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Cri Appeal No.123.2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.123 OF 2019Dadarao alias Gajanan s/o. Dalsing Dadhare,Age : 29 years, occ. Nil,r/o. Village Sawargaon,Tq.Kannad, Dist. Aurangabad..AppellantVs.The State of Maharashtra..Respondent----Mr.Rajendrraa S. Deshmukkh, Senior Advocate h/f. Mr.Vishal A. Chavanand Mr.Devang R. Deshmukh, Advocates for appellantMr.S.D.Ghayal, Addl. Public Prosecutor for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : FEBRUARY 16, 2024JUDGMENT (PER R.G.AVACHAT, J.) :- The challenge in this appeal is to the judgment and orderpassed by learned Addl. Sessions Judge-3, Jalna, in Sessions CaseNo.26 of 2015 on 05.12.2018. Vide the impugned judgment and order,the appellant was convicted for the offences punishable under Sections302, 323 and 506 of Indian Penal Code and therefore, sentenced tosuffer life imprisonment and to pay fine, with the default stipulation.He is, therefore, in appeal. 2Cri Appeal No.123.20192.The facts, giving rise, to the present appeal are asfollows:-Rajendra (deceased) was husband of PW 1 – Kadubai.Kadubai was the only child of her parents, PW 2 – Kisan and PW 3 –Chababai. Her parents would reside at village Tadegaon, Tq.Bhokardan, Dist. Jalna. Since PW 1 – Kadubai was the only child ofPW 1 and PW 2, her husband – Rajendra (deceased) would reside atthe place PW 1 and PW 2 as “घरजावई”. The appellant is cousin ofPW 1 – Kadubai. Kadubai’s father (PW 2-Kisan) owned 11 acres ofland in gut no.27. Some of the land therein was sold by him. Hetransferred 4 acres of land in the name of his daughter, PW 1 –Kadubai and 1 acre in the name of the son-in-law (deceased –Rajendra). PW 2 – Kisan had four brothers. The appellant is a son ofone of the brothers namely, Dalsing. He would reside at Sawargaon,Tq. Kannad, Dist. Aurangabad, a place far away from the place ofresidence of the deceased. On 24.11.2014, by 08.00 in the morning,the appellant came to the house of his uncle (PW 2). He questionedthe deceased "शेवटचे सांग माझे नावे शेती करून तू तुझ्या गावी जातो किंकवा नाही?”.According to the prosecution, it was the claim of the appellant thathe would inherit the land of his uncle (PW 2). The appellant did notlike the deceased to have been cultivating the land of his father-in- 3Cri Appeal No.123.2019law. A quarrel ensued between the appellant and the deceased. Theappellant fetched an axe from the room of his uncle and gave itsthree blows on the head and back of the deceased from behind andfled away. The incident took place in the presence of PW 1 – Kadubai(widow of deceased). On hearing noise, her parents (PW 2 andPW 3) also came out of their room to witness the appellantassaulting their son-in-law. PW 1 informed her sister-in-law onphone. She came along with her husband. In the meanwhile, Police-Patil of village had already made a report to the concerned policestation. A station-diary entry to that effect was made. The policeofficial (PW 12 - Dhadave) had rushed to the crime scene. He drawnthe crime-scene panchnama (Exh.18) and inquest panchnama(Exh.19) as well. The Investing Officer seized the axe from the sceneof the offence.3.PW 1 – Kadubai lodged the First Information Report(Exh.12) by 01:30 p.m. The appellant was arrested in the evening.Clothes on his person were taken charge of. Upon completion of theinvestigation, he was proceeded against by filing charge sheet. Thecase was assigned to the Court of Addl. Sessions Judge-3, Jalna, fortrial in accordance with law. The trial court framed charge (Exh.08).The appellant pleaded not guilty. His defence is of false implicationon account of dispute between himself and his uncle (PW 2). 4Cri Appeal No.123.20194.The prosecution examined twelve witnesses andproduced in evidence certain documents to establish the charge. Onappreciation of evidence in the case, the trial court convicted theappellant.5.Heard learned counsel for the parties.6.Learned senior counsel for the appellant would submitthat there is delay of over six hours in lodging of the FIR. The delayhas not been explained. The appellant was residing at some othertown. The travel-time between the appellant's village and the placeof the incident was about eight hours. The case is based on theevidence of sole eye-witness, who was inimical with the appellant.PW 2 and PW 3 came out of their room when the incident hadalready happened. They are, therefore, not eye-witnesses to theincident. The Police-Patil had already reported the incident. He wasnot examined nor the report lodged by him is forthcoming. TheInvestigating Officer did not collect finger-prints on the axe-handle.Admittedly, villagers and neighbours had gathered at the crimescene. None of them has been examined. Even if the case of theprosecution is taken as it is, the incident was preceded by scuffle.The appellant had not come to the place armed with