Mr. Sudarshan J. Salunke, Advocate for the v. S. Choudhary, APP for

Legal Reasoning

CriAppeal-229-2019-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 229 OF 2019Ranjeet s/o Haribhau JadhavAge: 31 years, Occu: Labour,R/o Shingthala, Tq. Sailu,Dist. Parbhani.… Appellant[Accused No.1]VersusThe State of Maharashtra… Respondent…..Mr. Sudarshan J. Salunke, Advocate for the Appellant.Mrs. V. S. Choudhary, APP for Respondent-State...... CORAM :SMT. VIBHA KANKANWADI ANDABHAY S. WAGHWASE, JJ. DATED :13.12.2023 JUDGMENT [ABHAY S. WAGHWASE, J.] : 1.Instant appeal arises out of the judgment and order passed bySessions Judge, Parbhani dated 22.01.2019 in Sessions Case No. 121of 2016 convicting appellant-accused no.1 for the offence punishableunder Section 302 r/w 34 of the Indian Penal Code [IPC] and Section27 r/w 5 of the Arms Act.2.PW6 Jaya set law into motion by lodging report at CharthanaPolice Station on 03.06.2016 alleging that at around 12.00 noon on CriAppeal-229-2019-2- on that day, appellant Ranjeet approached her and her husband whilethey were in the house and informed about some bad mouthingregarding her in the village. Deceased allegedly questioned appellantRanjeet for defaming. According to her, around 3.30 p.m., while she,her husband and her mother-in-law’s sister i.e. PW7 Nilabai were inthe house, appellant came armed with handle of axe, abuseddeceased Datta and gave blows of handle of axe on head and chestand also stabbed him with knife in the rib part. Remaining accused,namely, Haribhau, Sonabai and Sakhubai used sticks in assaultinghim. Thereafter, they fled. Datta was taken to Civil Hospital, Jinturbut he was declared dead and therefore, she lodged report Exhibit 81which was made the basis of registration of crime which wasinvestigated by PW10 PI Sudarshan Bhange, who arrested theaccused, got spot panchanama and inquest panchanama drawn andgot postmortem conducted. Recovery-discoveries were caused onmemorandum of accused persons. Clothes of both, accused as well asdeceased, were seized for sending them to Forensic ScienceLaboratory and after gathering sufficient evidence, they came to bechargesheeted.3.Learned Sessions Judge, who conducted trial, permittedprosecution to adduce evidence and prosecution examined as many as CriAppeal-229-2019-3- 10 witnesses and relied on documentary evidence which wasappreciated on hearing both sides and learned Sessions Judgereached to a finding that offence under Section 302 of IPC andSection 27 r/w 5 of the Arms Act is made out only against presentappellant. Remaining accused came to be acquitted from all charges. Said judgment is now assailed before us on various groundsspelt out in the appeal memo.4.In brief, it is the submission of learned counsel for the appellantthat implication is on weak and insufficient evidence. There was nomotive to kill. According to him, incident had taken place as a resultof quarrel on petty count. He would submit that evidence of PW6Jaya and PW7 Nilabai fails to inspire confidence in the light ofanswers given by them in cross. According to him, recovery is alsodoubtful. No independent witnesses or panchas are examined. Onlyrelated witnesses are examined. According to him, even learned trialJudge has not brought to the notice of appellant the entireincriminating material against him by posing relevant questionsduring recording statement under Section 313 of the Code of CriminalProcedure [Cr.P.C.] resulting into prejudice being caused. For allabove reasons, he claims that it was not at all a case of homicide and CriAppeal-229-2019-4- in the alternative, it is his submission that, even otherwise case wouldnot travel beyond culpable homicide not amounting to murder anddefinitely it is not a case attracting Section 302 of IPC.5.In answer to above, learned APP would submit that there wasone incident in the afternoon that day and subsequently, accusedparty again visited house of deceased getting armed with deadlyweapons like handle of axe, knife and sticks. Eye witnesses PW6 Jayaand PW7 Nilabai have narrated the occurrence and their evidence hasnot been rendered doubtful in spite of they being subjected toextensive cross. According to learned APP, when present appellantwent armed with deadly weapons, his motive and intention is explicit.He has caused injuries on vital parts. Medical expert confirms ocularaccount and therefore, it