High Court
Facts
APEAL-45-21+2.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 370 OF 2021Raju Motilal RathodAge: 35 years, Occu.: Service,R/o Marsavli Tanda,Tq. Phulambri, Dist. Aurangabad..APPELLANTVERSUSState of Maharashtra..RESPONDENTANDCRIMINAL APPEAL NO. 89 OF 2021Vijay Motilal RathodAge: 39 years, Occu.: Agri.,R/o Marsavli Tanda,Tq. Phulambri, Dist. Aurangabad..APPELLANTVERSUSState of Maharashtra..RESPONDENTANDCRIMINAL APPEAL NO. 45 OF 2021Sanjay Motilal RathodAge: 43 years, Occu.: Service,R/o Marsavli Tanda,Tq. Phulambri, Dist. Aurangabad..APPELLANTVERSUSState of Maharashtra..RESPONDENT....Mr. M.R. Khatwad, Advocate for appellant in APEAL/370/2021Mr. S.J. Salunke, Advocate for appellant in APEAL/89/2021Mr. A.R. Avhad, Advocate for appellant in APEAL/45/2021Mr. S.D. Ghayal, Addl.P.P. for respondent - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.DATE : 02nd JANUARY, 20251 / 15 APEAL-45-21+2.odtORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.These three appeals are taken up together for decision since thechallenge therein is to one and the same judgment of conviction and order ofconsequential sentence dated 27th January, 2021 passed by the AdditionalSessions Judge (11th Court), Aurangabad (‘trial Court’). The material part ofthe order of conviction reads thus :-1)Accused no.1 Raju Motilal Rathod and accused no.2 Vijay MotilalRathod both are convicted under Section 235(2) of Code ofCriminal Procedure for the offence punishable under Section 302read with 34 of Indian Penal Code.2)Accused no.1 Raju Motilal Rathod and accused no.2 Vijay MotilalRathod, both are sentenced to undergo imprisonment for life andthey both shall pay fine of Rs.5,000/- (Rs. Five Thousand only)each. In default of payment of fine, they shall undergo simpleimprisonment for one year, each.3)Accused no.3 Sanjay Motilal Rathod is convicted under Section235(2) of Code of Criminal Procedure for the offence punishableunder Section 323 of Indian Penal Code. He is sentenced tosuffer simple imprisonment for one year and to pay fine ofRs.1,000/- (Rs. One Thousand only). In default of payment offine amount, he shall undergo simple imprisonment for threemonths.4)Accused no.3 Sanjay Motilal Rathod is acquitted under Section235(1) of Code of Criminal Procedure of the offence punishableunder Section 302 read with 34 of Indian Penal Code.5)Accused no.1 Raju Motilal Rathod is acquitted under Section235(1) of Code of Criminal Procedure of the offence punishableunder Section 324 of Indian Penal Code.”The convicts have, therefore, preferred these three appeals.2.The case of the prosecution was that one Sominath Rathod(deceased) was the resident of Marsavli Tanda, Tq. Phulambri. He wouldreside alongwith his wife, PW 1 – Vaishali (informant) and two children. His2 / 15 APEAL-45-21+2.odtparents would reside separately in a house located just in front of his house.Sominath had lent a sum of Rs.20,000/- to appellant – Raju and Rs.15,000/-to appellant – Vijay.3.It was further the case of the prosecution that on 16th November,2016, Sominath was at his house alongwith his wife – Vaishali. Appellants –Raju and Vijay came together to his house and gave him a call. Sominath,therefore, went out of the house. Appellant – Raju assaulted Sominath witha knife, while appellant – Vijay beat Sominath with fist and kick blows. WhenPW 1 – Vaishali intervened, appellant – Raju assaulted her with a knife.Thereafter, appellant – Sanjay came there. He too manhandled Vaishali.Parents-in-law of Vaishali intervened. The appellants then went away.4.Sominath was rushed to Ghati Hospital, Aurangabad. Vaishali toowas treated thereat. Sominath was declared dead on admission. Vaishalithen lodged the First Information Report (‘F.I.R.’) (Exh.3) with PhulambriPolice Station. Crime vide C.R. No. 155 of 2016 was registered for theoffences punishable under Sections 302 and 324 read with Section 34 of theI.P.C.5.During investigation, the appellants were arrested. Crime scenepanchanama (Exh.28) was drawn. Inquest and autopsy were conducted onthe mortal remains of Sominath. PW 1 – Vaishali too was medicallyscreened. Appellant – Raju made a disclosure statement pursuant to which3 / 15