any weapon. Assuch, he did not have any intention to eliminate the deceased. The 5Cri Appeal No.123.2019axe was shown to the Medical Officer. Same indicates that it was notseized and sealed. There is, thus, no evidence to indicate that theaxe seized during the investigation, was the weapon used forassault. Had PW 1 - Kadubai really present at the crime-scene, shewould have intervened to save her husband. She even did not servewater when her husband suffered injuries. Same suggests that shewas not present at the crime-scene. There is no evidence toindicate, as to from which place, the appellant was taken intocustody. He was shown to have been arrested at the police station.According to learned senior counsel, the appellant was not in thevillage of his uncle. He, ultimately, urged for allowing the appealsince the prosecution, according to him, failed to bring home thecharge beyond reasonable doubt.7.Learned Addl. Public Prosecutor would, on the otherhand, submit that it is an open and shut case. PW 1 to PW 3 are theeye-witnesses to the incident. The motive was writ-large. He tookus through the evidence on record and ultimately, submitted that nointerference with the impugned order, is warranted.8.Considered the submissions advanced. Perused theevidence on record. 6Cri Appeal No.123.20199.PW 2 – Kisan is uncle of the appellant. Kisan had fourbrothers. The evidence of PW 2 – Kisan indicates that he owned 11acres of land. It was his self-acquired property. PW 1 – Kadubaibeing the only child, on marriage, was staying with his husband(deceased Rajendra) at PW 2 - Kisan's place. Some of the land in gutno.27 was sold by Kisan. He transferred four acres of land in thename of Kadubai and 1 acre land in the name of deceased –Rajendra 4-5 years back before the fateful day.10.True, the appellant was residing at Sawargaon. Thedistance between the village Tadegaon and the village at which theappellant was residing, was of 8 hours' road journey. It may,therefore, prima facie, appear that when did the appellant come tothe village Tadegaon, since the incident took place at 08.00 in themorning. It is also true that no independent witness from the villagehas been examined. It has reason too. The incident took place onthe field of PW 1-Kadubai. The villagers gathered post incident. ThePolice-Patil had reported the incident on phone. True, he was notexamined. The station-diary entry made pursuant to the reportlodged by him, is also not forthcoming. It is also true that the FIRwas lodged six hours after the incident. 7Cri Appeal No.123.201911.Close reading of the evidence on record would,undoubtedly, indicate that the appellant had been to villageTadegaon two days before the incident. The suggestions given toPW 1 in cross-examination by defence lawyer go a long way to inferaccordingly. The following material is brought on record by thedefence during cross-examination of PW 1 – Kadubai:-“…………It is true that on 22.11.2014, accusedhad come to the house of my parents. It is true thathouse of my father is in field and I along with myhusband was residing in village Tadegaon. It is truethat on 22.11.2014 accused halted at night time inthe house of my parents. It is true that on 22.11.2014accused met me. It is true that on 22.11.2014 myself,my husband and my parents met to accused. It is truethat I invited to accused for taking lunch in my houseon 23.11.2014. It is true that on 23.11.2014 at noontime, accused came to my house for lunch. Myhusband and myself offered expected hospitality tothe accused. It is true that my cousin Dinkar LalchandDadare is residing in my village. It is true that aftertaking lunch accused had been to house of my cousinbrother Dinkar Lalchand Dadare. 12.Admittedly, the cousin of the appellant would reside inthe village Tadegaon. On the preceding night, admittedly, theappellant stayed at his cousin's residence at village Tadegaon. Samesuggests that he was very much present in the village on the givenday, to visit the house of PW 1 by 08.00 in the morning. 8Cri Appeal No.123.2019The next suggestion given to PW 1 in the cross-examination proved to be a cliffhanger. She stated as follows:-“10.It is not true that when scufflingamong my husband and accused was going on,myself, accused and deceased only were presentthere. ……………..….” 13.PW 1 – Kadubai is an illiterate rustic lady. Admittedly,she was residing along with her husband and her parents in a hut-cum-room at the agricultural land of her father. The father hadalready transferred four acres land in her name and one acre in thename of the deceased about four years before the date of incident.The appellant is cousin of PW 1. It appears that the appellant did notlike his cousin sister and her husband staying as “घरजावई” at thehouse of his uncle. 