is her submission that, no fault can be foundin the appreciation done by learned Sessions Judge and consequentlyshe prays to dismiss the appeal for want of merits.6.In the light of above submissions, we have re-appreciated, re-examined and re-analyzed the entire evidence. At the threshold, theredoes not seem to be dispute that death is homicidal. Evidence ofautopsy doctor, who conducted postmortem has also remained intactas regards the cause of death. Bare look at the nature, size and site of CriAppeal-229-2019-5- injury, definitely death is shown to be only and only homicidal andnot otherwise.7.Here, though as many as 10 witnesses are examined, whichinclude eye witnesses, panchas and police, we wish to deal with onlythe relevant evidence i.e. evidence which unfolds the occurrence.8.PW6 Jaya i.e. wife of deceased, who was very much presentand was in the very company of deceased, is examined at Exhibit 80and it is she who has lodged the FIR. Her evidence shows that on03.06.2016 around 12.00 noon, when she herself, her husband,daughter and sister of her mother-in-law (PW7 Nilabai) were sittingin front of their house, at that time appellant allegedly approachedand after initial routine questioning regarding when they arrived, heallegedly told this witness that there were some bad talk regardingher in the village and during such interaction, she claims that, herhusband questioned appellant for defaming. Her further evidenceshows that around 3.30 p.m. same day, appellant Ranjeet revisitedtheir house getting armed with handle of axe and questioneddeceased for his utterance in the afternoon and mounted assault bymeans of handle of axe. Then she stated that he gave blows of handleof axe on head and chest of her husband. While they were proceeding CriAppeal-229-2019-6- towards police station and when they had reached house of oneMathurabai Gore, at that time again appellant appeared there, thistime getting armed with knife. Haribhau, Sonabai and Sakhubai weresaid to be holding sticks. She narrated that appellant gave first blowof knife on the left hand below the portion of wrist of her husband,whereas remaining accused gave stick blows on ribs, head, chest ofher husband. She stated that second blow was inflicted by presentappellant on the left ribs of her husband as a result of which, hebecame unconscious and blood started oozing from his ears, mouthand nose and thereafter all four assailants ran away. PW7 Nilabaigave call to police and her husband was shifted to hospital but onexamination declared dead and therefore she lodged report. In hertestimony, she has described the articles knife and sticks andidentified it in court. She also gave description of clothes on theperson of her deceased husband and the handle of axe (article 15).All accused, including present appellant were also identified by her inthe court.During cross, initially questions are put regarding her father’snative, whether her children accompanied her, regarding marriage ofher cousin sister, duration of stay at Rampuri, ages of her children,ailment suffered by her father-in-law and questions are also put CriAppeal-229-2019-7- regarding she eloping from her matrimonial house with a person andthat quarrel resulted between her and her husband and all suchsuggestions are denied by her. She is then questioned regarding herarrival from village Rampuri, distance between her village and villageMantha where her mother-in-law had been to meet her sister etc.Para 15 and 16 pertain to questions regarding the occurrence but oncarefully going through these two paragraphs, it is clear from themanner of questions and suggestions put therein to this witness thatvery occurrence, i.e. one that took place at 12.00 noon and other thattook place around 3.30 p.m., are not disputed at all. Rather,occurrence of assault has been clearly admitted. Even no majoromissions or contradictions are brought in her cross examination.9.Another witness PW7 Nilabai, who is examined at Exhibit 82,has also reiterated the occurrence which took place on 03.06.2016and is apparently a mirror image of what PW6 Jaya deposed. She alsowas present at the time of incident. Even her cross shows that theaspect of occurrence has not been seriously doubted or disputed.10.Apart from above two witnesses, even evidence of PW1Sahebrao goes to show that this acquaintance of deceased andaccused