Legal Reasoning
APEAL-45-21+2.odtone has been suppressed from the Court. She admitted that the names ofappellants – Vijay and Sanjay were reported in the second report. Theevidence of Investigating Officer reinforces the same, since according to himduring MLC enquiry only role of appellant – Raju had been surfaced. Assuch, PW 1 – Vaishali is such a witness, who goes to an extent to implicateinnocent persons in the offence of murder. As per the defence version, aquarrel had ensued between appellant – Raju and deceased – Sominathover the reasons stated hereinabove. Had the appellant – Raju reallyintended to do away with Sominath, he would have rained on the person ofthe deceased, knife blows. It is a case of single knife blow, given as a resultof quarrel and the conduct of the deceased causing grave and suddenprovocation of appellant – Raju. Since the Medical Officer did not opine thatthe injury was sufficient in the ordinary course of nature to cause death, inour view it would be a case of attributing appellant – Raju with the knowledgeof consequence of the assault, since the assault was made with a knife andon the vital part of the body. In our view, therefore, the case would fall undersecond part of Section 304 of the I.P.C.31.For all the aforesaid reasons, the appeals stand disposed of interms of following order :-ORDER(I)Criminal Appeal No. 370 of 2021 is partly allowed.(II)Impugned judgment and order dated 27th January, 2021,passed by learned Additional Sessions Judge,13 / 15 APEAL-45-21+2.odtAurangabad, in Sessions Case No. 112 of 2017,convicting and sentencing the appellant – Raju MotilalRathod for the offence punishable under Section 302 ofIndian Penal Code and imposing a fine with defaultsentence, is hereby set aside. He stands acquittedthereof.Instead, appellant – Raju Motilal Rathod is convicted forthe offence punishable under Section 304 Part-II of theIndian Penal Code and is sentenced to suffer rigorousimprisonment for a period of eight (8) years and to pay afine of Rs.1,000/- (Rupees One Thousand). In default ofpayment of the fine, he shall suffer rigorous imprisonmentfor two (2) months. If the fine amount has already beenpaid, the same be adjusted.(III)Criminal Appeal No. 89 of 2021 is allowed.(IV)Impugned judgment and order dated 27th January, 2021,passed by learned Additional Sessions Judge,Aurangabad, in Sessions Case No. 112 of 2017,convicting and sentencing appellant – Vijay MotilalRathod for the offence punishable under Section 302 ofIndian Penal Code and imposing a fine with defaultsentence, is hereby set aside. He stands acquittedthereof. If the fine amount has already been paid, thesame be adjusted.(V)Criminal Appeal No. 45 of 2021 is allowed.(VI)Impugned judgment and order dated 27th January, 2021,passed by learned Additional Sessions Judge,Aurangabad, in Sessions Case No. 112 of 2017,14 / 15 APEAL-45-21+2.odtconvicting and sentencing appellant – Sanjay MotilalRathod for the offence punishable under Section 323 ofIndian Penal Code and imposing a fine with defaultsentence, is hereby set aside. He stands acquittedthereof. If the fine amount has already been paid, thesame be adjusted.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD15 / 15
Arguments
APEAL-45-21+2.odta knife came to be seized. Clothes on the person of the deceased and allother seized articles were sent to R.F.S.L., Aurangabad. Statements of thepersons acquainted with the facts and circumstances of the case wererecorded. Upon completion of investigation, the charge-sheet was filedagainst the appellants.6.The trial Court framed the charge (Exh.15). The appellantspleaded not guilty. Their defence was of false implication.7.To bring home the charge, prosecution examined nine witnessesand produced in evidence certain documents. The appellants too examinedone witness in their defence. On appreciation of the evidence in the case,the trial Court convicted the appellants as stated above.8.Learned counsel for the appellant – Raju would submit thatevidence of the witnesses examined by the prosecution was inconsistent witheach other. The eye witnesses were none other than the parents and widowof the deceased. The independent witness did not