14.The evidence of PW 1 – Kadubai indicates that at thegiven time, her husband (deceased) and herself were engaged inharvesting cotton. Her parents were in the room. The appellantcame to their place. He questioned her husband "शेवटचे सांग माझे नावेशेती करून तू तुझ्या गावी जातो किंकवा नाही?”. A quarrel ensued between theappellant and the deceased. A scuffle was also there between thetwo. The appellant fetched an axe from the Sapri (room) and gave 9Cri Appeal No.123.2019its 4-5 blows on head and back from behind. True, PW 1 - Kadubaidid not intervene to save her husband nor did she serve water tohim. The photographs indicate that it was a brutal murder. PW 1being illiterate lady, might have confused how to react. It is in herevidence that she, first, informed her sister-in-law on phone. Hersister-in-law took two hours to come there along with her husband.Thereafter, she accompanied them to lodge report to the policestation. Nothing has been brought in the cross-examination of PW 1so as to lead us to disbelieve her evidence. On the contrary,presence of the appellant at the scene of offence at the materialtime has been brought on record through the suggestion put to PW 1in the cross-examination.15.The father and the mother of PW 1 namely, PW 2 – Kisanand PW 3 - Chababai were in the room. The incident took place inthe front-yard of the room. PW 2 – Kisan testified that on hearingnoise, he came out of the room to see the appellant assaulted hisson-in-law. The distance between the scene of offence and the roomwas of 4-5 ft. The assault was preceded by some quarrel. It was,therefore, but natural for PW 2 – Kisan to come out of the room onhearing the noise. Close reading of his cross-examination does notlead us to infer that he came at the scene of crime post incident. 10Cri Appeal No.123.201916.PW 3 – Chababai, wife of PW 2, was 65 years of age. Shetoo testified to have seen the appellant assaulting her son-in-law.Her cross-examination indicates that she was not keeping well. Shewas unable to walk. Her evidence indicates that on having seen theincident, she became numb. There is nothing to indicate that shewas altogether unable even to move a step forward. It is reiteratedthat the distance between the scene of offence and the room ofPW 2 and PW 3, was of 4-5 ft. We have no reason to disbelieve herclaim that she came out of the room and saw the appellantassaulting her son-in-law.17.PW 1 to PW 3 are the eye-witnesses to the incident.There is nothing to indicate them to have an axe-to-grind against theappellant, sparing the real culprit. The appellant had already beento the very village two days before. He stayed preceding overnightat the house of his cousin in the very village. True, the FIR waslodged after 4-5 hours of the incident. The reason therefor is writ-large. The parents-in-law of the deceased were aged-old. PW 1widow of the deceased was alone. It is only on arrival of his sister-in-law and her husband, she had been to the police station to lodge thereport. Since the Police-Patil of the village had telephonicallyreported, the police arrived at the scene of offence. The scene of 11Cri Appeal No.123.2019offence panchnama (Exh.18) was drawn by PW 12 – Dhadave. PW 8– Sachin Patil recorded the FIR lodged by PW 1. The Doctor PW 10 –Dr.Anil Gaikwad conducted post mortem examination. He noticedfollowing three injuries on the person of the deceased:-(1)Incised wound over left occipital region verticallyoblique, size of injury was 5 cm x 3 cm x 3 cm.(2)Incised wound over occipital region of the scalp, sizeof injury was 7 x 3 x 5 cm. Horizontally oblique in directioninvolving fracture of occipital bone. Evidence of destroyedbrain matter was noticed and evidence of intracranialhemorrhage was noticed.(3)Incised wound over posterior part of occipital regionin mid portion in horizontal direction. Size of injury was 5 x3 x 5 cm. margins were sharp and averted involving thefracture of occipital bone with destroyed brain matter andintracranial hemorrhage. 18.The post mortem report (Exh.44) indicates that thedeceased died of “hemorrhagic shock due to intra and extra cranialhemorrhage which leads due to homicidal multiple grievous incisedinjury on occipital region of scalp”.19.In the facts and circumstances of the case, we do notfind that non-examination of any of the villagers or failure of theInvestigating Officer to obtain the finger-prints on the axe-handle isfatal to the prosecution. It is reiterated that PW 1 to PW 3 are eye-witnesses to the incident. They testified in one voice to have seen 12Cri Appeal No.123.2019the appellant assaulted the deceased by axe. The deceased sufferedaforesaid three injuries. Nothing has been submitted to bring thecase of the appellant under any exception to Section 300 of IndianPenal Code.20.On appreciation of the evidence on record, we find noreason to interfere with the order impugned in this appeal. Theappeal, thus, fails. The same, therefore, stands dismissed.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP