwidow of the deceased, ought to have accompanied the decease inambulance. She followed the ambulance to the hospital. He wouldfurther submit that though the informant claimed to have made acall from the cell-phone of one Bhima Kale, said Bhima Kale has notbeen examined. The oral evidence of the son of the deceased is
Legal Reasoning
9Cri Appeal No.34 of 2020brother-in-law Ramdas. The informant had not accompanied herhusband - Bappa (deceased) to the hospital in ambulance, is notsuch a fact so as to render her oral evidence unreliable. Admittedly,she followed the ambulance to the hospital.15.PW 2 – Vishal, son of Bappa (deceased) and theinformant, was nine years of age, while the incident took place. It isin his evidence that by 08.30 p.m. on the fateful day, he was takingdinner with his parents. He testified that there was scuffle betweenthe appellant and his father (Bappa). The appellant then went homeand returned with a tommy. His mother snatched the tommy fromthe appellant. The appellant, thereafter, fished out a big knife andassaulted on the chest of his father. On hearing cries, Bhima Kalearrived. His another uncle, Ramdas, questioned the appellant, as towhy did he assault Bappa. Thereupon, the appellant gave blow ofknife on the hand of his uncle (Ramdas). Though this witness wasalso subjected to searching cross-examination, we find that nothinghas been brought on record so as to render the prosecution casedoubtful.16.PW 3 – Ramdas, real brother of the appellant and Bappa(deceased), testified on the lines of the evidence of PW 1 – Chaaya(informant) and PW 2 - Vishal. His evidence indicates that there was 10Cri Appeal No.34 of 2020heated exchange of words between the appellant and the deceased.Scuffle took place between the two. The appellant went to his houseand brought a tommy and a knife. Chhaya (PW 1) snatched thetommy from the hands of the appellant. Chhaya (PW 1) and herfamily members raised hue and cry. Hence, this witness went out ofhis house and saw that the appellant gave blow of knife on the leftside rib-cage of Bappa. Bappa fell on the ground. This witness(Ramdas) asked the appellant as to why did he beat Bappa.Thereupon, the appellant inflicted a knife-blow on his left arm. Theappellant then left. It is further in his evidence that he rushed Bappa(deceased) to Government Hospital in ambulance. Bappa wasdeclared dead. He (Ramdas) too was provided medical treatment.PW 3 – Ramdas admitted in his cross-examination thathis police statement was not read over to him after it was recorded.He denied to have extra-marital relationship with the informant(PW 1). He denied that he had quarrel with the deceased and as aresult thereof, the deceased died. 17.PW 3 – Ramdas is injured witness. His evidence standson higher pedestal. PW 5 – Dr.Santosh examined him in GovernmentHospital at Osmanabad. The Medico-Legal Certificate of Ramdas isat Exh.35. Same suggests him to have suffered stab injury over left 11Cri Appeal No.34 of 2020arm with a hard and sharp object. The Doctor’s evidence wouldfurther indicate that Ramdas was indoor patient upto 11.04.2017.He was only allowed to left the hospital for 5-6 hours for attendingfuneral of his brother (Bappa). True, the injury was bandaged whenhe went to the hospital.18.True, the Medical Officer (PW 4 – Dr.Satish), whoconducted post-mortem on the dead body of Bappa (deceased), wassuggested that the knife seized from the scene of offence was sharpon one side only. He admitted the same. He was further suggestedthat the injury on the person of deceased was possible by a weapon,which is sharp from both edges. He denied the same. We do notfind any inconsistency between the ocular evidence and the medicalevidence. We found the oral evidence of the informant (PW 1 –Chhaya), her son PW 2 – Vishal and the injured witness, Ramdas(PW 3) to be consistent with each other and reliable one. Same iscorroborated by the FIR (Exh.27) and the post-mortem report besidesthe injury certificate of Ramdas. We, therefore, do not propose torefer to the evidence of other witnesses relating to seizure of clothes,other articles and C.A. reports in that regard.19.Suffice it to say that the evidence referred to hereinabove and appreciation thereof lead us to observe the trial court to 12Cri Appeal No.34 of 2020have not erred in convicting the appellant for offences punishableunder Sections 302 and 324 of Indian Penal Code and consequentialsentence therefor. We are at one with the findings recorded by thetrial court.20.In the result, the appeal fails. The same is dismissed.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP
Arguments
5Cri Appeal No.34 of 2020inconsistent with the evidence of his mother. The son was just nineyears of age at the relevant time. He being a child witness musthave been tutored to give evidence against the appellant. Accordingto learned counsel, the appellant was not home. The recordindicates that he surrendered before the police about fortnight afterthe incident. He would further submit that according to theinformant, her brother-in-law (PW 3 – Ramdas) arrived at the sceneof offence on hearing cries, while Ramdas, in his evidence, testifiedto have been present when the incident took place. Learned counselwould submit that the appellant has been in jail since day one of hisarrest. The case of the prosecution is doubtful. He, therefore, urgedfor allowing the appeal.8.Learned APP would, on the other hand, support theimpugned judgment and order.9.Considered the submissions advanced. Perused theevidence on record. Also gone through the judgment impugnedherein. 10.Let us advert to the evidence on record and appreciatethe same. 6Cri Appeal No.34 of 2020Bappa (deceased), Rajendra (appellant) and Ramdas(PW 3) were the brothers. Their parents were alive. All the threebrothers were married and blessed with children. All of them wereresiding separately, but in the neighbourhood of each other. Theappellant was addicted to alcohol. Bappa (deceased) would rearshe-goats as profession. His wife (informant) was serving with a fire-crackers manufacturing unit. Admittedly, the incident took placelittle past 08.30 p.m. on 08.04.2017. 11.PW 4 – Dr. Satish was serving with Civil Hospital.Osmanabad. He conducted post-mortem examination on the mortalremains of Bappa (deceased). He noticed following injuries on theperson of the deceased:-External injuries :-(i)Stab injury size 8 x 4 cm. x up to heartdeep, elliptical in shape seen at the left lateralside chest below left nipple, extending from midaxillary line to mid clavicular line obliquely,directed from left to right, perforating upper lobeof left lung and left atrium of heart. There wasfracture to 4th and 5th rib on left side noted as theinjury side.Internal injuries :-(i)Left sided pleural tear noted of size 6 x 3cm. 7Cri Appeal No.34 of 2020(ii)Left upper lobe laceration noted about size of 8x2x3 cm. corresponding to stab injury.(iii)Pericardium tear noted along left upperside 5x½ cm.(iv)Laceration of left atrium base, noted ofsize 5 x ½ cm. PW 4 – Dr. Satish further observed that all the above injuries wereante-mortem, caused within 6 to 18 hours prior to examination.According to him, the cause of death of Bappa is “stab injurypenetrating to left lung and left atrium of heart.”12.The deceased met with homicidal death, is undisputed.The question is, whether the appellant is author thereof. Theinformant (PW 1 – Chaaya) testified that the appellant was addictedto alcohol. He (appellant) was jealous of the progress and prosperityof his brother Bappa (deceased). On 08.04.2017, the appellant camedrunk. The informant along with her children and husband(deceased) were taking dinner in the court-yard of their house. Theappellant picked up quarrel with the deceased over money andproperty. Some argument and manhandling took place between thetwo. The appellant went home and returned with a tommy (iron rod).The appellant rushed towards the person of the deceased. The 8Cri Appeal No.34 of 2020informant intervened and removed it from his hands. The appellant,thereupon, fished out a long knife from his pocket and assaultedBappa (deceased) on his chest. Ramdas (PW 3) intervened. Theappellant too assaulted on his left arm with knife. The appellant,thereafter, fled away. The informant secured an ambulance serviceand rushed her husband and brother-in-law to the GovernmentHospital, Osmanabad.13.Although the informant (PW 1 – Chaaya) was subjectedto searching cross-examination, close reading thereof would indicatethat nothing could be elicited therefrom, which would help theappellant in his defence. She denied to have had illicit relationshipwith Ramdas (PW 3). She also denied that quarrel took placebetween Bappa (deceased) and Ramdas (PW 3) over her relationshipwith Ramdas and in the same quarrel, Bappa died. The FIR (Exh.27)corresponds with the oral evidence of PW 1 – Chaaya/informant. Assuch, her substantive evidence has been corroborated with her FIR(Exh.27).14.Although Bhima Kale from whose cell-phone theinformant had made phone-call for securing ambulance service, wasnot examined, it has been admitted that Bappa (deceased) wasrushed to the hospital in ambulance. He was accompanied by her