has in his evidence given the same timing of occurrence and CriAppeal-229-2019-8- according to him, while he was sitting in the house of one Tukaram,he heard noise and so when he went there, he claims to have seendeceased lying there with bleeding injury on left side ribs, whereaspresent appellant was holding knife. Therefore, apart from evidence of PW6 Jaya and PW7 Nilabai,who are relatives of deceased and are natural witnesses, there istestimony from independent corner also. Ocular account is apparentlyfinding support from medical witness PW4 Dr. Shankar Raut. 11.Pancha to the recovery of articles is also examined as PW9Sajjan Nikalje but he did not support except stating that he did notread the contents of the document which he caused signature on, i.e.Exhibit 96. Further also, while under cross at the hands of learnedAPP, he admitted that pancha, accused and police proceeded in aGovernment vehicle and accused took them to village Singthala,accused got down from the vehicle, proceeded towards a wall andthey all followed him and he produced knife and handle of axe whichwas seized vide panchanama Exhibit 97.12.The Investigating Officer PW10 PI Sudarshan Bhange has alsoconfirmed said seizure. Clothes on the person of both, accused and CriAppeal-229-2019-9- deceased, are said to be seized for analysis. C.A. reports at Exhibits 70to 73 show that blood group of deceased is “O” and that of accused is“A” and blood stains are found on the clothes of accused. Therefore,here, apart from reliable ocular account, there is scientific evidenceconfirming involvement of appellant. 13.As regards the objection of learned counsel for the appellantthat only interested witnesses are examined and that no independentwitness is examined, same is apparently false because PW1 Sahebraohas been examined by prosecution who has supported its story. Evenotherwise, as held by the Hon’ble Apex Court in State v. Saravananand another ; 2008 SCC OnLine 1529, mere relation of witnesses withdeceased itself is no ground to doubt or discredit their testimony,more particularly when they are natural witnesses. Only precautionwhen primarily witnesses are related is that their testimonies arerequired to be examined with caution and on doing so, we findevidence of wife of deceased i.e. PW6 Jaya as well as PW7 Nilabai tobe worthy of credence. Taking into consideration their testimoniesand the evidence of independent witness, occurrence of assault hasbeen successfully brought on record. Medical expert confirms death tobe homicidal. The sequence of events that took place in the afternoonresulting into only questioning by deceased to accused for defaming CriAppeal-229-2019-10- and later, around 3.30 p.m., appellant along with others returning,that too armed with deadly weapon and further putting it to use onvital part, having cogently proved, there is no manner of doubt thatthere was intention as well as knowledge and therefore he is rightlyheld responsible for the said offence and charges can be said to bethereby firmly established against him.14.As regards the objection of prejudice for not posing questionsabout offence under Section 27 r/w 5 of the Arms Act, also we find noforce in it for the simple reason that firstly, what and how prejudicehas been caused to the appellant is not demonstrated by learnedcounsel for the appellant. Secondly, though there are no specificquestions about offence under Section 27 r/w 5 of the Arms Act, thereis apparently recovery under Section 27 of the Evidence Act at thehands of appellant and question no. 13 posed under Section 313 ofCr.P.C. also suggests that he was made aware about recovery ofweapon as well as its measurement. Taking such material intoconsideration, we find no force in the above ground and resultantly,we discard the same as no prejudice is shown to have been caused.15.We have carefully gone through the judgment passed bylearned trial Judge. In our considered opinion, available evidence has CriAppeal-229-2019-11- been correctly appreciated, required law has been applied and themost logical opinion that could be derived on appreciation ofevidence has been reached at. The view taken is supported by cogentreasons and as such, no fault can be found to hold any non-appreciation or perversity. Consequently, the appeal is herebydismissed.[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]vre