stand by the prosecution.The prosecution has suppressed the genesis of the incident. According tohim, the crime scene panchanama (Exh.28) would indicate that situs of thecrime was different than one told by father of the deceased. According tohim, the incident took place in a spur of moment. It was preceded by aquarrel between the deceased and appellant – Raju. A single knife blowproved fatal. The Medical Officer did not opine the injury was sufficient in the4 / 15 APEAL-45-21+2.odtordinary course of nature to cause death. Learned counsel, therefore, urgedfor passing appropriate order.9.Learned counsel for the other appellants would submit that theyhave simply been roped in since they are real brothers of appellant – Raju.Original F.I.R. has been suppressed. The informant in his cross-examinationadmitted that she was accompanied by the relatives to the police station. Shefurther admitted to have given two reports of the incident. She furtheradmitted that the names of these appellants were given in her second report.That suggests they have been falsely implicated. Learned counsel,therefore, urged for allowing the appeals.10.Learned Addl.P.P. would, on the other hand, submit that evidenceof PW 1 – Vaishali is consistent with her F.I.R. The F.I.R. reinforces /corroborates her oral evidence before the Court. The F.I.R. was lodgedwithin 5-6 hours of the incident. She too was injured in the incident. Ourattention was drawn to the injury certificate of Vaishali (Exh.75). Accordingto him, evidence of an injured witness carries higher weight. He wouldfurther submit that a single knife blow when causes the death of a youngman itself suggests what kind of force must have been used while makingthe assault. The stab was given on the vital part of the body with a sharpweapon. The intention to kill was writ large. Appellant – Vijay hadaccompanied appellant – Raju. He too assaulted the deceased. He comingtogether with appellant – Raju indicates that both of them had common5 / 15 APEAL-45-21+2.odtintention to do away with Sominath. Learned Addl.P.P., therefore, ultimatelyurged for dismissal of the appeals.11.Considered the submissions advanced. Perused the judgmentimpugned herein. Let us re-appreciate the evidence on record.12.Admittedly, Sominath would reside alongwith his wife, PW 1 –Vaishali and two children at Marsavli Tanda, Tq. Phulambri. His parentswould reside separately in a house situated just in front of his house. Theappellants are the real brothers. They too were the residents of very tanda.The incident did take place little past 07:00 p.m. on 16th November, 2016.Sominath was rushed to Ghati Hospital, Aurangabad. He was, howeverdeclared dead on admission.13.PW 8 – Dr. Ashok conducted autopsy on the person of thedeceased. He noticed two external injuries. Those have been mentioned incolumn no.17 of the postmortem report (Exh.46). Those were as under :-“1)Stab wound of size 3.5 cm x 1.4 cm x cavity deep (15 cm deepapproximately) vertically placed with lower angle acute and upperangle curved, present over left lateral wall of middle 1/3rd of trunk,situated 15 cm below axilla, 21 cm above left iliac spine, 17 cm belowleft nipple, with blood oozing out through the wound, reddish.On dissection: the track of the wound is directed upwards and mediallyfrom skin-subcutaneous tissue-intercostal muscle between 9th and 10thribs on left side – thoracic cavity – lower lobe of left lung.2)Incised wound of size 2 x 0.3 cm, subcutaneous deep with baseof wound of size 1.5 cm, concave and curved shaped, present over rightzygomatic region and situated 6 cm anterior to right ear and 1 cmlateral to lateral canthus of right eye and tailing present at the upper6 / 15 APEAL-45-21+2.odtend for a length of 0.5 cm; margins clean cut and well defined,reddish.”In his opinion, Sominath died of hemorrhagic shock due to stabinjury to left lung. Still viscera was preserved.14.As such, the medical evidence indicates the deceased sufferedone fatal injury in the nature of stab. The medical officer, however did nottestify as to whether the said injury was sufficient in the ordinary course ofnature to cause death of the deceased.15.PW 1 – Vaishali, in her