High Court
Facts
Criminal Appeal No.262/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.262 OF 20191)Shivaji s/o Bhojwant Shinde,Age 48 years, Occu. Agri.,R/o Halda, Tq. Kandhar, District Nanded2)Nagesh s/o Maroti Gadhave,Age 25 years, Occu. Agri.,R/o Gadhavewadi, Tq. Mukhed,District Nanded.… APPELLANTSVERSUSThe State of Maharashtra(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad… RESPONDENT.......Mr. N.S. Ghanekar, Advocate for appellants Mr. S.D. Ghayal, Addl. P.P. for respondent ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 24th January, 2024Date of pronouncing judgment : 30th January, 2024JUDGMENT (PER R.G. AVACHAT, J.)The challenge in this appeal is to an order of convictionand consequential sentence, dated 26/2/2019, passed by learnedSessions Judge, Nanded in Sessions Case, No.45/2015. Videorder impugned herein, the appellants have been convicted for Criminal Appeal No.262/2019:: 2 ::offences punishable under Sections 302 and 307 r/w Section 34 ofthe Indian Penal Code and sentenced to suffer imprisonment for lifeand rigorous imprisonment for ten years respectively and fine withdefault stipulations. The substantive sentences have been directedto run concurrently. The appellants are, therefore, in appeal. FACTS :-2. Appellant No.2 (A/2) is a nephew (sister’s son) ofappellant No.1. P.W.3 Nandabai was the mother of Santoshi(deceased). Santoshi had married appellant No.1 (A/1) a yearbefore the fateful day i.e. 9/12/2014. The couple was blessed witha baby girl. A/1 was previously married. There is nothing to suggestas to whether his first marriage was subsisting or dissolved with adecree of divorce.3.Since A/1 was not treating Santoshi well, she hadreturned to her mother’s house and was residing with her.Madhukar Deshmukh (P.W.5), brother of P.W.3 Nandabai and twoothers had been to her house (P.W.3). They requested her toensure Santoshi join A/1 to resume cohabitation. P.W.3 Nandabai,therefore, asked them to call A/1 to her residence. He (A/1),therefore, came to her residence by 4.00 p.m. on 9th December. Ameeting was held over the issue of resumption of cohabitation bySantoshi. After the meeting was over, both Madhukar (P.W.5) and Criminal Appeal No.262/2019:: 3 ::his two friends went out of the house for smoking cigarette. A/1requested P.W.3 Nandabai to allow him to meet Santoshi in abedroom. Both Santoshi and A/1 entered the bedroom. P.W.3Nandabai heard screams of Santoshi. She (P.W.3), therefore,entered the bedroom to see A/1 to have been assaulting Santoshiwith a sharp weapon. He had cut Santoshi’s neck. A/1 assaultedP.W.3 Nandabai with the very weapon when she intervened torescue her daughter. P.W.3 Nandabai fell down. Thereafter A/2entered the bedroom and threw chilly powder on the person ofP.W.3 Nandabai. She raised hue and cry. Both the appellants andone unknown boy thereafter ran away. Both P.W.3 Nandabai andher daughter Santoshi were rushed to Government Hospital. P.W.3Nandabai lodged F.I.R. (Exh.46). Santoshi succumbed to theinjuries. Crime vide C.R. No.174/2014 came to be registered. 4.P.W.15 Rajaram did the investigation of the crime.Inquest panchanama (Exh.43), scene of offence panchanama(Exh.44), panchanama relating to seizure of clothes on the personof the deceased (Exh.41) were drawn. Autopsy was conducted onthe dead body of Santoshi. Statements of witnesses came to berecorded. Upon completion of the investigation, both the appellantswere proceeded against by filing a charge sheet in the Court of 2ndJudicial Magistrate, First Class, Nanded. The learned Magistratecommitted the case to the Court of Sessions, Nanded.
Legal Reasoning
Criminal Appeal No.262/2019:: 11 ::Nandabai is silent to suggest that while a discussion was held overthe issue of resumption of cohabitation by Santoshi, A/2 waspresent. A/2 entered the bedroom only after both the deceased andP.W.3 Nandabai had already been assaulted. As per the evidenceof P.W.3 Nandabai, thereafter A/2 threw chilly powder on herperson. It is not her case that, she suffered any injury thereby.There is no evidence to suggest that the chilly powder thrown by A/2 really fell on her person since the C.A. report (Exh.69-A) in thatregard indicates that no particles of chilly powder were found on theclothes of P.W.3 Nandabai. In our view, the act of A/2 throwingchilly powder towards P.W.3 Nandabai but not falling on her personand she not suffering any injury thereby, would at the most be anoffence of attempt to voluntarily cause hurt, punishable underSection 324 r/w 511 of the Indian Penal Code.20.We have perused the charge. A/2 has not beenspecifically charged with his overt-act of throwing chilly powder. Wehave, therefore, no option but to acquit him. In the result, theappeal partly succeeds in terms of the following order : O R D E R(i)The Criminal Appeal is partly allowed.(ii)Criminal Appeal of appellant No.1 Shivaji s/o BhojwantShinde is dismissed.
Arguments
Criminal Appeal No.262/2019:: 4 ::5.The learned Sessions Judge (Trial Court) framed thecharge (Exh.10). The appellants pleaded not guilty. Their defencewas of false implication. The prosecution examined 16 witnessesand produced in evidence certain documents to bring home thecharge. On appreciation of the evidence in the case, the learnedSessions Judge convicted and consequently sentenced theappellants as stated above. 6.Heard. Learned counsel for the appellants wouldsubmit that, the material eye witnesses did not stand by theprosecution. P.W.3 Nandabai, one of the victims was an interestedwitness. There is nothing to indicate both the appellants to havehad come together to the house of P.W.3 Nandabai. There is alsonothing to indicate A/2 had played any role while A/1 mountedassault on both P.W.3 Nandabai and deceased Santoshi. What hasbeen alleged against A/2 is that he threw chilly powder. Althoughparticles of chilly powder were found on the bed sheet, the C.A./report as regards clothes on the person of P.W.3 Nandabaiindicates no such particles were found thereon. It is not the case ofthe prosecution that as a result of alleged spray of chilly powderP.W.3 Nandabai suffered any injury. Learned counsel, therefore,urged for allowing the appeal. Criminal Appeal No.262/2019:: 5 ::7.The learned A.P.P. would, on the other hand, submitthat, it is a brutal murder and bid on the life of P.W.3 Nandabai. A/2had participated in the assault. In view of Section 34 of the IndianPenal Code, A/2 would also be liable to suffer conviction for theoffences for which A/1 has been convicted. Learned A.P.P. took usthrough the evidence on record to ultimately submit that nointerference is warranted with the impugned judgment and order.He, therefore, urged for dismissal of the appeal.8.Considered the submissions advanced. Let usappreciate the evidence. P.W.3 Nandabai, mother of the deceasedSantoshi testified that, A/1 had married Santoshi a year before theincident. The couple was blessed with a child. Since A/1 used toill-treat Santoshi, she (Santoshi) had returned to her (P.W.3Nandabai) residence about two months before 9/12/2014. It is further in her evidence that, it was 9/12/2014 herson Sachin and deceased Santoshi were home along with her.One Dipak (P.W.7) and Manisha (P.W.12) were also there. Herbrother Madhukar (P.W.5) and his two friends Madhukar Wadje andVishwambhar Wadje came to her residence to request her to sendSantoshi back to her matrimonial home. She, therefore, askedthem to call A/1 to her home. A/1 accordingly came. It was about4.00 p.m. A discussion over the issue of resumption of cohabitation Criminal Appeal No.262/2019:: 6 ::was held in the drawing room. A/1 assured to take Santoshi backto his house. Thereafter, both Madhukar (P.W.5) and his twofriends Madhukar Wadje and Vishwambhar Wadje went out of thehouse for smoking. A/1 asked P.W.3 Nandabai to allow him to meetSantoshi in the bedroom. Both A/1 and Santoshi entered thebedroom. In a short while, P.W.3 Nandabai heard cries of Santoshi.She, therefore, entered the bedroom to see A/1 assaulting Santoshiwith a sharp weapon. Since she intervened to rescue her daughter,A/1 assaulted her as well with the very weapon. As a result, she felldown. A/2 then came inside the bedroom and threw chilly powderon her person. P.W.3 Nandabai raised cries. Thereupon, both theappellants and one unknown boy ran away. Both Santoshi andP.W.3 Nandabai were rushed to the hospital. Santoshi succumbedto the injuries. P.W.3 Nandabai lodged the F.I.R. (Exh.46).9.P.W.3 Nandabai was subjected to a searching cross-examination. Suggestions in the nature of disputing involvement ofthe appellants in the crime in question were put to P.W.3 Nandabaiin her cross-examination. She did not give in to any of thequestions. It has, however, come on record during her cross-examination that A/1 was previously married. Jayshree was his firstwife. The couple had two children. There is, however, no evidenceto suggest whether the marriage of A/1 with Jayshree wassubsisting or dissolved with a decree of divorce. It has also been Criminal Appeal No.262/2019:: 7 ::brought on record that, P.W.3 Nandabai’s husband was working asa Porter. One Shankar Mehtre (P.W.2) was engaged by her as aDriver for her car. It was suggested to her that she had illicitrelationship with him. 10.P.W.11 Dr. Maroti Lathkar examined P.W.3 Nandabai.He noticed following injuries on her persons. (1)Incised wound size 3.5 x 1.5 x 0.5 cm. on left ear pinna alongwith prelobular region, grievous in nature.(2)Incised wound size 8 x 3 x 5 on right upper chest region,simple in nature.M.L.C. of P.W.3 Nandabai is at Exh.74.11.P.W.10 Dr. Maroti Dake conducted autopsy on themortal remains of Santoshi. He found 22 chop and incised injurieson her person. He also noticed corresponding internal injuries. Inhis opinion, Santoshi died of haemorrhagic shock due to chopinjuries to neck (Post mortem report Exh.69).12.P.W.3 Nandabai is an eye witness. She was a victim ofassault as well. Her evidence, therefore, carries much importance.The scene of offence panchanama was drawn within hours of the Criminal Appeal No.262/2019:: 8 ::registration of the crime. The F.I.R. was lodged immediately. Thescene of offence panchanama (Exh.44) has been proved by theevidence of P.W.2 Shankar, panch witness and P.W.14 Satish,investigating officer. The scene of offence is the bedroom in theresidential premises of P.W.3 Nandabai. A dead body of Santoshiwas noticed lying in a pool of blood. The bed sheet and otherarticles were seized from the crime scene. The scene of offencepanchanama indicates the sachet containing chilly powder wasseized from the scene of offence. The C.A. report of the bed sheet(Exh.69-A) indicates particles of chilly powder were found thereon.Blood plots were also collected. Clothes on the person of P.W.3Nandabai were also seized. 13.P.W.1 Suresh was witness to the seizure of clothes ofP.W.3 Nandabai, under panchanama (Exh.41).14.Although many more witness were examined by theprosecution, most of them did not stand by. Evidence of someothers is not much relevant. A passing reference to the evidence ofthose witnesses is therefore made. P.W.4 Chandrakant is a PoliceConstable who snapped photographs of the dead body. P.W.5Madhukar, real brother of P.W.3 Nandabai (victim) did not supportthe prosecution. According to him, the incident took place twohours after he left residence of P.W.3 Nandabai along with his Criminal Appeal No.262/2019:: 9 ::friends. P.W.6 Dr. Vitthal was examined to show that A/1 wasmedically screened by him to find a superficial injury to his leftthumb. Evidence of this witness has, however, not been relied onbefore us. P.W.7 Dipak, who was allegedly present and witnessedthe incident, did not support the prosecution. Same is the caseabout the evidence of P.W.12 Manisha, a maid engaged by P.W.3Nandabai. P.W.8 Munir and P.W.9 Madhukar Gadamwar, witnessesto a disclosure statement made by A/1, pursuant to which the knifecame to be recovered, did not support the prosecution.15.Evidence of P.W.14 Satish, real brother of deceasedSantoshi, indicates that he returned home after his school was over.According to him, the incident had already occurred. He learntabout the incident from P.W.12 Manisha.16.Although independent witnesses and even panchas didnot stand by the prosecution, the case is based on eye witnessaccount of a victim (P.W.3 Nandabai). A crime scene panchanamareinforces her case. There is nothing for us to disbelieve thetestimony of P.W.3 Nandabai. Based on her evidence, theprosecution did prove A/1 to have committed murder of Santoshiand even made a bid on the life of P.W.3 Nandabai. The trial Courthas rightly convicted him and consequently sentenced withappropriate quantum of sentence. We find no reason to interfere Criminal Appeal No.262/2019:: 10 ::therewith.17.The question is, whether, conviction and consequentialsentence of A/2 in the facts and circumstances, calls forinterference. Neither the F.I.R. nor the oral evidence of P.W.3Nandabai indicate A/2 had accompanied A/1 to her residence. Theassault was mounted by appellant No.1 alone on the deceasedSantoshi in the bedroom. When P.W.3 Nandabai entered thebedroom, the A/1 turned to her and gave two blows with a sharpweapon. As such, there is no evidence to indicate A/2 to haveparticipated to mount an attack on both the victims along with A/1.18.Section 34 of the Indian Penal Code reads thus : “34. Acts done by several persons in furtheranceof common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each ofsuch persons is liable for that act in the same manner as if it were done by him alone.”19.As already stated above, there is no evidence tosuggest both the appellants to have had come together. There isalso nothing to suggest that there was prior concert of mind orprearranged plan. There is nothing to indicate A/2 knew A/1 tohave been armed with a knife. Even the evidence of P.W.3
Decision
Criminal Appeal No.262/2019:: 12 ::(iii)Criminal Appeal of appellant No.2 Nagesh s/o MarotiGadhave is allowed. Conviction and consequential sentenceof the appellant No.2 vide judgment and order dated26/2/2019, passed by learned Sessions Judge, Nanded inSessions Case, No.45/2015 is hereby set aside. Theappellant No.2 Nagesh s/o Maroti Gadhave is acquitted of theoffences punishable under Sections 302 and 307 read withSection 34 of the Indian Penal Code. Fine amount, if paid, berefunded to appellant No.2.(iv)The Criminal Appeal stands disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-