examination-in-chief, testified consistentwith the averments in the F.I.R. According to her, the deceased had lentRs.20,000/- to appellant – Raju and Rs.15,000/- to appellant – Vijay just 10to 15 days before the fateful day. By little past 07:00 p.m. on 16th November,2016 she was busy in household work. Her husband, Sominath was alsopresent in the house. It is further in her evidence that appellants – Raju andVijay came together. Appellant – Raju called her husband loudly as, “, lksE;kckgsj ;s”. Her husband, therefore, went outside the house. Appellant – Rajuassaulted Sominath with a knife. Appellant – Vijay started assaulting him aswell. He gave fist and kick blows. She, therefore, intervened to rescue herhusband. Appellant – Raju, therefore, assaulted with knife on her left hand.Their brother, appellant – Sanjay also came there and scuffled with her. Herparents-in-law, therefore, intervened. Thereafter the appellants went away.7 / 15 APEAL-45-21+2.odt16.During her cross-examination she claimed ignorance about closefriendship between Sominath and appellant – Raju. She further claimedignorance about monetary transactions of her husband. She even could notstate monthly income of her husband. She went on to state that her husbandhad not maintained any accounts about money to have lent to others.Appellant – Raju had never been to her house nor she has ever visited hishouse. She denied that wife of appellant – Raju was not cohabiting with him.She further denied that Sominath had abused appellant – Raju over his wife.She further denied that a quarrel had ensued between the two.17.She admitted that when Sominath was admitted in Ghati Hospital,Aurangabad, the police had come to her to make enquiry relating to theincident. She did not recollect whether she had named appellant – Raju asthe assailant. Her brother-in-law – Sitaram Chavan was present in thehospital. She went on to state that she reported about the incident to thepolice twice. In the report given on the second occasion, her relatives hadaccompanied her. That time she gave the names of appellants – Vijay andSanjay. She denied to have lodged a false report.18.PW 2 – Mangilal and PW 5 – Tulsabai were the parents ofdeceased – Sominath. Both of them testified that at the relevant time theywere present just outside their house. Their evidence further indicates thatthe appellants beat up Sominath by little past 07:00 p.m. According to them,when PW 1 – Vaishali intervened, she too was assaulted by appellant –Raju.8 / 15 APEAL-45-21+2.odt19.During cross-examination, PW 2 – Mangilal stated that informationof the incident was given to the police only once. He went through hisstatement before giving evidence before the Court. He was told to giveevidence as per the statement. He denied that there was no concern ofappellants – Vijay and Sanjay. PW 5 – Tulsabai, mother of the deceased,testified that appellant – Raju gave 5-6 knife blows to Sominath. Accordingto her, at the time of incident she was at her house. She admitted thatappellant – Raju and Sominath were friends.20.PW 3 – Ravindra was the resident of very tanda. He testified thathe was present in front of the house of deceased – Sominath. It was he, whocarried Sominath to hospital in his Tata Sumo vehicle. During his cross-examination, he testified that appellant – Raju did not have any issue.Deceased – Sominath said appellant – Raju to send his wife to him and hewill make her pregnant. He went on to state that, therefore, quarrel ensuedbetween the two. According to him, one Mangilal Megha Rathod waspresent around while the incident took place.21.Learned A.P.P. in-charge of the case cross-examined this witnesswith the permission of the Court. He was confronted with his policestatement. He denied to have been won over by the appellants.22.PW 4 – Faruq is a witness to the crime scene panchanama(Exh.28). PW 6 – Balu is a witness to the disclosure statement made by9 / 15 APEAL-45-21+2.odtappellant – Raju pursuant to which a knife came to be seized. It is in hisevidence that appellant – Raju made a statement before him that heconcealed the knife and would take them to that place to take it out. Hisstatement was accordingly recorded (Exh.38). Appellant – Raju then tookthem to Pirbawada Fata. Then he took them to a government water tanknear a school. He took out a knife from the bushes nearby the tank. Thesame was seized by the police under panchanama Exhibit 39.23.PW 7 – Chandan is a witness to the panchanama relating toseizure of clothes of the accused. He did not stand by the prosecution.24.PW 10 – Dr. Pratibha testified that she examined PW 1 – Vaishalion 14th December, 2016. She noticed injury on the left arm of Vaishali. Theage of injury was within twenty-four hours. She accordingly issued injurycertificate (Exh.75).25.During her cross-examination, she was confronted with the MLCregister wherein it was recorded that Vaishali suffered blunt trauma (BT).She admitted that the said word was struck down and then she wrote ‘CLW’.According to her, PW 1 – Vaishali did not state her with what kind of weaponshe suffered the injury. She could not state the age and the nature of injury.26.It is true that injury certificate (Exh.75) indicates PW 1 – Vaishalito have suffered CLW to her left forearm with a sharp and hard object. The10 / 15 APEAL-45-21+2.odtinjury was simple in nature. She had given history of assault as on 16thNovember, 2016.27.The injury certificate was issued after about a month of theincident. To be precise, it was issued on 14th December, 2016. It is notknown as to when in the MLC register entry of blunt trauma to have beensuffered by the injured was recorded then why it was changed to CLW. We,therefore, do not propose to give much reliance to the testimony of PW 10 –Dr. Pratibha and PW 1 – Vaishali as well as regards appellant – Rajuallegedly causing injury to Vaishali with a knife.28.PW 9 – Vijay did investigation of the crime. He admitted in hiscross-examination that while he went to Ghati Hospital, he came to knowabout involvement of appellant – Raju alone. The same suggests that theincident in fact took place between appellant – Raju and the deceased.According to him, during enquiry of MLC, names of appellants – Vijay andSanjay were not revealed.29.Aforesaid is the evidence adduced by the prosecution in the case.The same is now to be appreciated. Admittedly, Sominath died of stabinjury. Medical officer, who conducted autopsy, did not testify that the saidinjury was sufficient in the ordinary course of nature to cause death. It is truethat the injury was caused on the vital part of the body. The weapon usedwas a knife. The incident allegedly took place over monetary transactions11 / 15 APEAL-45-21+2.odtbetween the appellants and the deceased. PW 1 – Vaishali, widow of thedeceased, in her cross-examination testified that she was unaware about themonthly income of her husband and even details of his money transactions.She even testified that no record was maintained by the deceased about thehand loans given by him. Then it is surprising as to how could she narrate inthe F.I.R. that the incident took place as her husband lent appellants – Rajuand Vijay Rs.20,000/- and Rs.15,000/- respectively just fifteen days beforethe incident. The prosecution did not adduce evidence to indicate as to whattriggered the incident. The mother of the deceased admitted that deceased –Sominath and appellant – Raju were friends. The said fact was, howeverdenied by PW 1 – Vaishali, widow of the deceased. The same indicates thatPW 1 – Vaishali (informant) was very much economical with truth. Other twowitnesses were none other than parents of the deceased. The so calledindependent witness viz. PW 3 – Ravindra did not stand by the prosecution.The appellants examined a defence witness, who was admittedly residing inthe neighbourhood of the deceased. According to him, a quarrel took placebetween appellant – Raju and the deceased. Appellant – Raju did not haveany issue. Deceased – Sominath, therefore, asked him to send his wife tohim and he will make her pregnant. The settled legal preposition is that thedefence witness is entitled to have weight equal to that of prosecutionwitness, unless his credit was impeached.30.Admittedly, the informant had reported about the incident twice.The F.I.R. (Exh.21) on record is the second version of the incident. The first12 / 15